<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
<TABLE>
<S> <C>
IDACORP, INC. IDACORP TRUST I
(Exact name of registrant as IDACORP TRUST II
specified in charter) IDACORP TRUST III
IDAHO (Exact name of each registrant as
(State or other jurisdiction specified in its Trust Agreement)
of incorporation or organization) DELAWARE
82-0505802 (State or other jurisdiction of
(I.R.S. Employer Identification No.) incorporation or organization of each registrant)
EACH TO BE APPLIED FOR
1221 WEST IDAHO STREET (I.R.S. Employer Identification No.)
BOISE, IDAHO 83702-5627 C/O IDACORP, INC.
208-388-2200 1221 WEST IDAHO STREET
(Address, including zip code, and telephone number, including BOISE, IDAHO 83702-5627
area code, of registrant's principal executive offices) 208-388-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive
offices)
</TABLE>
------------------------------
<TABLE>
<S> <C>
JOSEPH W. MARSHALL J. LAMONT KEEN
CHAIRMAN OF THE BOARD AND VICE PRESIDENT, CHIEF FINANCIAL OFFICER
CHIEF EXECUTIVE OFFICER AND TREASURER
IDACORP, INC. IDACORP, INC.
1221 WEST IDAHO STREET 1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627 BOISE, IDAHO 83702-5627
208-388-2200 208-388-2200
ROBERT W. STAHMAN, ESQ. ELIZABETH W. POWERS, ESQ.
VICE PRESIDENT, GENERAL COUNSEL LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
AND SECRETARY 125 WEST 55TH STREET
IDACORP, INC. NEW YORK, NEW YORK 10019
1221 WEST IDAHO STREET 212-424-8000
BOISE, IDAHO 83702-5627
208-388-2200
</TABLE>
(Names, addresses, including zip codes, and telephone numbers, including area
codes, of agents for service)
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this registration statement.
----------------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED MAXIMUM
TITLE OF EACH MAXIMUM AGGREGATE AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED (1) REGISTERED(1)(2) PER UNIT(3) PRICE(2)(3) FEE(3)
<S> <C> <C> <C> <C>
Securities of IDACORP:
Debt Securities
Preferred Stock, without par value
Depository Shares
Common Stock, without par value(4)
Preferred Securities of IDACORP Trust I
Preferred Securities of IDACORP Trust II
Preferred Securities of IDACORP Trust III
Guarantees of Preferred Securities of IDACORP Trust I,
Trust II and Trust III by IDACORP(5)
Total..................................................... $300,000,000 100% $300,000,000 $88,500
</TABLE>
(1) Such indeterminate number or amount of Debt Securities, Preferred Stock,
Depository Shares and Common Stock of IDACORP and Preferred Securities of
IDACORP Trust I, IDACORP Trust II and IDACORP Trust III, as may from time to
time be issued at indeterminate prices. Subordinated Debt Securities may be
issued and sold to IDACORP Trust I, IDACORP Trust II and IDACORP Trust III,
in which event such Subordinated Debt Securities may later be distributed to
the holders of Preferred Securities upon a dissolution of IDACORP Trust I,
IDACORP Trust II and IDACORP Trust III and the distribution of the assets
thereof. Securities registered hereunder (the "Securities") may be sold
separately, together or as units with other Securities registered hereunder.
(2) Such amount as shall result in an aggregate initial offering price for all
securities of $300,000,000. In addition, this Registration Statement
includes such presently indeterminate number of Securities as may be
issuable from time to time upon conversion or exchange of the Securities
being registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended
("Securities Act"). Accordingly, the table does not specify by each class
information as to the amount to be registered or the proposed maximum
offering price per unit.
(4) The Common Stock includes associated Preferred Share Purchase Rights (the
"Rights") which are not exercisable prior to the occurrence of certain
events. Such rights initially are attached to and trade with the Common
Stock. No separate consideration will be received for such Rights and any
value will be reflected in the price of any Common Stock offered hereby.
(5) IDACORP is also registering under this registration statement all other
obligations that it may have with respect to Preferred Securities issued by
IDACORP Trust I, IDACORP Trust II and IDACORP Trust III. No separate
consideration will be received for any Guarantee or any other such
obligations.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION DATED SEPTEMBER 30, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION.
<PAGE>
PROSPECTUS
$300,000,000
IDACORP
DEBT SECURITIES, PREFERRED STOCK, DEPOSITORY SHARES
AND COMMON STOCK
------------------
IDACORP TRUST I
IDACORP TRUST II
IDACORP TRUST III
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT
DESCRIBED HEREIN, BY
IDACORP
IDACORP, an Idaho corporation ("IDACORP" or the "Company"), may offer and
sell from time to time, together or separately, (i) its unsecured debt
securities (the "Debt Securities"), which may be senior (the "Senior Debt
Securities") or subordinated in priority of payment (the "Subordinated Debt
Securities"), (ii) shares of its preferred stock, without par value (the
"Preferred Stock"), which may be represented by depository shares as described
herein (the "Depository Shares"), and (iii) shares of its common stock, without
par value, including the Rights (as defined herein) attached thereto (the
"Common Stock"). The Debt Securities, the Preferred Stock and the Common Stock,
together with the Preferred Securities and the related Guarantees (each as
defined below), are collectively referred to herein as the "Securities." The
Securities may be offered in one or more separate classes or series, in amounts,
at prices and on terms to be determined at the time of the offering thereof and
to be set forth in a supplement or supplements to this Prospectus (each, a
"Prospectus Supplement").
IDACORP Trust I, IDACORP Trust II and IDACORP Trust III, each a statutory
business trust created under the laws of the State of Delaware (each, an
"IDACORP Trust," and collectively, the "IDACORP Trusts"), may severally offer
preferred securities (the "Preferred Securities") representing undivided
beneficial ownership interests in the assets of such IDACORP Trust. The Company
will be the owner of the common securities (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities") of each IDACORP
Trust. The payment of periodic cash distributions (the "Distributions") with
respect to the Preferred Securities of each IDACORP Trust and payments on
liquidation and on redemption with respect to such Preferred Securities in each
case out of funds held by such IDACORP Trust will each be guaranteed by the
Company as and to the extent described herein (each, a "Guarantee"). See
"Description of Guarantees." The Company's obligations under each Guarantee are
an unsecured obligation of the Company and will rank subordinate and junior in
right of payment to all Senior Indebtedness and Subordinated Indebtedness (each
as defined herein) of the Company. Except as otherwise provided in the
applicable Prospectus Supplement, (i) concurrently with the issuance by an
IDACORP Trust of its Preferred Securities, such IDACORP Trust will invest the
proceeds thereof and any contributions made in respect of the Common Securities
in a corresponding series of the Company's Subordinated Debt Securities (the
"Corresponding Subordinated Debt Securities") with terms directly corresponding
to the terms of that IDACORP Trust's Preferred Securities, (ii) the
Corresponding Subordinated Debt Securities will be the sole assets of each
IDACORP Trust and (iii) payments under the Corresponding Subordinated Debt
Securities will be the only revenue of each IDACORP Trust. Unless otherwise
specified in an applicable Prospectus Supplement, the Company may redeem the
Corresponding Subordinated Debt Securities (and cause the redemption of Trust
Securities) or may dissolve each IDACORP Trust and, after satisfaction of
creditors of such IDACORP Trusts as provided by applicable law, cause the
Corresponding Subordinated Debt Securities to be distributed to the holders of
Preferred Securities in liquidation of their interests in the applicable IDACORP
Trust. See "Description of Preferred Securities-- Liquidation Distribution Upon
Dissolution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1998.
<PAGE>
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement or
Supplements, together with the terms of the offering of any such Securities, the
initial price thereof and the net proceeds from the sale thereof. The Prospectus
Supplement will also set forth with respect to the particular Securities
offered, certain terms thereof, including, where applicable, (i) in the case of
Debt Securities, the title of the series being offered thereby, aggregate
principal amount of such series, authorized denominations and priority thereof,
the date or dates on which such Debt Securities will mature, the rate or rates
per annum at which such Debt Securities will bear interest, if any, or the
method of determination of such rate or rates, the dates on which such interest,
if any, will be payable, and record dates, if any, for such payment dates, the
deferral of payment of any interest, any redemption or sinking fund provisions,
the place or places for payment of the principal of and any premium and interest
on such Debt Securities and any additional or other rights, preferences,
privileges, limitations and restrictions relating to such Debt Securities, (ii)
in the case of Preferred Stock, the number of shares constituting such series
and the designation thereof; the rate or rates of dividend, if any, or any
formula or other method or other means by which such rate or rates are to be
determined at any time or from time to time, the date or dates on which
dividends may be payable, whether such dividends shall be cumulative,
noncumulative or partially cumulative and, if cumulative or partially
cumulative, the date from which dividends shall accumulate; whether shares may
be redeemed or converted (a) at the option of the Company, the shareholder or
another person or upon the occurrence of a designated event; (b) for cash,
indebtedness, securities or other property; (c) in a designated amount or in an
amount determined in accordance with a designated formula or by reference to
extrinsic data or events; the preference, if any, of shares of such series over
any other class of shares with respect to distributions, including dividends and
distributions upon any voluntary or involuntary dissolution, liquidation or
winding up of the Company; whether the shares shall have any voting powers, in
addition to the voting powers provided by law, and the terms of any such voting
powers; and any other relative rights, preferences and limitations of that
series, (iii) in the case of Common Stock, the aggregate number of shares
offered, the initial offering price and market price and dividend information
and (iv) in the case of Preferred Securities of an IDACORP Trust, the specific
designation, number of securities, liquidation amount per security, any listing
on a securities exchange, distribution rate (or method of calculation thereof),
dates on which distributions shall be payable and dates from which distributions
shall accrue, voting rights, if any, terms for any conversion or exchange into
other securities, any redemption or sinking fund provisions, any other rights,
preferences, privileges, limitations or restrictions relating to the Preferred
Securities and the terms upon which the proceeds of the sale of the Preferred
Securities shall be used to purchase a specific series of Corresponding
Subordinated Debt Securities of the Company. The Prospectus Supplement will also
contain information, where applicable, about certain United States Federal
income tax considerations relating to the Securities described in the Prospectus
Supplement. All or a portion of the Securities may be issued in permanent or
temporary global form (each a "Global Security").
The aggregate initial offering price of all Securities shall not exceed
$300,000,000.
The Securities may be sold through underwriters or dealers or may be sold by
the Company and/or each IDACORP Trust directly or through agents designated from
time to time. The names of any underwriters or agents involved in the sale of
the Securities in respect of which this Prospectus is being delivered and their
compensation will be set forth in the Prospectus Supplement.
2
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, THE IDACORP TRUSTS OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS
AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). The Company is a successor registrant to, and a
holding company owning all of the outstanding common shares of, Idaho Power
Company. Idaho Power Company ("Idaho Power") is also subject to the
informational requirements of the Exchange Act and in accordance therewith files
reports and other information with the Commission. The reports and other
information filed by the Company and Idaho Power can be inspected and copied at
the offices of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549;
500 West Madison Street, Chicago, Illinois 60661; and Seven World Trade Center,
New York, New York 10048. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. In addition, the Commission
maintains a Website that contains reports and other information regarding
registrants that file electronically such as the Company. The address of the
Commission's Website is http://www.sec.gov. The Company's Common Stock is listed
on the New York Stock Exchange and the Pacific Exchange (the "Exchanges"), and
the aforementioned reports and other information concerning the Company may be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005 and the Pacific Exchange, 301 Pine Street, San Francisco,
California 94104.
The Company and the IDACORP Trusts have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act") with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement and the exhibits and the financial statements, notes
and schedules filed as a part thereof or incorporated by reference therein,
which may be inspected at the public reference facilities of the Commission at
the addresses set forth above. Statements made in this Prospectus concerning the
contents of any documents referred to herein are not necessarily complete and in
each instance are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement.
No separate financial statements of the IDACORP Trusts have been included
herein. The Company and the IDACORP Trusts do not consider that such financial
statements would be material to holders of the Preferred Securities because (i)
all of the voting securities of the IDACORP Trusts will be owned, directly or
indirectly, by the Company, a reporting company under the Exchange Act, (ii)
each IDACORP Trust is a newly-formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not propose to
engage in any activity other than holding as trust assets the Corresponding
Subordinated Debt Securities of the Company and issuing the Trust Securities and
(iii) the Company's obligations described herein and in any accompanying
Prospectus Supplement, through the applicable Guarantee (as defined herein), the
applicable Trust Agreement (as defined herein), the
3
<PAGE>
Subordinated Debt Securities, the Subordinated Indenture and any supplemental
indentures thereto, taken together, constitute a full, irrevocable and
unconditional guarantee by the Company of payments due on the Preferred
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the IDACORP Trust's obligations under
the Preferred Securities. See "The IDACORP Trusts," "Description of Preferred
Securities," "Description of the Debt Securities--Subordinated Debt
Securities--Subordination" and "Description of Guarantees."
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by Idaho Power Company and
IDACORP with the Securities and Exchange Commission, are incorporated by
reference herein and shall be deemed to be a part hereof:
Idaho Power Company:
1. Annual Report on Form 10-K for the year ended December 31, 1997.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998
and June 30, 1998.
3. Current Report on Form 8-K, dated October 1, 1998.
IDACORP:
1. Current Reports on Form 8-K, dated September 15, 1998 and October 1,
1998.
2. Description of Common Stock contained in the Proxy Statement and
Prospectus and Registration Statement on Form S-4 (File No.
333-48031).
3. Description of the Preferred Share Purchase Rights contained in the
Registration Statement on Form 8-A, dated September 15, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination of
the offering of the Securities offered hereby shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing such
documents (such documents and the documents enumerated above being hereinafter
referred to as the "Incorporated Documents").
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference in this Prospectus or in any Prospectus Supplement
shall be deemed to be modified or superseded for purposes of this Prospectus or
any Prospectus Supplement to the extent that a statement contained in this
Prospectus or in any Prospectus Supplement or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
Prospectus or in any Prospectus Supplement modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus or any
Prospectus Supplement.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL
REQUEST BY SUCH PERSON, A COPY OF ANY OR ALL OF THE INFORMATION THAT HAS BEEN
INCORPORATED BY REFERENCE HEREIN (NOT INCLUDING EXHIBITS THERETO UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE THEREIN). REQUESTS SHOULD BE
ADDRESSED TO: SHAREOWNER SERVICES, IDACORP, 1221 WEST IDAHO STREET, BOISE, ID
83702-5627 OR MADE BY CALLING TOLL FREE 1-800-635-5406.
------------------------
4
<PAGE>
THE COMPANY
IDACORP is a successor registrant to and a holding company owning all of the
outstanding common shares of Idaho Power Company. IDACORP was formed to effect
the organization into a holding company structure. Pursuant to the terms of the
Agreement and Plan of Exchange dated February 2, 1998, between Idaho Power and
IDACORP, on October 1, 1998 each share of Idaho Power Company Common Stock was
exchanged for one share of IDACORP Common Stock, and Idaho Power became a
subsidiary of IDACORP. As of the date of this Prospectus, IDACORP has no
separate operating history.
Idaho Power is an electric public utility incorporated under the laws of the
state of Idaho in 1989 as successor to a Maine corporation organized in 1915.
Idaho Power is engaged in the generation, purchase, transmission, distribution
and sale of electric energy in an approximate 20,000-square-mile area in
southern Idaho, eastern Oregon and northern Nevada, with an estimated population
of 772,000. Idaho Power holds franchises in approximately 70 cities in Idaho and
10 cities in Oregon and holds certificates from the respective public utility
regulatory authorities to serve all or a portion of 28 counties in Idaho, three
counties in Oregon and one county in Nevada.
Idaho Power operates 17 hydro power plants and shares ownership in three
coal-fired generating plants. Idaho Power relies heavily on hydroelectric power
for its generating needs and is one of the nation's few investor-owned utilities
with a predominantly hydro base. Idaho Power has participated in the development
of thermal generation in Wyoming, Oregon and Nevada using low-sulfur coal from
Wyoming and Utah.
IDACORP also owns all of the outstanding securities of one of the former
non-utility subsidiaries of Idaho Power, Ida-West Energy Co. ("Ida-West").
Ida-West was formed in 1989 as an independent power producer and currently holds
investments in thirteen operating hydroelectric plants with a total generating
capacity of approximately 72 megawatts (MW). A subsidiary of Ida-West operates
and maintains ten of these plants. Ida-West owns a 50% interest in five
hydroelectric projects in Idaho with a total generating capacity of 33.4 MW.
At December 31, 1997, Idaho Power had invested $20 million in Ida-West.
The principal executive offices of the Company are located at 1221 West
Idaho Street, Boise, ID 83702-5627, and its telephone number is 208-388-2200.
IDAHO POWER COMPANY RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
12 MONTHS ENDED
--------------------------------------------
DECEMBER 31,
JUNE 30, -------------------------------
IDAHO POWER COMPANY 1998 1997 1996 1995
- ---------------------------------------------------------------------------- ----------- --------- --------- ---------
<S> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.......................................... 3.23 3.25 3.45 3.36
Supplemental Ratio of Earnings to Fixed Charges(1).......................... 3.14 3.16 3.34 3.26
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividend
Requirements.............................................................. 2.83 2.88 2.85 2.76
Supplemental Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividend Requirements(1).................................................. 2.76 2.82 2.79 2.70
<CAPTION>
IDAHO POWER COMPANY 1994 1993
- ---------------------------------------------------------------------------- --------- ---------
<S> <C> <C>
Ratio of Earnings to Fixed Charges.......................................... 2.98 3.10
Supplemental Ratio of Earnings to Fixed Charges(1).......................... 2.89 3.01
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividend
Requirements.............................................................. 2.49 2.70
Supplemental Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividend Requirements(1).................................................. 2.44 2.64
</TABLE>
- ------------------------
(1) Includes fixed charges related to Idaho Power's guarantees of long-term
bonds of the American Falls Reservoir District and Milner Dam Inc.
5
<PAGE>
THE IDACORP TRUSTS
Each IDACORP Trust is a statutory business trust created under Delaware law
pursuant to (i) a trust agreement executed by the Company, as sponsor of such
IDACORP Trust (the "Sponsor"), and the Issuer Trustees (as defined herein) of
such IDACORP Trust and (ii) a certificate of trust filed with the Delaware
Secretary of State. Each trust agreement will be amended and restated in its
entirety (each, as so amended and restated, a "Trust Agreement") substantially
in the form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each Trust Agreement will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each IDACORP Trust exists for the exclusive purposes of (i) issuing and selling
the Trust Securities representing undivided beneficial interests in the assets
of such IDACORP Trust, (ii) using the proceeds from the sale of such Trust
Securities to acquire a series of Corresponding Subordinated Debt Securities
issued by the Company and (iii) engaging in only those other activities
necessary, convenient or incidental thereto. Accordingly, the Corresponding
Subordinated Debentures will be the sole revenue source of each IDACORP Trust.
Each of the IDACORP Trusts is a separate legal entity, and the assets of one are
not available to satisfy the obligations of any of the others.
All of the Common Securities of each IDACORP Trust will be owned by the
Company. The Common Securities of an IDACORP Trust will rank PARI PASSU, and
payments will be made thereon PRO RATA, with the Preferred Securities of such
IDACORP Trust, except that upon the occurrence and continuance of a Trust Event
of Default (as defined herein) resulting from an Event of Default with respect
to the Corresponding Subordinated Debt Securities, the rights of the Company as
holder of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption or otherwise will be subordinated to the
rights of the holders of the Preferred Securities of such IDACORP Trust. See
"Description of Preferred Securities--Subordination of Common Securities." The
Company will acquire Common Securities in an aggregate liquidation amount equal
to not less than 3% of the total capital of each IDACORP Trust.
Unless otherwise specified in the applicable Prospectus Supplement, each
IDACORP Trust has a term of approximately 50 years but may dissolve earlier as
provided in the applicable Trust Agreement. Each IDACORP Trust's business and
affairs will be conducted by its trustees, each appointed by the Company as
holder of the Common Securities. Unless otherwise specified in the applicable
Prospectus Supplement, the trustees for each IDACORP Trust will be Bankers Trust
Company ("Bankers Trust"), as the Property Trustee (the "Property Trustee"),
Bankers Trust Delaware, as the Delaware Trustee (the "Delaware Trustee"), and
two individual trustees (the "Administrative Trustees") who are employees or
officers of the Company (collectively, the "Issuer Trustees"). Bankers Trust, as
Property Trustee, will act as sole indenture trustee under each Trust Agreement
for purposes of compliance with the Trust Indenture Act. Unless otherwise
specified in the applicable Prospectus Supplement, Bankers Trust will act as
trustee under the Guarantee and the Subordinated Indenture (as defined herein)
until removed or replaced by the holder of the Common Securities of such IDACORP
Trust. See "Description of Guarantees" and "Description of the Debt
Securities--Subordinated Debt Securities." Unless a Trust Event of Default
resulting from an Event of Default with respect to Corresponding Subordinated
Debt Securities for such IDACORP Trust has occurred and is continuing, the
Company, as the holder of the Common Securities of an IDACORP Trust, may remove
any of the Issuer Trustees. If such a Trust Event of Default has occurred, the
Company or the holders of a majority in liquidation amount of the Preferred
Securities will be entitled to appoint, remove or replace the Property Trustee
and/or the Delaware Trustee for such IDACORP Trust. In no event will the holders
of the Preferred Securities have the right to vote to appoint, remove or replace
the Administrative Trustees; such voting rights are vested exclusively in the
Company, as the holder of the Common Securities. The duties and obligations of
each Issuer Trustee are governed by the applicable Trust Agreement. See
"Description of Guarantees" and "Description of the Preferred Securities."
The principal executive office of each IDACORP Trust is c/o IDACORP, 1221
West Idaho Street, Boise, Idaho 83702 and its telephone number is 208-388-2200.
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APPLICATION OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities (other than
Trust Securities) will be added to the general funds of the Company to be
applied to fund investments in, or extensions of credit to, its subsidiaries; to
reduce other outstanding indebtedness; to fund acquisitions by the Company and
its subsidiaries of other companies; or for such other purposes as may be set
forth in the Prospectus Supplement. Pending such application, such net proceeds
may be temporarily invested in or applied to the reduction of short-term debt.
The Company expects from time to time to continue to incur short-term and
long-term debt and to effect other financings, the amounts of which cannot now
be determined. Each IDACORP Trust will use all proceeds received from the sale
of its Trust Securities to purchase the applicable Corresponding Subordinated
Debt Securities.
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
GENERAL
The Debt Securities will constitute senior debt or subordinated debt of the
Company. The Debt Securities will be issued under a senior indenture described
below, for Senior Debt Securities (the "Senior Indenture") and a subordinated
indenture described below, for Subordinated Debt Securities (the "Subordinated
Indenture"), in each case between the Company and a banking institution
organized under the laws of the United States of America or of any State thereof
(each, an "Indenture Trustee"). The Senior Indenture and the Subordinated
Indenture are hereinafter collectively referred to as the "Indentures." Certain
terms and provisions referred to in this Prospectus or an applicable Prospectus
Supplement as being part of the Subordinated Indenture may instead be contained
in the Corresponding Subordinated Debt Security, a form of which will be filed
with the Commission. The following summary of certain provisions of the
Indentures does not purport to be complete and is qualified in its entirety by
reference to the applicable Indenture, which is filed as an exhibit to the
Registration Statement. All article and section references appearing herein are
to articles and sections of the applicable Indenture, and all capitalized terms
have the meanings specified in such Indenture.
The Company is principally a holding company whose primary sources of funds
are cash received from subsidiaries in the form of dividends and other
intercompany transfers of funds. As a holding company, the rights of any
creditors of the Company to participate in the assets of any subsidiary upon the
latter's liquidation or recapitalization will be subject to the prior claims of
the subsidiary's creditors, except to the extent that the Company may itself be
a creditor with recognized claims against the subsidiary. Accordingly, all Debt
Securities will effectively be subordinated to all existing and future
obligations of the Company's subsidiaries. At June 30, 1998, such liabilities of
the Company's subsidiaries aggregated $785 million (including $527 million of
Idaho Power Company first mortgage bonds), representing 100% of the aggregate
indebtedness of the Company and its consolidated subsidiaries.
Neither of the Indentures limits the amount of Debt Securities which may be
issued thereunder, and each Indenture provides that Debt Securities may be
issued thereunder up to the aggregate principal amount authorized from time to
time by the Company. The Indentures do not restrict the amount of debt that may
be incurred by the Company or any subsidiary. The Indentures do not contain any
covenant or other provision that is specifically intended to afford any holder
of Debt Securities special protection in the event of highly leveraged
transactions or any other transactions resulting in a decline in the ratings or
credit quality of the Company. Reference is made to the Prospectus Supplement
which accompanies this Prospectus for the following terms and other information
to the extent applicable with respect to the Debt Securities being offered
thereby: (i) the title of the series being offered thereby, aggregate principal
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amount of such series, authorized denominations and priority of such Debt
Securities; (ii) the date or dates on which such Debt Securities will mature
(the "Stated Maturity"); (iii) the rate or rates per annum at which such Debt
Securities will bear interest, if any, or the method of determination of such
rate or rates; (iv) the dates on which such interest, if any, will be payable
and record dates, if any, for such payment dates; (v) any provisions relating to
the deferral of payment of any interest; (vi) whether such Debt Securities are
to be issued in whole or in part in the form of one or more Global Securities
and, if so, the identity of a depository (the "Depository") for such Global
Security or Securities; (vii) any redemption or sinking fund provisions; (viii)
the place or places of payment of the principal of and any premium and interest
on such Debt Securities (the "Place of Payment"); and (ix) any additional or
other rights, preferences, privileges, limitations and restrictions relating to
such Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities will be issued in fully registered form in denominations of $1000 and
integral multiples thereof (Section3.2). In addition, Debt Securities of a
series may be issuable in the form of one or more Global Securities, which will
be denominated in an amount equal to all or a portion of the aggregate principal
amount of such Debt Securities (Section2.4). See "--Global Debt Securities"
below.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. United States Federal
income tax consequences and special considerations applicable to any such series
will be described in the Prospectus Supplement relating thereto.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, the Depository identified in the Prospectus Supplement relating to such
series. Unless and until it is exchanged in whole or in part for Debt Securities
in individually certificated form, a Global Security may not be transferred
except as a whole to a nominee of the Depository for such Global Security, or by
a nominee of such Depository to such Depository, or to a successor of such
Depository or a nominee of such successor (Section2.4).
So long as the Depository for a Global Debt Security, or its nominee, is the
registered owner of such Global Preferred Security, such Depository or such
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Securities represented by such Global Debt Security for all purposes under
the Indenture governing such Debt Securities. Except as provided below, owners
of beneficial interests in a Global Debt Security will not be entitled to have
any of the individual Debt Securities of the series represented by such Global
Debt Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities of such series in
definitive form and will not be considered the owners or holders thereof under
the Indenture governing such Debt Securities.
Payments of principal of and premium, if any, and interest on individual
Securities represented by a Global Debt Security registered in the name of a
Depository or its nominee will be made to the Depository or its nominee, as the
case may be, as the registered owner of the Global Debt Security representing
such Debt Securities. None of the Company, the Trustee under the Indenture
governing such Debt Securities, any paying agent or registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Debt Security representing such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests (Section8.3).
For a description of the depository arrangements, see "Book-Entry Issuance."
Any additional terms of the depository arrangement with respect to any series of
Debt Securities and the rights of and limitations on owners of beneficial
interests in a Global Security representing all or a portion of a series of Debt
Securities may be described in the Prospectus Supplement relating to such
series.
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MODIFICATION OF INDENTURES
Each Indenture, the rights and obligations of the Company thereunder and the
rights of the holders of one or more series of Debt Securities issued under such
Indenture may be modified with the consent of the holders of not less than a
majority of the aggregate principal amount of Debt Securities at the time
Outstanding of all series affected by the modification (voting as one class).
Without the consent of the holder of each Debt Security affected, however, no
modification shall change the maturity date of any such Debt Security, reduce
the principal amount or the amount of any premium payable thereon, reduce the
rate, extend the time of payment or change the method of calculation of interest
thereon or reduce any amount payable on redemption thereof or reduce the
percentage required for any such modification (Section10.2). No modification of
the Senior Indenture subordinating the indebtedness evidenced by any series of
Senior Debt Securities issued thereunder to any other indebtedness of the
Company is effective against any holder of a Senior Debt Security issued
thereunder without his consent. No modification of the Subordinated Indenture
subordinating the indebtedness evidenced by any series of Subordinated Debt
Securities issued thereunder to any indebtedness of the Company other than
Senior Indebtedness is effective against any holder of Subordinated Debt
Securities without his consent. In addition, in the case of Corresponding
Subordinated Debt Securities, so long as any of the Related Preferred Securities
remain outstanding, no modification of the applicable Subordinated Indenture may
be made that adversely affects the holders of such Preferred Securities in any
material respect, and no defeasance of the Subordinated Indenture may occur with
respect to such Corresponding Debt Securities, and no waiver of any Event of
Default with respect to such Corresponding Subordinated Debt Securities or
waiver of compliance with any covenant under the Subordinated Indenture
applicable to such Corresponding Debt Securities may be effective, without the
prior consent of not less than a majority of the aggregate liquidation amount of
such related Preferred Securities, and where consent under the Subordinated
Indenture is not effective against any holder without his consent, no such
consent shall be given by the Property Trustee without the prior consent of each
holder of related Preferred Securities (SectionSection6.10 and 10.2). See
"--Certain Provisions Relating to Corresponding Subordinated Debt Securities."
EVENTS OF DEFAULT
Each Indenture provides that the following are Events of Default thereunder
with respect to any series of Debt Securities issued thereunder: (i) default in
the payment of the principal of, or premium, if any, on any Debt Security of
such series when and as the same shall be due and payable; (ii) default in
making a sinking fund payment, if any, when and as the same shall be due and
payable by the terms of any Debt Security of such series; (iii) default for 30
days in the payment of any installment of interest on any Debt Security of such
series and the time for payment has not been extended or deferred; (iv) default
for 60 days after written notice (given to the Company by the appropriate
Indenture Trustee or by the holders of at least 25% in aggregate principal
amount of the Debt Securities then Outstanding of all series affected) in the
performance of any other covenant or agreement in respect of the Debt Securities
of such series contained in the relevant Indenture; or (v) certain events of
bankruptcy, insolvency or reorganization, or any related court appointment of a
receiver, liquidator or trustee of the Company or for any substantial part of
its property. (Section6.1) An Event of Default with respect to the Debt
Securities of any series does not necessarily constitute an Event of Default
with respect to any other series of Debt Securities issued under such Indenture.
The relevant Indenture Trustee is required to give notice of any default known
to it with respect to a series of Debt Securities to the holders of Debt
Securities of such series within ninety (90) days of the occurrence thereof
(unless such default is cured), provided that such Indenture Trustee may
withhold notice to the holders of the Debt Securities of such series of any
default with respect to the Debt Securities of such series (except a default in
the payment of principal, premium, if any, or interest) if it considers such
withholding to be in the interest of such holders (Section6.11).
In the case of an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization, or any related court appointment of a receiver,
liquidator or trustee of the Company or for any substantial part of its
property, all Outstanding Debt Securities and interest accrued thereon, if any,
shall
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immediately become due and payable without declaration, presentment, demand or
notice of any kind by the Indenture Trustee or any holder of a Debt Security. If
any other Event of Default with respect to the Debt Securities of such series
shall have occurred and be continuing, the respective Indenture Trustee or the
holders of not less than 25% in aggregate principal amount of the Outstanding
Debt Securities of such series (or, in the case of certain Events of Default
that affect all series of Debt Securities then Outstanding, the holders of not
less than 25% in aggregate principal amount of all the Debt Securities then
outstanding treated as one class) may declare the principal, or in the case of
discounted Debt Securities of such series, such portion thereof as may be
described in the applicable Prospectus Supplement, of all the Debt Securities of
such series and interest accrued thereon, if any, to be due and payable
immediately. Subject to certain conditions, any acceleration of the Debt
Securities of any series may be rescinded and annulled by the holders of not
less than a majority in aggregate principal amount of the Outstanding Debt
Securities of such series (Section6.1).
Within four months after the close of each year the Company must file with
the appropriate Indenture Trustee a certificate, signed by specified officers,
stating whether or not such officers have knowledge of any default relating to
its covenants, agreements and obligations contained in the relevant Indenture,
and, if so, specifying each such default and the nature thereof (Section4.6).
Subject to provisions relating to its duties during the continuance of any
Event of Default, the Indenture Trustee shall be under no obligation to exercise
any of its rights or powers under the relevant Indenture at the request, order
or direction of any holders of Debt Securities, unless such holders shall have
offered to such Indenture Trustee reasonable indemnity (Section7.2). Subject to
such provisions for indemnification and subject to the right of the Indenture
Trustee to decline to follow any holders' directions under specified
circumstances, the holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of such series may direct the time, method and place
of conducting any proceeding or any remedy available to such Indenture Trustee,
or exercising any trust or power conferred upon the Indenture Trustee, with
respect to the Debt Securities of such series (Section6.9).
CONSOLIDATION, MERGER OR SALE
Each Indenture provides that the Company will not consolidate with or merge
into any other corporation, or sell, transfer or lease its properties as an
entirety or substantially as an entirety unless (i) the successor corporation,
if other than the Company, assumes in writing all of the terms, covenants and
conditions of the Indenture to be performed or observed by the Company,
including the due and punctual payment of the principal of, and premium, if any,
and interest, if any, on the Debt Securities issued thereunder and (ii)
immediately after giving effect to such transaction, no Event of Default and no
event which after notice or lapse of time or both would become an Event of
Default shall have occurred and be continuing and the Company shall have
furnished the Indenture Trustee an officers' certificate and opinion of counsel
stating that the foregoing covenants have been complied with (Section11.2).
TRANSFER
Debt Securities may be registered for transfer or exchanged at the Corporate
Trust Office of the Indenture Trustee under the applicable Indenture or at any
other office or agency maintained by the Company for such purposes, subject to
the limitations in the applicable Indenture, without the payment of any service
charge except for any tax or governmental charge incidental thereto. Provisions
with respect to the transfer and exchange of Debt Securities in global form will
be set forth in the applicable Prospectus Supplement (Section3.6).
The Company is not required to issue, exchange or register the transfer of
any Debt Securities during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption and ending at the close of business
on the day of such mailing, or to exchange or register the transfer of the Debt
Securities selected, called or being called for redemption except, in the case
of Debt Securities to be redeemed in part, the portion thereof not to be
redeemed (Section3.6).
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DEFEASANCE
Except as otherwise provided with respect to the Debt Securities of any
series, each Indenture provides that the Company shall be discharged from its
obligations under such Indenture with respect to any series of Debt Securities
issued thereunder at any time prior to the maturity date or redemption thereof
when (a) the Company has irrevocably deposited with the applicable Indenture
Trustee, in trust, (i) sufficient funds to pay the principal of (and premium, if
any), and interest to maturity date (or redemption) on, the Debt Securities of
such series, or (ii) such amount of direct obligations of, or obligations the
principal of and interest on which are fully guaranteed by, the United States
Government, and which are not subject to prepayment, redemption or call, as
will, together with the predetermined and certain income to accrue thereon
without consideration of any reinvestment thereof, be sufficient to pay when due
the principal of (and premium, if any), and interest to maturity date (or
redemption) on, the Debt Securities of such series, and (b) the Company has paid
all other sums payable with respect to the Debt Securities of such series. Upon
such discharge, the holders of the Debt Securities of such series shall no
longer be entitled to the benefits of the applicable Indenture, except for the
purposes of registration of transfer and exchange of the Debt Securities of such
series, and replacement of lost, stolen or mutilated Debt Securities of such
series (SectionSection12.1 and 12.3).
PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of the interest on a Debt Security on any Interest Payment Date will be made to
the Person in whose name such Debt Security (or one or more predecessor Debt
Securities) is registered at the close of business on the applicable record date
for the payment of such interest (Section3.8).
Principal of and any premium and interest on the Debt Securities of a
particular series will be payable at the office of such Paying Agent or Paying
Agents as the Company may designate with respect to the Debt Securities of such
series for such purpose from time to time, except that unless otherwise
indicated in the applicable Prospectus Supplement, payment of any interest may
be made by check mailed to the address of the Person entitled thereto as such
address appears in the Security Register. Unless otherwise indicated in the
applicable Prospectus Settlement, the corporate trust office of the Trustee in
The City of New York will be designated as the Company's sole Paying Agent for
payments with respect to Debt Securities of each series. Any other Paying Agents
initially designated by the Company for the Debt Securities of a particular
series will be named in the applicable Prospectus Supplement. The Company will
be required to maintain a Paying Agent in each Place of Payment for the Debt
Securities of a particular series. (SectionSection4.1 and 4.2.)
All moneys paid by the Company to a Paying Agent for the payment of their
principal of or any premium or interest on any Debt Security which remains
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section12.5.)
SENIOR DEBT SECURITIES--SENIOR INDEBTEDNESS
The Senior Debt Securities will constitute part of the Senior Indebtedness
of the Company and will rank PARI PASSU with all outstanding senior debt of the
Company.
The term "Senior Indebtedness" is defined to mean all Indebtedness of the
Company, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to Subordinated Indebtedness or to other
Indebtedness of the Company which is PARI PASSU with, or subordinated to,
Subordinated Indebtedness. The term "Indebtedness" is defined to mean, with
respect to a Person, (i) the principal of and premium, if any, and interest, if
any, on, (A) indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by securities, notes, debentures, bonds or other similar instruments
issued by such Person; (ii) all capital lease obligations of such Person; (iii)
all obligations of such Person issued or assumed as the deferred purchase price
of property, all conditional sale obligations of such Person and all obligations
of
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such Person under any conditional sale or title retention agreement (but
excluding trade accounts payable and accrued liabilities in the ordinary course
of business); (iv) all obligations, contingent or otherwise, of such Person in
respect of any letters of credit, banker's acceptances, security purchase
facilities or similar credit transactions; (v) all obligations in respect of
interest rate swap, cap, floor, collar or other agreements, interest rate future
or option contracts, currency swap agreements, currency or other future or
option contracts and other similar agreements; and (vi) all obligations of the
type referred to in clauses (i) through (v) of others for the payment of which
such Person is responsible or liable as obligor, guarantor or otherwise
(Section1.1 of the Subordinated Indenture). The amount of Senior Indebtedness
which the Company may issue is not subject to any limitation.
SUBORDINATED DEBT SECURITIES--SUBORDINATION
The Subordinated Debt Securities will constitute part of the Subordinated
Indebtedness of the Company and will be subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
whether outstanding at the date of the Subordinated Indenture or incurred after
such date.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company or its property, (ii) any proceeding for the liquidation,
dissolution or other winding up of the Company, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings, (iii) any
assignment by the Company for the benefit of creditors or (iv) any other
marshalling of the assets of the Company, all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made on account of the principal of and
the premium, if any, or interest on the Subordinated Debt Securities. In such
event, any payment or distribution on account of the principal of or premium, if
any, or interest on the Subordinated Debt Securities, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness at the time outstanding, and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of the Subordinated Debt Securities shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full. (Section16.2)
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the holders of Subordinated Debt
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Subordinated Debt Securities, shall be entitled to be paid
from the remaining assets of the Company the amounts at any time due and owing
on account of unpaid principal of and premium, if any, and interest on the
Subordinated Debt Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or obligations of the Company ranking junior to the
Subordinated Debt Securities and such other obligations. If any payment or
distribution on account of the principal of or interest on the Subordinated Debt
Securities of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the Subordinated Debt Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) shall be received
by any holder of any Subordinated Debt Securities in contravention of any of the
terms hereof and before all the Senior Indebtedness shall have been paid in
full, such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid
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over or delivered and transferred to, the holders of the Senior Indebtedness at
the time outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all such Senior Indebtedness in full. By
reason of such subordination, in the event of the insolvency of the Company,
holders of Senior Indebtedness may receive more, ratably, and holders of the
Subordinated Debt Securities having a claim pursuant to such securities may
receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of Default in respect
of the Subordinated Debt Securities.
The Subordinated Indenture places no limitation on the amount of additional
Senior Indebtedness that may be incurred by the Company. The Company expects
from time to time to incur additional indebtedness constituting Senior
Indebtedness.
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular series of Subordinated Debt
Securities, may be changed prior to the issuance of such series. Any such change
would be described in the applicable Prospectus Supplement.
CERTAIN PROVISIONS RELATING TO CORRESPONDING SUBORDINATED DEBT SECURITIES
GENERAL. The Corresponding Subordinated Debt Securities may be issued in
one or more series of Subordinated Debt Securities under the Subordinated
Indenture with terms corresponding to the terms of a series of related Preferred
Securities issued by an IDACORP Trust. Concurrently with the issuance of the
IDACORP Trust's Preferred Securities, such IDACORP Trust will invest the
proceeds thereof and the consideration paid by the Company for the Common
Securities in a series of Corresponding Subordinated Debt Securities issued by
the Company to such IDACORP Trust. Each series of Corresponding Subordinated
Debt Securities will be in the principal amount equal to the aggregate stated
Liquidation Amount of the related Preferred Securities and the Common Securities
of such IDACORP Trust and will rank PARI PASSU with all other series of
Subordinated Debt Securities. Holders of the related Preferred Securities for a
series of Corresponding Subordinated Debt Securities will have the rights in
connection with modifications to the Subordinated Indenture or upon occurrence
of a Trust Event of Default relating to Corresponding Subordinated Debt
Securities described under "--Modification of Indentures," and "--Events of
Default," and under "--Enforcement of Certain Rights by Holders of Preferred
Securities" below, unless provided otherwise in the Prospectus Supplement for
such related Preferred Securities.
The Company will covenant, as to each series of Corresponding Subordinated
Debt Securities, (i) to maintain directly or indirectly 100% ownership of the
Common Securities of the IDACORP Trust to which such Corresponding Subordinated
Debt Securities have been issued, provided that certain successors which are
permitted pursuant to the Subordinated Indenture may succeed to the Company's
ownership of the Common Securities, (ii) not to voluntarily dissolve, wind-up or
liquidate any IDACORP Trust, except (a) in connection with a distribution of
Corresponding Subordinated Debt Securities to the holders of the Preferred
Securities in liquidation of such IDACORP Trust or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of the related Trust Agreement, to cause such IDACORP Trust to remain
classified as a grantor trust and not as an association taxable as a corporation
for United States Federal income tax purposes. For additional covenants relating
to payment of certain expenses of the IDACORP Trusts, see "Description of
Preferred Securities--Payment of Expenses."
OPTION TO EXTEND INTEREST PAYMENT DATE. If provided in the applicable
Prospectus Supplement, the Company shall have the right at any time and from
time to time during the term of any series of Corresponding Subordinated Debt
Securities to defer payment of interest for such number of consecutive interest
payment periods as may be specified in the applicable Prospectus Supplement
(each, an "Extension Period"), subject to the terms, conditions and covenants,
if any, specified in such Prospectus Supplement, provided that such Extension
Period may not extend beyond the maturity date of such series of Corresponding
Subordinated Debt Securities. Certain United States Federal income tax
consequences
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and special considerations applicable to any such Corresponding Subordinated
Debt Securities will be described in the applicable Prospectus Supplement
(Section3.12 of the Subordinated Indenture).
REDEMPTION. Unless otherwise indicated in the applicable Prospectus
Supplement, the Company may, at its option, redeem the Corresponding
Subordinated Debt Securities of any series in whole at any time or in part from
time to time. Corresponding Subordinated Debt Securities may be redeemed in the
denominations as set forth in the applicable Prospectus Supplement. Except as
otherwise specified in the applicable Prospectus Supplement, the redemption
price for any Corresponding Subordinated Debt Security so redeemed shall equal
any accrued and unpaid interest thereon to the redemption date, plus the
principal amount thereof. Unless otherwise specified in the applicable
Prospectus Supplement, the Company may not redeem a series of Corresponding
Subordinated Debt Securities in part unless all accrued and unpaid interest has
been paid in full on all outstanding Corresponding Subordinated Debt Securities
of such series for all interest periods terminating on or prior to the date
fixed for redemption.
Except as otherwise specified in the applicable Prospectus Supplement, if a
Subordinated Debt Security Tax Event (as defined below) or an Investment Company
Event (as defined below) in respect of an IDACORP Trust shall occur and be
continuing, the Company may, at its option, redeem the Corresponding
Subordinated Debt Securities held by such IDACORP Trust at any time within 90
days of the occurrence of such Subordinated Debt Security Tax Event or
Investment Company Event, in whole but not in part, subject to the provisions of
the Subordinated Indenture. Unless otherwise specified in the applicable
Prospectus Supplement, the redemption price for any such Corresponding
Subordinated Debt Securities shall be equal to 100% of the principal amount of
such Corresponding Subordinated Debt Securities then outstanding plus accrued
and unpaid interest to the date fixed for redemption. For so long as the
applicable IDACORP Trust is the holder of all such outstanding Corresponding
Subordinated Debt Securities, the proceeds of any such redemption will be used
by the IDACORP Trust to redeem the corresponding Trust Securities in accordance
with their terms (Section14.5 of the Subordinated Indenture).
"Subordinated Debt Security Tax Event" means the receipt by the applicable
IDACORP Trust of an opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative written decision, pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which proposed change, pronouncement,
action or decision is announced on or after the date of issuance of the
applicable series of Corresponding Subordinated Debt Securities, there is more
than an insubstantial risk that (i) the applicable IDACORP Trust is, or will be
within 90 days of the date of such opinion, subject to United States Federal
income tax with respect to income received or accrued on the corresponding
series of Corresponding Subordinated Debt Securities, (ii) interest payable by
the Company on such series of Corresponding Subordinated Debt Securities is not,
or within 90 days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States Federal income tax purposes or
(iii) the applicable IDACORP Trust is, or will be within 90 days of the date of
such opinion, subject to more than a DE MINIMIS amount of other taxes, duties or
other governmental charges (Section1.1 of the Subordinated Indenture).
"Investment Company Event" means the receipt by the applicable IDACORP Trust
of an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in the Investment
Company Act"), the applicable IDACORP Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which Change in
the Investment Company Act becomes effective on or after the date of original
issuance of the series of Preferred Securities issued by the IDACORP Trust
(Section1.1 of the Subordinated Indenture).
RESTRICTIONS ON CERTAIN PAYMENTS. The Company will, unless otherwise
provided in the applicable Prospectus Supplement, covenant, as to each series of
Corresponding Subordinated Debt Securities, that it
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will not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of the
Company (including other Corresponding Subordinated Debt Securities) that rank
PARI PASSU with or junior in interest to the Corresponding Subordinated Debt
Securities or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks PARI PASSU with or junior in interest to the Corresponding
Subordinated Debt Securities (other than (a) dividends or distributions in
common stock of the Company, (b) redemptions or purchases of any rights pursuant
to the Company's Rights Agreement, or any successor to such Rights Agreement,
and the declaration of a dividend of such rights or the issuance of stock under
such plans in the future, (c) payments under any Guarantee and (d) purchases of
common stock related to the issuance of common stock under the Company's
Dividend Reinvestment and Stock Purchase Plan or under any of the Company's
benefit plans for its directors, officers or employees) if at such time (A)
there shall have occurred any event of which the Company has actual knowledge
(a) that with the giving of notice or the lapse of time, or both, would
constitute an Event of Default under the Subordinated Indenture with respect to
the Corresponding Subordinated Debt Securities of such series and (b) in respect
of which the Company shall not have taken reasonable steps to cure, (B) if such
Corresponding Subordinated Debt Securities are held by an IDACORP Trust which is
the issuer of a series of related Preferred Securities, the Company shall be in
default with respect to its payment of any obligations under the Guarantee
relating to such Preferred Securities or (C) the Company shall have given notice
of its selection of an Extension Period as provided pursuant to the Subordinated
Indenture with respect to the Corresponding Subordinated Debt Securities of such
series and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing (Section4.8 of the Subordinated
Indenture).
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES. If an
Event of Default with respect to a series of Corresponding Subordinated Debt
Securities has occurred and is continuing and such event is attributable to the
failure of the Company to pay principal of or premium, if any, or interest, if
any, on such series of Corresponding Subordinated Debt Securities on the date
such interest, premium or principal is otherwise payable, a holder of related
Preferred Securities may institute a legal proceeding directly against the
Company for enforcement of payment to such holder of the principal of or
premium, if any, or interest, if any, on such Corresponding Subordinated Debt
Securities having a principal amount equal to the aggregate Liquidation Amount
of the related Preferred Securities of such holder. The holder of at least a
majority in aggregate liquidation amount of Preferred Securities of the Trust
must consent to any waiver of an Event of Default with respect to the series of
Subordinated Debt Securities held by the Trust and each such holder must consent
to any supplemental indenture that would adversely affect the interests of such
holders. (SectionSection6.1, 6.7 and 10.2 of the Subordinated Indenture)
CONCERNING THE INDENTURE TRUSTEES
Business and other relationships (including other trusteeships), if any,
between the Company and its affiliates, on the one hand, and the Indenture
Trustee, on the other hand, under the Indenture pursuant to which the Debt
Securities of a series are issued will be described in the Prospectus Supplement
relating to such Debt Securities.
In the event Debt Securities are issued pursuant to an Indenture with an
Indenture Trustee which is also an Indenture Trustee for any subordinate or
superior class of Debt Securities pursuant to an Indenture, the occurrence of
any default under either Indenture could create a conflicting interest for the
respective Indenture Trustee under the Trust Indenture Act. If such default has
not been cured or waived within 90 days after such Indenture Trustee has or
acquires a conflicting interest, such Indenture Trustee generally is required by
the Trust Indenture Act to eliminate such conflicting interest or resign as
Indenture Trustee with respect to the Debt Securities issued under one such
Indenture. In the event of the Indenture Trustee's resignation, the Company
shall promptly appoint a successor trustee with respect to the affected Debt
Securities.
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DESCRIPTION OF THE PREFERRED STOCK
The following description is a summary of certain provisions of the
Preferred Stock and does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Company's Amended Bylaws (the
"Bylaws"), the Company's Restated Articles of Incorporation, as amended (the
"Articles"), and the Articles of Amendment (the "Articles of Amendment") with
respect to each such series adopted by the Board of Directors (the "Board of
Directors") of the Company, which will be filed with the Commission in
connection with the offering of such series of Preferred Stock, and the laws of
the State of Idaho. The Prospectus Supplement relating to an offering of
Preferred Stock will describe terms relevant thereto including, without
limitation, the number of shares offered, the initial offering price and
dividend information.
GENERAL
Pursuant to the Company's Articles, the Company is authorized to issue up to
20,000,000 shares of Preferred Stock, without par value, of which 18,800,000
shares are available for issuance as of the date of this Prospectus. The
Preferred Stock is issuable from time to time in one or more series and with
such designations and preferences for each series as shall be stated in the
Articles of Amendment providing for the designation and issue of each such
series adopted by the Board of Directors of the Company. The Board of Directors
is authorized by the Company's Articles to determine the voting, dividend,
redemption and liquidation preferences and limitations pertaining to such
series. Holders of Preferred Stock have no right to vote except as otherwise
provided by law or as may be established by the Board of Directors. The Board of
Directors has the full authority to determine the terms of any series of
Preferred Stock and to issue Preferred Stock with voting and other rights that
could adversely affect the voting power of the holders of the Common Stock and
could have certain anti-takeover effects. The ability of the Board of Directors
to issue Preferred Stock without stockholder approval could have the effect of
delaying, deferring or preventing a change in control of the Company or the
removal of existing management. See "Certain Matters That May Have an
Anti-Takeover Effect--Provisions of the Company's Restated Articles of
Incorporation, as amended and Amended Bylaws" below.
Any Preferred Stock offered hereby will have the dividend, liquidation and
voting rights set forth below unless otherwise provided in the Articles of
Amendment, and described in the Prospectus Supplement relating to a particular
series of Preferred Stock. Reference is made to the Prospectus Supplement
relating to the particular series of Preferred Stock offered thereby for
specific terms, including: (i) the number of shares constituting such series and
the designation thereof; (ii) the rate or rates of dividend, if any, or any
formula or other method or other means by which such rate or rates are to be
determined at any time or from time to time, the date or dates on which
dividends may be payable, whether such dividends shall be cumulative,
noncumulative or partially cumulative and, if cumulative or partially
cumulative, the date from which dividends shall accumulate; (iii) whether shares
may be redeemed or converted (a) at the option of the Company, the shareholder
or another person or upon the occurrence of a designated event; (b) for cash,
indebtedness, securities or other property; (c) in a designated amount or in an
amount determined in accordance with a designated formula or by reference to
extrinsic data or events; (iv) the preference, if any, of shares of such series
over any other class of shares with respect to distributions, including
dividends and distributions upon any voluntary or involuntary dissolution,
liquidation or winding up of the Company; (v) whether the shares shall have any
voting powers, in addition to the voting powers provided by law, and the terms
of any such voting powers; and (vi) any other relative rights, preferences and
limitations of that series.
As described under "Description of Depository Shares", the Company may, at
its option, elect to offer depository shares ("Depository Shares") evidenced by
depository receipts ("Depository Receipts"), each representing an interest (to
be specified in the Prospectus Supplement relating to the particular series of
the Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Preferred Stock Depository (as defined herein).
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The Company does not currently have any shares of Preferred Stock
outstanding. However, the Board of Directors has reserved 1,200,000 shares of
Preferred Stock for issuance in connection with the Rights Plan described below.
See "Certain Matters That May Have an Anti-Takeover Effect--Rights Plan." The
Preferred Stock offered hereby will be issued in one or more series. The holders
of Preferred Stock will have no preemptive rights. Preferred Stock will be fully
paid and nonassessable upon issuance against full payment of the purchase price
therefor. Unless otherwise specified in the Articles of Amendment, and described
in the Prospectus Supplement relating to a particular series of Preferred Stock,
each series of Preferred Stock will, with respect to dividend rights and rights
on liquidation, dissolution and winding up of the Company, rank prior to the
Common Stock (the "Junior Stock") and on a parity with each other series of
Preferred Stock offered hereby (the "Parity Stock").
DIVIDEND RIGHTS
Holders of the Preferred Stock may be entitled to receive, when, as and if
declared by the Board of Directors of the Company, out of funds legally
available therefor, cash dividends at such rates and on such dates as are set
forth in the Articles of Amendment, and described in the Prospectus Supplement,
relating to such series of Preferred Stock. Such rate may be fixed or variable
or both. Each such dividend will be payable to the holders of record as they
appear on the stock record books of the Company on such record dates as may be
fixed by the Board of Directors of the Company. Dividends on any series of the
Preferred Stock may be cumulative, partially cumulative or noncumulative, as
provided in the Articles of Amendment, and described in the Prospectus
Supplement, relating thereto. If the Board of Directors of the Company fails to
declare a dividend payable on a dividend payment date on any series of Preferred
Stock for which dividends are noncumulative, then the right to receive a
dividend in respect of the dividend period ending on such dividend payment date
will be lost, and the Company will have no obligation to pay the dividend
accrued for such period, whether or not dividends on such series are declared
for any future period. Dividends on shares of each series of Preferred Stock for
which dividends are cumulative will accrue from the date set forth in the
Articles of Amendment, and described in the applicable Prospectus Supplement,
relating to such series.
The Preferred Stock of each series may include customary provisions (i)
restricting the payment of dividends or the making of other distributions on, or
the redemption, purchase or other acquisition of, Junior Stock unless full
dividends, including, in the case of cumulative Preferred Stock, accruals, if
any, in respect of prior dividend periods, on the shares of such series of
Preferred Stock have been paid and (ii) providing for the PRO RATA payment of
dividends on such series and other Parity Stock when dividends have not been
paid in full upon such series and other Parity Stock.
VOTING RIGHTS
The holders of Preferred Stock of a series offered hereby will not be
entitled to vote except as provided in the Articles of Amendment and indicated
in the Prospectus Supplement relating to such series of Preferred Stock, or as
required by applicable law.
REDEMPTION
The Company will have such rights, if any, to redeem shares of Preferred
Stock, and the holders of Preferred Stock will have such rights, if any, to
cause the Company to redeem shares of Preferred Stock, as may be set forth in
the Articles of Amendment, and described in the Prospectus Supplement, relating
to a series of Preferred Stock.
CONVERSION OR EXCHANGE
The terms, if any, on which Preferred Stock of a series will be convertible
into or exchangeable for Common Stock, other securities, property, cash or
obligations, or a combination of any of the foregoing,
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will be summarized in the Prospectus Supplement relating to such series. Such
terms may include provisions for conversion or exchange, either on a mandatory
basis, at the option of the holder or at the option of the Company. The number
of shares of Common Stock, other securities, or the property, cash or
obligations, to be received by the holders of a series of Preferred Stock upon
conversion or exchange will be calculated according to the factors and at such
time as is summarized in the related Prospectus Supplement.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock will be
entitled to receive out of assets of the Company available for distribution to
stockholders, before any distribution of assets is made to holders of Junior
Stock, liquidating distributions in the amount set forth in the Articles of
Amendment, and described in the Prospectus Supplement, relating to such series
of Preferred Stock plus an amount equal to accrued and unpaid dividends. If,
upon any voluntary or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to the Preferred Stock of any series
are not paid in full, the holders of the Preferred Stock of such series will
share ratably in any such distribution of assets of the Company in proration to
the full respective preferential amounts (which may include accumulated
dividends) to which they are entitled. After payment of the full amount of the
liquidating distribution to which they are entitled, the holders of such series
of Preferred Stock will have no right or claim to any of the remaining assets of
the Company. Neither the sale of all or a portion of the Company's assets nor
the merger or consolidation of the Company into or with any other corporation
shall be deemed to be a dissolution, liquidation or winding up, voluntarily or
involuntarily, of the Company.
DESCRIPTION OF DEPOSITORY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depository
Shares and Depository Receipts summarizes the material terms of the Deposit
Agreement and of the Depository Shares and Depository Receipts, and is qualified
in its entirety by reference to, the form of Deposit Agreement and form of
Depository Receipts relating to each series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to have shares of Preferred Stock be
represented by Depository Shares. The shares of any series of the Preferred
Stock underlying the Depository Shares will be deposited under a separate
deposit agreement (the "Deposit Agreement") between the Company and a bank or
trust company selected by the Company (the "Preferred Stock Depository"). The
Prospectus Supplement relating to a series of Depository Shares will set forth
the name and address of the Preferred Stock Depository. Subject to the terms of
the Deposit Agreement, each owner of a Depository Share will be entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented thereby (including dividend, voting, redemption, conversion,
exchange and liquidation rights).
The Depository Shares will be evidenced by Depository Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
A holder of Depository Shares will be entitled to receive the shares of
Preferred Stock (but only in whole shares of Preferred Stock) underlying such
Depository Shares. If the Depository Receipts delivered by the holder evidence a
number of Depository Shares in excess of the whole number of shares of Preferred
Stock to be withdrawn, the Depository will deliver to such holder at the same
time a new Depository Receipt evidencing such excess number of Depository
Shares.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depository will distribute all cash dividends or other
cash distributions in respect of the Preferred Stock to the record holders of
Depository Receipts in proportion, insofar as possible, to the number of
Depository Shares owned by such holders.
In the event of a distribution other than in cash in respect of the
Preferred Stock, the Preferred Stock Depository will distribute property
received by it to the record holders of Depository Receipts in proportion,
insofar as possible, to the number of Depository Shares owned by such holders,
unless the Preferred Stock Depository determines that it is not feasible to make
such distribution, in which case the Preferred Stock Depository may, with the
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including sale (at public or
private sale) of such property and distribution of the net proceeds from such
sale to such holders.
The amount so distributed in any of the foregoing cases will be reduced by
any amount required to be withheld by the Company or the Preferred Stock
Depository on account of taxes.
CONVERSION AND EXCHANGE
If any Preferred Stock underlying the Depository Shares is subject to
provisions relating to its conversion or exchange as set forth in the Prospectus
Supplement relating thereto, each record holder of Depository Shares will have
the right or obligation to convert or exchange such Depository Shares pursuant
to the terms thereof.
REDEMPTION OF DEPOSITORY SHARES
If Preferred Stock underlying the Depository Shares is subject to
redemption, the Depository Shares will be redeemed from the proceeds received by
the Preferred Stock Depository resulting from the redemption, in whole or in
part, of the Preferred Stock held by the Preferred Stock Depository. The
redemption price per Depository Share will be equal to the aggregate redemption
price payable with respect to the number of shares of Preferred Stock underlying
the Depository Shares. Whenever the Company redeems Preferred Stock from the
Preferred Stock Depository, the Preferred Stock Depository will redeem as of the
same redemption date a proportionate number of Depository Shares representing
the shares of Preferred Stock that were redeemed. If less than all the
Depository Shares are to be redeemed, the Depository Shares to be redeemed will
be selected by lot or PRO RATA, as may be determined by the Company.
After the date fixed for redemption, the Depository Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depository Shares will cease, except the right to receive the
redemption price upon such redemption. Any funds deposited by the Company with
the Preferred Stock Depository for any Depository Shares which the holders
thereof fail to redeem shall be returned to the Company after a period of two
years from the date such funds are so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders of any shares of
Preferred Stock underlying the Depository Shares are entitled to vote, the
Preferred Stock Depository will mail the information contained in such notice to
the record holders of the Depository Receipts. Each record holder of such
Depository Receipts on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Preferred
Stock Depository as to the exercise of the voting rights pertaining to the
number of shares of Preferred Stock underlying such holder's Depository Shares.
The Preferred Stock Depository will endeavor, insofar as practicable, to vote
the number of shares of Preferred Stock underlying such Depository Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depository
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in order to enable the Preferred Stock Depository to do so. The Preferred Stock
Depository will abstain from voting the Preferred Stock to the extent it does
not receive specific written instructions from holders of Depository Receipts
representing such Preferred Stock.
RECORD DATE
Whenever (i) any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall be offered with respect to the Preferred Stock,
or (ii) the Preferred Stock Depository shall receive notice of any meeting at
which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice, or of the mandatory conversion of or any
election on the part of the Company to call for the redemption of any Preferred
Stock, the Preferred Stock Depository shall in each such instance fix a record
date (which shall be the same as the record date for the Preferred Stock) for
the determination of the holders of Depository Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof or (y) who shall be entitled
to give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or of such redemption or conversion, subject to
the provisions of the Deposit Agreement.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depository Receipt and any provision of the Deposit Agreement
may at any time be amended by agreement between the Company and the Preferred
Stock Depository. However, any amendment which imposes or increases any fees,
taxes or other charges payable by the holders of Depository Receipts (other than
taxes and other governmental charges, fees and other expenses payable by such
holders as stated under "--Charges of Preferred Stock Depository"), or which
otherwise prejudices any substantial existing right of holders of Depository
Receipts, will not take effect as to outstanding Depository Receipts until the
expiration of 90 days after notice of such amendment has been mailed to the
record holders of outstanding Depository Receipts.
Whenever so directed by the Company, the Preferred Stock Depository will
terminate the Deposit Agreement by mailing notice of such termination to the
record holders of all Depository Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Preferred Stock
Depository may likewise terminate the Deposit Agreement if at any time 45 days
shall have expired after the Preferred Stock Depository shall have delivered to
the Company a written notice of its election to resign and a successor
depository shall not have been appointed and accepted its appointment. If any
Depository Receipts remain outstanding after the date of termination, the
Preferred Stock Depository thereafter will discontinue the transfer of
Depository Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement except as
provided below and except that the Preferred Stock Depository will continue (i)
to collect dividends on the Preferred Stock and any other distributions with
respect thereto and (ii) to deliver the Preferred Stock together with such
dividends and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property, without liability for interest
thereon, in exchange for Depository Receipts surrendered. At any time after the
expiration of two years from the date of termination, the Preferred Stock
Depository may sell the Preferred Stock then held by it at public or private
sales, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and
other property then held by it, without liability for interest thereon, for the
PRO RATA benefit of the holders of Depository Receipts which have not been
surrendered.
CHARGES OF PREFERRED STOCK DEPOSITORY
The Company will pay all charges of the Preferred Stock Depository including
charges in connection with the initial deposit of the Preferred Stock, the
initial issuance of the Depository Receipts, the
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distribution of information to the holders of Depository Receipts with respect
to matters on which Preferred Stock is entitled to vote, withdrawals of the
Preferred Stock by the holders of Depository Receipts or redemption or
conversion of the Preferred Stock, except for taxes (including transfer taxes,
if any) and other governmental charges and such other charges as are expressly
provided in the Deposit Agreement to be at the expense of holders of Depository
Receipts or persons depositing Preferred Stock.
MISCELLANEOUS
The Preferred Stock Depository will make available for inspection by holders
of Depository Receipts at its corporate office and its New York office, all
reports and communications from the Company which are delivered to the Preferred
Stock Depository as the holder of Preferred Stock.
Neither the Preferred Stock Depository nor the Company will be liable if it
is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Preferred Stock Depository under the Deposit Agreement are limited to performing
its duties thereunder without negligence or bad faith. The obligations of the
Company under the Deposit Agreement are limited to performing its duties
thereunder in good faith. Neither the Company nor the Preferred Stock Depository
is obligated to prosecute or defend any legal proceeding in respect of any
Depository Shares or Preferred Stock unless satisfactory indemnity is furnished.
The Company and the Preferred Stock Depository are entitled to rely upon advice
of or information from counsel, accountants or other persons believed to be
competent and on documents believed to be genuine.
The Preferred Stock Depository may resign at any time or be removed by the
Company, effective upon the acceptance by its successor of its appointment;
provided, that if a successor Preferred Stock Depository has not been appointed
or accepted such appointment within 45 days after the Preferred Stock Depository
has delivered a notice of election to resign to the Company, the Preferred Stock
Depository may terminate the Deposit Agreement. See "--Amendment and Termination
of the Deposit Agreement" above.
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DESCRIPTION OF THE COMMON STOCK
The following description is a summary of certain provisions of the Common
Stock and does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the Company's Bylaws and Articles and the laws of
the State of Idaho. The Prospectus Supplement relating to any offering of Common
Stock will describe terms relevant thereto including, without limitation, the
number of shares offered, the initial offering price and market price and
dividend information.
GENERAL
Pursuant to the Company's Articles, the Company is authorized to issue up to
120,000,000 shares of Common Stock, without par value. As of October 1, 1998,
37,612,351 shares of Common Stock were issued and outstanding. All shares of
Common Stock currently outstanding are, and shares of Common Stock to be issued
in connection with any offering will be, fully paid and nonassessable. Each
share of Common Stock currently has attached to it one Right issued pursuant to
a Rights Agreement (each as defined below), as described below under "Certain
Matters That May Have an Anti-Takeover Effect--Rights Plan."
VOTING RIGHTS
The holders of Common Stock are entitled to one vote per share on all
matters to be voted on by stockholders. Holders of Common Stock are not entitled
to cumulate their votes in the election of directors.
DIVIDENDS
Holders of Common Stock will share ratably in dividends when, as and if
declared by the Board of Directors out of any tangible or intangible property
legally available therefor, subject to the rights of holders of any outstanding
shares of Preferred Stock.
OTHER RIGHTS
On dissolution, liquidation or winding up of the Company, after payment in
full of the amounts required to be paid to holders of Preferred Stock, all
holders of Common Stock will be entitled to share ratably in any net assets
available for distribution to holders of shares of Common Stock.
No shares of Common Stock are subject to redemption or have preemptive
rights to purchase additional shares of Common Stock. Common Stock does not have
any conversion or sinking fund provisions.
TRANSFER AGENTS AND REGISTRARS
IDACORP and The Bank of New York will serve as both transfer agent and
registrar for the Common Stock.
CERTAIN MATTERS THAT MAY HAVE AN ANTI-TAKEOVER EFFECT
PROVISIONS OF THE COMPANY'S RESTATED ARTICLES OF INCORPORATION, AS AMENDED, AND
AMENDED BYLAWS
Certain provisions of the Company's Articles and Bylaws summarized below may
be deemed to have an anti-takeover effect and may delay, deter or prevent a
tender offer or takeover attempt that a holder of Common Stock might consider to
be in its best interest, including attempts that might result in a premium being
paid over the market price for shares held by holders of Common Stock.
The Company's Articles and Bylaws provide that the number of directors of
the Company will not be more than 15 nor less than 9, with the exact number of
directors of the Company to be fixed from time to
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time, as provided in the Bylaws, by the affirmative vote of a majority of the
directors. The Articles provide that a director may be removed by the
shareholders only for cause at a meeting called for the purpose of removing him
by the affirmative vote of not less than two-thirds of the outstanding shares
entitled to vote in elections of directors. In addition, the Articles provide
that any vacancies will be filled by the affirmative vote of two-thirds of the
remaining members of the Board of Directors or by a sole remaining director,
though less than a quorum. As of the date of this Prospectus, the Board of
Directors has set the number of directors at 12. The Company's Articles also
provide for the division of the Board into three classes, which shall be as
nearly equal in number as possible, with directors in each class being elected
for a three-year term.
The Company's Articles also provide that the affirmative vote of the holders
of at least 80% of the voting power of all classes of outstanding capital stock
entitled to vote in elections of directors, voting together as a single class,
is required to amend, repeal or adopt any provision inconsistent with the
provisions of the Articles discussed above, unless such action is recommended to
the shareholders by affirmative vote of two-thirds of the Continuing Directors
(as defined therein).
The Company's Bylaws provide for an advance notice procedure for the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors as well as for other shareholder proposals
to be considered at annual meetings of shareholders. In general, notice of
intent to nominate a director or raise matters at such meetings will have to be
received in writing by the Company not less than 60 or more than 90 days prior
to the anniversary of the previous year's annual meeting of shareholders, and
must contain certain information concerning the person to be nominated or the
matters to be brought before the meeting and concerning the shareholder
submitting the proposal. Such advance notice requirements may delay the ability
of individuals to bring before shareholder meetings matters other than those
that the Company deems desirable and may provide sufficient time for the Company
to institute litigation or take other appropriate steps to respond to such
business, or to prevent such business from being acted upon, if such response or
prevention is thought to be necessary or desirable for any reason. The Company's
Articles and Bylaws also provide that special meetings of shareholders may be
called only by certain specified officers of the Company or by a majority of the
Board of Directors; special meetings of shareholders can also be called by
holders of not less than 20% of the shares entitled to vote. In addition, the
Company's Articles provide that any action required or permitted to be taken by
shareholders may be effected at a duly called annual or special meeting of
shareholders or may be effected by a written consent by the holders of all the
outstanding shares entitled to vote on the matter.
The Articles and Bylaws further provide that the Bylaws may be altered,
amended or repealed by the affirmative vote of a majority of the directors (if
effected by action of the Board of Directors) or by the affirmative vote of the
holders of a majority of the total voting power of all shares entitled to vote
thereon (with certain exceptions relating to shareholder votes and the Board of
Directors, which require the affirmative vote of two-thirds of all shares
entitled to vote thereon).
The Company's Articles do not provide for cumulative voting.
The Company's Articles authorize the issuance of 20,000,000 shares of
Company Preferred Stock. The Board of Directors has the full authority to
determine the terms of any series of the Company's Preferred Stock. Although the
Company's Board of Directors currently has no intention of doing so, shares of
Company Preferred Stock could be issued in a manner (E.G., with disproportionate
or class voting rights) that could have the effect of discouraging takeover
attempts. The Board of Directors has reserved 1,200,000 shares of Company
Preferred Stock for issuance under the Rights Plan discussed below.
RIGHTS PLAN
On September 10, 1998, the Board of Directors of the Company adopted a
Shareholder Rights Plan (the "Rights Plan"). The Company declared a dividend of
one Preferred Share Purchase Right (a "Right") for each outstanding share of
IDACORP Common Stock held at the close of business on October 1, 1998,
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or issued thereafter until the earlier of the date on which the Rights expire,
are redeemed or become exercisable. The Rights are currently not exercisable or
transferable apart from the Common Stock and will be exercisable only if a
person or group either becomes the beneficial owner of 20% or more of the
Company's outstanding voting stock (an "Acquiring Person") or commences or
announces an intention to make a tender or exchange offer that would result in
the beneficial ownership of 20% or more of the Company's voting stock. The
Company may redeem the Rights (but not less than all the Rights) at a price of
$0.01 per Right any time prior to the close of business on the tenth business
day after a person has become an Acquiring Person. Following the acquisition by
a person of a 20% position, each Right will entitle its holder (other than the
Acquiring Person, whose Rights are void), subject to any applicable regulatory
approval, to purchase for $95 the number of shares of IDACORP Common Stock, or
at the election of IDACORP, IDACORP Preferred Stock, having a market value of
$190. If the Company is acquired in a merger or other business combination, 50%
or more of its consolidated assets or earning power are sold or the Acquiring
Person engages in certain acts of self-dealing, each Right will entitle its
holder (other than the Acquiring Person, whose Rights are void), subject to any
applicable regulatory approval, to purchase for $95 the number of shares of the
acquiring company's common stock having a market value of $190. Any Rights that
are or were held by an Acquiring Person become void if any of these events
occurs. At any time after a person becomes an Acquiring Person, and prior to the
acquisition by the Acquiring Person of 50% or more of the Company's Common
Stock, the Company may exchange the Rights for one share of Company Common Stock
per Right, or cash or other assets of the Company having the same market value
as a share of Company Common Stock. The Rights expire on September 10, 2008.
CERTAIN IDAHO STATUTORY PROVISIONS
The Company is subject to the Idaho Control Share Acquisition Law (the
"CSAL"), which is designed to protect minority shareholders in the event that a
person acquires or proposes to acquire, directly or indirectly, by tender offer
or otherwise, shares giving it at least 20%, at least 33 1/3%, or more than 50%
of the voting power in the election of directors (such an acquisition, a
"Control Share Acquisition"). The CSAL is applicable to a publicly-held Idaho
corporation which has at least 50 shareholders, such as the Company, unless a
provision in its articles of incorporation or bylaws, adopted in accordance with
the CSAL, makes an express election not to be subject to the CSAL. There are no
such provisions in the Company's Articles or Bylaws.
Under the CSAL, an acquiring person is required to deliver to the
corporation an information statement disclosing, among other things, the
identity of the person, the terms of the acquisition or proposed acquisition and
the financing thereof. An acquiring person will not be able to vote those shares
acquired in a Control Share Acquisition that exceed one of the cited thresholds
(such shares, "Control Shares") unless a resolution approved by 66 2/3% of the
voting power of all shares entitled to vote thereon (excluding shares with
respect to which voting power can be exercised by the acquiring person or an
officer or director of the corporation) approves of such voting power. At the
request of the acquiring person, such a resolution must be put forth before
shareholders at a special meeting held within 55 days after receipt of the
information statement, provided that the acquiring person undertakes to pay the
costs of such special meeting and has delivered to the corporation copies of
definitive financing agreements with responsible entities for any required
financing of the Control Share Acquisition. If an information statement has not
been delivered to the corporation by the 10th day after a Control Share
Acquisition, or the shareholders of the corporation have voted not to accord
voting rights to the Control Shares, the corporation may redeem all (but not
less than all) of the Control Shares at their fair market value. Shares that are
not accorded voting rights pursuant to the CSAL regain their voting rights when
acquired by another person in an acquisition that is not subject to the CSAL.
The Company also is subject to the Idaho Business Combination Law (the
"BCL"), which prohibits a corporation from engaging in certain business
combinations with an "interested shareholder" for a period of three years after
the date of the transaction in which the person became an interested
shareholder,
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unless, among other things, (i) the corporation's articles of incorporation or
bylaws include a provision that was adopted in accordance with the BCL and that
expressly provides that the corporation is not subject to the statute (the
Company has not made such an election), or (ii) a committee of the corporation's
Board of Directors approves of the business combination or the acquisition of
the shares before the date such shares were acquired. After the three year
moratorium period, the corporation may not consummate a business combination
unless, among other things, it is approved by the affirmative vote of the
holders of at least two-thirds of the outstanding shares entitled to vote (other
than those beneficially owned by the interested shareholder or an affiliate or
associate thereof) or the business combination meets certain minimum price and
form of payment requirements. An interested shareholder is defined to include,
with certain exceptions, any person who is the beneficial owner of 10% or more
of the voting power of the outstanding voting shares of the corporation.
Business combinations subject to the BCL include certain mergers,
consolidations, recapitalizations and reverse share splits.
The application of the CSAL and the BCL may have the effect of delaying,
deferring or preventing a change of control of the Company.
DESCRIPTION OF PREFERRED SECURITIES
The following description sets forth certain general terms and provisions of
the Preferred Securities to which any Prospectus Supplement may relate. The
particular terms of the Preferred Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Preferred Securities so offered will be described in the Prospectus
Supplement relating to such Preferred Securities. The Prospectus Supplement will
also set forth with respect to the particular Preferred Securities offered, the
specific designation, number of securities, liquidation amount per security, any
listing on a securities exchange, distribution rate (or method of calculation
thereof), dates on which distributions shall be payable and dates from which
distributions shall accrue, voting rights, if any, terms for any conversion or
exchange into other securities, any redemption or sinking fund provisions, any
other rights, preferences, privileges, limitations or restrictions relating to
the Preferred Securities and the terms upon which the proceeds of the sale of
the Preferred Securities shall be used to purchase a specific series of
Corresponding Subordinated Debt Securities of the Company.
Pursuant to the terms of the Trust Agreement for each IDACORP Trust, each
Administrative Trustee, on behalf of such IDACORP Trust, is authorized to issue
the Preferred Securities and the Common Securities. The Preferred Securities of
a particular issue will represent preferred beneficial ownership interests in
the assets of such IDACORP Trust, and the holders thereof will be entitled to a
preference in certain circumstances with respect to Distributions and amounts
payable on redemption or liquidation over the Common Securities of such IDACORP
Trust, as well as other benefits as described in the corresponding Trust
Agreement. This summary of certain provisions of the Preferred Securities and
each Trust Agreement, which together with the applicable Prospectus Supplement
will describe the material terms thereof, does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all the provisions
of each Trust Agreement, including the definitions therein of certain terms, and
the Trust Indenture Act to each of which reference is hereby made. Wherever
particular defined terms of a Trust Agreement (as amended or supplemented from
time to time) are referred to herein or in a Prospectus Supplement, such defined
terms are incorporated herein or therein by reference. The form of the Trust
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. Each of the IDACORP Trusts is a legally separate
entity and the assets of one are not available to satisfy the obligations of any
of the others.
GENERAL
The Preferred Securities of an IDACORP Trust will rank PARI PASSU, and
payments will be made thereon PRO RATA, with the Common Securities of that
IDACORP Trust except as described under "--Subordination of Common Securities."
Legal title to the Corresponding Subordinated Debt Securities
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will be held in the name of the relevant IDACORP Trust in trust for the benefit
of the holders of the related Preferred Securities and Common Securities. Each
Guarantee Agreement executed by the Company for the benefit of the holders of an
IDACORP Trust's Preferred Securities (each, a "Guarantee") will be a guarantee
on a subordinated basis with respect to the related Preferred Securities but
will not guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Preferred Securities when the related IDACORP Trust does not
have funds on hand available to make such payments. See "Description of
Guarantees."
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative and will
accumulate whether or not there are funds of the applicable IDACORP Trust for
the payment of Distributions. Distributions will accrue from and will be payable
on such dates as are specified in the applicable Prospectus Supplement. Except
as specified in the applicable Prospectus Supplement, in the event that any date
on which Distributions are payable on the Preferred Securities is not a Business
Day (as defined below), payment of the Distribution payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect to any such delay), except that, if such next
succeeding Business Day is in the next succeeding calendar year, payment of such
Distribution shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with the foregoing, a "Distribution
Date"). Except as specified in the applicable Prospectus Supplement, a "Business
Day" shall mean any day other than a Saturday or a Sunday, or a day on which
banking institutions in The City of New York are authorized or required by law
to remain closed or a day on which the corporate trust office of the Property
Trustee or the Indenture Trustee under the Subordinated Indenture is closed for
business.
Distributions on each Preferred Security will be payable at a rate specified
in the Prospectus Supplement for such Preferred Securities. The amount of
Distributions payable will be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in a period unless
otherwise specified in the applicable Prospectus Supplement. Distributions to
which holders of Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
Prospectus Supplement. The term "Distributions" as used herein includes any such
additional Distributions unless otherwise stated.
If provided in the applicable Prospectus Supplement, the Company shall have
the right at any time and from time to time during the term of any series of
Corresponding Subordinated Debt Securities to defer payment of interest for such
number of consecutive interest payment periods as may be specified in the
applicable Prospectus Supplement (each, an "Extension Period"), subject to the
terms, conditions and covenants, if any, specified in such Prospectus
Supplement, provided that such Extension Period may not extend beyond the
maturity date of such series of Corresponding Subordinated Debt Securities.
Certain United States Federal income tax consequences and special considerations
applicable to any such Corresponding Subordinated Debt Securities will be
described in the applicable Prospectus Supplement. As a consequence of any such
extension, during any such Extension Period, Distributions on the corresponding
Preferred Securities would also be deferred by the applicable IDACORP Trust.
During any such Extension Period, quarterly Distributions will continue to
accumulate, compounded on a quarterly basis, to the extent permitted by
applicable law.
If the Company shall have given notice of its election of an Extension
Period with respect to the Corresponding Subordinated Debt Securities of a
series and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing, the Company may not make certain
payments. See "Description of the Debt Securities--Certain Provisions Relating
to Corresponding Subordinated Debt Securities--Restrictions on Certain Payments"
for a summary of such restrictions and the additional circumstances in which the
Company is restricted from making such payments.
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The revenue of each IDACORP Trust available for distribution to holders of
its Preferred Securities will be limited to payments under the Corresponding
Subordinated Debt Securities in which the IDACORP Trust will invest the proceeds
from the issuance and sale of its Trust Securities. See "Description of the Debt
Securities--Certain Provisions Relating to Corresponding Subordinated Debt
Securities." If the Company does not make interest payments on such
Corresponding Subordinated Debt Securities, the Property Trustee will not have
funds available to pay Distributions on the related Preferred Securities. The
payment of Distributions (if and to the extent the IDACORP Trust has funds
legally available for the payment of such Distributions and cash sufficient to
make such payments) is guaranteed by the Company on a limited basis as set forth
herein under "Description of Guarantees."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of such IDACORP Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
form, will be one Business Day prior to the relevant Distribution Date. Unless
otherwise specified in the applicable Prospectus Supplement, and subject to any
applicable laws and regulations and the provisions of the applicable Trust
Agreement, each such payment will be made as described under "Book-Entry
Issuance." In the event any Preferred Securities are not in book-entry form, the
relevant record date for such Preferred Securities shall be the date 15 days
prior to the relevant Distribution Date.
PAYMENT OF EXPENSES
Pursuant to the Subordinated Indenture, the Company, as borrower, has agreed
to pay all debts and obligations (other than with respect to the Trust
Securities) and all costs and expenses of the applicable IDACORP Trust
(including, but not limited to, all costs and expenses relating to the
organization of the applicable IDACORP Trust, the fees and expenses of the
Property Trustee, the Delaware Trustee and the Administrative Trustees and all
costs and expenses relating to the operation of the applicable IDACORP Trust
(other than with respect to the Trust Securities)) and to pay any and all taxes,
duties, assessments or other governmental charges of whatever nature (other than
United States withholding taxes) imposed by the United States or any other
taxing authority, so that the net amounts received and retained by the
applicable IDACORP Trust after paying such fees, expenses, debts and obligations
will be equal to the amounts the applicable IDACORP Trust would have received
and retained had no such fees, expenses, debts and obligations been incurred by
or imposed on the applicable IDACORP Trust. The foregoing obligations of the
Company are for the benefit of, and shall be enforceable by, any person to whom
such fees, expenses, debts and obligations are owed (each a "Creditor"), whether
or not such Creditor has received notice thereof. Any such Creditor may enforce
such obligations of the Company directly against the Company, and the Company
has agreed to irrevocably waive any right or remedy to require that any such
Creditor take any action against the applicable IDACORP Trust or any other
person before proceeding against the Company. The Company shall execute such
additional agreements as may be necessary to give full effect to the foregoing.
(Section 4.7 of the Subordinated Indenture)
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REDEMPTION OR EXCHANGE
Upon the repayment or redemption, in whole or in part, of any Corresponding
Subordinated Debt Securities, whether at maturity or upon earlier redemption,
the proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem a Like Amount (as defined below) of the Trust Securities, upon
not less than 30 nor more than 60 days notice, at a redemption price (the
"Redemption Price") equal to the aggregate Liquidation Amount of such Trust
Securities plus accumulated but unpaid Distributions thereon to the date fixed
for redemption (the "Redemption Date") and the related amount of the premium, if
any, paid by the Company upon the concurrent redemption of such Corresponding
Subordinated Debt Securities. See "Description of the Debt Securities--Certain
Provisions Relating to Corresponding Subordinated Debt Securities--Redemption."
If fewer than all of any series of Corresponding Subordinated Debt Securities
are to be repaid or redeemed on a Redemption Date, then the proceeds from such
repayment or redemption shall be allocated to the redemption PRO RATA (based on
Liquidation Amounts) of the related Common Securities and Preferred Securities.
The particular Preferred Securities to be redeemed shall be selected by the
Property Trustee from outstanding Preferred Securities not previously called for
redemption, by such means as the Property Trustee shall deem fair and
appropriate.
The Company will have the right to redeem any series of Corresponding
Subordinated Debt Securities on such terms as may be specified in the applicable
Prospectus Supplement.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to the principal amount of Corresponding Subordinated Debt
Securities to be contemporaneously redeemed in accordance with the Subordinated
Indenture, allocated to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts of such classes and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities, and (ii) with
respect to a distribution of Corresponding Subordinated Debt Securities to
holders of any series of Trust Securities in connection with a dissolution or
liquidation of the related IDACORP Trust, Corresponding Subordinated Debt
Securities having a principal amount equal to the Liquidation Amount of the
Trust Securities of the holder to whom such Corresponding Subordinated Debt
Securities are distributed. "Liquidation Amount" means the stated amount per
Trust Security specified in the applicable Prospectus Supplement.
REDEMPTION AND EXCHANGE PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Subordinated Debt Securities. Redemptions of the
Preferred Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the related IDACORP Trust has funds
on hand available for the payment of such Redemption Price. See "--Subordination
of Common Securities."
If an IDACORP Trust gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date, to
the extent funds are available, the Property Trustee will deposit irrevocably
with DTC funds sufficient to pay the applicable Redemption Price and will give
DTC irrevocable instructions and authority to pay the Redemption Price to the
holders of such Preferred Securities. See "Book-Entry Issuance." If such
Preferred Securities are no longer in book-entry form, the Property Trustee, to
the extent funds are available, will irrevocably deposit with the paying agent
for such Preferred Securities funds sufficient to pay the applicable Redemption
Price and will give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders thereof upon surrender of their
certificates evidencing such Preferred Securities. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Preferred Securities called for redemption shall be payable to the holders of
such Preferred Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required,
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then immediately prior to the close of business (New York City time) on the date
of such deposit, all rights of the holders of such Preferred Securities so
called for redemption will cease, except the right of the holders of such
Preferred Securities to receive the Redemption Price and any unpaid Distribution
payable on or prior to the Redemption Date, in each case without interest, and
such Preferred Securities will cease to be outstanding. Except as specified in
the applicable Prospectus Supplement, in the event that any Redemption Date is
not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day which is a Business Day except that, if
such succeeding Business Day falls in the next calendar year, such payment will
be paid on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by the IDACORP Trust or by
the Company pursuant to the Guarantee as described under "Description of
Guarantees," Distributions on such Preferred Securities will continue to accrue
at the then applicable rate, from the Redemption Date originally established by
the IDACORP Trust for such Preferred Securities to the date such Redemption
Price is actually deposited with DTC or the paying agent, as applicable, in
which case such date will be the date fixed for redemption for purposes of
calculating the Redemption Price; provided that if the Redemption Price is not
deposited by 12:00 noon on such date, the next succeeding Business Day shall be
the date fixed for redemption for purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Corresponding Subordinated Debt Securities to holders of
Preferred Securities shall be made to the applicable recordholders thereof as
they appear on the register for such Preferred Securities on the relevant record
date, which shall be one Business Day prior to the relevant Redemption Date or
liquidation date, as applicable; provided, however, that in the event that any
Preferred Securities are not in book-entry form, the relevant record date for
such Preferred Securities shall be a date at least 15 days prior to the
Redemption Date or liquidation date, as applicable, as specified in the
applicable Prospectus Supplement.
If fewer than all of the Preferred Securities and Common Securities issued
by an IDACORP Trust are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Preferred Securities and Common Securities to be
redeemed shall be allocated PRO RATA to the Preferred Securities and the Common
Securities based upon the relative Liquidation Amounts of such classes. The
particular Preferred Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Property Trustee from the
outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the Liquidation
Amount or an integral multiple of the Liquidation Amount in excess thereof) of
the aggregate Liquidation Amount of Preferred Securities of a denomination
larger than the Liquidation Amount. The Property Trustee shall promptly notify
the trust registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
each Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the aggregate Liquidation Amount of Preferred Securities which has been or is
to be redeemed.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each IDACORP
Trust's Preferred Securities and Common Securities, as applicable, shall be made
PRO RATA based on the Liquidation Amount of such Preferred Securities and Common
Securities; provided, however, that if on any Distribution Date
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or Redemption Date an Event of Default with respect to any Subordinated Debt
Security shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of such IDACORP Trust's Common Securities, and
no other payment on account of the redemption, liquidation or other acquisition
of such Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the IDACORP Trust's outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all of the IDACORP Trust's outstanding Preferred
Securities then called for redemption, shall have been made or provided for, and
all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions on, or Redemption Price of, the
IDACORP Trust's Preferred Securities then due and payable.
In the case of any Event of Default with respect to any Subordinated Debt
Security, the Company as holder of such IDACORP Trust's Common Securities will
be deemed to have waived any right to act with respect to any such Event of
Default under the applicable Trust Agreement until the effect of all such Events
of Default with respect to such Preferred Securities has been cured, waived or
otherwise eliminated. Until any such Events of Default under the applicable
Trust Agreement with respect to the Preferred Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the holders of such Preferred Securities and not on behalf of the Company as
holder of the IDACORP Trust's Common Securities, and only the holders of such
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Unless otherwise specified in the applicable Prospectus Supplement, the
Company has the right at any time to terminate any IDACORP Trust and, after
satisfaction of the liabilities of creditors of such IDACORP Trust as provided
by applicable law, cause such Corresponding Subordinated Debt Securities in
respect of the Preferred Securities and Common Securities issued by such IDACORP
Trust to be distributed to the holders of such Preferred Securities and Common
Securities in liquidation of the IDACORP Trust.
Pursuant to each Trust Agreement, each IDACORP Trust shall automatically
dissolve upon expiration of its term and shall dissolve on the first to occur
of: (i) certain events of bankruptcy, dissolution or liquidation of the Company;
(ii) the distribution of a Like Amount of the Corresponding Subordinated Debt
Securities to the holders of its Trust Securities, if the Company, as Sponsor,
has given written direction to the Property Trustee to dissolve such IDACORP
Trust (which direction is optional and wholly within the discretion of the
Company, as Sponsor); (iii) redemption of all of the IDACORP Trust's Preferred
Securities as described under "Description of Preferred Securities--Redemption
or Exchange"; and (iv) the entry of an order for the dissolution of such IDACORP
Trust by a court of competent jurisdiction.
If an early dissolution occurs as described in clause (i), (ii) or (iv)
above, the IDACORP Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of such IDACORP Trust as provided
by applicable law, to the holders of such Trust Securities a Like Amount of the
Corresponding Subordinated Debt Securities, unless such distribution is
determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the IDACORP Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of such IDACORP Trust as provided by applicable law, an amount equal
to, in the case of holders of Preferred Securities, the aggregate of the
Liquidation Amount plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because such IDACORP Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by such IDACORP Trust on its
Preferred Securities shall be paid on a PRO RATA basis. The holder of such
IDACORP Trust's Common Securities will be entitled to receive distributions
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upon any such liquidation PRO RATA with the holders of its Preferred Securities,
except that if a Subordinated Debt Security Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities. A supplement to the Subordinated Indenture may provide that if an
early dissolution occurs as described in clause (iv) above, the Corresponding
Subordinated Debt Securities may be subject to optional redemption in whole (but
not in part).
After the date fixed for any distribution of Corresponding Subordinated Debt
Securities for any series of Preferred Securities (i) such series of Preferred
Securities will no longer be deemed to be outstanding, (ii) certificates
representing the Corresponding Subordinated Debt Securities to be delivered upon
such distribution will be issued to the holders of the certificates for the
Trust Securities upon surrender of such certificates for exchange, (iii) the
company shall use its reasonable efforts to have the Subordinated Debt
Securities listed on the exchange, interdealer quotation system or
self-regulatory system as the Preferred Securities are then listed. and (iv) any
certificates representing such series of Preferred Securities not so exchanged
will be deemed to represent the Corresponding Subordinated Debt Securities
having a principal amount equal to the stated liquidation amount of such series
of Preferred Securities, and accruing interest at the rate provided for in the
Debt Securities until such certificates are presented to the Administrative
Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Corresponding Subordinated Debt Securities that may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of an IDACORP Trust were to occur. Accordingly, the Preferred
Securities that an investor may purchase, or the Corresponding Subordinated Debt
Securities that an investor may receive on dissolution and liquidation of an
IDACORP Trust, may trade at a discount to the price that the investor paid to
purchase the Preferred Securities.
EVENT OF DEFAULT; NOTICE
Unless otherwise specified in the applicable Prospectus Supplement, the
following event constitutes an "Event of Default" under each Trust Agreement (a
"Trust Event of Default") with respect to the Preferred Securities issued
thereunder (whatever the reason for such Trust Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body): the occurrence of an Event of
Default with respect to a Corresponding Subordinated Debt Security under the
Subordinated Indenture (see "Description of the Debt Securities--Events of
Default").
Within five Business Days after the occurrence of a Trust Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Trust Event of Default to the holders of such IDACORP Trust's
Preferred Securities, the Administrative Trustees and the Company, as Sponsor,
unless such Trust Event of Default shall have been cured or waived. The Company,
as Sponsor, and the Administrative Trustees are required to file annually with
the Property Trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under each Trust
Agreement.
If an Event of Default with respect to a Corresponding Subordinated Debt
Security has occurred and is continuing, the Preferred Securities shall have a
preference over the Common Securities upon termination of each IDACORP Trust as
described above. See "--Liquidation Distribution Upon Dissolution." The
existence of a Trust Event of Default does not entitle the holders of Preferred
Securities to accelerate the maturity thereof.
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REMOVAL OF ISSUER TRUSTEES
Unless an Event of Default with respect to a Corresponding Subordinated Debt
Security shall have occurred and be continuing, any Issuer Trustee may be
removed at any time by the holder of the Common Securities. If a Trust Event of
Default resulting from an Event of Default with respect to a Corresponding
Subordinated Debt Security has occurred and is continuing, the Property Trustee
and the Delaware Trustee may be removed at such time by the holders of a
majority in Liquidation Amount of the outstanding Preferred Securities. In no
event will the holders of the Preferred Securities have the right to vote to
appoint, remove or replace the Administrative Trustees, which voting rights are
vested exclusively in the Company as the holder of the Common Securities. No
resignation or removal of an Issuer Trustee and no appointment of a successor
trustee shall be effective until the acceptance of appointment by the successor
trustee in accordance with the provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless a Trust Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Company, as the holder of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case an Event of
Default with respect to a Subordinated Debt Security has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment.
MERGER OR CONSOLIDATION OF PROPERTY, DELAWARE TRUSTEES
Any corporation into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such Trustee
under each Trust Agreement, provided such corporation shall be otherwise
qualified and eligible.
MERGERS, CONSOLIDATIONS, CONVERSIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
IDACORP TRUSTS
An IDACORP Trust may not merge with or into, consolidate, convert into,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person, except
as described below, as described in "--Liquidation Distribution Upon
Dissolution" or as described in the Prospectus Supplement with respect to the
Preferred Securities. An IDACORP Trust may, at the request of the Company, with
the consent of the Administrative Trustees and without the consent of the
holders of the Preferred Securities, merge with or into, consolidate, convert
into, amalgamate, or be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to a trust organized as such under the
laws of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of such IDACORP Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Company expressly appoints
a trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Corresponding Subordinated Debt
Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization,
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(v) such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially similar to that of the IDACORP Trust, (vii) prior to such
merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease, the Company has received an opinion of counsel to the effect
that (a) such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, neither the IDACORP Trust nor such successor entity will be required to
register as an investment company under the Investment Company Act and (viii)
the Company or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, an IDACORP Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, merge with or into, consolidate, convert into, amalgamate,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other person or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease would cause the IDACORP Trust or the successor entity to be classified as
other than a grantor trust for United States Federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees--Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under such Trust Agreement, which shall not be inconsistent
with the other provisions of such Trust Agreement or (ii) to modify, eliminate
or add to any provisions of such Trust Agreement to such extent as shall be
necessary to ensure that the IDACORP Trust will be classified for United States
Federal income tax purposes as a grantor trust at all times that any Trust
Securities are outstanding or to ensure that the IDACORP Trust will not be
required to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any holder of Trust
Securities, and any such amendments of such Trust Agreement shall become
effective when notice thereof is given to the holders of Trust Securities. Each
Trust Agreement may be amended by the Issuer Trustees and the Company with (i)
the consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities and (ii) receipt by the
Issuer Trustees of an opinion of counsel to the effect that such amendment or
the exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not affect the IDACORP Trust's status as a grantor trust for
United States Federal income tax purposes or the IDACORP Trust's exemption from
status as an "investment company" under the Investment Company Act; provided
that without the consent of each affected holder of Trust Securities, such Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
So long as any Corresponding Subordinated Debt Securities are held by the
Property Trustee, the Issuer Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Indenture
Trustee under the Subordinated Indenture, or executing any trust or power
conferred on the Indenture Trustee with respect to such Corresponding
Subordinated Debt
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Securities, (ii) waive any past default that is waivable under Section 6.1 of
the Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Corresponding Subordinated Debt
Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or such Corresponding
Subordinated Debt Securities, where such consent shall be required, without, in
each case, obtaining the prior approval of the holders of at least a majority in
aggregate Liquidation Amount of all outstanding Preferred Securities; provided,
however, that where a consent under the Subordinated Indenture would require the
consent of each holder of Corresponding Subordinated Debt Securities affected
thereby, no such consent shall be given by the Property Trustee without the
prior consent of each holder of the related Preferred Securities. The Issuer
Trustees shall not revoke any action previously authorized or approved by a vote
of the holders of the Preferred Securities except by subsequent vote of the
holders of the Preferred Securities. The Property Trustee shall notify all
holders of Preferred Securities of any notice of default received from the
Indenture Trustee with respect to the Corresponding Subordinated Debt
Securities. In addition to obtaining the foregoing approvals of the holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Issuer Trustees shall obtain an opinion of counsel experienced in such matters
to the effect that the IDACORP Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or pursuant
to written consent. The Property Trustee will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote to be given to each
holder of record of Preferred Securities in the manner set forth in each Trust
Agreement.
No vote or consent of the holders of Preferred Securities will be required
for an IDACORP Trust to redeem and cancel its Preferred Securities in accordance
with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Company, the Issuer Trustees or any affiliate
of the Company or any Issuer Trustees, shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
Unless otherwise provided in the Prospectus Supplement relating to an
offering of Preferred Securities and any Corresponding Subordinated Debt
Securities, the Preferred Securities and the Corresponding Subordinated Debt
Securities will be issued only as fully-registered Global Securities registered
in the name of the Depository identified in the applicable Prospectus
Supplement. One or more fully-registered Global Securities will be issued for
the Preferred Securities of each IDACORP Trust and the Corresponding
Subordinated Debt Securities, representing in the aggregate the total number of
such IDACORP Trust's Preferred Securities or aggregate principal balance of
Corresponding Subordinated Debt Securities, respectively, and will be deposited
with the Depository.
For a description of such depository arrangements, see "Book-Entry
Issuance." Any additional or alternative terms of the depository arrangements
with respect to a series of Preferred Securities and any Corresponding
Subordinated Debt Securities and the rights of and limitations on owners of
beneficial interests in Book-Entry Securities (as defined herein) representing
all or a portion of a series of Preferred Securities and any Corresponding
Subordinated Debt Securities may be described in the Prospectus Supplement
relating to such series.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to the
Depository, which shall credit the relevant accounts at the Depository on the
applicable Distribution Dates or, if any IDACORP Trust's Preferred Securities
are not held by the Depository, such payments shall be made by check mailed to
the address of the holder entitled thereto as such address shall appear on the
Register. Unless otherwise specified in the applicable Prospectus Supplement,
the paying agent (the "Paying Agent") shall initially be
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the Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrative Trustees and the Company. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Company. In the event that
the Property Trustee shall no longer be the Paying Agent, the Administrative
Trustees shall appoint a successor (which shall be a bank or trust company)
acceptable to the Property Trustee and the Company to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of each IDACORP Trust, but upon payment of any tax or
governmental charges that may be imposed in connection with any transfer or
exchange. The IDACORP Trusts will not be required to register or cause to be
registered the transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of a
Trust Event of Default, undertakes to perform only such duties as are
specifically set forth in each Trust Agreement and, after such Trust Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
rights or powers vested in it by the applicable Trust Agreement at the request
or direction of any holder of Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby. If in performing its duties under the Trust Agreement, the
Property Trustee is required to decide between alternative courses of action,
construe ambiguous provisions in the applicable Trust Agreement or is unsure of
the application of any provision of the applicable Trust Agreement, and the
matter is not one on which holders of Preferred Securities are entitled under
such Trust Agreement to vote, then the Property Trustee shall take such action
as is directed by the Company and if not so directed, shall take such action as
it deems advisable and in the best interests of the holders of the Trust
Securities and will have no liability except for its own bad faith, negligence
or willful misconduct.
For information concerning the relationship between Bankers Trust, the
Property Trustee, and the Company, see "Description of the Debt
Securities--Concerning the Indenture Trustees."
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the IDACORP Trusts so that no IDACORP Trust will be
deemed to be an "investment company" required to be registered under the
Investment Company Act or taxed as a corporation for United States Federal
income tax purposes and so that the Corresponding Subordinated Debt Securities
will be treated as indebtedness of the Company for United States Federal income
tax purposes. In this connection, the Company and the Administrative Trustees
are authorized to take any action, not inconsistent with applicable law, the
certificate of trust of each IDACORP Trust or each Trust Agreement, that each of
the Company and the Administrative Trustees determine in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
related Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No IDACORP Trust may borrow money or issue debt or mortgage or pledge any of
its assets.
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DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company concurrently with
the issuance by each IDACORP Trust of its Preferred Securities for the benefit
of the holders from time to time of such Preferred Securities. Unless otherwise
specified in the applicable Prospectus Supplement, Bankers Trust will act as
indenture trustee ("Guarantee Trustee") under each Guarantee for the purposes of
compliance with the Trust Indenture Act, and each Guarantee will be qualified as
an indenture under the Trust Indenture Act. This summary of certain provisions
of the Guarantees does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions of each
Guarantee Agreement, including the definitions therein of certain terms, and the
Trust Indenture Act. The form of the Guarantee has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part. Reference in
this summary to Preferred Securities means that IDACORP Trust's Preferred
Securities to which a Guarantee relates. The Guarantee Trustee will hold each
Guarantee for the benefit of the holders of the related IDACORP Trust's
Preferred Securities.
GENERAL
Unless otherwise specified in the applicable Prospectus Supplement, the
Company will irrevocably and unconditionally agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee Payments (as
defined below) to the holders of the Preferred Securities, as and when due,
regardless of any defense, right of set-off or counterclaim that such IDACORP
Trust may have or assert other than the defense of payment. The following
payments or distributions, without duplication with respect to the Preferred
Securities, to the extent not paid by or on behalf of the related IDACORP Trust
(the "Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on such Preferred
Securities, to the extent that such IDACORP Trust has funds on hand available
therefor at such time, (ii) the Redemption Price with respect to any Preferred
Securities called for redemption by the related IDACORP Trust to the extent that
such IDACORP Trust has funds on hand available therefor at such time, and (iii)
upon a voluntary or involuntary dissolution, winding up or liquidation of such
IDACORP Trust (unless the Corresponding Subordinated Debt Securities are
distributed to holders of such Preferred Securities), the lesser of (a) the
Liquidation Amount per Preferred Security plus accumulated and unpaid
Distributions and (b) the amount of assets of such IDACORP Trust remaining
available for distribution to holders of Preferred Securities. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Company to the holders of the applicable Preferred
Securities or by causing the IDACORP Trust to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related IDACORP Trust's obligations under the Preferred Securities, but will
apply only to the extent that such related IDACORP Trust has funds sufficient to
make such payments, and is not a guarantee of collection.
If the Company does not make interest payments on the Corresponding
Subordinated Debt Securities held by the IDACORP Trust, the IDACORP Trust will
not be able to pay Distributions on the Preferred Securities and will not have
funds legally available therefor. Each Guarantee will rank subordinate and
junior in right of payment to all Senior Debt and Subordinated Debt of the
Company. See "-- Status of the Guarantees." The majority of the operating assets
of the Company and its consolidated subsidiaries are owned by such subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations and corporate expenses. Accordingly, the Company's obligations under
the Guarantees will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and claimants should look only to the
assets of the Company for payments thereunder. See "Description of the Debt
Securities--General." Except as otherwise provided in the applicable Prospectus
Supplement, the Guarantees do not limit the incurrence or issuance of other
secured or unsecured debt of the Company, whether under the Indentures, any
other
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indenture that the Company may enter into in the future or otherwise. See the
Prospectus Supplement relating to any offering of Preferred Securities.
The Company has, through the applicable Guarantee, the applicable Trust
Agreement, the Subordinated Debt Securities and the Subordinated Indenture,
taken together, fully, irrevocably and unconditionally guaranteed all of each
IDACORP Trust's obligations under the Preferred Securities. No single document
standing alone or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee of the Issuer Trust's obligations under the Preferred Securities. See
"Relationship Among the Preferred Securities, the Corresponding Subordinated
Debt Securities and the Guarantees."
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of the related Preferred Securities in any material respect (in which
case no vote will be required), no Guarantee may be amended without the prior
approval of the holders of not less than a majority of the aggregate Liquidation
Amount of such outstanding Preferred Securities. The manner of obtaining any
such approval will be as set forth under "Description of Preferred
Securities--Voting Rights; Amendment of Each Trust Agreement." All guarantees
and agreements contained in each Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the holders of the related Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder, provided
that except for a payment default, the Company shall have received notice and
not have cured such default within 60 days. The holders of not less than a
majority in aggregate Liquidation Amount of the related Preferred Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of such Guarantee
or to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under such Guarantee.
If the Guarantee Trustee fails to enforce such Guarantee, any holder of the
Preferred Securities may institute a legal proceeding directly against the
Company to enforce its rights under such Guarantee without first instituting a
legal proceeding against the IDACORP Trust, or any other person or entity. If
the Company has failed to make a Guarantee Payment under a Guarantee, a record
holder of Preferred Securities to which such Guarantee relates may directly
institute a proceeding against the Company for enforcement of such Guarantee for
such payment. The Company has waived any right or remedy to require that any
action be brought first against the applicable IDACORP Trust or any other person
or entity before proceeding directly against the Company. The record holder in
the case of the issuance of one or more global Preferred Securities certificates
will be DTC acting at the direction of the beneficial owners of the Preferred
Securities.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with all
the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in performance of any Guarantee, undertakes to perform
only such duties as are specifically set forth in each Guarantee and, after
default with respect to any Guarantee, must exercise the same degree of care and
skill as a prudent person would exercise or use under the circumstances in the
conduct of his or
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her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by any Guarantee at the
request of any holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Preferred Securities, upon
full payment of the amounts payable upon liquidation of the related IDACORP
Trust or upon distribution of Corresponding Subordinated Debt Securities to the
holders of the related Preferred Securities. Each Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of the related Preferred Securities must repay any sums paid under such
Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING SUBORDINATED DEBT SECURITIES
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the IDACORP Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Company as and to the extent
set forth under "Description of Guarantees." Taken together, the Company's
obligations under each series of Corresponding Subordinated Debt Securities, the
Subordinated Indenture, the related Trust Agreement and the related Guarantee
provide, in the aggregate, a full, irrevocable and unconditional guarantee of
payments of distributions and other amounts due on the related series of
Preferred Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
IDACORP Trust's obligations under the Preferred Securities. If and to the extent
that the Company does not make payments on any series of Corresponding
Subordinated Debt Securities, such IDACORP Trust will not pay Distributions or
other amounts due on its Preferred Securities. The Guarantees do not cover
payment of Distributions when the related IDACORP Trust does not have sufficient
funds to pay such Distributions. In such event, the remedy of a holder of a
series of Preferred Securities is to institute a legal proceeding directly
against the Company for enforcement of payment of such Distributions to such
holder. The obligations of the Company under each Guarantee are subordinate and
junior in right of payment to all Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on each
series of Corresponding Subordinated Debt Securities, such payments will be
sufficient to cover Distributions and other payments due on the related
Preferred Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Subordinated Debt Securities will be equal to the
sum of the aggregate stated Liquidation Amount of the related Preferred
Securities and related Common Securities; (ii) the interest rate and interest
and other payment dates on each series of Corresponding Subordinated Debt
Securities will match the Distribution rate and Distribution and other payment
dates for the related Preferred Securities; (iii) the Company shall pay for all
and any costs, expenses and liabilities of such IDACORP
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Trust except the IDACORP Trust's obligations to holders of its Preferred
Securities under such Preferred Securities; and (iv) each Trust Agreement
further provides that the IDACORP Trust will not engage in any activity that is
not consistent with the limited purposes of such IDACORP Trust.
Notwithstanding anything to the contrary in the Subordinated Indenture, the
Company has the right to set-off any payment it is otherwise required to make
thereunder with and to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the related
Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may institute a legal proceeding directly
against the Company to enforce its rights under the related Guarantee without
first instituting a legal proceeding against the related IDACORP Trust or any
other person or entity.
A default or event of default under any Senior Indebtedness of the Company
would not necessarily constitute a default under the Subordinated Indenture or
Trust Event of Default. However, in the event of payment defaults under, or
acceleration of, Senior Indebtedness of the Company, the subordination
provisions of the Subordinated Indenture provide that no payments may be made in
respect of the Corresponding Subordinated Debt Securities until such Senior
Indebtedness has been paid in full or any payment default thereunder has been
cured or waived. Failure to make required payments on any series of
Corresponding Subordinated Debt Securities would constitute a Trust Event of
Default.
LIMITED PURPOSE OF IDACORP TRUSTS
Each IDACORP Trust's Preferred Securities evidence undivided beneficial
ownership interests in the assets of such IDACORP Trust, and each IDACORP Trust
exists for the sole purpose of issuing its Preferred Securities and Common
Securities, investing the proceeds thereof in Corresponding Subordinated Debt
Securities and engaging in only those other activities necessary, convenient or
incidental thereto. A principal difference between the rights of a holder of a
Preferred Security and a holder of a Corresponding Subordinated Debt Security is
that a holder of a Corresponding Subordinated Debt Security is entitled to
receive from the Company the principal amount of and interest accrued on
Corresponding Subordinated Debt Securities held, while a holder of Preferred
Securities is entitled to receive Distributions from such IDACORP Trust (or from
the Company under the applicable Guarantee) if and to the extent such IDACORP
Trust has funds available for the payment of such Distributions.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution of any IDACORP Trust involving
the liquidation of the Corresponding Subordinated Debt Securities, the holders
of the related Preferred Securities will be entitled to receive, out of assets
held by such IDACORP Trust and, after satisfaction of creditors of such IDACORP
Trust as provided by applicable law, the Liquidation Distribution in cash. See
"Description of Preferred Securities--Liquidation Distribution Upon
Dissolution." Upon any voluntary or involuntary liquidation or bankruptcy of the
Company, the Property Trustee, as holder of the Corresponding Subordinated Debt
Securities, would be a subordinated creditor of the Company, subordinated in
right of payment to all Senior Indebtedness, but entitled to receive payment in
full of principal and interest, before any stockholders of the Company receive
payments or distributions. Since the Company is the guarantor under each
Guarantee and has agreed to pay for all costs, expenses and liabilities of each
IDACORP Trust (other than the IDACORP Trust's obligations to the holders of its
Preferred Securities), the positions of a holder of such Preferred Securities
and a holder of such Corresponding Subordinated Debt Securities relative to
other creditors and to stockholders of the Company in the event of liquidation
or bankruptcy of the Company are expected to be substantially the same.
39
<PAGE>
BOOK-ENTRY ISSUANCE
The Debt Securities, Preferred Securities and Corresponding Subordinated
Debt Securities of a series may be issued in whole or in part in the form of one
or more Global Securities that will be deposited with, or on behalf of, the
Depository identified in the Prospectus Supplement relating to such series (the
"Book-Entry Securities"). Unless otherwise indicated in the applicable
Prospectus Supplement for such series, the Depository will be DTC. Book-Entry
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Book-Entry Securities represented thereby, a Book-Entry Security may
not be transferred except as a whole by the Depository for such Book-Entry
Security to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any nominee to a successor Depository or any nominee of such successor.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC holds securities that its Participants
deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with Direct
Participants, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Book-Entry Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Book-Entry
Securities on DTC's records. The ownership interest of each actual purchaser of
each Book-Entry Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Book-Entry
Securities. Transfers of ownership interests in the Book-Entry Securities are to
be accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Book-Entry Securities, except in the event that use
of the book-entry system is discontinued. The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
To facilitate subsequent transfers, all Book-Entry Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Book-Entry Securities with DTC and their registration
in the name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Book-Entry Securities; DTC's
records reflect only the identity of the Direct Participants to whose accounts
such Book-Entry Securities are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
The Company and the IDACORP Trusts expect that conveyance of notices and
other communications by DTC to Direct Participants, by Direct Participants to
Indirect Participants, and by Direct Participants
40
<PAGE>
and Indirect Participants to Beneficial Owners and the voting rights of Direct
Participants, Indirect Participants and Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. as the registered holder of
the Book-Entry Securities.
Although voting with respect to the Book-Entry Securities is limited to the
holders of record of the Book-Entry Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Book-Entry Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the relevant Trustee as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts such Book-Entry
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
As long as the Book-Entry Securities are held by DTC or its nominee and DTC
continues to make its same-day funds settlement system available to the Company,
all payments on the Book-Entry Securities (other than Preferred Securities or
Corresponding Subordinated Debt Securities) will be made by the Company in
immediately available funds to DTC. Distribution payments on the Preferred
Securities or the Subordinated Debt Securities will be made by the relevant
Trustee to DTC. The Company and the IDACORP Trusts have been advised that DTC's
practice is to credit Direct Participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, the relevant Trustee, the IDACORP Trust (as
applicable) or the Company, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment on Book-Entry Securities to DTC
is the responsibility of the Company or the relevant Trustee (as applicable),
disbursement of such payments to Direct Participants is the responsibility of
DTC and disbursements of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depository for a series of Preferred Securities is at any time unwilling, unable
or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual
Preferred Securities of such series in exchange for the Global Security
representing such series of Preferred Securities. In addition, the Company may
at any time and in its sole discretion, subject to any limitations described in
the Prospectus Supplement relating to such Preferred Securities, determine not
to have any Preferred Securities of such series represented by one or more
Global Securities and, in such event, will issue individual Preferred Securities
of such series in exchange for the Global Security or Securities representing
such series of Preferred Securities. Further, if the Company so specifies with
respect to the Preferred Securities of a series, an owner of a beneficial
interest in a Global Security representing Preferred Securities of such series
may, on terms acceptable to the Company, the Property Trustee and the Depository
for such Global Security, receive individual Preferred Securities of such series
in exchange for such beneficial interests, subject to any limitations described
in the Prospectus Supplement relating to such Preferred Securities. In any such
instance, a Beneficial Owner in such Global Security will be entitled to
physical delivery of individual Preferred Securities of the series represented
by such Global Security equal in principal amount to such beneficial interest
and to have such Preferred Securities registered in its name. Individual
Preferred Securities of such series so issued will be issued in such
denominations as set forth in the accompanying Prospectus Supplement.
DTC may discontinue providing its services as securities depository with
respect to Debt Securities at any time by giving reasonable notice to the
Company or the Indenture Trustee. Under such circumstances, if a successor
depository is not appointed by the Company within 90 days, the Company will
issue individual definitive Debt Securities in exchange for all the Global
Securities representing such Debt
41
<PAGE>
Securities. In addition, the Company may at any time and in its sole discretion
determine not to have the Debt Securities represented by Global Securities and,
in such event, will issue individual definitive Debt Securities in exchange for
all the Global Securities representing the Debt Securities. Individual
definitive Debt Securities so issued will be issued in denominations of $1,000
and any larger amount that is an integral multiple of $1,000 and registered in
such names as DTC shall direct.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the IDACORP Trusts and the Company believe
to be accurate, but the IDACORP Trusts and the Company assume no responsibility
for the accuracy thereof. Neither the IDACORP Trusts nor the Company has any
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
PLAN OF DISTRIBUTION
The Company and/or any IDACORP Trust may sell the Securities in any one or
more of the following ways from time to time: (i) to or through underwriters or
dealers; (ii) directly to one or more purchasers; or (iii) through agents. The
Prospectus Supplement with respect to the Securities being offered thereby sets
forth the terms of the offering of such Securities, including the name or names
of any underwriters, the purchase price of such Securities and the proceeds to
the Company and/or an IDACORP Trust from such sale, any underwriting discounts
and other items constituting underwriters' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed or paid to
dealers, and any securities exchange on which such Securities may be listed.
Only underwriters so named in the Prospectus Supplement are deemed to be
underwriters in connection with the Securities offered thereby.
If underwriters are used in the sale, the Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The obligations of
the underwriters to purchase such Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all the
Securities of the series offered by the Company's and/or the applicable IDACORP
Trust's Prospectus Supplement if any of such Securities are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for the Company and/or an applicable IDACORP Trust. Any remarketing firm will be
identified and the terms of its agreement, if any, with the Company and its
compensation will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the Securities remarketed
thereby.
Securities may also be sold directly by the Company and/or an IDACORP Trust
or through agents designated by the Company from time to time. Any agent
involved in the offering and sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company and/or an IDACORP Trust to such agent will be set forth, in the
Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, the Company and/or an IDACORP
Trust will authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase Securities providing for payment and
delivery on a future date specified in the Prospectus Supplement. There may be
limitations on the minimum amount which may be purchased by any such
institutional investor or on the portion of the aggregate principal amount of
the particular Securities which may be sold pursuant to such arrangements.
Institutional investors to which such offers may be made, when authorized,
include
42
<PAGE>
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and such other institutions
as may be approved by the Company and/or an IDACORP Trust. The obligations of
any such purchasers pursuant to such delayed delivery and payment arrangements
will not be subject to any conditions except (i) the purchase by an institution
of the particular Securities shall not at the time of delivery be prohibited
under the laws of any jurisdiction in the United States to which such
institution is subject and (ii) if the particular Securities are being sold to
underwriters, the Company and/or an IDACORP Trust shall have sold to such
underwriters the total principal amount of such Securities less the principal
amount thereof covered by such arrangements. Underwriters will not have any
responsibility in respect of the validity of such arrangements or the
performance of the Company or such institutional investors thereunder.
If any underwriter or any selling group member intends to engage in
stabilizing, syndicate short covering transactions, penalty bids or any other
transaction in connection with the offering of Securities that may stabilize,
maintain or otherwise affect the price of such Securities, such intention and a
description of such transactions will be described in the Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered into with
the Company and/or the applicable IDACORP Trust to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act of 1933, or to contribution with respect to payments which the
agents or underwriters may be required to make in respect thereof. Agents and
underwriters may engage in transactions with, or perform services for, the
Company and its subsidiaries in the ordinary course of business.
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus Supplement, certain
legal matters will be passed upon for the Company and the IDACORP Trusts by
Robert W. Stahman, Esq., Vice President, General Counsel and Secretary of the
Company, and by LeBoeuf, Lamb, Greene & MacRae, L.L.P.; for the IDACORP Trusts
by Richards, Layton & Finger, P.A., special Delaware counsel to the IDACORP
Trusts and the Company, and for any underwriter, dealer or agent by Sullivan &
Cromwell.
As of October 1, 1998, Mr. Stahman owned 17,459 shares of Company Common
Stock and is acquiring additional shares at regular intervals through Company
employee benefit plans.
EXPERTS
The financial statements and the related financial statement schedule of
Idaho Power Company incorporated in this prospectus by reference from Idaho
Power Company's Annual Report on Form 10-K for the year ended December 31, 1997
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
With respect to the unaudited interim financial information of Idaho Power
Company for the periods ended March 31, 1998 and 1997 and June 30, 1998 and
1997, which is incorporated herein by reference, Deloitte & Touche LLP have
applied limited procedures in accordance with professional standards for a
review of such information. However, as stated in their reports included in
Idaho Power Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998, and incorporated by reference herein, they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. Deloitte & Touche LLP are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their reports on the
unaudited interim financial information because those reports are not "reports"
or a "part" of the registration statement prepared or certified by an accountant
within the meaning of Section 7 and 11 of the Act.
43
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Filing Fee--Securities and Exchange Commission.................................... $ 88,500
Accounting Fees*.................................................................. 24,000
Legal Fees*....................................................................... 240,000
Printing and Engraving*........................................................... 66,000
Trustees' Charges*................................................................ 9,600
Rating Agency Fees*............................................................... 96,000
Blue Sky Fees and Expenses*....................................................... 12,000
Stock Exchange Listing Fees*...................................................... 10,000
Miscellaneous*.................................................................... 28,900
---------
Total*.................................................................... $ 575,000
---------
---------
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTOR AND OFFICERS
Sections 30-1-850 ET SEQ. of the Idaho Business Corporation Act (the "Act")
provide for indemnification of the Company's directors and officers in a variety
of circumstances.
Article VIII of the Company's Articles provides that the Company shall
indemnify its directors and officers against liability and expenses and shall
advance expenses to its directors and officers in connection with any proceeding
to the fullest extent permitted by the Act as now in effect or as it may be
amended or substituted from time to time. Article VI of the Amended Bylaws of
the Company provides that the Company shall have the power to purchase insurance
on behalf of any director, officer, employee or agent against liability and
expenses in connection with any proceeding, to the extent permitted under
applicable law. Article VI further provides that the Company may enter into
indemnification agreements with any director, officer, employee or agent to the
extent permitted under any applicable law.
Pursuant to underwriting agreements filed or to be filed as exhibits to
registration statements relating to underwritten offerings of securities, the
underwriter parties thereto have agreed to indemnify each officer and director
of the Company and each person, if any, who controls the Company within the
meaning of the Securities Act of 1933, against certain liabilities, including
liabilities under said Act and to provide contribution in circumstances where
indemnification is unavailable. Reference is made to similar agreements in
agency agreements.
The Company has liability insurance protecting its directors and officers
against liability by reason of their being or having been directors or officers.
In addition, the Company intends to enter into indemnification agreements with
its directors and officers to provide for indemnification to the maximum extent
permitted by law.
Under each Trust Agreement, the Company will agree to indemnify each of the
Issuer Trustees of the IDACORP Trust or any predecessor Issuer Trustee for the
IDACORP Trust, and to hold the Issuer Trustees harmless against, any loss,
damage, claims, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the Trust Agreements, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties under the Trust Agreements.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
- ----------- ---------------------------------------------------------------------------------------------
<C> <C> <S>
1.1 -- The Underwriting Agreement for Debt Securities and any selling agency or distribution
agreement with any agent will be filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
1.2 -- The Underwriting Agreement for equity securities will be filed as an exhibit to a Current
Report on Form 8-K and incorporated herein by reference.
1.3 -- The Underwriting Agreement for Preferred Securities will be filed as an exhibit to a Current
Report on Form 8-K and incorporated herein by reference.
*2 -- Agreement and Plan of Exchange, dated as of February 2, 1998 (filed as Exhibit 2, File No.
333-48031).
*3.1 -- Restated Articles of Incorporation of the Company (filed as Exhibit 3(a), File No.
333-48031).
*3.2 -- Articles of Amendment to Restated Articles of Incorporation creating A Series Preferred
Stock, without par value, as filed with the Secretary of State of Idaho on September 17, 1998
(filed as Exhibit 3(b), File No. 333-00139).
*3.3 -- Amended Bylaws of the Company as of September 10, 1998 (filed as Exhibit 3(c), File No.
333-48031).
*3.4 -- Articles of Share Exchange, as filed with the Secretary of State of Idaho on September 29,
1998 (filed as Exhibit 3(d), File No. 33-56071).
4.1 -- Form of Indenture for Senior Debt Securities between the Company and Bankers Trust Company,
as Trustee. The form or forms of Senior Debt Securities with respect to each particular
offering will be filed as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference.
4.2 -- Form of Indenture for Subordinated Debt Securities between the Company and Bankers Trust
Company, as Trustee. The form or forms of Subordinated Debt Securities with respect to each
particular offering will be filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
*4.3 -- Rights Agreement, dated as of September 10, 1998, between the Company and The Bank of New
York, as Rights Agent (filed as Exhibit 4 to the Company's Form 8-K dated September 15,
1998).
4.4 -- Certificate of Trust of IDACORP Trust I.
4.5 -- Trust Agreement of IDACORP Trust I.
4.6 -- Certificate of Trust of IDACORP Trust II.
4.7 -- Trust Agreement of IDACORP Trust II.
4.8 -- Certificate of Trust of IDACORP Trust III.
4.9 -- Trust Agreement of IDACORP Trust III.
4.10 -- Form of Amended and Restated Trust Agreement for IDACORP Trust I, II and III.
4.11 -- Form of Preferred Security Certificate for IDACORP, IDACORP II and IDACORP III (included as
Exhibit D of Exhibit 4.10).
4.12 -- Form of Guarantee Agreement for IDACORP Trust I, II and III.
5.1 -- Opinion and consent of Robert W. Stahman, Esq.
5.2 -- Opinion and consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
5.3 -- Opinion and consent of Richards, Layton & Finger, P.A., as to legality of the Preferred
Securities to be issued by IDACORP Trust I.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF INSTRUMENT
- ----------- ---------------------------------------------------------------------------------------------
<C> <C> <S>
5.4 -- Opinion and consent of Richards, Layton & Finger, P.A., as to legality of the Preferred
Securities to be issued by IDACORP Trust II.
5.5 -- Opinion and consent of Richards, Layton & Finger, P.A., as to legality of the Preferred
Securities to be issued by IDACORP Trust III.
8 -- Tax opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., if any, will be filed as an exhibit to
a Current Report on Form 8-K and incorporated herein by reference.
12.1 -- Computation of Idaho Power Company Ratios of Earnings to Fixed Charges.
12.2 -- Computation of Idaho Power Company Supplemental Ratios of Earnings to Fixed Charges.
12.3 -- Computation of Idaho Power Company Ratios of Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements.
12.4 -- Computation of Idaho Power Company Supplemental Ratios of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements.
15 -- Letter from Deloitte & Touche LLP regarding unaudited interim financial information.
23 -- Consent of Deloitte & Touche LLP.
24 -- Power of Attorney (included on signature page hereof).
25.1 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company, Trustee, under the Indenture dated as of , 1998, pursuant to which Senior
Debt Securities may be issued.
25.2 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company under the Subordinated Indenture dated as of , 1998 pursuant to which
Subordinated Debt Securities may be issued.
25.3 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company to act as trustee under the Amended and Restated Trust Agreement of IDACORP Trust I.
25.4 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company to act as trustee under the Amended and Restated Trust Agreement of IDACORP Trust II.
25.5 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company to act as trustee under the Amended and Restated Trust Agreement of IDACORP Trust
III.
25.6 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company under the Guarantee for the benefit of the holders of Preferred Securities of IDACORP
Trust I.
25.7 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company under the Guarantee for the benefit of the holders of Preferred Securities of IDACORP
Trust II.
25.8 -- Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of Bankers Trust
Company under the Guarantee for the benefit of the holders of Preferred Securities of IDACORP
Trust III.
</TABLE>
- ------------------------
* Incorporated herein by reference.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to 424(b) of the Act if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d)of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purposes of determining any liability under the Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities being offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the issuer whose signature appears below
hereby authorizes any agent for service named in this Registration Statement to
execute in the name of each such person, and to file with the Securities and
Exchange Commission, any and all amendments, including post-effective
amendments, to the Registration Statement, and appoints any such agent for
service as attorney-in-fact to sign in his behalf individually and in each
capacity stated below and file any such amendments to the Registration
Statement, and the issuer hereby confers like authority to sign and file on its
behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boise and State of Idaho, on the 29th day of
September, 1998.
<TABLE>
<S> <C> <C>
IDACORP, INC.
By: /s/ JOSEPH W. MARSHALL
-----------------------------------------
Joseph W. Marshall
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ JOSEPH W. MARSHALL Chairman of the Board
- ------------------------------ and Chief Executive September 29, 1998
(Joseph W. Marshall) Officer
/s/ JAN B. PACKWOOD
- ------------------------------ President, Chief Operating September 29, 1998
(Jan B. Packwood) Officer and Director
Vice President, Chief
Financial
/s/ J. LAMONT KEEN Officer and Treasurer
- ------------------------------ (Principal September 29, 1998
(J. LaMont Keen) Financial and Accounting
Officer)
/s/ ROBERT D. BOLINDER
- ------------------------------ Director September 29, 1998
(Robert D. Bolinder)
/s/ ROGER L. BREEZLEY
- ------------------------------ Director September 29, 1998
(Roger L. Breezley)
/s/ JOHN B. CARLEY
- ------------------------------ Director September 29, 1998
(John B. Carley)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ PETER T. JOHNSON
- ------------------------------ Director September 29, 1998
(Peter T. Johnson)
/s/ JACK K. LEMLEY
- ------------------------------ Director September 29, 1998
(Jack K. Lemley)
/s/ EVELYN LOVELESS
- ------------------------------ Director September 29, 1998
(Evelyn Loveless)
/s/ JON H. MILLER
- ------------------------------ Director September 29, 1998
(Jon H. Miller)
/s/ PETER S. O'NEILL
- ------------------------------ Director September 29, 1998
(Peter S. O'Neill)
/s/ GENE C. ROSE
- ------------------------------ Director September 29, 1998
(Gene C. Rose)
/s/ PHIL SOULEN
- ------------------------------ Director September 29, 1998
(Phil Soulen)
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, IDACORP Trust I,
IDACORP Trust II and IDACORP Trust III each certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Boise, State of
Idaho, on the 29th day of September, 1998.
<TABLE>
<S> <C> <C>
IDACORP TRUST I
By: IDACORP, Inc., as Sponsor
By /s/ J. LAMONT KEEN
------------------------------------------
J. LaMont Keen
VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
AND TREASURER
IDACORP TRUST II
By: IDACORP, Inc., as Sponsor
By /s/ J. LAMONT KEEN
------------------------------------------
J. LaMont Keen
VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
AND TREASURER
IDACORP TRUST III
By: IDACORP, Inc., as Sponsor
By /s/ J. LAMONT KEEN
------------------------------------------
J. LaMont Keen
VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
AND TREASURER
</TABLE>
II-7
<PAGE>
EXHIBIT 4.1
LLG&M Draft
9/28/98
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
IDACORP, INC.
TO
BANKERS TRUST COMPANY,
Trustee
INDENTURE
Dated as of __________ __, 199__
SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
IDACORP, INC.
---------
*Reconciliation and tie between Trust Indenture Act of 1939,
as amended by the Trust Reform Act of 1990, and Indenture, dated as of
___________, 1998.
<TABLE>
<CAPTION>
Section of the
Trust Indenture Act of 1939 Section of Indenture
- --------------------------- --------------------------
<S> <C>
310(a)(1), (2) and (5)......................................... 7.9
310(a)(3) and (4).............................................. Inapplicable
310(b)......................................................... 7.8 and 7.10(a)and(b)
311(a)......................................................... 7.13(a) and (c)(1) and (2)
311(b)......................................................... 7.13(b)
312(a)......................................................... 5.1 and 5.2(a)
312(b)......................................................... 5.2(b)
312(c)......................................................... 5.2(c)
313(a)......................................................... 5.4(a)
313(b)(1)...................................................... Inapplicable
313(b)(2)...................................................... 5.4(b)
313(c)......................................................... 5.4(c)
313(d)......................................................... 5.4(d)
314(a)......................................................... 4.6 and 5.3
314(b)......................................................... Inapplicable
314(c)(1) and (2).............................................. 13.6
314(c)(3)...................................................... Inapplicable
314(d)......................................................... Inapplicable
314(e)......................................................... 13.6
315(a), (c) and (d)............................................ 7.1
315(b)......................................................... 6.11
315(e)......................................................... 6.12
316(a)(1)...................................................... 6.9
316(a)(2)...................................................... Inapplicable
316(a) (last sentence)......................................... 8.4
316(b)......................................................... 6.7
316(c)......................................................... 8.1
317(a)......................................................... 6.2
317(b)......................................................... 4.4
318(a)......................................................... 13.9
</TABLE>
- -------------
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture or to have any bearing upon the interpretation of
any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties.........................................................................1
Recitals........................................................................1
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined.............................................1
Authenticating Agent...........................................2
Authorized Newspaper...........................................2
Board of Directors.............................................2
Board Resolution...............................................2
Business Day...................................................2
Commission.....................................................2
Company........................................................2
Corporate Trust Office.........................................2
Depository.....................................................3
Dollar" ("$")..................................................3
Event of Default...............................................3
Generally Accepted Accounting Principles.......................3
Global Security................................................3
Government Obligations.........................................3
Holder", "Registered Holder" and
"Securityholder................................................4
include........................................................4
Indenture......................................................4
interest.......................................................4
Interest Payment Date..........................................4
Issuer" or "Company............................................4
Issuer Order" and "Issuer Request..............................4
Lien...........................................................4
Maturity.......................................................4
Officers' Certificate..........................................5
Opinion of Counsel.............................................5
Original Issue Discount Security...............................5
Outstanding....................................................5
Overdue Rate...................................................6
Paying Agent...................................................6
person.........................................................6
Place of Payment...............................................6
Predecessor Security...........................................6
Redemption Date................................................6
</TABLE>
- -------------
* This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture or to have any bearing upon the interpretation of any
of its terms or provisions.
-i-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Redemption Price...............................................6
Registered Holder..............................................6
responsible officer............................................6
Securities Act.................................................7
Securities Register" and "Securities Registrar
..............................................................7
Security" or "Securities.......................................7
Stated Maturity................................................7
Subsidiary.....................................................7
Trust Indenture Act............................................7
Trustee........................................................7
vice president.................................................7
SECTION 1.2. Other Defined Terms...............................................7
ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally ..................................................8
SECTION 2.2. Form of Trustee's Certificate of
Authentication.................................................8
SECTION 2.3 Form of Trustee's Certificate of
Authentication by an Authenticating Agent......................9
SECTION 2.4. Securities Issuable in the Form of Global
Securities.....................................................9
ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series.............................12
SECTION 3.2. Form and Denominations...........................................14
SECTION 3.3. Authentication, Dating and Delivery of
Securities....................................................14
SECTION 3.4. Execution of Securities..........................................17
SECTION 3.5. Certificate of Authentication....................................17
SECTION 3.6. Registration, Registration of Transfer and
Exchange......................................................17
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities....................................................19
SECTION 3.8. Payment of Interest; Interest Rights
Preserved.....................................................20
SECTION 3.9. Cancellation of Securities; Destruction
Thereof.......................................................21
SECTION 3.10. Temporary Securities............................................21
SECTION 3.11. Computation of Interest.........................................22
ARTICLE IV.
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities............................................23
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 4.2. Offices or Agency................................................23
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee.......................................................24
SECTION 4.4. Paying Agents....................................................24
SECTION 4.5. Maintenance of Corporate Existence...............................25
SECTION 4.6. Certificates to Trustee..........................................25
ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders........................26
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists.........................................................26
SECTION 5.3. Reports by the Issuer............................................28
SECTION 5.4. Reports by the Trustee...........................................29
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default...................................32
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt........................................35
SECTION 6.3. Application of Proceeds..........................................37
SECTION 6.4. Suits for Enforcement............................................38
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings...................................................38
SECTION 6.6. Limitations on Suits by Securityholders..........................39
SECTION 6.7. Unconditional Right of Securityholders to
Institute Certain Suits.......................................39
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default................................40
SECTION 6.9. Control by Holders of Securities.................................40
SECTION 6.10. Waiver of Past Defaults.........................................41
SECTION 6.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances.............................41
SECTION 6.12. Right of Court to Require Filing of
Undertaking to Pay Costs......................................42
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default..............................43
SECTION 7.2. Certain Rights of the Trustee....................................44
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof...........................................45
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc..............................................45
SECTION 7.5. Moneys Held by Trustee...........................................46
SECTION 7.6. Compensation and Indemnification of Trustee
and Its Prior Claim...........................................46
SECTION 7.7. Right of Trustee to Rely on Officers'
Certificate, etc..............................................46
SECTION 7.8. Qualification of Trustee; Conflicting
Interests.....................................................47
SECTION 7.9. Persons Eligible for Appointment as Trustee......................47
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee.............................................48
SECTION 7.11. Acceptance of Appointment by Successor
Trustee.......................................................49
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.............................50
SECTION 7.13. Preferential Collection of Claims Against
the Issuer....................................................50
SECTION 7.14. Authenticating Agent.............................................55
ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders................................................57
SECTION 8.2. Proof of Execution of Instruments by Holders
of Securities.................................................57
SECTION 8.3. Holders to be Treated as Owners..................................58
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding...................................................58
SECTION 8.5. Right of Revocation of Action Taken..............................59
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings.............................................60
SECTION 9.2. Call of Meetings by Trustee......................................60
SECTION 9.3. Call of Meetings by Issuer or Holders............................60
SECTION 9.4. Qualifications for Voting........................................61
SECTION 9.5. Regulations......................................................61
SECTION 9.6. Voting...........................................................62
SECTION 9.7. No Delay of Rights by Reason of Meeting..........................62
ARTICLE X.
SUPPLEMENTAL INDENTURES
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders...............................................63
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders...............................................65
SECTION 10.3. Notice of Supplemental Indenture................................66
SECTION 10.4. Effect of Supplemental Indenture................................66
SECTION 10.5. Documents To Be Given to Trustee................................66
SECTION 10.6. Notation on Securities in Respect of
Supplemental Indentures.......................................66
ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on
Certain Terms.................................................68
SECTION 11.2. Conditions to Consolidation or Merger, etc......................68
SECTION 11.3. Documents and Opinion To Be Furnished to the
Trustee.......................................................69
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series....................................................71
SECTION 12.2. Satisfaction and Discharge of Indenture.........................72
SECTION 12.3. Application of Trust Money......................................73
SECTION 12.4. Repayment of Moneys Held by Paying Agent........................73
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee
and Paying Agent..............................................73
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability.....................................................75
SECTION 13.2. Provisions of Indenture for the Sole Benefit
of Parties and Securityholders................................75
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture.....................................................75
SECTION 13.4. Notices to Holders; Waiver......................................75
SECTION 13.5. Addresses for Notices...........................................76
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein.......................................................76
SECTION 13.7. Separability Clause.............................................77
SECTION 13.8. Legal Holidays .................................................77
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act...........................................78
SECTION 13.10. Governing Law .................................................78
SECTION 13.11. Counterparts .................................................78
SECTION 13.12. Effect of Headings.............................................78
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article........................................79
SECTION 14.2. Notice of Redemption; Selection of
Securities....................................................79
SECTION 14.3. Payment of Securities Called for Redemption.....................80
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for Redemption......................81
ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article........................................82
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payment with Securities.......................................82
SECTION 15.3. Redemption of Securities for Sinking Fund.......................82
</TABLE>
-vi-
<PAGE>
INDENTURE, dated as of __________ __, 199__, between IDACORP,
INC., an Idaho corporation (hereinafter, subject to Article XI, called the
"Issuer" or the "Company"), having its principal office at 1221 West Idaho
Street, Boise, Idaho 83702- 5627, and BANKERS TRUST COMPANY, a [New York]
corporation, as Trustee (hereinafter, subject to Article VII, called the
"Trustee").
Recitals of the Issuer
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its notes,
debentures or other evidences of its unsecured indebtedness (hereinafter
generally called the "Securities"), to be issued in one or more series,
authenticated and delivered, as in this Indenture provided.
All things necessary have been done to make this Indenture a
valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the persons acquiring the same, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders (as defined in
Section 1.1.) of the Securities or of the Securities of any series, without any
priority of any one Security or series over any other, except as otherwise
expressly provided herein, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture, including any indenture
supplemental hereto, have the respective meanings specified in this Section. All
other terms used in this Indenture that are defined in the Trust Indenture Act
or the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act or that are defined by rule of the Commission under the
Trust Indenture Act (except as herein otherwise expressly provided or unless the
context otherwise clearly requires) have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act or in said Commission rule
under the Trust Indenture Act as in force at the date on which this Indenture
was originally executed (subject to Sections 10.1 and 10.2). The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any
<PAGE>
particular Article, Section or other subdivision. All references herein to
"Articles" or other subdivisions are to the corresponding Articles or other
subdivisions of this Indenture. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Authenticating Agent" means, with respect to any series of
Securities, any authenticating agent appointed by the Trustee, with respect to
that series of Securities, pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper printed in the
English language, customarily published at least once a day, and customarily
published for at least five days in each calendar week, and of general
circulation in The City of New York. Whenever successive publications are
required or authorized to be made in Authorized Newspapers, the successive
publications may be made (unless otherwise expressly provided herein) in the
same or different newspapers meeting the foregoing requirements and in each case
on any Business Day.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board of Directors duly authorized to act on
behalf of the Board of Directors.
"Board Resolution" means a copy of a resolution certified by
the Secretary or any Assistant Secretary of the Issuer to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
which is not a day on which banking or trust institutions are authorized or
required by law or regulation to be closed in The City of New York.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the date on which this Indenture was originally
executed such Commission is not existing and performing the duties assigned to
it under the Trust Indenture Act on such date of original execution, then the
body performing such duties at such time.
"Company": See "Issuer".
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office, on the date of original execution of this Indenture,
is located at __________________________, Attention: Corporate Trust Department.
-2-
<PAGE>
"Depository" means, with respect to the Securities of any
series which, in accordance with the determination of the Issuer, will be issued
in whole or in part in the form of one or more Global Securities, The Depository
Trust Company, New York, New York, another clearing agency or any successor
registered under the Securities Exchange Act of 1934, or other applicable
statute or regulation, which, in each case, shall be designated by the Issuer
pursuant to either Section 2.4 or 3.1. If at any time there is more than one
such person, "Depository" as used with respect to the Securities of any such
series means the Depository with respect to the Securities of that series.
"Dollar" ("$") means the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Event of Default" means any event or condition specified as
such in Section 6.1 which shall have continued for the period of time, if any,
therein designated.
"Generally Accepted Accounting Principles" means such
accounting practice and principles as, in the opinion of the independent
accountants regularly retained by the Issuer, conform at the time to accounting
principles generally accepted by the certified public accounting profession and
applied on a consistent basis (except for changes in application in which such
accountants concur). Any accounting terms not defined in this Indenture shall
have the respective meanings given to them under Generally Accepted Accounting
Principles consistent with those applied in the preparation of the Issuer's
financial statements or other financial statements required thereunder.
"Global Security" means, with respect to all or any part of
any series of Securities, a Security executed by the Issuer and authenticated
and delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to an Issuer
Order, which shall be registered in the name of the Depository or its nominee
and the ownership of which will be registered in a "book-entry" or other system
maintained by the Depository.
"Government Obligations" means securities which are (i) direct
obligations of the United States government or (ii) obligations of an agency or
instrumentality of the United States government the payment of which is
unconditionally guaranteed by the United States government, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
such term also includes a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933) as custodian with respect to any
such securities or
-3-
<PAGE>
specific payment of interest on or principal of any such securities held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the securities or the
specific payment of interest on or principal of the securities evidenced by such
depository receipt.
"Holder", "Registered Holder" and "Securityholder" mean, with
respect to a Security, the person in whose name at the time such Security is
registered in the Securities Register (which terms, in the case of a Global
Security, mean the Depository, notwithstanding that the Depository maintains a
"book-entry" or other system for identification of ownership in respect of such
Global Security).
The term "include" (and other forms of such term) means
"include, without limitation".
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented, and includes the forms and terms of particular series of
Securities established as contemplated hereunder.
The term "interest" means, with respect to
non-interest-bearing Securities, interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities of any series.
"Issuer" or "Company" means IDACORP, Inc., an Idaho
corporation, and, subject to Article XI, its successors and assigns.
"Issuer Order" and "Issuer Request" mean a written order and a
written request, respectively, signed in the name of the Issuer by the
president, any vice president or the treasurer and by any assistant treasurer,
the secretary or any assistant secretary of the Issuer, and delivered to the
Trustee.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction).
"Maturity" means, with respect to any Security, the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by acceleration, call for
redemption or otherwise.
-4-
<PAGE>
"Officers' Certificate" means a certificate signed by the
president, any vice president or the treasurer and by any assistant treasurer,
the secretary or any assistant secretary of the Issuer, and delivered to the
Trustee, except that any Officers' Certificate delivered pursuant to Section 4.6
shall be signed by a principal operating officer, principal financial officer or
principal accounting officer. Each such certificate shall include the statements
provided for in Section 13.6, if and to the extent required thereby.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer or who may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.6, if and to the extent required thereby.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration with respect thereto pursuant to
Section 6.1.
"Outstanding" (subject to Section 8.4) means, with reference
to Securities as of any particular time, all Securities authenticated and
delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
irrevocably deposited in trust with the Trustee or with any Paying
Agent (other than the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own Paying Agent) or for the payment of
which Government Obligations shall have been irrevocably deposited in
trust with the Trustee in accordance with Article XII; provided that,
if such Securities, or portions thereof, are to be redeemed prior to
the Stated Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 3.7 (except with respect to any
such Security as to which proof satisfactory to the Trustee and the
Issuer is presented that such Security is held by a person in whose
hands such Security is a legal, valid and binding obligation of the
Issuer).
-5-
<PAGE>
In determining whether Holders of the requisite principal
amount of Outstanding Securities of any or all series have made or given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
or are present to constitute a quorum at a meeting of Holders of Securities, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration with respect thereto pursuant to Section 6.1.
"Overdue Rate" means, with respect to any series of
Securities, the rate designated as such in or pursuant to the resolution of the
Board of Directors or the supplemental indenture, as the case may be, relating
to such series as contemplated by Section 3.1.
"Paying Agent" means any person authorized by the Issuer to
pay the principal of, or premium, if any, or interest, if any, on, any
Securities on behalf of the Issuer.
The term "person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of, and premium, if any, and
interest, if any, on, the Securities of such series are payable as specified
pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.7 in lieu of a lost,
destroyed, mutilated or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Holder": See "Holder".
The term "responsible officer" means, with respect to the
Trustee, the chairman of the board of directors, any vice chairman of the board
of directors, the chairman of the trust
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committee, the chairman of the executive committee of the board of directors,
any vice chairman of the executive committee of the board of directors, the
president, any vice president, the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar": See
Section 3.6.
"Security" or "Securities" has the meaning stated in the
recitals of this Indenture.
"Stated Maturity" means, with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of, or premium, if any, or interest, if any,
on, such Security is due and payable.
"Subsidiary" means as to any person a corporation of which
outstanding shares of stock having ordinary voting power (other than stock
having such power only by reason of a contingency) to elect a majority of the
Board of Directors of such corporation are at the time owned, directly or
indirectly through one or more intermediaries, or both, by such person.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and in force (except as otherwise provided herein) at the date on
which this Indenture was originally executed.
"Trustee" means the person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article VII, shall also
include any successor trustee.
The term "vice president" means, with respect to the Issuer or
the Trustee, any vice president, whether or not designated by a number or a word
or words added before or after the title of "vice president".
SECTION 1.2. Other Defined Terms. Certain other terms are
defined in Article VII and other Articles of this Indenture.
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ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally. The Securities of each series
shall be in substantially such form as shall be established pursuant to Section
3.1, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Issuer may deem appropriate and as are not
contrary to the provisions of this Indenture, or as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or of any automated quotation system, or to conform to
usage, all as determined by the officers executing such Securities, as
conclusively evidenced by their execution of the Securities.
The definitive Securities of each series shall be prepared by
the Company and shall be printed, lithographed or engraved on steel-engraved
borders, or may be produced in any other manner, all as determined by the
officers executing such Securities, as conclusively evidenced by their execution
of such Securities, subject, with respect to the Securities of any series, to
the rules of any securities exchange or automated quotation system on which the
Securities of such series are listed or quoted and (with respect to Global
Securities of any series) to the rules of the Depository.
SECTION 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------,
as Trustee
By
--------------------------------
Authorized Signatory
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SECTION 2.3 Form of Trustee's Certificate of Authentication by
an Authenticating Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent on all Securities of
each such series shall be in substantially the following form:
--------------------,
as Trustee
By [NAME OF AUTHENTICATING
AGENT],
Authenticating Agent
By
--------------------------------
Authorized Signatory
SECTION 2.4. Securities Issuable in the Form of Global
Securities. (a) If the Issuer shall establish pursuant to Section 3.1 that the
Securities of a particular series are to be issued in whole or in part as one or
more Global Securities, then the Issuer shall execute, and the Trustee shall, in
accordance with Section 3.3 and the Issuer Order delivered to the Trustee
thereunder, authenticate and make available for delivery, one or more Global
Securities which (i) shall represent an aggregate principal amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by one or more Global Securities, (ii) shall be registered in the
name of the Depository or its nominee, (iii) shall be delivered by the Trustee
to the Depository or pursuant to the Depository's instruction and (iv) shall
bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.4 of the Indenture,
unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
(b) Notwithstanding any provision of Section 3.6, any Global
Security of a series may be transferred, in whole but not in part, and in the
manner provided in Section 3.6, only to
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another nominee of the Depository for such series, or to a successor Depository
for such series selected or approved by the Issuer or to a nominee of such
successor Depository.
(c) If at any time the Depository for Securities of a series
notifies the Issuer that it is unwilling or unable to continue as Depository for
Securities of such series or if at any time the Depository shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, or
other applicable statute or regulation, and a successor Depository is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such condition, as the case may be, this Section shall no
longer be applicable to the Securities of such series and the Issuer will
execute, and the Trustee, upon receipt of an Issuer Order for the authentication
and delivery of individual Securities of such series, will authenticate and make
available for delivery, Securities of such series, in authorized denominations,
and in an aggregate principal amount equal to the aggregate principal amount of
the Global Security or Global Securities of such series in exchange for such
Global Security or Global Securities.
The Issuer may at any time determine that Securities of any
series shall no longer be represented by one or more Global Securities and that
the provisions of this Section shall no longer apply to the Securities of such
series. In such event the Issuer will execute and the Trustee, upon receipt of
an Issuer Order for the authentication and delivery of individual Securities of
such series, will authenticate and make available for delivery Securities of
such series, in authorized denominations, and in an aggregate principal amount
equal to the aggregate principal amount of the Global Security or Global
Securities of such series in exchange for such Global Security.
If specified by the Issuer pursuant to Section 3.1 with
respect to a series of Securities, the Depository for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for individual Securities of such series on such terms as are
acceptable to the Issuer and such Depository. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery,
without service charge,
(i) to each person specified by such Depository a new
individual Security or Securities of the same series, of any authorized
denomination as requested by such person in aggregate principal amount
equal to and in exchange for such persons' beneficial interest in the
Global Security; and
(ii) to such Depository a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the
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aggregate principal amount of individual Securities delivered to
Holders thereof.
In any exchange provided for in any of the preceding
paragraphs of this Section, the Issuer will execute and the Trustee will
authenticate and make available for delivery individual Securities in registered
form in authorized denominations.
Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Securities available for delivery to the persons in whose names
such Securities are so registered.
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ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. With respect to the Securities of any particular series, there shall be
established in, or pursuant to the authority granted in, a resolution of the
Board of Directors (delivered to the Trustee in the form of a Board Resolution)
or established in one or more indentures supplemental hereto:
(1) the form of the Securities of the series;
(2) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(3) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.4, 3.6, 3.7, 3.10 or
14.3);
(4) the date or dates on which the Securities of the series
may be issued;
(5) the date or dates, which may be serial, on which the
principal of, and premium, if any, on, the Securities of the series are
payable;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any
(including the rate or rates at which overdue principal shall bear
interest, if different from the rate or rates at which such Securities
shall bear interest prior to Maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear interest, if
any); any formulary or other method or other means by which any such
rate or rates shall be determined, by reference to an index or other
fact or event ascertainable outside this Indenture or otherwise; the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the record
dates, if other than as set forth in Section 3.8, for the determination
of Holders to whom interest is payable;
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(7) the place or places where the principal of, and premium,
if any, and interest, if any, on, the Securities of the series shall be
payable (if other than as provided in Section 4.2);
(8) the provisions, if any, establishing the price or prices
at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Issuer, pursuant to any sinking
fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price
or prices at which, and the period or periods within which, and the
terms and conditions upon which, Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000, and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(11) whether the Securities of the series are to be issued as
Original Issue Discount Securities and, if so, the amount of the
discount with respect thereto;
(12) if other than the principal amount thereof, the portion
of the principal amount of the Securities of the series which shall be
payable upon declaration of acceleration with respect thereto pursuant
to Section 6.1 or payable in bankruptcy pursuant to Section 6.2;
(13) any Events of Default or restrictive covenants provided
for with respect to the Securities of the series, if other than as set
forth in Section 6.1 and Articles IV and XI;
(14) if other than the rate of interest stated in the title of
the Securities of the series, the applicable Overdue Rate;
(15) in case the Securities of the series do not bear
interest, the applicable dates for the purpose of clause (a) of Section
5.1;
(16) if other than as set forth in Article XII, provisions for
the satisfaction and discharge of the Securities of the series and this
Indenture;
(17) any trustees, paying agents, transfer agents or
registrars with respect to the Securities of the series;
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(18) whether the Securities of the series are issuable in
whole or in part as one or more Global Securities and, in such case,
the identity of the Depository for such Global Security or Global
Securities;
(19) any restrictions on transfer with respect to the
Securities of the series and any legend reflecting such restrictions to
be placed on such Securities;
(20) if the amount of payment of principal of, and premium, if
any, or interest, if any, on, the Securities of the series may be
determined with reference to an index, formula or other method, the
manner in which such amounts shall be determined;
(21) any exceptions to Section 13.8 or in the definition of
"Business Day" with respect to the Securities of the series; and
(22) any other terms of the series (which terms shall not be
contrary to the provisions of this Indenture).
With respect to any Securities (and without limiting the
generality of the foregoing provisions of this Section), such resolution of the
Board of Directors or indenture supplemental hereto may provide general terms or
parameters and may provide that the specific terms of particular Securities, and
the persons authorized to determine such terms or parameters, may be determined
in accordance with or pursuant to the Issuer Order referred to in Section 3.3.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in,
or pursuant to the authority granted in, such resolution of the Board of
Directors or in any such indenture supplemental hereto.
SECTION 3.2. Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the Securities of any
series, the Securities of such series shall be issuable in fully registered
form, without coupons, in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.3. Authentication, Dating and Delivery of
Securities. At any time and from time to time after the original execution and
delivery of this Indenture, the Issuer may deliver Securities of any series,
executed by the Issuer, to the Trustee for authentication. Except as otherwise
provided in this Article, the Trustee shall thereupon authenticate and make
available for delivery, or cause to be authenticated and delivered, said
Securities to or upon an Issuer Order, without any further action by the Issuer;
provided, however, that the Trustee shall authenticate and make available for
delivery Securities of such series for original issue from time to time
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in the aggregate principal amount established for such series pursuant to such
procedures, acceptable to the Trustee and to such recipients, as may be
specified from time to time by an Issuer Order. The maturity dates, original
issue dates, interest rates and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in writing.
In authenticating such Securities and accepting the
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Securities, and (subject to Section 7.1) shall be fully protected in
relying upon:
(1) a Board Resolution relating thereto;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate which shall state that all
conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been complied with, that no Event of
Default with respect to any series of Securities has occurred and is
continuing and that the issuance of such Securities does not constitute
and will not result in (i) any Event of Default or any event or
condition, which, upon the giving of notice or the lapse of time or
both, would become an Event of Default or (ii) any default under the
provisions of any other instrument or agreement by which the Company is
bound; and
(4) an Opinion of Counsel, which shall state
(a) that the form and the terms of such Securities
have been established (i) by or pursuant to the authority
granted in a resolution of the Board of Directors delivered to
the Trustee pursuant to subparagraph (1) above or by a
supplemental indenture delivered to the Trustee pursuant to
subparagraph (2) above, (ii) as provided by Section 3.1 and
(iii) in conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Issuer enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles;
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(c) that the Issuer has the corporate power to issue
such Securities and has duly taken all necessary corporate
action with respect to such issuance;
(d) that, assuming compliance with any restrictions
limiting the debt issuance capacity of the Issuer applicable
to such Securities at the time of the issuance thereof, the
issuance of such Securities will not contravene the charter or
by-laws of the Issuer or result in any violation of any of the
terms or provisions of any law or regulation or of any
indenture, mortgage or other instrument or agreement known to
such counsel by which the Issuer is bound; and
(e) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities, and
the related supplemental indenture, if any, have been complied
with and that authentication and delivery of such Securities
and the execution and delivery of the related supplemental
indenture, if any, by the Trustee will not violate the terms
of the Indenture.
Notwithstanding the provisions of Section 3.1 and of this
Section, if all the Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Board Resolution or
supplemental indenture otherwise required pursuant to Section 3.1 or the Issuer
Order, Officers' Certificate, Opinion of Counsel and other documents required
pursuant to this Section at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the time
of authentication upon original issuance of the first Security of such series to
be issued; provided, however, that any subsequent request by the Issuer to the
Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Issuer that as of the date of such request
the statements made in the Officers' Certificate delivered pursuant to Section
3.3(3) shall be true and correct on the date thereof as if made on and as of the
date thereof.
The Trustee shall have the right to decline to authenticate
and make available for delivery any Securities under this Section if the
Trustee, being advised by counsel reasonably acceptable to the Trustee and the
Issuer, determines that such action would expose the Trustee to personal
liability.
Each Security shall be dated the date of its authentication,
except as otherwise provided pursuant to Section 3.1 with respect to the series
of which such Security is a part and except that any substitute Security under
Section 3.7 shall be dated so that neither gain nor loss in interest shall
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result from any mutilation, destruction, loss or theft of the relevant
Predecessor Security.
SECTION 3.4. Execution of Securities. The Securities shall be
signed in the name of and on behalf of the Issuer by both (a) its president or
any vice president and (b) its treasurer, any assistant treasurer, its secretary
or any assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of such
officers. The seal of the issuer may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced thereon.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by or on behalf of the Trustee or disposed
of by the Issuer, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities had not
ceased to be such officer of the Issuer; and any Security may be signed on
behalf of the Issuer by such persons as, at the actual date of the original
execution of such Security, shall be the proper officers of the Issuer, although
at the date of the original execution and delivery of this Indenture, or at the
date of such Security, any such person was not such an officer.
SECTION 3.5. Certificate of Authentication. No Security shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of authentication
substantially in the form hereinbefore recited, executed by or on behalf of the
Trustee by manual signature. Such certificate by or on behalf of the Trustee
upon any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 3.6. Registration, Registration of Transfer and
Exchange. Subject to the conditions set forth below (and subject, with respect
to Global Securities, to Section 2.4), Securities of any series may be exchanged
for a like aggregate principal amount of Securities of the same series and
having the same terms but in other authorized denominations. Securities to be
exchanged shall be surrendered at the offices or agencies to be maintained for
such purposes as provided in Section 4.2, and the Issuer shall execute and the
Trustee or any Authenticating Agent shall authenticate and make available for
delivery in exchange therefor the Security or Securities which the Holder making
the exchange shall be entitled to receive.
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The Issuer shall keep or cause to be kept, at one of said
offices or agencies maintained pursuant to Section 4.2, a register for each
series of Securities issued hereunder (hereinafter collectively referred to as
the "Securities Register") in which, subject to such reasonable regulations as
it may prescribe, the Issuer shall, subject to the provisions of Section 2.4,
provide for the registration of Securities of such series and shall register the
transfer of Securities of such series as in this Article provided. The
Securities Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. The Trustee is
hereby appointed as the initial "Securities Registrar" for the purpose of
registering Securities and registering transfers of Securities as herein
provided. Subject to the provisions of Section 2.4, upon surrender for
registration of transfer of any Security of any series at any such office or
agency, the Issuer shall execute and the Trustee or any Authenticating Agent
shall authenticate and make available for delivery in the name of transferee or
transferees a new Security or Securities of the same series for an equal
aggregate principal amount.
All Securities presented for registration of transfer or for
exchange, redemption or payment shall (if so required by the Issuer or the
Securities Registrar) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the
Securities Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
Each Security issued upon registration of transfer or exchange
of Securities pursuant to this Section shall be the valid obligation of the
Issuer, evidencing the same indebtedness and entitled to the same benefits under
this Indenture as the Security or Securities surrendered upon registration of
such transfer or exchange.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.10, 10.6, or 14.3 not involving any
transfer.
The Issuer shall not be required (a) to issue, exchange or
register the transfer of any Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption except, in the case
of any Security to be redeemed in part, the portion thereof not to be redeemed.
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SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated (whether by
defacement or otherwise) or be destroyed, lost or stolen, and in the absence of
notice to the Issuer or the Trustee that such Security has been acquired by a
bona fide purchaser, the Issuer shall, except as otherwise provided in this
Section, execute, and upon an Issuer Request, the Trustee shall authenticate and
make available for delivery, a new Security of the same series, tenor and
principal amount, bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In every case the applicant for a substituted Security shall furnish
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security under this
Section, the Issuer may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee or any
Authenticating Agent) connected therewith.
In case any Security which has matured or is about to mature
or has been called for redemption in full shall become mutilated or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security). In every case, the applicant for
such payment shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as any of them may require to
save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be
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held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated (whether by defacement or otherwise) or
destroyed, lost or stolen Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 3.8. Payment of Interest; Interest Rights Preserved.
The Holder of any Securities at the close of business on any record date with
respect to any Interest Payment Date shall be entitled to receive the interest,
if any, payable on such Interest Payment Date notwithstanding the cancellation
of such Securities upon any registration of transfer or exchange subsequent to
the record date and prior to such Interest Payment Date, and, if provided for in
the Board Resolution pursuant to Section 3.1, in the case of a Security issued
between a record date and the initial Interest Payment Date relating to such
record date, interest for the period beginning on the date of issue and ending
on such initial Interest Payment Date shall be paid to the person to whom such
Security shall have been originally issued. Except as otherwise specified as
contemplated by Section 3.1, for Securities of a particular series the term
"record date" as used in this Section with respect to any Interest Payment Date
shall mean the close of business on the last day of the calendar month preceding
such Interest Payment Date if such Interest Payment Date is the fifteenth day of
a calendar month and shall mean the close of business on the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day. At the option of the Issuer, payment of interest on any Security
may be made by check mailed to the address of the person entitled thereto (which
shall be the Depository in the case of Global Securities) as such address shall
appear in the Securities Register.
If and to the extent the Issuer shall default in the payment
of the interest due on such Interest Payment Date in respect of any Securities,
such defaulted interest shall be paid by the Issuer at its election in each
case, as provided in clause (1) or (2) below:
(1) The Issuer may make payment of any defaulted interest to
the Holder of Securities at the close of business on a subsequent
record date established by notice given by mail, by or on behalf of the
Issuer, to such Holder not less than 15 days preceding such subsequent
record date, such record date to be not less than 10 days preceding the
date for payment of such defaulted interest.
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(2) The Issuer may make payment of any defaulted interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Issuer
to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.9. Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Issuer or any Paying Agent or any Securities
Registrar, be delivered to the Trustee for cancellation or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall, unless instructed to deliver the Securities to the
Issuer in an Issuer Order, destroy such cancelled Securities and deliver
certification of their destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 3.10. Temporary Securities. Pending the preparation by
the Issuer of definitive Securities of any series, the Issuer may execute and
the Trustee shall authenticate and make available for delivery temporary
Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Securities of any series shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities of such series in lieu of
which they are issued but with such omissions, insertions and variations as may
be appropriate for temporary securities, all as may be determined by the Issuer
with the concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at the Corporate
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Trust Office of the Trustee, and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of the same series. Such
exchange shall be made by the Issuer at its own expense and without any charge
therefor except that in case of any such exchange involving any registration of
transfer the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
SECTION 3.11. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE IV.
COVENANTS OF THE ISSUER
The Issuer covenants and agrees for the benefit of each series
of Securities (except to the extent that any series of the Securities is
excluded from the benefits of any of such covenants pursuant to Section 3.1(13))
that on and after the date of original execution of this Indenture and so long
as any of the Securities of such series remain Outstanding:
SECTION 4.1. Payment of Securities. The Issuer will duly and
punctually pay or cause to be paid the principal of, and the premium, if any,
and interest, if any, on, the Securities of such series at the place or places,
at the respective times and in the manner provided in such Securities and in the
Indenture. As provided in Section 3.8, each installment of interest on the
Securities of any series may be paid by mailing checks for such interest payable
to the Holders of such Securities entitled thereto as their names shall appear
on the Securities Register.
SECTION 4.2. Offices or Agency. So long as any of the
Securities remain Outstanding, the Issuer will maintain in the Borough of
Manhattan, The City of New York, New York, an office or agency where Securities
of such series may be presented or surrendered for payment, where Securities of
such series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer in respect of the Securities of
such series and this Indenture may be served, which office or agency shall
initially be the Corporate Trust Office of the Trustee or, if the Corporate
Trust Office of the Trustee is not located in the Borough of Manhattan, The City
of New York, such office or agency shall be the principal corporate trust office
of the Authenticating Agent designated pursuant to Section 7.14 hereof. The
Issuer will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Issuer shall fail to
maintain such required office or agency or shall fail to furnish the Trustee
with the required information with respect thereto, presentations, surrenders,
notices and demands in respect of Securities may be made or served at the
Corporate Trust Office of the Trustee and the corporate trust office of any
Authenticating Agent appointed hereunder; and the Issuer hereby appoints the
Trustee and any Authenticating Agent appointed hereunder its agents to receive
all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside The City of New York) where the
Securities of such series may be presented or surrendered for any or all of such
purposes, and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the
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Issuer of its obligation to maintain for such purposes an office or agency in
the Borough of Manhattan, The City of New York. The Issuer will promptly notify
the Trustee of any such designation or rescission thereof.
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 4.4. Paying Agents. Whenever the Issuer shall appoint
a Paying Agent other than the Trustee with respect to the Securities of any
series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section,
(a) that it will hold all sums received by it as such Paying
Agent for the payment of the principal of, and premium, if any, and
interest, if any, on, the Securities of such series (whether such sums
have been paid to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the Holders of
the Securities of such series, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of, or premium, if any, or interest,
if any, on, the Securities of such series when the same shall be due
and payable, and
(c) that at any time during the continuance of any such
failure, upon the written request of the Trustee it will forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
If the Issuer shall act as its own Paying Agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of, or premium, if any, or interest, if any, on, the Securities of
such series, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities of such series a sum sufficient to pay such principal,
premium, if any, or interest, if any, so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more Paying Agents with
respect to the Securities of any series, it will, on or prior to the due date of
the principal of, or premium, if any, or interest, if any, on, the Securities of
such series, deposit with a designated Paying Agent for such series a sum
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sufficient to pay the principal, premium, if any, or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal, premium, if any, or interest, if any, and (unless
such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee at
its Corporate Trust Office of its failure so to act.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.3, 12.4 and 12.5.
SECTION 4.5. Maintenance of Corporate Existence. The Issuer
will preserve its corporate existence, but this covenant shall not require the
Issuer to continue its corporate existence in the event of a consolidation or
merger of the Issuer with or into any other corporation in accordance with
Article XI as a result of which the Issuer shall lose its corporate identity, or
in the event of a sale, transfer or lease of the property of the Issuer as an
entirety or substantially as an entirety in accordance with Article XI.
SECTION 4.6. Certificates to Trustee. The Issuer will, on or
before May 1 in each year, commencing with the year 1999, file with the Trustee
an Officers' Certificate complying with the provisions of the second paragraph
of Section 13.6, covering the period from the date of original execution of this
Indenture to December 31, 1998 in the case of the first such certificate, and
covering the preceding calendar year in the case of each subsequent certificate,
and stating whether or not, to the knowledge of each of the signers, the Issuer
has complied with the conditions and covenants on its part contained in this
Indenture, and, if the signers, to the best of their knowledge, know of any
default by the Issuer in the performance, observance or fulfillment of any such
condition or covenant, specifying each such default and the nature thereof. For
the purpose of this Section, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
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ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each series;
(a) semiannually and not more than 15 days after each record
date for the payment of interest, if any, on such Securities of such
series, as of such record date, and on dates to be determined pursuant
to Section 3.1 for non-interest bearing Securities of such series in
each year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Securities of such series, as of the
respective record dates therefor (and on dates to be determined
pursuant to Section 3.1 if the Securities of such series do not bear
interest) as of a date not more than 15 days prior to the time such
information is furnished and need not include information received
after such date;
provided that, if and so long as the Trustee shall be the Securities Registrar
for such series, such list shall not be required to be furnished.
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of the Securities (1) contained in the most recent list furnished to
it as provided in Section 5.1, (2) maintained by the Trustee in its capacity as
Paying Agent for such series (if so acting) hereunder and of the Securities
Registrar for such series, and (3) filed with it within two preceding years
pursuant to the provisions of paragraph (2) of subsection (c) of Section 5.4.
The Trustee may (1) destroy any list furnished to it as
provided in Section 5.1 upon receipt of a new list so furnished, (2) destroy any
information received by it as Paying Agent for such series (if so acting)
hereunder upon delivery to itself as Trustee a list containing the names and
addresses of the Holders of Securities of such series obtained from such
information since the delivery of the next previous list, if any, (3) destroy
any list delivered to itself as Trustee which
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was compiled from information received by it as Paying Agent (if so acting)
hereunder upon the receipt of a new list so delivered, and (4) destroy any
information filed with it by the Holders of Securities of such series for the
purpose of receiving reports pursuant to the provisions of paragraph (2) of
subsection (c) of Section 5.4, but not until two years after such information
has been filed with it.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular series (in which
case at least three of the applicants must all hold Securities of such series)
or with Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the
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Holders of Securities of such series or all Holders of Securities, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the Issuer
nor the Trustee nor any Paying Agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
SECTION 5.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Issuer
is not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the
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Issuer with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities in the
manner and to the extent provided in Sections 5.4(c) and 5.4(d) within
30 days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Issuer pursuant to subsections (a) and (b) of this Section as may be
required to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
SECTION 5.4. Reports by the Trustee. (a) Within 60 days after
May 15 in each year following the date of original execution of this Indenture,
so long as any Securities are Outstanding hereunder, the Trustee shall transmit
by mail as provided below to the Securityholders of such series, as hereinafter
in this Section provided, a brief report, dated as of a date convenient to the
Trustee no more than 60 days prior thereto, with respect to any of the following
events which may have occurred within the previous twelve months (but if no such
event has occurred within such period, no report need be transmitted):
(i) any change to its eligibility under Section 7.9
and its qualification under Section 7.8;
(ii) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities of such series
Outstanding on the date of such report;
(iv) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Issuer (or by any other
obligor on the Securities of such series) to the Trustee in its
individual capacity on the date of such report, with a brief
description of any property held as collateral security therefor,
except any indebtedness based upon a creditor relationship arising in
any manner described in Section 7.13(b)(2), (3), (4) or (6);
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(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities of any series which
the Trustee has not previously reported; and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities of any
series, except action in respect of a default, notice of which has been
or is to be withheld by it in accordance with the provisions of Section
6.11.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of original execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(1) to all Holders of Securities, as the names and addresses
of such Holders appear in the Securities Register;
(2) to such Holders of Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section, to each Holder of a Security of any series whose name
and address are preserved at the time by the Trustee, as provided in
subsection (a) of Section 5.2.
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(d) A copy of each such report shall, at the time of such
transmission to the Securityholders of any series, be furnished to the Issuer
and be filed by the Trustee with each stock exchange upon which the Securities
of such series are listed and also with the Commission. The Issuer agrees to
notify the Trustee promptly when and as the Securities of any series become
admitted to trading on any national securities exchange.
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ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default", with respect to the Securities
of any series, wherever used herein, means each one of the following events
which shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the applicable resolution of the Board of Directors or in
the supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated by Section 3.1:
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days and the time for payment of such interest has not been extended;
provided, however that if the Issuer is permitted by the terms of the
Securities of the applicable series to defer the payment in question,
the date on which such payment is due and payable shall be the date on
which the Issuer is required to make payment following such deferral,
if such deferral has been elected pursuant to the terms of the
Securities of that series; or
(b) default in the payment of all or any part of the principal
of or premium, if any, on any of the Securities of such series as and
when the same shall become due and payable either at Stated Maturity,
upon redemption, by declaration or otherwise and the time for payment
of such principal (or premium, if any), has not been extended;
provided, however, that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in question,
the date on which such payment is due and payable shall be the date on
which the Company is required to make payment following such deferral,
if such deferral has been elected pursuant to the terms of the
Securities of that series; or
(c) default in the deposit of any sinking fund payment when
and as due and payable by the terms of the Securities of such series;
or
(d) default in the performance or observance of any other
covenant or agreement of the Issuer in respect of the Securities of
such series (other than a covenant or
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agreement in respect of the Securities of such series a default in
whose performance or observance is elsewhere in this Section
specifically dealt with), and continuance of such default for a period
of 60 days after there has been given, by registered or certified mail,
to the Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, a written notice specifying
such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or, under any such law, (i) appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or (ii) ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or, under any such law, (i) consent to the entry of an order
for relief in an involuntary case under any such law, (ii) consent to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Issuer or for any substantial part of its property, or (iii) make
any general assignment for the benefit of creditors; or
(g) any other Event of Default established by or pursuant to a
resolution of the Board of Directors or one or more indentures
supplemental hereto as applicable to the Securities of such series.
If an Event of Default described in clause (a), (b), (c), (d) or (g) above (if
the Event of Default under clause (d) or (g) is with respect to fewer than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class), by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms of such series) of all Securities of
such
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series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (g) above with
respect to all series of Securities then Outstanding occurs and is continuing,
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If any Event of Default described in clause (e) or
(f) occurs and is continuing, all the Securities then Outstanding and the
interest accrued thereon, if any, shall immediately become due and payable
without declaration, presentment, demand or notice of any kind by the Trustee or
any Holder of Securities Outstanding hereunder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared or become due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, upon all the Securities of such series (or
upon all the Securities, as the case may be) and the principal of (and premium,
if any, on) any and all Securities of such series (or of all the Securities, as
the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the Overdue Rate applicable to such series to the
date of such payment or deposit) and all amounts payable to the Trustee pursuant
to the provisions of Section 7.6, and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the nonpayment of the principal of
and accrued interest on Securities of such series which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the
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Holders of a majority in aggregate principal amount of the Securities of such
series (each series voting as a separate class), or of all the Securities
(voting as a single class), as the case may be, then Outstanding, by written
notice to the Issuer and to the Trustee, may waive all defaults with respect to
that series (or with respect to all the Securities, as the case may be) and
rescind and annul such acceleration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Security shall have been accelerated
and declared or become due and payable pursuant to the provisions hereof, then,
from and after such acceleration, unless such acceleration has been rescinded
and annulled, the principal amount of such Original Issue Discount Security
shall be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Security.
SECTION 6.2. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of or any premium, if
any, on any Securities of any series when the same shall have become due and
payable, whether upon Stated Maturity of the Securities of such series or upon
any redemption or by acceleration or otherwise or (c) in case of default in the
making or satisfaction of any sinking fund payment or analogous obligation when
the same becomes due by the terms of the Securities of any series -- then upon
demand of the Trustee for such series, the Issuer will pay to the Trustee for
the benefit of the Holder of any such Security (or Holders of any such series of
Securities in the case of clause (c) above) the whole amount that then shall
have become due and payable on any such Security (or Securities of any such
series in the case of clause (c) above) for the principal, premium, if any, and
interest, if any, with interest upon the overdue principal and premium, if any,
and, so far as payment of the same is enforceable under applicable law, on
overdue installments of interest, at the Overdue Rate applicable to any such
Security (or Securities of any such series in the case of clause (c)); and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and any further amounts payable to the Trustee, its
agents and counsel pursuant to the provisions of Section 7.6.
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In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities (or Securities of any such series in case of clause (c))
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon such Securities (or Securities of any such series in case of
clause (c)), wherever situated, the moneys adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own
name as trustee of an express trust, or as attorney-in-fact for the Holders of
any of the Securities, or in both such capacities, to file such proof of debt,
amendment of proof of debt, claim, petition or other document as may be
necessary or advisable in order to have the claims of the Trustee and of the
Holders of Securities allowed in any equity receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or other similar
proceedings, or any judicial proceedings, relative to the Company or any other
obligor on the Securities or its creditors or its property. The Trustee is
hereby irrevocably appointed (and the successive respective Holders of the
Securities, by taking and holding the same, shall be conclusively deemed to have
so appointed the Trustee) the true and lawful attorney-in-fact of the respective
Holders of the Securities, with authority to make or file in the respective
names of the Holders of the Securities any proof of debt, amendment of proof of
debt, claim, petition or other document in any such proceedings and to receive
payment of any sums becoming distributable on account thereof, and to execute
any other papers and documents and do and perform any and all acts and things
for and on behalf of such Holders of the Securities as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Holders of the Securities against the Issuer or any other obligor on the
Securities and/or its property allowed in any such proceedings, and to receive
payment of or on account of such claims; provided, however, that nothing herein
contained shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any Holder of Securities, any plan of
reorganization or readjustment of the Issuer or any other obligor on the
Securities or, by other action of any character in any such proceeding, to waive
or change in any way any right of any Holder of any Security, even though it may
otherwise be entitled so to do under any present or future law, all such power
or authorization being hereby expressly denied.
All rights of action and of asserting claims under this
Indenture or under any of the Securities may be enforced by the Trustee without
the possession of any of the Securities or
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the production thereof in any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 6.3. Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series of the Securities,
together with any other sums held by the Trustee (as such) hereunder (other than
sums held in trust for the benefit of the Holders of particular Securities),
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal,
upon presentation (except in respect of Subdivision First below) of the several
Securities in respect of which moneys have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which moneys have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 7.6;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee), so far as it may be
enforceable under applicable law, upon the overdue installments of
interest at the Overdue Rate applicable to such series, such payments
to be made ratably to the persons entitled thereto, without
discrimination or preference;
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THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and premium, if any, and interest, if any, with interest upon the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee), so far as payment of the
same is enforceable under applicable law, upon overdue installments of
interest, if any, at the Overdue Rate applicable to such series; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the
payment of such principal, premium, if any, and interest, if any,
without preference or priority of principal and premium, if any, over
interest, or of interest, if any, over principal and premium, if any,
or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal, premium, if
any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or as a court of competent jurisdiction may
direct.
SECTION 6.4. Suits for Enforcement. In case an Event of
Default with respect to Securities of any series has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to the
Trustee or such Holder, then and in every such case (subject to the binding
effect of any determination made in such proceedings) the Issuer and the Trustee
shall be restored severally and respectively to their former positions and
rights hereunder, and (subject as aforesaid) all rights, remedies and powers of
the Issuer, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
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SECTION 6.6. Limitations on Suits by Securityholders. No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute an action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or with respect
to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to
institute such action or proceeding in its own name as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder of any Security and with the Trustee, that no one or more
Holders of Securities of any series shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
For the protection and enforcement of the provisions of this Section, each and
every Holder of Securities of any series and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 6.7. Unconditional Right of Securityholders to
Institute Certain Suits. Nothing contained in this Indenture or in the
Securities of any series shall affect or impair the obligation of the Issuer,
which is unconditional and absolute, to pay the principal of, and premium, if
any, and interest, if any, on, the Securities of such series at the respective
places, at the respective times, at the respective rates, in the respective
amounts and in the coin or currency therein and herein prescribed, or affect or
impair the right of action, which is also absolute and unconditional, of any
Holder of any Security to institute suit to enforce such payment at the
respective due dates expressed in such Security, or upon redemption, by
declaration, repayment or otherwise as herein provided without reference to, or
the consent of, the Trustee or the Holder of any other Security, unless such
Holder consents thereto.
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SECTION 6.8. Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 6.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holder of any
Security is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any
Security of any series to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holder of any Security may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holder of such Security.
SECTION 6.9. Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture, and provided, further,
that (subject to the provisions of Section 7.1) the Trustee shall have the right
to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee or a trust committee of directors or responsible officers of
the Trustee shall determine that the action or proceedings so directed would
expose the Trustee to personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 7.1) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
As between the Trustee and the Holders of the Securities,
nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper
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by the Trustee and which is not inconsistent with such direction
or directions by Securityholders.
SECTION 6.10. Waiver of Past Defaults. Prior to the
acceleration with respect to Securities of any series as provided in Section
6.1, the Holders of not less than a majority in aggregate principal amount of
the Securities of such series at the time Outstanding, may on behalf of the
Holders of all the Securities of such series waive any past default or Event of
Default described in clause (d) or (g) of Section 6.1 which relates to fewer
than all series of Securities then Outstanding, and the Holders of a majority in
aggregate principal amount of the Securities then Outstanding affected thereby
(each series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (d) or (g) (if the
Event of Default under clause (d) or (g) relates to all series of Securities
then Outstanding) of Section 6.1, the Holders of a majority in aggregate
principal amount of all the Securities then Outstanding (voting as one class)
may waive any such default or Event of Default, and its consequences except a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, the Trustee and the Holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively, such default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall be
deemed to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 6.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall transmit to the
Securityholders of any series, as the names and addresses of such Holders appear
on the Security Register, notice by mail of all defaults known to a responsible
officer of the Trustee which have occurred with respect to such series, such
notice to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice (the term
"default" or "defaults" for the purposes of this Section being hereby defined to
mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the case of default
in the payment of the principal of, or premium, if any, or interest, if any, on,
any of the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or responsible officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
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SECTION 6.12. Right of Court to Require Filing of Undertaking
to Pay Costs. The parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or, in
the case of any suit relating to or arising under clause (d) or (g) of Section
6.1 (if the suit relates to Securities of more than one but fewer than all
series), 10% in aggregate principal amount of Securities Outstanding affected
thereby, or, in the case of any suit relating to or arising under clause (d),
(g) (if the suit under clause (d) or (g) relates to all the Securities then
Outstanding), (e) or (f) of Section 6.1, 10% in aggregate principal amount of
all Securities Outstanding, or to any suit instituted by any Holder of
Securities for the enforcement of the payment of the principal of, or premium,
if any, or interest, if any, on, any Security on or after the due date expressed
in such Security.
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ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of that series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of such series and after the curing or
waiving of all such Events of Default with respect to such series which
may have occurred:
(i) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or responsible officers of
the Trustee, unless it shall be
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proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities pursuant to Section 6.9 relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 7.2. Certain Rights of the Trustee. Subject to
Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or any assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc. The Trustee, any Paying Agent, Securities Registrar,
Authenticating Agent or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent,
and, subject to Sections 7.8 and 7.13, if operative, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the
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Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such agent.
SECTION 7.5. Moneys Held by Trustee. Subject to the provisions
of Section 4.4, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. The Trustee shall have no liability for
interest on money it receives and holds in trust except as specifically provided
herein.
SECTION 7.6. Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay the Trustee from time to
time, and the Trustee shall be entitled to such compensation as the Issuer and
the Trustee may from time to time agree in writing for all services rendered by
the Trustee hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor trustee for, and hold it harmless against, any
loss, liability, damage, claims or expense, including taxes (other than taxes
measured by the income of the Trustee or otherwise applicable to the Trustee for
operations outside the scope of this Indenture) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor trustee and to pay or reimburse the Trustee and each predecessor
trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
SECTION 7.7. Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 7.1 and 7.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or
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established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken,' suffered or omitted by it under the provisions of
this Indenture upon the good faith thereof.
SECTION 7.8. Qualification of Trustee; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be subject
to the provisions of Section 310(b) of the Trust Indenture Act during the period
of time provided for therein. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.9. Persons Eligible for Appointment as
Trustee. There shall at all times be a Trustee hereunder for
each series of Securities, which shall be at all times either
(i) a corporation organized and doing business under
the laws of the United States of America or of any State or
territory or the District of Columbia, authorized under such
laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, territory or
District of Columbia authority, or
(ii) a corporation or other person organized and
doing business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation or
order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $100,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 7.9, the combined capital and surplus of
such corporation shall be deemed to be its combined
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capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee for the Securities of any series shall
cease to be eligible in accordance with the provisions of this Section 7.9, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Issuer nor any person directly or indirectly
controlling, controlled by, or under common control with the Issuer shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of resignation to the
Issuer and by mailing notice thereof by first-class mail to Holders of the
Securities at their last addresses as they shall appear on the Security
Register. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities for at least six
months may, subject to the provisions of Section 6.12, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request
therefor by the Issuer or by any Securityholder who has been a bona
fide Holder of a Security or Securities for at least six months unless
the Trustee's duty to resign is stayed in accordance with the
provisions of Section 310(b) of the Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.9 and shall fail to resign after
written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent; or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or
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control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any case, the Issuer may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.12, any Securityholder who has been a bona fide Holder
of a Security or Securities for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(iv) The Holders of a majority in aggregate principal amount
of the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 8.1 of the action in that regard taken by the Securityholders.
(v) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective until acceptance of appointment by the
successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee hereunder; but nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
all amounts due to the Trustee under Section 7.6, the Trustee ceasing to act
shall, subject to Section 4.4, pay over to the successor trustee all moneys at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any successor trustee, the Issuer shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any Trustee
ceasing to act, shall, nevertheless, retain a prior lien upon all property or
funds held or collected by
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such trustee to secure any amounts then due it pursuant to the
provisions of Section 7.6.
No successor trustee shall accept appointment as provided in
this Section 7.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 7.11, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
7.10. If the Issuer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 7.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation in which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to substantially all of the corporate trust
business of the Trustee, shall be the successor of the trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 7.8 and eligible under the provisions of Section 7.9, without the
execution or filing of any paper or any further act (including the giving of any
notice to Securityholders) on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided for the certificate of authentication of the Trustee.
SECTION 7.13. Preferential Collection of Claims
Against the Issuer. (a) Subject to the provisions of this
Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Issuer or
any other obligor of the Securities within three months prior to
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a default, as defined in subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of other indenture
securities (as defined in this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period
and valid as against the Issuer and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Issuer
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Issuer and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than Issuer) who is liable
thereon, (ii) the proceeds of a bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Issuer in bankruptcy or receivership or in the proceedings for
reorganization pursuant to the Federal Bankruptcy Code or applicable
state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee has no
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reasonable cause to believe that a default as defined by subsection (c)
of this Section would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Holders of the Securities and the holders
of other indenture securities in such manner that the Trustee, such Holders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Issuer of the
funds and property in such special account and before crediting to the
respective claims of the Trustee, Holders of the Securities and the holders of
other indenture securities dividends on claims filed against the Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Holders of Securities and the holders of other indenture
securities, in accordance with the
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provisions of this paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the Trustee, the
Holders of Securities and the holders of other indenture securities with respect
to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distribution as between the secured and unsecured portions of
such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this subsection (a) as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a) if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section a
creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the Holders of
the applicable series of Securities at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
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(4) an indebtedness created as a result of services rendered
or premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3)
of this Section;
(5) the ownership of stock or of some other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities of
the applicable series or upon the other indenture securities when and
as such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the Trust
Indenture Act) outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon the goods, wares or merchandise or
the receivables or proceeds arising from the sale of goods, wares or
merchandise previously constituting the security, provided that the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Issuer arising from the making,
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drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 7.14. Authenticating Agent. So long as any Securities
remain Outstanding, if the Corporate Trust Office of the Trustee is not located
in the Borough of Manhattan, The City of New York, or otherwise upon an Issuer
Request, there shall be an authenticating agent (the "Authenticating Agent")
appointed, for such period as the Issuer shall elect, by the Trustee to act as
its agent on its behalf and subject to its direction in connection with the
authentication and delivery of Securities. Securities authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by such
Trustee. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a Certificate
of Authentication executed on behalf of such Trustee by such Authenticating
Agent. Such Authenticating Agent shall at all times be a corporation organized
and doing business under the laws of the United States of America or of any
State or of the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$20,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If the Corporate Trust Office of the Trustee is
not located in the Borough of Manhattan, The City of New York, the
Authenticating Agent shall have its principal office and place of business in
the Borough of Manhattan, The City of New York.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of resignation to
the Trustee and to the Issuer. The Trustee may at any time terminate the agency
of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.14,
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the Trustee shall upon Issuer Request appoint a successor Authenticating Agent,
and the Issuer shall provide notice of such appointment to all Holders of
Securities in the manner and to the extent provided in Section 13.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Issuer agrees to pay or to cause to be paid to the
Authenticating Agent from time to time reasonable compensation for its services.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in good faith at the direction of the Trustee.
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ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced
(a) by any instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, or (b) by the
record of Holders voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Holders. The Issuer may (but shall not be required to) set a record
date for purposes of determining the identity of Securityholders entitled to
vote or consent to any action by vote or consent authorized or permitted under
this Indenture, which record date shall be the later of 10 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 5.1 of this Indenture prior
to such solicitation. If a record date is fixed, those persons who were
Securityholders at such record date (or their duty designated proxies), and only
those persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date. No such vote or consent shall be
valid or effective for more than 120 days after such record date.
SECTION 8.2. Proof of Execution of Instruments by Holders of
Securities. Subject to Sections 7.1, 7.2 and 9.5, the execution of any
instrument by a Holder of a Security or his agent or proxy may be proved in any
reasonable manner that the Trustee deems sufficient, including, without
limitation, in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or
other officer authorized to take acknowledgments of deeds, that the
person executing such instrument acknowledged to him the execution
thereof, or by an affidavit or written statement of a witness to such
execution. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other person
acting in a representative capacity, such certificate, affidavit
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or written statement shall also constitute sufficient proof of his
authority.
The ownership of Securities shall be proved by the Securities
Register or by a certificate of the Securities Registrar.
The record of any Holders' meeting shall be proved in the
manner provided in Section 9.6.
SECTION 8.3. Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the person
in whose name any Security shall be registered upon the Security Register as the
absolute owner of such Security (notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of principal of, and
premium, if any, and (subject to Section 3.8) interest, if any, on, such
Security, and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by notice to the contrary. All such payments so made
to any Holder for the time being, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon such Security.
None of the Issuer, the Trustee or any agent of the Issuer or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interest
of a Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest. Notwithstanding the foregoing,
with respect to any Global Security, nothing herein shall prevent the Issuer or
the Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by any Depository
(or its nominee), as a Holder, with respect to such Global Security or impair,
as between such Depository and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
right of such Depository (or its nominee) as holder of such Global Security.
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned by
the Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for
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the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 7.1 and
7.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 8.5. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security, the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Securities the Holders of which have
consented to such action, may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security or such other
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
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ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee for the
Securities of such series, or to give any directions to the Trustee, or
to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article VI;
(2) to remove the Trustee and nominate a successor Trustee
pursuant to the provisions of Article VII;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be,
under any other provision of this Indenture or under applicable law.
SECTION 9.2. Call of Meetings by Trustee. The Trustee may at
any time call a meeting of Holders of Securities to take any action specified in
Section 9.1, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or such other Place of Payment, as the Trustee
shall determine. Notice of every meeting of the Holders of Securities, setting
forth the time and the place of such meeting, and in general terms the action
proposed to be taken at such meeting, shall be given to Holders of Securities of
the particular series in the manner and to the extent provided in Section 13.4.
Such notice shall be given not less than 20 nor more than 90 days prior to the
date fixed for the meeting.
SECTION 9.3. Call of Meetings by Issuer or Holders. In case at
any time the Issuer, pursuant to a resolution of its Board of Directors, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any or all series, as the case may be, shall have requested the
Trustee to call a meeting of Holders of Securities of any or all series, as the
case may be, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee for such series shall not
have given the notice of such meeting within 20 days after receipt of such
request, then the Issuer or such Holders may determine the time and the place in
the Borough of Manhattan or other Place of Payment for such
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meeting and may call such meeting to take any action authorized in Section 9.1,
by giving notice thereof as provided in Section 9.2.
SECTION 9.4. Qualifications for Voting. To be entitled to vote
at any meeting of Holders a person shall be (a) a Holder of one or more
outstanding Securities with respect to which such meeting is being held or (b) a
person appointed by an instrument in writing as proxy by such Holder. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Issuer and its counsel.
SECTION 9.5. Regulations. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of the Securities in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders of Securities as provided in Section 9.3, in which case
the Issuer or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting, shall be elected by majority vote of the meeting.
Subject to Section 8.4, at any meeting each Holder of
Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Outstanding") of Securities held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Securities held by him or
instruments in writing aforesaid duly designating him as the person to vote on
behalf of other Holders. At any meeting of Holders, the presence of persons
holding or representing Securities with respect to which such meeting is being
held in an aggregate principal amount sufficient to take action on the business
for the transaction of which such meeting was called shall constitute a quorum,
but, if less than a quorum is present, the persons holding or representing a
majority in aggregate principal amount of such Securities represented at the
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meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present. Any meeting of Holders of
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 9.2 or Section 9.3 may be adjourned from time to time by
persons holding or representing a majority in aggregate principal amount of such
Securities represented at the meeting, present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 9.6. Voting. The vote upon any resolution submitted to
any meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.2. The record shall
show the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Issuer and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 9.7. No Delay of Rights by Reason of Meeting. Nothing
in this Article contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders under any of the provisions of this Indenture or of the Securities
of any series.
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ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
under this Indenture and the Securities;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors shall consider to be for the protection of the Holders of any
series of Securities, and to make the occurrence and continuance of a
default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable and which shall not materially adversely affect the
interests of the Holders of any Securities;
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(e) to establish the form or terms of Securities of any series
as permitted by Section 3.1;
(f) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to
principal only), to provide for interchangeability thereof with
Securities in registered form of the same series and to make all
appropriate changes for such purpose, or to permit or facilitate the
issuance of Securities of any series in uncertificated form;
(g) to provide for the issuance under this Indenture of
Securities denominated or payable in currency other than Dollars and to
make all appropriate changes for such purpose;
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities,
pursuant to Section 7.11, or to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;
(i) to modify any restrictions on and procedures for resales
of Securities of any series that is not registered pursuant to the
Securities Act to reflect any change in applicable law or regulation
(or the interpretation thereof) or in practices relating to the resale
or transfer of restricted securities generally and to modify any
legends placed on such securities to reflect such restrictions and
procedures;
(j) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable to conform to provisions
of the Trust Indenture Act as at the time in effect, provided that such
action shall not materially adversely affect the interests of the
Holders of the Securities of any series; and
(k) otherwise to change or eliminate any of the provisions of
this Indenture; provided, however, that any such change or elimination
may only be effected when no Outstanding Security of any series created
prior to the execution of such supplemental indenture is entitled to
the benefit of such provision.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
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supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 10.2.
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article VIII) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series; provided that no such supplemental
indenture shall (a) change the Stated Maturity of any Security of such series,
or reduce the principal amount thereof or the amount of any premium thereon, or
reduce the rate, extend the time of payment or change the method of calculation
of interest thereon, or reduce any amount payable on redemption thereof or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration with respect thereto pursuant to
Section 6.1 or the amount thereof provable in bankruptcy pursuant to Section
6.2, or impair or adversely affect the right of any Securityholder to institute
suit for the payment thereof or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder, without the consent of the
Holder of each Security of such series so affected, or (b) reduce the aforesaid
percentage of the principal amount of Securities of such series, the consent of
the Holders of which is required for any such supplemental indenture or any
waiver of any obligations of the Issuer under this Indenture, without the
consent of the Holders of each Security of such series so affected, or (c)
subordinate the indebtedness evidenced by the Securities of such series to any
indebtedness of the Issuer without consent of the Holder of each Security of
such series so affected.
Upon the request of the Issuer, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 8.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise,
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in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 10.3. Notice of Supplemental Indenture. Promptly after
the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of Section 10.2, the Issuer shall mail a notice
thereof by first-class mail to the Holders of Securities of each series affected
thereby at their addresses as they shall appear on the Security Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.4. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith, but only with regard to the Securities of each series
affected by such supplemental indenture, and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Issuer and the Holders of any Securities of such series affected
thereby shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes with
regard to the Securities of such series.
SECTION 10.5. Documents To Be Given to Trustee. The Trustee,
subject to the provisions of Sections 7.1 and 7.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article complies with the
applicable provisions of this Indenture.
SECTION 10.6. Notation on Securities in Respect of
Supplemental Indentures. Securities of any series affected by
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any supplemental indenture which are authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Issuer and the Trustee as to
any matter provided for in such supplemental indenture. If the Issuer shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
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ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on Certain
Terms. The Issuer will not, and will not permit any of its Subsidiaries to,
directly or indirectly, consolidate with, or merge into, or sell all or
substantially all of its assets to, any person, except that
(a) a Subsidiary may permit any person to be merged into such
Subsidiary, and such Subsidiary may consolidate with or merge into or
sell all or substantially all of its assets to the Issuer or another
Subsidiary or a person which thereupon becomes a Subsidiary;
(b) the Issuer may permit any person to be merged into the
Issuer or may, subject to Section 11.2, consolidate with or merge into,
or sell all or substantially all of its assets to, any solvent person
organized in the United States of America (substantially all of the
assets of which are located within the United States of America);
(c) the stock of a Subsidiary may be sold under circumstances
whereby all of the capital stock and debt of that Subsidiary owned by
the Issuer or another Subsidiary are being disposed of by the Issuer or
such other Subsidiary; or
(d) all or substantially all the assets of a Subsidiary may be
sold in a transaction approved by the Board of Directors of the Issuer;
provided that, immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing under this Indenture.
SECTION 11.2. Conditions to Consolidation or Merger, etc. The
Issuer covenants and agrees that it will not consolidate with or merge into any
other corporation, or sell all or substantially all of its assets, unless, and
the Issuer covenants and agrees that any such consolidation, merger or sale
shall be upon the condition that, the due and punctual payment of the principal
of, and premium, if any, and interest, if any, on, all the Securities of each
series according to their tenor, and the due and punctual performance and
observance of all the terms, covenants and conditions of this Indenture to be
performed or observed by the Issuer, shall, by a supplemental indenture hereto
pursuant to Section 10.1(b), be expressly assumed by the successor corporation,
if other than the Issuer, formed by or surviving any such consolidation or
merger or to which such sale, transfer or lease shall have been made, as
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fully and effectually as if such successor corporation had been an original
party to this Indenture.
Every such successor corporation, if other than the Issuer,
upon executing such supplemental indenture, in form satisfactory to the Trustee,
shall succeed to and be substituted for the Issuer with the same effect as if it
had been an original party hereto, and shall possess and from time to time may
exercise each and every power of the Issuer under this Indenture, and, in the
case of any such sale or transfer, the person named as the "Issuer" in the first
paragraph of this Indenture or any successor corporation which shall theretofore
have become such in the manner prescribed in this Article shall be released from
its liability hereunder and as obligor on all the Securities. Such successor
corporation thereupon may execute and deliver Securities under this Indenture,
either in the name of the Issuer (unless the Issuer shall have been released
from its liability hereunder and as obligor on the Securities as provided in the
next preceding sentence) or of such successor corporation, and any act or
proceeding required by this Indenture to be done or performed by any board or
officer of the Issuer may be done or performed with like force and effect by the
comparable board or officer of such successor corporation. Such change in
phraseology and form (but not in substance) may be made in the Securities as may
be appropriate in view of such consolidation, merger, sale, transfer or lease.
All the Securities when issued by such successor corporation shall in all
respects have the same legal priority as the Securities theretofore or
thereafter authenticated, issued and delivered in accordance with the terms of
this Indenture.
SECTION 11.3. Documents and Opinion To Be Furnished to the
Trustee. The Issuer covenants and agrees that if it shall consolidate with or
merge into any other corporation, or if it shall sell all or substantially all
of its assets, the Issuer will promptly furnish to the Trustee:
(1) An Officers' Certificate stating that the conditions and
covenants of the Issuer contained in Section 11.2 have been complied
with;
(2) An executed counterpart of any instrument or instruments
executed by the Issuer in the performance of such conditions and
covenants; and
(3) An Opinion of Counsel stating that in the opinion of such
counsel such conditions and covenants have been complied with and that
any instrument or instruments executed by the Issuer in the performance
of such conditions and covenants comply with the requirements of such
conditions and covenants.
The Trustee shall receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger or sale,
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any such assumption and any such supplemental indenture comply
with this Article.
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ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of Any
Series. Except as otherwise provided for the Securities of any series
established pursuant to Section 3.1(16), the Issuer shall be deemed to have
satisfied and discharged this Indenture with respect to the entire indebtedness
on all the Outstanding Securities of any particular series, and the Trustee, at
the expense of the Issuer and upon Issuer Request, shall execute proper
instruments acknowledging such satisfaction and discharge, when
(1) either
(A) all Outstanding Securities of such series
theretofore authenticated and delivered (other than (i) any
Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.7 and (ii) Outstanding Securities of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 12.5) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of
such series described in sub-clause (A) above (other than the
Securities referred to in the parenthetical phrase thereof)
not theretofore delivered to the Trustee for cancellation:
(i) the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee
as trust funds in trust an amount (except as
otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay and
discharge the entire indebtedness on all such
Outstanding Securities of such series for principal
(and premium, if any) and interest to the Stated
Maturity or any Redemption Date as contemplated by
Section 12.3, as the case may be; or
(ii) the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee
as obligations in trust such amount of Government
Obligations as will, in a written opinion of
independent public accountants delivered to the
Trustee, together with the predetermined and certain
income to accrue
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thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due
the entire indebtedness on all such Outstanding
Securities of such series for unpaid principal (and
premium, if any) and interest to the Stated Maturity
or any Redemption Date as contemplated by Section
12.3, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities of such series
including all fees due to the Trustee under Section 7.6;
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the due satisfaction and
discharge of this Indenture with respect to the entire indebtedness on
all Outstanding Securities of any such series have been complied with;
and
(4) if the Securities of such series are not to become due and
payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the
date of such deposit under arrangements satisfactory to the Trustee as
of the date of such deposit, then the Issuer shall have given, not
later than the date of such deposit, notice of such deposit to the
Holders of the Securities of such series.
Upon the satisfaction of the conditions set forth in this
Section 12.1 with respect to all the Outstanding Securities of any series, the
terms and conditions with respect thereto set forth in this Indenture shall no
longer be binding upon, or applicable to, the Issuer; provided, however, that
the Issuer shall not be discharged from (a) any obligations under Sections 7.6
and 7.10 and (b) any obligations under Section 3.6 or 3.7 and Section 5.1; and
provided, further, that in the event a petition for relief under the federal
Bankruptcy Code or a successor statute is filed with respect to the Issuer
within 91 days after the deposit, this Indenture with respect to the entire
indebtedness on all Securities of such series shall not be discharged, and in
such event the Trustee shall return such deposited funds or obligations as it is
then holding to the Issuer upon Issuer Request.
SECTION 12.2. Satisfaction and Discharge of Indenture. Upon
compliance by the Issuer with the provisions of Section 12.1 as to the
satisfaction and discharge of this Indenture with respect to each series of
Securities issued hereunder and if the Issuer has paid or caused to be paid all
other sums payable under this Indenture, this Indenture shall cease to be of any
further effect (except as otherwise provided
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herein). Upon Issuer Request and receipt of an Opinion of Counsel and an
Officers' Certificate (and at the expense of the Issuer), the Trustee shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Issuer under Sections 3.6, 3.7, 5.1, 7.6 and
7.10 and the obligations of the Trustee under Section 12.3 shall survive.
SECTION 12.3. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section 12.1 shall be held
irrevocably in trust and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Issuer and the Trustee. Such
money and obligations shall be applied by the Trustee, in accordance with the
provisions of the Securities, this Indenture and such escrow trust agreement, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal of (and premium, if any) and interest, if
any, on the Securities for the payment of which such money and obligations have
been deposited with the Trustee. If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund
requirement, the Issuer shall give the required notice of redemption or shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Issuer.
SECTION 12.4. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys with respect to such series then held by
any Paying Agent (and not required for such satisfaction and discharge) shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee and
Paying Agent. Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of, or premium, if any, or interest, if
any, on, Securities of any series and which shall not be applied but shall
remain unclaimed by the Holders of Securities of such series for two years after
the date upon which such payment shall have become due and payable, shall be
repaid to the Issuer by the Trustee on demand; and the Holder of any of such
Securities entitled to receive such payment shall thereafter look only to the
Issuer for the payment thereof; provided, however, that the Issuer or the
Trustee, before making any such repayment, shall at the expense of the Issuer
cause to be published once a week for two
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successive weeks (in each case on any day of the week) in an Authorized
Newspaper, or mail to each Holder, or both, a notice that said moneys have not
been so applied and that after a date named therein any unclaimed balance of
said moneys then remaining will be returned to the Issuer.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 12.3 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.1 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.3; provided,
however, that if the Company makes any payment of interest on or principal of
any Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of such Securities.
SECTION 13.2. Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and the Holders
of the Securities.
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 13.4. Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed by
first class mail, postage prepaid, to such Holders as their names and addresses
appear on the Securities Register within the time prescribed. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance on such
waiver. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder, shall affect the sufficiency of such notice with respect to
other Holders, and any notice which is mailed in the manner herein provided
shall be conclusively
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presumed to have been duly given. In case by reason of the suspension of
publication of any Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders otherwise required or
permitted under this Indenture, then such notification as shall be given with
the approval of the Trustee shall constitute sufficient notice to such Holders
for every purpose hereunder.
SECTION 13.5. Addresses for Notices. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Securities of any series on the
Issuer may be given or served by registered mail addressed (until another
address is filed by the Issuer with the Trustee) as follows: IDACORP, Inc.,
________________, Attention: ____________ (with a concurrent copy to the General
Counsel). Any notice, direction, request or demand by the Issuer or any Holders
of Securities of any series to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if received at the Corporate Trust
Office of such Trustee.
SECTION 13.6. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent (including any covenants compliance with which
constitutes a condition precedent) provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent (including any
covenants compliance with which constitutes a condition precedent) have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
(other than annual certificates provided pursuant to Section 4.6) and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
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Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 13.7. Separability Clause. In case any provision of
this Indenture or of the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 13.8. Legal Holidays. In any case where the date of
maturity of interest on or principal of (or premium, if any, on) the Securities
or the date fixed for redemption or repayment of any Security shall not be a
Business Day at any Place of Payment with respect to Securities of that series,
then (notwithstanding any other provisions of this Indenture or of the Security)
payment of such interest on or principal of (or premium, if any, on) the
Securities of such series need not be made on such date in such Place of Payment
but may be made on the next succeeding Business Day in such Place of Payment
with the same force and effect as if made on the date of maturity or the date
fixed for redemption or repayment, as the case may be, and no interest shall
accrue for the period from and after such date by reason of such delayed
payment.
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SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the former provision shall control.
SECTION 13.10. Governing Law. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes this Indenture shall be construed in accordance with the laws
of said State applicable to contracts made and to be wholly performed within
said State.
SECTION 13.11. Counterparts. This Indenture may be
executed in any number of counterparts, and on separate
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.12. Effect of Headings. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the interpretation hereof.
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<PAGE>
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their stated Maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.1 for Securities of such series. For purposes of Section 14.2, the redemption
of all Securities having the same terms within a series shall not be deemed to
be the redemption of fewer than all of the Securities of any series.
SECTION 14.2. Notice of Redemption; Selection of Securities.
In case the Issuer shall desire to exercise the right to redeem all or, as the
case may be, any part of the Securities of any series in accordance with their
terms, it shall fix a Redemption Date and shall provide notice of such
redemption at least 30 days prior to such Redemption Date to the Trustee and to
the Holders of Securities of such series so to be redeemed as a whole or in part
in the manner provided in Section 13.4. The notice provided in the manner herein
specified shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, failure to give such notice or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the CUSIP or other comparable number, the Place or
Places of Payment, that the Securities of such series are being redeemed at the
option of the Issuer pursuant to provisions contained in the terms of the
Securities of such series or in a supplemental indenture establishing such
series, if such be the case, together with a brief statement of the facts
permitting such redemption, that payment will be made upon presentation and
surrender of the applicable Securities at the Place or Places of Payment, that
the Redemption Price and any interest accrued to the Redemption Date will be
paid as specified in said notice, and that on and after said Redemption Date any
interest thereon or on the portions thereof to be redeemed will cease to accrue,
and any information that is required to be included therein by the Depository.
If fewer than all the Securities of any series are to be redeemed the notice of
redemption shall specify the numbers of the Securities of such series to be
redeemed. In case any Security of any series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the Redemption Date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued, or, in
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the case of Securities providing appropriate space for such notation, at the
option of the Holders the Trustee, in lieu of delivering a new Security or
Securities as aforesaid, may make a notation on such Security of the payment of
the redeemed portion thereof.
On or before the Redemption Date with respect to the
Securities of any series stated in the notice of redemption given as provided in
this Section 14.2, the Issuer will deposit with the Trustee or with one or more
Paying Agents an amount of money (except as otherwise specified as contemplated
by Section 3.1 for the Securities of such series) sufficient to redeem on such
Redemption Date all the Securities or portions thereof so called for redemption
at the applicable Redemption Price, together with accrued interest to such
Redemption Date. If the Issuer is acting as its own Paying Agent, it will
segregate such amount and hold it in trust as provided in Section 4.4.
If fewer than all the Securities of a series are to be
redeemed (including the redemption of fewer than all Securities having the same
terms within a series), the Issuer will give the Trustee written notice not less
than 60 days prior to the Redemption Date as to the aggregate principal amount
of Securities to be redeemed and the Trustee shall select, in such manner as in
its sole discretion it shall deem fair and appropriate, the Securities of such
series or portions thereof (in multiples of $1,000) to be redeemed.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 14.3. Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities of the series specified in such notice shall become due
and payable on the Redemption Date, and at the place or places stated in such
notice at the applicable Redemption Price, together with any interest accrued to
such Redemption Date, and on and after said Redemption Date (unless the Issuer
shall default in the payment of such Securities at the applicable Redemption
Price, together with any interest accrued to said Redemption Date) any interest
on the Securities or portion of Securities of any series so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities at a Place of Payment in such notice specified, such Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price, together with any interest accrued thereon to the
applicable Redemption Date, except that if such Redemption Date is an Interest
Payment Date, interest shall be paid as provided in Section 3.8.
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Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the Issuer,
a new Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 14.4. Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 45 days prior to the last date on which notice
of redemption may be given as being owned by, and not pledged or hypothecated
by, either (a) the Issuer or (b) an entity specifically identified in such
written statement directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
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ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment".
SECTION 15.2. Satisfaction of Mandatory Sinking Fund Payment
with Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Issuer may at
its option, at any time but not less than 45 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired by the Issuer, except
Securities of such series which have been redeemed through the application of
mandatory sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by an Issuer Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Issuer by way of bona fide sale or other negotiation for value;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the mandatory sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 15.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Issuer will deliver to the Trustee a certificate signed by a
Vice President, the Treasurer or any Assistant Treasurer of the Issuer
specifying the amount of the next ensuing sinking fund payment for such series
pursuant to the terms of such series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of such series pursuant to
Section 15.2 and whether the Issuer intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Issuer shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the
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case of the failure of the Issuer to deliver such certificate (or to deliver the
Securities, if any, specified in such certificate within the time period
specified in Section 15.2), unless otherwise agreed by the Trustee, the sinking
fund payment due on the next succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit Securities as provided in
Section 15.2 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by the
Trustee (or by the Issuer if the Issuer is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund together with accrued interest, if any, to the applicable
Redemption Date. Any sinking fund moneys not so applied or allocated by the
Trustee (or by the Issuer if the Issuer is acting as its own Paying Agent) to
the redemption of Securities shall be added to the next sinking fund payment
received by the Trustee (or if the Issuer is acting as its own Paying Agent,
segregated and held in trust as provided in Section 4.4) for such series and,
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 15.3. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
Trustee (or if the Issuer is acting as its own Paying Agent, segregated and held
in trust as provided in Section 4.4) on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities of such series shall be applied by the Trustee (or by
the Issuer if the Issuer is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity.
The Trustee shall select or cause to be selected the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 14.2 and the Issuer shall cause notice of the redemption
thereof to be given in the manner provided in Section 14.2 except that the
notice of redemption shall also state that the Securities are being redeemed by
operation of the sinking fund and whether the sinking fund payment is mandatory
or optional, or both, as the case may be. Such notice having been duly given,
the redemption of the
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Securities shall be made upon the terms and in the manner stated in Section
14.3.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee (or, if the Issuer is acting as its own Paying Agent, will
segregate and hold in trust as provided in Section 4.4) in cash a sum equal to
the principal and any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Issuer shall redeem any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Issuer if the Issuer is acting as its own Paying Agent) shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Issuer) for that purpose in accordance with the
terms of this Article. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities of such series; provided, however, that in case such
Event of Default or default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next sinking fund payment date
for the Securities of such series on which such moneys may be applied pursuant
to the provisions of this Section.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective seals to be hereunto affixed
and attested.
IDACORP, INC.
By
-----------------------
Name:
Title:
[Seal]
Attest:
-------------------------
Name:
Title:
BANKERS TRUST COMPANY
By
----------------------
Name:
Title:
[Seal]
Attest:
-------------------------
Name:
Title:
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STATE OF _______________ )
) ss.
COUNTY OF ______________ )
At ____________________, on this ____ day of September 1998,
before me, a Notary Public in and for the County of ______________ and State of
______________, personally appeared ______________________________ and
_____________________, the ___________________ and ___________, respectively, of
IDACORP, Inc., each to me personally known, who respectively executed, and
affixed and attested the corporate seal on, the foregoing instrument on behalf
of said corporation, and severally acknowledged the same to be their free act
and deed in their said capacities and the free act and deed of IDACORP, Inc.
NOTARIAL SEAL
----------------------------------
Notary Public
My Commission Expires:
STATE OF NEW YORK )
) ss.
NEW YORK COUNTY )
At The City of New York, on this ____ day of September 1998,
before me, a Notary Public in and for the County and State of New York,
personally appeared _________________________ and ____________________, the
_____________________ and __________________, respectively, of Bankers Trust
___, to me personally known, who respectively executed, and affixed and attested
the corporate seal on, the foregoing instrument on behalf of said corporation,
and severally acknowledged the same to be their free act and deed in their said
capacities and the free act and deed of Bankers Trust ____.
NOTARIAL SEAL
----------------------------------
Notary Public
My Commission Expires:
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Exhibit 4.2
LLG&M Draft
9/28/98
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
IDACORP, INC.
TO
BANKERS TRUST COMPANY,
Trustee
INDENTURE
Dated as of _____________ __, 199___
SUBORDINATED DEBT SECURITIES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
IDACORP, INC.
---------
*Reconciliation and tie between Trust Indenture Act of 1939,
as amended by the Trust Reform Act of 1990, and Indenture, dated as of
___________, 199__.
<TABLE>
<CAPTION>
Section of the
Trust Indenture Act of 1939 Section of Indenture
- --------------------------- --------------------
<S> <C>
310(a)(1), (2) and (5)......................................... 7.9
310(a)(3) and (4).............................................. Inapplicable
310(b)......................................................... 7.8 and 7.10(a)and(b)
311(a)......................................................... 7.13(a) and (c)(1) and (2)
311(b)......................................................... 7.13(b)
312(a)......................................................... 5.1 and 5.2(a)
312(b)......................................................... 5.2(b)
312(c)......................................................... 5.2(c)
313(a)......................................................... 5.4(a)
313(b)(1)...................................................... Inapplicable
313(b)(2)...................................................... 5.4(b)
313(c)......................................................... 5.4(c)
313(d)......................................................... 5.4(d)
314(a)......................................................... 4.6 and 5.3
314(b)......................................................... Inapplicable
314(c)(1) and (2).............................................. 13.6
314(c)(3)...................................................... Inapplicable
314(d)......................................................... Inapplicable
314(e)......................................................... 13.6
315(a), (c) and (d)............................................ 7.1
315(b)......................................................... 6.11
315(e)......................................................... 6.12
316(a)(1)...................................................... 6.9
316(a)(2)...................................................... Inapplicable
316(a) (last sentence)......................................... 8.4
316(b)......................................................... 6.7
316(c)......................................................... 8.1
317(a)......................................................... 6.2
317(b)......................................................... 4.4
318(a)......................................................... 13.9
</TABLE>
- -------------
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture or to have any bearing upon the interpretation of
any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties.........................................................................1
Recitals........................................................................1
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined.............................................1
Authenticating Agent............................................2
Authorized Newspaper............................................2
Board of Directors..............................................2
Board Resolution................................................2
Business Day....................................................2
Capital Lease Obligation........................................2
Commission......................................................2
Common Securities...............................................2
Company.........................................................3
Corporate Trust Office..........................................3
Depository......................................................3
Dividend Reinvestment and Stock Purchase Plan...................3
Dollar ("$")....................................................3
Event of Default................................................3
Extension Period................................................3
Generally Accepted Accounting Principles........................3
Global Security.................................................3
Government Obligations..........................................4
Holder, Registered Holder and Securityholder....................4
IDACORP Guarantee...............................................4
IDACORP Trust...................................................4
include.........................................................4
Indebtedness....................................................4
Indenture.......................................................5
interest........................................................5
Interest Payment Date...........................................5
Investment Company Event........................................5
Issuer or Company...............................................5
Issuer Order and Issuer Request.................................5
Lien............................................................5
Maturity........................................................6
Officers' Certificate...........................................6
Opinion of Counsel..............................................6
</TABLE>
- -------------
* This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture or to have any bearing upon the interpretation of any
of its terms or provisions.
-i-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Original Issue Discount Security................................6
Outstanding.....................................................6
Overdue Rate....................................................7
Paying Agent....................................................7
person..........................................................7
Place of Payment................................................7
Predecessor Security............................................7
Preferred Securities............................................7
Property Trustee................................................7
Redemption Date.................................................8
Redemption Price................................................8
Registered Holder...............................................8
responsible officer.............................................8
Rights Agreement................................................8
Securities Act..................................................8
Securities Register and Securities Registrar....................8
Security or Securities..........................................8
Senior Indebtedness.............................................8
Stated Maturity.................................................9
Subordinated Indebtedness.......................................9
Subsidiary......................................................9
Tax Event.......................................................9
Trust Indenture Act.............................................9
Trust Securities...............................................10
Trustee........................................................10
vice president.................................................10
SECTION 1.2. Other Defined Terms..............................................10
ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally .................................................11
SECTION 2.2. Form of Trustee's Certificate of
Authentication.................................................11
SECTION 2.3. Form of Trustee's Certificate of
Authentication by an Authenticating Agent......................11
SECTION 2.4. Securities Issuable in the Form of Global
Securities.....................................................12
ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series.............................15
SECTION 3.2. Form and Denominations...........................................18
SECTION 3.3. Authentication, Dating and Delivery of
Securities.....................................................18
SECTION 3.4. Execution of Securities..........................................20
SECTION 3.5. Certificate of Authentication....................................20
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 3.6. Registration, Registration of Transfer and
Exchange.......................................................21
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities.....................................................22
SECTION 3.8. Payment of Interest; Interest Rights
Preserved......................................................23
SECTION 3.9. Cancellation of Securities; Destruction
Thereof........................................................24
SECTION 3.10. Temporary Securities............................................25
SECTION 3.11. Computation of Interest.........................................25
SECTION 3.12. Deferrals of Interest........................................25
ARTICLE IV.
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities............................................27
SECTION 4.2. Offices or Agency................................................27
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee........................................................28
SECTION 4.4. Paying Agents .................................................28
SECTION 4.5. Maintenance of Corporate Existence...............................29
SECTION 4.6. Certificates to Trustee..........................................29
SECTION 4.7. Costs and Expenses of IDACORP Trust..............................29
SECTION 4.8. Additional Covenants with Respect to
Securities Held by an IDACORP Trust............................30
ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders.........................32
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists..........................................................32
SECTION 5.3. Reports by the Issuer............................................34
SECTION 5.4. Reports by the Trustee...........................................35
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default....................................38
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.........................................42
SECTION 6.3. Application of Proceeds..........................................43
SECTION 6.4. Suits for Enforcement............................................45
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings....................................................45
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SECTION 6.6. Limitations on Suits by Securityholders..........................45
SECTION 6.7. Unconditional Right of Securityholders to
Institute Certain Suits........................................46
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default.................................46
SECTION 6.9. Control by Holders of Securities.................................47
SECTION 6.10. Waiver of Past Defaults..........................................47
SECTION 6.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances..............................48
SECTION 6.12. Right of Court to Require Filing of
Undertaking to Pay Costs.......................................48
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default...............................50
SECTION 7.2. Certain Rights of the Trustee....................................51
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof............................................52
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc...............................................52
SECTION 7.5. Moneys Held by Trustee...........................................53
SECTION 7.6. Compensation and Indemnification of Trustee
and Its Prior Claim............................................53
SECTION 7.7. Right of Trustee to Rely on Officers'
Certificate, etc...............................................53
SECTION 7.8. Qualification of Trustee; Conflicting
Interests......................................................54
SECTION 7.9. Persons Eligible for Appointment as Trustee......................54
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee..............................................55
SECTION 7.11. Acceptance of Appointment by Successor
Trustee........................................................56
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee..............................57
SECTION 7.13. Preferential Collection of Claims Against
the Issuer.....................................................57
SECTION 7.14. Authenticating Agent............................................62
ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders................................................64
SECTION 8.2. Proof of Execution of Instruments by Holders
of Securities..................................................64
SECTION 8.3. Holders to be Treated as Owners..................................65
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding....................................................65
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SECTION 8.5. Right of Revocation of Action Taken..............................66
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings.............................................67
SECTION 9.2. Call of Meetings by Trustee......................................67
SECTION 9.3. Call of Meetings by Issuer or Holders............................67
SECTION 9.4. Qualifications for Voting........................................68
SECTION 9.5. Regulations......................................................68
SECTION 9.6. Voting...........................................................69
SECTION 9.7. No Delay of Rights by Reason of Meeting..........................69
ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders................................................70
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders................................................72
SECTION 10.3. Notice of Supplemental Indenture.................................73
SECTION 10.4. Effect of Supplemental Indenture.................................73
SECTION 10.5. Documents To Be Given to Trustee.................................74
SECTION 10.6. Notation on Securities in Respect of
Supplemental Indentures........................................74
ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on
Certain Terms..................................................75
SECTION 11.2. Conditions to Consolidation or Merger, etc.......................75
SECTION 11.3. Documents and Opinion To Be Furnished to the
Trustee........................................................76
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series.....................................................78
SECTION 12.2. Satisfaction and Discharge of Indenture..........................79
SECTION 12.3. Application of Trust Money.......................................80
SECTION 12.4. Repayment of Moneys Held by Paying Agent.........................80
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee
and Paying Agent...............................................80
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ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability......................................................82
SECTION 13.2. Benefits of Indenture............................................82
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture......................................................82
SECTION 13.4. Notices to Holders; Waiver.......................................82
SECTION 13.5. Addresses for Notices............................................83
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein........................................................83
SECTION 13.7. Separability Clause..............................................84
SECTION 13.8. Legal Holidays ..................................................84
SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act............................................85
SECTION 13.10. Governing Law ..................................................85
SECTION 13.11. Counterparts ..................................................85
SECTION 13.12. Effect of Headings..............................................85
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article.........................................86
SECTION 14.2. Notice of Redemption; Selection of
Securities.....................................................86
SECTION 14.3. Payment of Securities Called for Redemption......................87
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for Redemption.......................88
SECTION 14.5. Right of Redemption of Securities Initialy
Issued to an IDACORP Trust.....................................88
ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article.........................................89
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payment with Securities........................................89
SECTION 15.3. Redemption of Securities for Sinking Fund........................89
ARTICLE XVI.
SUBORDINATION OF SECURITIES
SECTION 16.1. Securities Subordinate to Senior
Indebtedness...................................................92
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SECTION 16.2. No Payment When Senior Indebtedness in
Default; Payment Over of Proceeds Upon
Dissolution, Etc...............................................92
SECTION 16.3. Payment Permitted If No Default..................................94
SECTION 16.4. Subrogation to Rights of Holders of Senior
Indebtedness...................................................94
SECTION 16.5. Provisions Solely to Define Relative Rights......................95
SECTION 16.6. Trustee to Effectuate Subordination..............................95
SECTION 16.7. No Waiver of Subordination Provisions............................95
SECTION 16.8. Notice to Trustee................................................96
SECTION 16.9. Reliance on Judicial Order or Certificate of
Liquidating Agent..............................................97
SECTION 16.10. Trustee Not Fiduciary for Holders of Senior
Indebtedness...................................................97
SECTION 16.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.........................................................97
SECTION 16.12. Article Applicable to Paying Agents.............................97
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INDENTURE, dated as of __________ __, 199___, between IDACORP,
INC., an Idaho corporation (hereinafter, subject to Article XI, called the
"Issuer" or the "Company"), having its principal office at 1221 West Idaho
Street, Boise, Idaho 83702- 5627, and BANKERS TRUST COMPANY, a New York banking
corporation (hereinafter, subject to Article VII, called the "Trustee").
Recitals of the Issuer
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its notes,
debentures or other evidences of its unsecured subordinated indebtedness
(hereinafter generally called the "Securities"), to be issued in one or more
series, authenticated and delivered, as in this Indenture provided.
All things necessary have been done to make this Indenture a
valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the persons acquiring the same, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders (as defined in
Section 1.1.) of the Securities or of the Securities of any series, without any
priority of any one Security or series over any other, except as otherwise
expressly provided herein, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture, including any indenture
supplemental hereto, have the respective meanings specified in this Section. All
other terms used in this Indenture that are defined in the Trust Indenture Act
or the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act or that are defined by rule of the Commission under the
Trust Indenture Act (except as herein otherwise expressly provided or unless the
context otherwise clearly requires) have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act or in said Commission rule
under the Trust Indenture Act as in force at the date on which this Indenture
was originally executed (subject to Sections 10.1 and 10.2). The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. All
<PAGE>
references herein to "Articles" or other subdivisions are to the corresponding
Articles or other subdivisions of this Indenture. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Authenticating Agent" means, with respect to any series of
Securities, any authenticating agent appointed by the Trustee, with respect to
that series of Securities, pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper printed in the
English language, customarily published at least once a day, and customarily
published for at least five days in each calendar week, and of general
circulation in The City of New York. Whenever successive publications are
required or authorized to be made in Authorized Newspapers, the successive
publications may be made (unless otherwise expressly provided herein) in the
same or different newspapers meeting the foregoing requirements and in each case
on any Business Day.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board of Directors duly authorized to act on
behalf of the Board of Directors.
"Board Resolution" means a copy of a resolution certified by
the Secretary or any Assistant Secretary of the Issuer to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
which is not a day on which banking or trust institutions are authorized or
required by law or regulation to be closed in The City of New York.
"Capital Lease Obligation" means any rental obligation which,
under Generally Accepted Accounting Principles, is or will be required to be
capitalized on the books of the Issuer, taken at the amount thereof accounted
for as indebtedness (net of interest expense) in accordance with such
principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the date on which this Indenture was originally
executed such Commission is not existing and performing the duties assigned to
it under the Trust Indenture Act on such date of original execution, then the
body performing such duties at such time.
"Common Securities" means the common securities issued by an
IDACORP Trust.
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"Company": See "Issuer".
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office, on the date of original execution of this Indenture,
is located at Four Albany Street, New York, New York, 10006, Attention: Manager,
Pubic Utilities.
"Depository" means, with respect to the Securities of any
series which, in accordance with the determination of the Issuer, will be issued
in whole or in part in the form of one or more Global Securities, The Depository
Trust Company, New York, New York, another clearing agency or any successor
registered under the Securities Exchange Act of 1934, or other applicable
statute or regulation, which, in each case, shall be designated by the Issuer
pursuant to either Section 2.4 or 3.1. If at any time there is more than one
such person, "Depository" as used with respect to the Securities of any such
series means the Depository with respect to the Securities of that series.
"Dividend Reinvestment and Stock Purchase Plan" means the
Dividend Reinvestment and Stock Purchase Plan of the Issuer or similar plan as
in effect from time to time.
"Dollar" ("$") means the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Event of Default" means any event or condition specified as
such in Section 6.1 which shall have continued for the period of time, if any,
therein designated.
"Extension Period" has the meaning specified in Section 3.12.
"Generally Accepted Accounting Principles" means such
accounting practice and principles as, in the opinion of the independent
accountants regularly retained by the Issuer, conform at the time to accounting
principles generally accepted by the certified public accounting profession and
applied on a consistent basis (except for changes in application in which such
accountants concur). Any accounting terms not defined in this Indenture shall
have the respective meanings given to them under Generally Accepted Accounting
Principles consistent with those applied in the preparation of the Issuer's
financial statements or other financial statements required thereunder.
"Global Security" means, with respect to all or any part of
any series of Securities, a Security executed by the Issuer and authenticated
and delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to an Issuer
Order, which shall be registered in the name of the Depository or its
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nominee and the ownership of which will be registered in a "book-entry" or other
system maintained by the Depository.
"Government Obligations" means securities which are (i) direct
obligations of the United States government or (ii) obligations of an agency or
instrumentality of the United States government the payment of which is
unconditionally guaranteed by the United States government, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
such term also includes a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933) as custodian with respect to any
such securities or specific payment of interest on or principal of any such
securities held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the securities or the specific payment of interest on or principal of the
securities evidenced by such depository receipt.
"Holder", "Registered Holder" and "Securityholder" mean, with
respect to a Security, the person in whose name at the time such Security is
registered in the Securities Register (which terms, in the case of a Global
Security, mean the Depository, notwithstanding that the Depository maintains a
"book-entry" or other system for identification of ownership in respect of such
Global Security).
"IDACORP Guarantee" means the guarantee by the Issuer of
distributions on the Preferred Securities of an IDACORP Trust substantially in
such form as may be specified pursuant to Section 3.1.
"IDACORP Trust" means a statutory business trust created by
the Issuer for the purpose of issuing Trust Securities and using the proceeds of
the sale thereof to purchase one or more series of Securities.
The term "include" (and other forms of such term) means
"include, without limitation".
"Indebtedness" means, with respect to a Person, (i) the
principal of and premium, if any, and interest, if any, on, (A) indebtedness of
such Person for money borrowed and (B) indebtedness evidenced by securities,
notes, debentures, bonds or other similar instruments issued by such Person;
(ii) all Capital Lease Obligations of such Person; (iii) all obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person
under any conditional sale or title retention agreement (but excluding trade
accounts payable and accrued liabilities in the ordinary course of business);
(iv) all obligations, contingent or
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otherwise, of such Person in respect of any letters of credit, banker's
acceptance, security purchase facilities or similar credit transactions; (v) all
obligations in respect of interest rate swap, cap, floor, collar or other
agreements, interest rate future or option contracts, currency swap agreements,
currency or other future or option contracts and other similar agreements; and
(vi) all obligations of the type referred to in clauses (i) through (v) of
others for the payment of which such Person is responsible or liable as obligor,
guarantor or otherwise.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented, and includes the forms and terms of particular series of
Securities established as contemplated hereunder.
The term "interest" means, with respect to
non-interest-bearing Securities, interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities of any series.
"Investment Company Event" means the receipt by the applicable
IDACORP Trust of an opinion of counsel experienced in such matters to the effect
that, as a result of the occurrence of a change in law or regulation or a change
in interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in the Investment
Company Act"), the applicable IDACORP Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in the Investment Company Act
becomes effective on or after the date of original issuance of the series of
Preferred Securities issued by the IDACORP Trust.
"Issuer" or "Company" means IDACORP, Inc., an Idaho
corporation, and, subject to Article XI, its successors and assigns.
"Issuer Order" and "Issuer Request" mean a written order and a
written request, respectively, signed in the name of the Issuer by the
president, any vice president or the treasurer and by any assistant treasurer,
the secretary or any assistant secretary of the Issuer, and delivered to the
Trustee.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction).
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"Maturity" means, with respect to any Security, the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
president, any vice president or the treasurer and by any assistant treasurer,
the secretary or any assistant secretary of the Issuer, and delivered to the
Trustee, except that any Officers' Certificate delivered pursuant to Section 4.6
shall be signed by a principal operating officer, principal financial officer or
principal accounting officer. Each such certificate shall include the statements
provided for in Section 13.6, if and to the extent required thereby.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer or who may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.6, if and to the extent required thereby.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration with respect thereto pursuant to
Section 6.1.
"Outstanding" (subject to Section 8.4) means, with reference
to Securities as of any particular time, all Securities authenticated and
delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
irrevocably deposited in trust with the Trustee or with any Paying
Agent (other than the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own Paying Agent) or for the payment of
which Government Obligations shall have been irrevocably deposited in
trust with the Trustee in accordance with Article XII; provided that,
if such Securities, or portions thereof, are to be redeemed prior to
the Stated Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 3.7 (except with respect to any
such Security as to which proof satisfactory to the Trustee and the
Issuer is
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presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether Holders of the requisite principal
amount of Outstanding Securities of any or all series have made or given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
or are present to constitute a quorum at a meeting of Holders of Securities, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration with respect thereto pursuant to Section 6.1.
"Overdue Rate" means, with respect to any series of
Securities, the rate designated as such in or pursuant to the resolution of the
Board of Directors or the supplemental indenture, as the case may be, relating
to such series as contemplated by Section 3.1.
"Paying Agent" means any person authorized by the Issuer to
pay the principal of, or premium, if any, or interest, if any, on, any
Securities on behalf of the Issuer.
The term "person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of, and premium, if any, and
interest, if any, on, the Securities of such series are payable as specified
pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.7 in lieu of a lost,
destroyed, mutilated or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.
"Preferred Securities" means the preferred securities
issued by an IDACORP Trust.
"Property Trustee" means, with respect to any IDACORP Trust,
the commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such
IDACORP Trust under such Trust Agreement and not in its individual capacity, or
its
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successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Holder": See "Holder".
The term "responsible officer" means, with respect to the
Trustee, the chairman of the board of directors, any vice chairman of the board
of directors, the chairman of the trust committee, the chairman of the executive
committee of the board of directors, any vice chairman of the executive
committee of the board of directors, the president, any vice president, the
cashier, the secretary, the treasurer, any trust officer, any assistant trust
officer, any assistant vice president, any assistant cashier, any assistant
secretary, any assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Rights Agreement" means a plan of the Issuer providing for
the issuance by the Issuer to all holders of its common stock of rights
entitling the holders therof to subscribe for or purchase shares of common stock
or any class or series of preferred stock of the Issuer, which rights (i) are
deemed to be transferred with such shares of common stock of the Issuer, (ii)
are not exercisable and (iii) are also issued in respect of future issuances of
common stock of the Issuer, in each case until the occurrence of a specified
event or events.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar": See
Section 3.6.
"Security" or "Securities" has the meaning stated in the
recitals of this Indenture.
"Senior Indebtedness" means all Indebtedness of the Issuer,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
in right of payment to Subordinated Indebtedness or to other Indebtedness of
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the Issuer which is pari passu with, or subordinated to, Subordinated
Indebtedness.
"Stated Maturity" means, with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of, or premium, if any, or interest, if any,
on, such Security is due and payable.
"Subordinated Indebtedness" means all Indebtedness of the
Issuer which is subordinate and junior in right of payment to Senior
Indebtedness.
"Subsidiary" means as to any person a corporation of which
outstanding shares of stock having ordinary voting power (other than stock
having such power only by reason of a contingency) to elect a majority of the
Board of Directors of such corporation are at the time owned, directly or
indirectly through one or more intermediaries, or both, by such person.
"Tax Event" means the receipt by an IDACORP Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities of such IDACORP Trust, there is more than an
insubstantial risk that (i) such IDACORP Trust is, or will be within 90 days of
the date of such opinion of counsel, subject to United States Federal income tax
with respect to income received or accrued on the corresponding series of
Securities issued by the Issuer to such IDACORP Trust, (ii) interest payable by
the Issuer on such corresponding series of Securities is not, or within 90 days
of the date of such opinion of counsel, will not be, deductible by the Issuer,
in whole or in part, for United States Federal income tax purposes or (iii) such
IDACORP Trust is, or will be within 90 days of the date of such opinion of
counsel, subject to more than a de minimis amount of other taxes, duties, or
other governmental charges.
"Trust Agreement" means the Trust Agreement as amended by the
Amended and Restated Trust Agreement pursuant to which an IDACORP Trust is
formed substantially in such form as may be specified as contemplated by Section
3.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and in force (except as otherwise provided herein) at the date on
which this Indenture was originally executed.
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"Trust Securities" means the undivided beneficial interests in
an IDACORP Trust.
"Trustee" means the person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article VII, shall also
include any successor trustee.
The term "vice president" means, with respect to the Issuer or
the Trustee, any vice president, whether or not designated by a number or a word
or words added before or after the title of "vice president".
SECTION 1.2. Other Defined Terms. Certain other
terms are defined in Article VII and other Articles of this
Indenture.
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ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally. The Securities of each series
shall be in substantially such form as shall be established pursuant to Section
3.1, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Issuer may deem appropriate and as are not
contrary to the provisions of this Indenture, or as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or of any automated quotation system, or to conform to
usage, all as determined by the officers executing such Securities, as
conclusively evidenced by their execution of the Securities.
The definitive Securities of each series shall be prepared by
the Company and shall be printed, lithographed or engraved on steel-engraved
borders, or may be produced in any other manner, all as determined by the
officers executing such Securities, as conclusively evidenced by their execution
of such Securities, subject, with respect to the Securities of any series, to
the rules of any securities exchange or automated quotation system on which the
Securities of such series are listed or quoted and (with respect to Global
Securities of any series) to the rules of the Depository.
SECTION 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------,
as Trustee
By
--------------------------------
Authorized Signatory
SECTION 2.3. Form of Trustee's Certificate of Authentication
by an Authenticating Agent. If at any time there shall be an Authenticating
Agent appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent on all Securities of
each such series shall be in substantially the following form:
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--------------------,
as Trustee
By [NAME OF AUTHENTICATING
AGENT],
Authenticating Agent
By
--------------------------------
Authorized Signatory
SECTION 2.4. Securities Issuable in the Form of Global
Securities. (a) If the Issuer shall establish pursuant to Section 3.1 that the
Securities of a particular series are to be issued in whole or in part as one or
more Global Securities, then the Issuer shall execute, and the Trustee shall, in
accordance with Section 3.3 and the Issuer Order delivered to the Trustee
thereunder, authenticate and make available for delivery, one or more Global
Securities which (i) shall represent an aggregate principal amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by one or more Global Securities, (ii) shall be registered in the
name of the Depository or its nominee, (iii) shall be delivered by the Trustee
to the Depository or pursuant to the Depository's instruction and (iv) shall
bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.4 of the Indenture,
unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
(b) Notwithstanding any provision of Section 3.6, any Global
Security of a series may be transferred, in whole but not in part, and in the
manner provided in Section 3.6, only to another nominee of the Depository for
such series, or to a successor Depository for such series selected or approved
by the Issuer or to a nominee of such successor Depository.
(c) If at any time the Depository for Securities of a series
notifies the Issuer that it is unwilling or unable to
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continue as Depository for Securities of such series or if at any time the
Depository shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, or other applicable statute or regulation, and
a successor Depository is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such condition, as the case may
be, this Section shall no longer be applicable to the Securities of such series
and the Issuer will execute, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of individual Securities of such series,
will authenticate and make available for delivery, Securities of such series, in
authorized denominations, and in an aggregate principal amount equal to the
aggregate principal amount of the Global Security or Global Securities of such
series in exchange for such Global Security or Global Securities.
The Issuer may at any time determine that Securities of any
series shall no longer be represented by one or more Global Securities and that
the provisions of this Section shall no longer apply to the Securities of such
series. In such event the Issuer will execute and the Trustee, upon receipt of
an Issuer Order for the authentication and delivery of individual Securities of
such series, will authenticate and make available for delivery Securities of
such series, in authorized denominations, and in an aggregate principal amount
equal to the aggregate principal amount of the Global Security or Global
Securities of such series in exchange for such Global Security.
If specified by the Issuer pursuant to Section 3.1 with
respect to a series of Securities, the Depository for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for individual Securities of such series on such terms as are
acceptable to the Issuer and such Depository. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery,
without service charge,
(i) to each person specified by such Depository a new
individual Security or Securities of the same series, of any authorized
denomination as requested by such person in aggregate principal amount
equal to and in exchange for such persons' beneficial interest in the
Global Security; and
(ii) to such Depository a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of individual Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding
paragraphs of this Section, the Issuer will execute and the Trustee will
authenticate and make available for delivery
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individual Securities in registered form in authorized denominations.
Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Securities available for delivery to the persons in whose names
such Securities are so registered.
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ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. With respect to the Securities of any particular series, there shall be
established in, or pursuant to the authority granted in, a resolution of the
Board of Directors (delivered to the Trustee in the form of a Board Resolution)
or established in one or more indentures supplemental hereto:
(1) the form of the Securities of the series;
(2) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(3) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.4, 3.6, 3.7, 3.10 or
14.3);
(4) the date or dates on which the Securities of the series
may be issued;
(5) the date or dates, which may be serial, on which the
principal of, and premium, if any, on, the Securities of the series are
payable;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any
(including the rate or rates at which overdue principal shall bear
interest, if different from the rate or rates at which such Securities
shall bear interest prior to Maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear interest, if
any); any formulary or other method or other means by which any such
rate or rates shall be determined, by reference to an index or other
fact or event ascertainable outside this Indenture or otherwise; the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the record
dates, if other than as set forth in Section 3.8, for the determination
of Holders to whom interest is payable; the right of the Issuer
pursuant to Section 3.12 to defer or extend an Interest Payment Date;
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(7) the place or places where the principal of, and premium,
if any, and interest, if any, on, the Securities of the series shall be
payable (if other than as provided in Section 4.2);
(8) the provisions, if any, establishing the price or prices
at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Issuer, pursuant to any sinking
fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price
or prices at which, and the period or periods within which, and the
terms and conditions upon which, Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000, and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(11) whether the Securities of the series are to be issued as
Original Issue Discount Securities and, if so, the amount of the
discount with respect thereto;
(12) if other than the principal amount thereof, the portion
of the principal amount of the Securities of the series which shall be
payable upon declaration of acceleration with respect thereto pursuant
to Section 6.1 or payable in bankruptcy pursuant to Section 6.2;
(13) any Events of Default or restrictive covenants provided
for with respect to the Securities of the series, if other than as set
forth in Section 6.1 and Articles IV and XI;
(14) if other than the rate of interest stated in the
title of the Securities of the series, the applicable
Overdue Rate;
(15) in case the Securities of the series do not bear
interest, the applicable dates for the purpose of clause (a) of Section
5.1;
(16) if other than as set forth in Article XII, provisions for
the satisfaction and discharge of the Securities of the series and this
Indenture;
(17) any trustees, paying agents, transfer agents or
registrars with respect to the Securities of the series;
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(18) whether the Securities of the series are issuable in
whole or in part as one or more Global Securities and, in such case,
the identity of the Depository for such Global Security or Global
Securities;
(19) any restrictions on transfer with respect to the
Securities of the series and any legend reflecting such restrictions to
be placed on such Securities;
(20) if the amount of payment of principal of, and premium, if
any, or interest, if any, on, the Securities of the series may be
determined with reference to an index, formula or other method, the
manner in which such amounts shall be determined;
(21) the right of the Issuer, if any, to defer any payment of
principal of or interest on Securities of the series and the maximum
length of any such deferral period;
(22) if other than as set forth herein, the relative degree,
if any, to which the Securities of such series shall be subordinated to
other series of Securities in right of payment, whether Outstanding or
not;
(23) if such Securities are to be issued to an IDACORP Trust,
the forms of the related trust agreement and guarantee agreement
relating thereto;
(24) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary or
convenient to permit or facilitate the issuance of such Securities to
an IDACORP Trust;
(25) any exceptions to Section 13.8 or in the definition of
"Business Day" with respect to the Securities of the series; and
(26) any other terms of the series (which terms shall not be
contrary to the provisions of this Indenture).
With respect to any Securities (and without limiting the
generality of the foregoing provisions of this Section), such resolution of the
Board of Directors or indenture supplemental hereto may provide general terms or
parameters and may provide that the specific terms of particular Securities, and
the persons authorized to determine such terms or parameters, may be determined
in accordance with or pursuant to the Issuer Order referred to in Section 3.3.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in,
or pursuant to the authority granted in, such resolution of the Board of
Directors or in any such indenture supplemental hereto.
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SECTION 3.2. Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the Securities of any
series, the Securities of such series shall be issuable in fully registered
form, without coupons, in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.3. Authentication, Dating and Delivery of
Securities. At any time and from time to time after the original execution and
delivery of this Indenture, the Issuer may deliver Securities of any series,
executed by the Issuer, to the Trustee for authentication. Except as otherwise
provided in this Article, the Trustee shall thereupon authenticate and make
available for delivery, or cause to be authenticated and delivered, said
Securities to or upon an Issuer Order, without any further action by the Issuer;
provided, however, that the Trustee shall authenticate and make available for
delivery Securities of such series for original issue from time to time in the
aggregate principal amount established for such series pursuant to such
procedures, acceptable to the Trustee and to such recipients, as may be
specified from time to time by an Issuer Order. The maturity dates, original
issue dates, interest rates and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in writing.
In authenticating such Securities and accepting the
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Securities, and (subject to Section 7.1) shall be fully protected in
relying upon:
(1) a Board Resolution relating thereto;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate which shall state that all
conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been complied with, that no Event of
Default with respect to any series of Securities has occurred and is
continuing and that the issuance of such Securities does not constitute
and will not result in (i) any Event of Default or any event or
condition, which, upon the giving of notice or the lapse of time or
both, would become an Event of Default or (ii) any default under the
provisions of any other instrument or agreement by which the Company is
bound; and
(4) an Opinion of Counsel, which shall state
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(a) that the form and the terms of such Securities
have been established (i) by or pursuant to the authority
granted in a resolution of the Board of Directors delivered to
the Trustee pursuant to subparagraph (1) above or by a
supplemental indenture delivered to the Trustee pursuant to
subparagraph (2) above, (ii) as provided by Section 3.1 and
(iii) in conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Issuer enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles;
(c) that the Issuer has the corporate power to issue
such Securities and has duly taken all necessary corporate
action with respect to such issuance;
(d) that, assuming compliance with any restrictions
limiting the debt issuance capacity of the Issuer applicable
to such Securities at the time of the issuance thereof, the
issuance of such Securities will not contravene the charter or
by-laws of the Issuer or result in any violation of any of the
terms or provisions of any law or regulation or of any
indenture, mortgage or other instrument or agreement known to
such counsel by which the Issuer is bound; and
(e) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities, and
the related supplemental indenture, if any, have been complied
with and that authentication and delivery of such Securities
and the execution and delivery of the related supplemental
indenture, if any, by the Trustee will not violate the terms
of the Indenture.
Notwithstanding the provisions of Section 3.1 and of this
Section, if all the Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Board Resolution or
supplemental indenture otherwise required pursuant to Section 3.1 or the Issuer
Order, Officers' Certificate, Opinion of Counsel and other documents required
pursuant to this Section at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the time
of authentication upon original issuance of the first Security of such series to
be issued; provided, however, that any subsequent request by the
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Issuer to the Trustee to authenticate Securities of such series shall constitute
a representation and warranty by the Issuer that as of the date of such request
the statements made in the Officers' Certificate delivered pursuant to Section
3.3(3) shall be true and correct on the date thereof as if made on and as of the
date thereof.
The Trustee shall have the right to decline to authenticate
and make available for delivery any Securities under this Section if the
Trustee, being advised by counsel reasonably acceptable to the Trustee and the
Issuer, determines that such action would expose the Trustee to personal
liability.
Each Security shall be dated the date of its authentication,
except as otherwise provided pursuant to Section 3.1 with respect to the series
of which such Security is a part and except that any substitute Security under
Section 3.7 shall be dated so that neither gain nor loss in interest shall
result from any mutilation, destruction, loss or theft of the relevant
Predecessor Security.
SECTION 3.4. Execution of Securities. The Securities shall be
signed in the name of and on behalf of the Issuer by both (a) its president or
any vice president and (b) its treasurer, any assistant treasurer, its secretary
or any assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of such
officers. The seal of the issuer may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced thereon.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by or on behalf of the Trustee or disposed
of by the Issuer, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities had not
ceased to be such officer of the Issuer; and any Security may be signed on
behalf of the Issuer by such persons as, at the actual date of the original
execution of such Security, shall be the proper officers of the Issuer, although
at the date of the original execution and delivery of this Indenture, or at the
date of such Security, any such person was not such an officer.
SECTION 3.5. Certificate of Authentication. No Security shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of authentication
substantially in the form hereinbefore recited, executed by or on behalf of the
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Trustee by manual signature. Such certificate by or on behalf of the Trustee
upon any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 3.6. Registration, Registration of Transfer and
Exchange. Subject to the conditions set forth below (and subject, with respect
to Global Securities, to Section 2.4), Securities of any series may be exchanged
for a like aggregate principal amount of Securities of the same series and
having the same terms but in other authorized denominations. Securities to be
exchanged shall be surrendered at the offices or agencies to be maintained for
such purposes as provided in Section 4.2, and the Issuer shall execute and the
Trustee or any Authenticating Agent shall authenticate and make available for
delivery in exchange therefor the Security or Securities which the Holder making
the exchange shall be entitled to receive.
The Issuer shall keep or cause to be kept, at one of said
offices or agencies maintained pursuant to Section 4.2, a register for each
series of Securities issued hereunder (hereinafter collectively referred to as
the "Securities Register") in which, subject to such reasonable regulations as
it may prescribe, the Issuer shall, subject to the provisions of Section 2.4,
provide for the registration of Securities of such series and shall register the
transfer of Securities of such series as in this Article provided. The
Securities Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. The Trustee is
hereby appointed as the initial "Securities Registrar" for the purpose of
registering Securities and registering transfers of Securities as herein
provided. Subject to the provisions of Section 2.4, upon surrender for
registration of transfer of any Security of any series at any such office or
agency, the Issuer shall execute and the Trustee or any Authenticating Agent
shall authenticate and make available for delivery in the name of transferee or
transferees a new Security or Securities of the same series for an equal
aggregate principal amount.
All Securities presented for registration of transfer or for
exchange, redemption or payment shall (if so required by the Issuer or the
Securities Registrar) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the
Securities Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
Each Security issued upon registration of transfer or exchange
of Securities pursuant to this Section shall be the valid obligation of the
Issuer, evidencing the same indebtedness and entitled to the same benefits under
this Indenture as the
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Security or Securities surrendered upon registration of such transfer or
exchange.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.10, 10.6, or 14.3 not involving any
transfer.
The Issuer shall not be required (a) to issue, exchange or
register the transfer of any Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption except, in the case
of any Security to be redeemed in part, the portion thereof not to be redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated (whether by
defacement or otherwise) or be destroyed, lost or stolen, and in the absence of
notice to the Issuer or the Trustee that such Security has been acquired by a
bona fide purchaser, the Issuer shall, except as otherwise provided in this
Section, execute, and upon an Issuer Request, the Trustee shall authenticate and
make available for delivery, a new Security of the same series, tenor and
principal amount, bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In every case the applicant for a substituted Security shall furnish
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security under this
Section, the Issuer may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee or any
Authenticating Agent) connected therewith.
In case any Security which has matured or is about to mature
or has been called for redemption in full shall become mutilated or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security, pay or authorize the
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payment of the same (without surrender thereof except in the case of a mutilated
Security). In every case, the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated (whether by defacement or otherwise) or
destroyed, lost or stolen Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 3.8. Payment of Interest; Interest Rights Preserved.
The Holder of any Securities at the close of business on any record date with
respect to any Interest Payment Date shall be entitled to receive the interest,
if any, payable on such Interest Payment Date notwithstanding the cancellation
of such Securities upon any registration of transfer or exchange subsequent to
the record date and prior to such Interest Payment Date, and, if provided for in
the Board Resolution pursuant to Section 3.1, in the case of a Security issued
between a record date and the initial Interest Payment Date relating to such
record date, interest for the period beginning on the date of issue and ending
on such initial Interest Payment Date shall be paid to the person to whom such
Security shall have been originally issued. Except as otherwise specified as
contemplated by Section 3.1, for Securities of a particular series the term
"record date" as used in this Section with respect to any Interest Payment Date
shall mean the close of business on the last day of the calendar month preceding
such Interest Payment Date if such Interest Payment Date is the fifteenth day of
a calendar month and shall mean the close of business on the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be
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a Business Day. At the option of the Issuer, payment of interest on any Security
may be made by check mailed to the address of the person entitled thereto (which
shall be the Depository in the case of Global Securities) as such address shall
appear in the Securities Register.
If and to the extent the Issuer shall default in the payment
of the interest due on such Interest Payment Date in respect of any Securities,
such defaulted interest shall be paid by the Issuer at its election in each
case, as provided in clause (1) or (2) below:
(1) The Issuer may make payment of any defaulted interest to
the Holder of Securities at the close of business on a subsequent
record date established by notice given by mail, by or on behalf of the
Issuer, to such Holder not less than 15 days preceding such subsequent
record date, such record date to be not less than 10 days preceding the
date for payment of such defaulted interest.
(2) The Issuer may make payment of any defaulted interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Issuer
to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.9. Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Issuer or any Paying Agent or any Securities
Registrar, be delivered to the Trustee for cancellation or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall, unless instructed to deliver the Securities to the
Issuer in an Issuer Order, destroy such cancelled Securities and deliver
certification of their destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
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SECTION 3.10. Temporary Securities. Pending the preparation by
the Issuer of definitive Securities of any series, the Issuer may execute and
the Trustee shall authenticate and make available for delivery temporary
Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Securities of any series shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities of such series in lieu of
which they are issued but with such omissions, insertions and variations as may
be appropriate for temporary securities, all as may be determined by the Issuer
with the concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at the Corporate Trust Office of the Trustee, and the
Trustee shall authenticate and make available for delivery in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of the same series. Such exchange shall be made by the Issuer at its
own expense and without any charge therefor except that in case of any such
exchange involving any registration of transfer the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered
hereunder.
SECTION 3.11. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.12. Deferrals of Interest Payment Dates on
Securities Issued to an IDACORP Trust. If specified as contemplated by Section
3.1 with respect to the Securities of a series issued to an IDACORP Trust, so
long as no Event of Default has occurred and is continuing, the Issuer shall
have the right, at any time during the term of such series but subject to
Section 4.8, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section 3.1 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Issuer shall
pay all interest then accrued and unpaid
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on the Securities of such series. Prior to the termination of any such Extension
Period, the Issuer may further extend the interest payment period, provided that
no Extension Period shall exceed the period or periods specified in the
Securities of such series or extend beyond the Stated Maturity of the principal
of the Securities of such series. Upon the termination of any Extension Period
and upon the payment of all amounts then due on any Interest Payment Date, the
Issuer may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The Issuer shall give the Holders of the Securities
of such series and the Trustee notice of its election to begin any such
Extension Period at least one Business Day prior to the next succeeding Interest
Payment Date on which interest on Securities of such series would be payable but
for such deferral or, so long as such Securities are held by an IDACORP Trust,
prior to the earlier of (i) the next succeeding date on which Distributions (as
defined in the applicable Trust Agreement) on the Preferred Securities of such
IDACORP Trust would be payable but for such deferral or (ii) the date the
Trustees of such an IDACORP Trust are required to give notice to any securities
exchange or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record
date.
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ARTICLE IV.
COVENANTS OF THE ISSUER
The Issuer covenants and agrees for the benefit of each series
of Securities (except to the extent that any series of the Securities is
excluded from the benefits of any of such covenants pursuant to Section 3.1(13))
that on and after the date of original execution of this Indenture and so long
as any of the Securities of such series remain Outstanding:
SECTION 4.1. Payment of Securities. The Issuer will duly and
punctually pay or cause to be paid the principal of, and the premium, if any,
and interest, if any, on, the Securities of such series at the place or places,
at the respective times and in the manner provided in such Securities and in the
Indenture. As provided in Section 3.8, each installment of interest on the
Securities of any series may be paid by mailing checks for such interest payable
to the Holders of such Securities entitled thereto as their names shall appear
on the Securities Register.
SECTION 4.2. Offices or Agency. So long as any of the
Securities remain Outstanding, the Issuer will maintain in the Borough of
Manhattan, The City of New York, New York, an office or agency where Securities
of such series may be presented or surrendered for payment, where Securities of
such series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer in respect of the Securities of
such series and this Indenture may be served, which office or agency shall
initially be the Corporate Trust Office of the Trustee or, if the Corporate
Trust Office of the Trustee is not located in the Borough of Manhattan, The City
of New York, such office or agency shall be the principal corporate trust office
of the Authenticating Agent designated pursuant to Section 7.14 hereof. The
Issuer will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Issuer shall fail to
maintain such required office or agency or shall fail to furnish the Trustee
with the required information with respect thereto, presentations, surrenders,
notices and demands in respect of Securities may be made or served at the
Corporate Trust Office of the Trustee and the corporate trust office of any
Authenticating Agent appointed hereunder; and the Issuer hereby appoints the
Trustee and any Authenticating Agent appointed hereunder its agents to receive
all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside The City of New York) where the
Securities of such series may be presented or surrendered for any or all of such
purposes, and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the
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Issuer of its obligation to maintain for such purposes an office or agency in
the Borough of Manhattan, The City of New York. The Issuer will promptly notify
the Trustee of any such designation or rescission thereof.
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 4.4. Paying Agents. Whenever the Issuer shall appoint
a Paying Agent other than the Trustee with respect to the Securities of any
series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section,
(a) that it will hold all sums received by it as such Paying
Agent for the payment of the principal of, and premium, if any, and
interest, if any, on, the Securities of such series (whether such sums
have been paid to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the Holders of
the Securities of such series, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of, or premium, if any, or interest,
if any, on, the Securities of such series when the same shall be due
and payable, and
(c) that at any time during the continuance of any such
failure, upon the written request of the Trustee it will forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
If the Issuer shall act as its own Paying Agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of, or premium, if any, or interest, if any, on, the Securities of
such series, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities of such series a sum sufficient to pay such principal,
premium, if any, or interest, if any, so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more Paying Agents with
respect to the Securities of any series, it will, on or prior to the due date of
the principal of, or premium, if any, or interest, if any, on, the Securities of
such series, deposit with a designated Paying Agent for such series a sum
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sufficient to pay the principal, premium, if any, or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal, premium, if any, or interest, if any, and (unless
such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee at
its Corporate Trust Office of its failure so to act.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.3, 12.4 and 12.5.
SECTION 4.5. Maintenance of Corporate Existence. The Issuer
will preserve its corporate existence, but this covenant shall not require the
Issuer to continue its corporate existence in the event of a consolidation or
merger of the Issuer with or into any other corporation in accordance with
Article XI as a result of which the Issuer shall lose its corporate identity, or
in the event of a sale, transfer or lease of the property of the Issuer as an
entirety or substantially as an entirety in accordance with Article XI.
SECTION 4.6. Certificates to Trustee. The Issuer will, on or
before May 1 in each year, commencing with the year 1999, file with the Trustee
an Officers' Certificate complying with the provisions of the second paragraph
of Section 13.6, covering the period from the date of original execution of this
Indenture to December 31, 1998 in the case of the first such certificate, and
covering the preceding calendar year in the case of each subsequent certificate,
and stating whether or not, to the knowledge of each of the signers, the Issuer
has complied with the conditions and covenants on its part contained in this
Indenture, and, if the signers, to the best of their knowledge, know of any
default by the Issuer in the performance, observance or fulfillment of any such
condition or covenant, specifying each such default and the nature thereof. For
the purpose of this Section, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
SECTION 4.7. Costs and Expenses of IDACORP Trust. The Issuer,
as borrower, agrees to pay all debts and obligations (other than with respect to
the Trust Securities) and all costs and expenses of the applicable IDACORP Trust
(including, but not limited to, all costs and expenses relating to the
organization
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of the applicable IDACORP Trust, the fees and expenses of the Property Trustee,
the Delaware Trustee and the Administrative Trustees (each as defined in the
related Trust Agreement) and all costs and expenses relating to the operation of
the applicable IDACORP Trust (other than with respect to the Trust Securities))
and to pay any and all taxes, duties, assessments or other governmental charges
of whatever nature (other than United States withholding taxes) imposed by the
United States or any other taxing authority, so that the net amounts received
and retained by the applicable IDACORP Trust after paying such fees, expenses,
debts and obligations will be equal to the amounts the applicable IDACORP Trust
would have received and retained had no such fees, expenses, debts and
obligations been incurred by or imposed on the applicable IDACORP Trust. The
foregoing obligations of the Issuer are for the benefit of, and shall be
enforceable by, any person to whom such fees, expenses, debts and obligations
are owed (each, a "Creditor"), whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the Issuer directly
against the Issuer, and the Issuer irrevocably waives any right or remedy to
require that any such Creditor take any action against the applicable IDACORP
Trust or any other person before proceeding against the Issuer. The Issuer shall
execute such additional agreements as may be necessary to give full effect to
the foregoing.
SECTION 4.8. Additional Covenants with Respect to Securities
Held by an IDACORP Trust.
The Issuer covenants and agrees with respect to Securities of
each series held by an IDACORP Trust that it shall not (a) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Issuer's capital stock, or ((b)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Issuer that rank pari passu with
all respects with or junior in interest to the Securities of such series or make
any guarantee payments with respect to any guarantee by the Issuer of debt
securities of any Subsidiary of the Issuer if such guarantee ranks pari passu
with or junior in interest to the Securities (other than (a) dividends or
distributions in the common stock of the Issuer, (b) any declaration of a
dividend in connection with the implementation of a Rights Plan, the issuance of
any common stock of any class or series of preferred stock of the Issuer under
any Rights Plan in the future or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under any IDACORP Guarantee and (d) purchases of
common stock related to the issuance of common stock or rights under the
Issuer's benefit plans for its directors, officers or employees or pursuant to
its Dividend Reinvestment and Stock Purchase Plan) if at such time (i) there
shall have occurred any event of which the Issuer has actual knowledge that (A)
with the giving of notice or the lapse of time, or both, would constitute an
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Event of Default with respect to the Securities of such series and (B) in
respect of which the Issuer shall not have taken reasonable steps to cure, (ii)
the Issuer shall be in default with respect to its payment of any obligations
under the IDACORP Guarantee relating to the Preferred Securities issued by such
IDACORP Trust or (iii) the Issuer shall have given notice of its election to
begin an Extension Period with respect to the Securities of such series as
provided herein and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
The Issuer also covenants with respect to Securities of each
series issued to an IDACORP Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such IDACORP Trust; provided, however,
that any permitted successor of the Issuer hereunder may succeed to the Issuer's
ownership of such Common Securities, (ii) as holder of the Common Securities not
to voluntarily terminate, wind-up or liquidate such IDACORP Trust except in
connection with a distribution of the Securities of such series to the holders
of Preferred Securities in liquidation of such IDACORP Trust or in connection
with certain mergers, consolidations or amalgamations permitted by the related
Trust Agreement and (iii) to use its reasonable efforts, consistent with the
terms and provisions of such Trust Agreement, to cause such IDACORP Trust to
remain classified as a grantor trust and not an association taxable as a
corporation for United States federal income tax purposes.
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ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each series;
(a) semiannually and not more than 15 days after each record
date for the payment of interest, if any, on such Securities of such
series, as of such record date, and on dates to be determined pursuant
to Section 3.1 for non-interest bearing Securities of such series in
each year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Securities of such series, as of the
respective record dates therefor (and on dates to be determined
pursuant to Section 3.1 if the Securities of such series do not bear
interest) as of a date not more than 15 days prior to the time such
information is furnished and need not include information received
after such date;
provided that, if and so long as the Trustee shall be the Securities Registrar
for such series, such list shall not be required to be furnished.
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of the Securities (1) contained in the most recent list furnished to
it as provided in Section 5.1, (2) maintained by the Trustee in its capacity as
Paying Agent for such series (if so acting) hereunder and of the Securities
Registrar for such series, and (3) filed with it within two preceding years
pursuant to the provisions of paragraph (2) of subsection (c) of Section 5.4.
The Trustee may (1) destroy any list furnished to it as
provided in Section 5.1 upon receipt of a new list so furnished, (2) destroy any
information received by it as Paying Agent for such series (if so acting)
hereunder upon delivery to itself as Trustee a list containing the names and
addresses of the Holders of Securities of such series obtained from such
information since the delivery of the next previous list, if any, (3) destroy
any list delivered to itself as Trustee which
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was compiled from information received by it as Paying Agent (if so acting)
hereunder upon the receipt of a new list so delivered, and (4) destroy any
information filed with it by the Holders of Securities of such series for the
purpose of receiving reports pursuant to the provisions of paragraph (2) of
subsection (c) of Section 5.4, but not until two years after such information
has been filed with it.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular series (in which
case at least three of the applicants must all hold Securities of such series)
or with Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the
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Holders of Securities of such series or all Holders of Securities, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the Issuer
nor the Trustee nor any Paying Agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
SECTION 5.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Issuer
is not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the
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Issuer with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities in the
manner and to the extent provided in Sections 5.4(c) and 5.4(d) within
30 days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Issuer pursuant to subsections (a) and (b) of this Section as may be
required to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
SECTION 5.4. Reports by the Trustee. (a) Within 60 days after
May 15 in each year following the date of original execution of this Indenture,
so long as any Securities are Outstanding hereunder, the Trustee shall transmit
by mail as provided below to the Securityholders of such series, as hereinafter
in this Section provided, a brief report, dated as of a date convenient to the
Trustee no more than 60 days prior thereto, with respect to any of the following
events which may have occurred within the previous twelve months (but if no such
event has occurred within such period, no report need be transmitted):
(i) any change to its eligibility under Section 7.9
and its qualification under Section 7.8;
(ii) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities of such series
Outstanding on the date of such report;
(iv) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Issuer (or by any other
obligor on the Securities of such series) to the Trustee in its
individual capacity on the date of such report, with a brief
description of any property held as collateral security therefor,
except any indebtedness based upon a creditor relationship arising in
any manner described in Section 7.13(b)(2), (3), (4) or (6);
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(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities of any series which
the Trustee has not previously reported; and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities of any
series, except action in respect of a default, notice of which has been
or is to be withheld by it in accordance with the provisions of Section
6.11.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of original execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(1) to all Holders of Securities, as the names and addresses
of such Holders appear in the Securities Register;
(2) to such Holders of Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section, to each Holder of a Security of any series whose name
and address are preserved at the time by the Trustee, as provided in
subsection (a) of Section 5.2.
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(d) A copy of each such report shall, at the time of such
transmission to the Securityholders of any series, be furnished to the Issuer
and be filed by the Trustee with each stock exchange upon which the Securities
of such series are listed and also with the Commission. The Issuer agrees to
notify the Trustee promptly when and as the Securities of any series become
admitted to trading on any national securities exchange.
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ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default", with respect to the Securities
of any series, wherever used herein, means each one of the following events
which shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the applicable resolution of the Board of Directors or in
the supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated by Section 3.1:
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days and the time for payment of such interest has not been extended;
provided, however that if the Issuer is permitted by the terms of the
Securities of the applicable series to defer the payment in question,
the date on which such payment is due and payable shall be the date on
which the Issuer is required to make payment following such deferral,
if such deferral has been elected pursuant to the terms of the
Securities of that series; or
(b) default in the payment of all or any part of the principal
of or premium, if any, on any of the Securities of such series as and
when the same shall become due and payable either at Stated Maturity,
upon redemption, by declaration or otherwise and the time for payment
of such principal (or premium, if any) has not been extended; provided,
however, that if the Issuer is permitted by the terms of the Securities
of the applicable series to defer the payment in question, the date on
which such payment is due and payable shall be the date on which the
Issuer is required to make payment following such deferral, if such
deferral has been elected pursuant to the terms of the Securities of
that series; or
(c) default in the deposit of any sinking fund payment when
and as due and payable by the terms of the Securities of such series;
or
(d) default in the performance or observance of any other
covenant or agreement of the Issuer in respect of the Securities of
such series (other than a covenant or
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agreement in respect of the Securities of such series a default in
whose performance or observance is elsewhere in this Section
specifically dealt with), and continuance of such default for a period
of 60 days after there has been given, by registered or certified mail,
to the Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, a written notice specifying
such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or, under any such law, (i) appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or (ii) ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or, under any such law, (i) consent to the entry of an order
for relief in an involuntary case under any such law, (ii) consent to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Issuer or for any substantial part of its property, or (iii) make
any general assignment for the benefit of creditors; or
(g) any other Event of Default established by or pursuant to a
resolution of the Board of Directors or one or more indentures
supplemental hereto as applicable to the Securities of such series.
If an Event of Default described in clause (a), (b), (c), (d) or (g) above (if
the Event of Default under clause (d) or (g) is with respect to fewer than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class), by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms of such series) of all Securities of
such
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series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable; provided that, in the case of the Securities of a series issued to
an IDACORP Trust, if, upon such an Event of Default, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of that
series fail to declare the principal of all the Securities of that series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount (as defined in the related Trust Agreement) of the
corresponding series of Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee. Payment of
principal and interest on such Securities shall remain subordinated to the
extent provided in Article XVI notwithstanding that such amount shall become
immediately due and payable as herein provided. If an Event of Default described
in clause (d) or (g) above with respect to all series of Securities then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable; provided
that, in the case of the Securities of a series issued to an IDACORP Trust, if,
upon such an Event of Default, the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of that series fail to declare
the principal of all the Securities of that series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount (as defined
in the related Trust Agreement) of the corresponding series of Preferred
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee. Payment of principal and interest on such Securities
shall remain subordinated to the extent provided in Article XVI notwithstanding
that such amount shall become immediately due and payable as herein provided. If
any Event of Default described in clause (e) or (f) occurs and is continuing,
all the Securities then Outstanding and the interest accrued thereon, if any,
shall immediately become due and payable without declaration, presentment,
demand or notice of any kind by the Trustee or any Holder of Securities
Outstanding hereunder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the
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case may be) shall have been so declared or become due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all the Securities of such series (or upon all the
Securities, as the case may be) and the principal of (and premium, if any, on)
any and all Securities of such series (or of all the Securities, as the case may
be) which shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, at the Overdue Rate applicable to such series to the date of such
payment or deposit) and all amounts payable to the Trustee pursuant to the
provisions of Section 7.6, and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the nonpayment of the principal of
and accrued interest on Securities of such series which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the Holders of a majority in aggregate
principal amount of the Securities of such series (each series voting as a
separate class), or of all the Securities (voting as a single class), as the
case may be, then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to that series (or with respect to
all the Securities, as the case may be) and rescind and annul such acceleration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon. In the case of Securities issued to an IDACORP Trust,
holders of a majority in aggregate Liquidation Amount (as defined in the related
Trust Agreement) of the related series of Preferred Securities issued by such
IDACORP Trust shall also have the right to rescind and annul such declaration
and its consequences by written notice to the Issuer and to the Trustee, subject
to the satisfaction of the conditions set forth in this paragraph.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Security shall have been accelerated
and declared or become due and payable pursuant to the provisions hereof, then,
from and after such acceleration, unless such acceleration has been rescinded
and annulled, the principal amount of such Original Issue Discount Security
shall be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and
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all other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Security.
SECTION 6.2. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of or any premium, if
any, on any Securities of any series when the same shall have become due and
payable, whether upon Stated Maturity of the Securities of such series or upon
any redemption or by acceleration or otherwise or (c) in case of default in the
making or satisfaction of any sinking fund payment or analogous obligation when
the same becomes due by the terms of the Securities of any series -- then upon
demand of the Trustee for such series, the Issuer will pay to the Trustee for
the benefit of the Holder of any such Security (or Holders of any such series of
Securities in the case of clause (c) above) the whole amount that then shall
have become due and payable on any such Security (or Securities of any such
series in the case of clause (c) above) for the principal, premium, if any, and
interest, if any, with interest upon the overdue principal and premium, if any,
and, so far as payment of the same is enforceable under applicable law, on
overdue installments of interest, at the Overdue Rate applicable to any such
Security (or Securities of any such series in the case of clause (c)); and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and any further amounts payable to the Trustee, its
agents and counsel pursuant to the provisions of Section 7.6.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities (or Securities of any such series in case of clause (c))
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon such Securities (or Securities of any such series in case of
clause (c)), wherever situated, the moneys adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own
name as trustee of an express trust, or as attorney-in-fact for the Holders of
any of the Securities, or in both such capacities, to file such proof of debt,
amendment of proof of debt, claim, petition or other document as may be
necessary or advisable in order to have the claims of the Trustee and of the
Holders of Securities allowed in any equity receivership,
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insolvency, bankruptcy, liquidation, readjustment, reorganization or other
similar proceedings, or any judicial proceedings, relative to the Company or any
other obligor on the Securities or its creditors or its property. The Trustee is
hereby irrevocably appointed (and the successive respective Holders of the
Securities, by taking and holding the same, shall be conclusively deemed to have
so appointed the Trustee) the true and lawful attorney-in-fact of the respective
Holders of the Securities, with authority to make or file in the respective
names of the Holders of the Securities any proof of debt, amendment of proof of
debt, claim, petition or other document in any such proceedings and to receive
payment of any sums becoming distributable on account thereof, and to execute
any other papers and documents and do and perform any and all acts and things
for and on behalf of such Holders of the Securities as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Holders of the Securities against the Issuer or any other obligor on the
Securities and/or its property allowed in any such proceedings, and to receive
payment of or on account of such claims; provided, however, that nothing herein
contained shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any Holder of Securities, any plan of
reorganization or readjustment of the Issuer or any other obligor on the
Securities or, by other action of any character in any such proceeding, to waive
or change in any way any right of any Holder of any Security, even though it may
otherwise be entitled so to do under any present or future law, all such power
or authorization being hereby expressly denied.
All rights of action and of asserting claims under this
Indenture or under any of the Securities may be enforced by the Trustee without
the possession of any of the Securities or the production thereof in any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 6.3. Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of
any series of the Securities, together with any other sums held
by the Trustee (as such) hereunder (other than sums held in
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trust for the benefit of the Holders of particular Securities), shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal, upon presentation
(except in respect of Subdivision First below) of the several Securities in
respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such series in reduced principal
amounts in exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which moneys have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 7.6;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee), so far as it may be
enforceable under applicable law, upon the overdue installments of
interest at the Overdue Rate applicable to such series, such payments
to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and premium, if any, and interest, if any, with interest upon the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee), so far as payment of the
same is enforceable under applicable law, upon overdue installments of
interest, if any, at the Overdue Rate applicable to such series; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the
payment of such principal, premium, if any, and interest, if any,
without preference or priority of principal and premium, if any, over
interest, or of interest, if any, over principal and premium, if any,
or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such
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principal, premium, if any, and accrued and unpaid interest, if any;
and
FOURTH: To the payment of the remainder, if any, to the Issuer
or as a court of competent jurisdiction may direct.
SECTION 6.4. Suits for Enforcement. In case an Event of
Default with respect to Securities of any series has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to the
Trustee or such Holder, then and in every such case (subject to the binding
effect of any determination made in such proceedings) the Issuer and the Trustee
shall be restored severally and respectively to their former positions and
rights hereunder, and (subject as aforesaid) all rights, remedies and powers of
the Issuer, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
SECTION 6.6. Limitations on Suits by Securityholders. No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute an action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or with respect
to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to
institute such action or proceeding in its own name as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.9; it being
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understood and intended, and being expressly covenanted by the taker and Holder
of every Security with every other taker and Holder of any Security and with the
Trustee, that no one or more Holders of Securities of any series shall have any
right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Holder of Securities of any series
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 6.7. Unconditional Right of Securityholders to
Institute Certain Suits. Nothing contained in this Indenture or in the
Securities of any series shall affect or impair the obligation of the Issuer,
which is unconditional and absolute, to pay the principal of, and premium, if
any, and interest, if any, on, the Securities of such series at the respective
places, at the respective times, at the respective rates, in the respective
amounts and in the coin or currency therein and herein prescribed, or affect or
impair the right of action, which is also absolute and unconditional, of any
Holder of any Security to institute suit to enforce such payment at the
respective due dates expressed in such Security, or upon redemption, by
declaration, repayment or otherwise as herein provided without reference to, or
the consent of, the Trustee or the Holder of any other Security, unless such
Holder consents thereto. In the case of Securities of a series issued to an
IDACORP Trust, any holder of the corresponding series of Preferred Securities
issued by such IDACORP Trust shall have the right to institute a suit directly
against the Issuer for enforcement of payment to such holder of principal of and
premium, if any, and interest on the Securities having a principal amount equal
to the aggregate Liquidation Amount (as defined in the Trust Agreement under
which such IDACORP Trust is formed) of such Preferred Securities of the
corresponding series held by such holder.
SECTION 6.8. Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 6.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holder of any
Security is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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No delay or omission of the Trustee or of any Holder of any
Security of any series to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holder of any Security may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holder of such Security.
SECTION 6.9. Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture, and provided, further,
that (subject to the provisions of Section 7.1) the Trustee shall have the right
to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee or a trust committee of directors or responsible officers of
the Trustee shall determine that the action or proceedings so directed would
expose the Trustee to personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 7.1) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
As between the Trustee and the Holders of the Securities,
nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 6.10. Waiver of Past Defaults. Prior to the
acceleration with respect to Securities of any series as provided in Section
6.1, the Holders of not less than a majority in aggregate principal amount of
the Securities of such series at the time Outstanding and, in the case of any
Securities of a series issued to an IDACORP Trust, the holders of not less than
a majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the Preferred Securities issued by such IDACORP Trust, may on
behalf of the Holders of all the Securities of such series waive any past
default or Event of
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Default described in clause (d) or (g) of Section 6.1 which relates to fewer
than all series of Securities then Outstanding, and the Holders of a majority in
aggregate principal amount of the Securities then Outstanding affected thereby
(each series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (d) or (g) (if the
Event of Default under clause (d) or (g) relates to all series of Securities
then Outstanding) of Section 6.1, the Holders of a majority in aggregate
principal amount of all the Securities then Outstanding (voting as one class)
may waive any such default or Event of Default, and its consequences except a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, the Trustee and the Holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively, such default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall be
deemed to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 6.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall transmit to the
Securityholders of any series, as the names and addresses of such Holders appear
on the Security Register, notice by mail of all defaults known to a responsible
officer of the Trustee which have occurred with respect to such series, such
notice to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice (the term
"default" or "defaults" for the purposes of this Section being hereby defined to
mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the case of default
in the payment of the principal of, or premium, if any, or interest, if any, on,
any of the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or responsible officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 6.12. Right of Court to Require Filing of Undertaking
to Pay Costs. The parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion
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assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the
Securities of such series Outstanding, or, in the case of any suit relating to
or arising under clause (d) or (g) of Section 6.1 (if the suit relates to
Securities of more than one but fewer than all series), 10% in aggregate
principal amount of Securities Outstanding affected thereby, or, in the case of
any suit relating to or arising under clause (d), (g) (if the suit under clause
(d) or (g) relates to all the Securities then Outstanding), (e) or (f) of
Section 6.1, 10% in aggregate principal amount of all Securities Outstanding, or
to any suit instituted by any Holder of Securities for the enforcement of the
payment of the principal of, or premium, if any, or interest, if any, on, any
Security on or after the due date expressed in such Security.
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ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of that series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of such series and after the curing or
waiving of all such Events of Default with respect to such series which
may have occurred:
(i) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or responsible officers of
the Trustee, unless it shall be
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proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities pursuant to Section 6.9 relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 7.2. Certain Rights of the Trustee. Subject to
Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or any assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc. The Trustee, any Paying Agent, Securities Registrar,
Authenticating Agent or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent,
and, subject to Sections 7.8 and 7.13, if operative, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the
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Trustee, Paying Agent, Securities Registrar, Authenticating
Agent or such agent.
SECTION 7.5. Moneys Held by Trustee. Subject to the provisions
of Section 4.4, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. The Trustee shall have no liability for
interest on money it receives and holds in trust except as specifically provided
herein.
SECTION 7.6. Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay the Trustee from time to
time, and the Trustee shall be entitled to such compensation as the Issuer and
the Trustee may from time to time agree in writing for all services rendered by
the Trustee hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor trustee for, and hold it harmless against, any
loss, liability, damage, claims or expense, including taxes (other than taxes
measured by the income of the Trustee or otherwise applicable to the Trustee for
operations outside the scope of this Indenture) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor trustee and to pay or reimburse the Trustee and each predecessor
trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
SECTION 7.7. Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 7.1 and 7.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or
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established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken,' suffered or omitted by it under the provisions of
this Indenture upon the good faith thereof.
SECTION 7.8. Qualification of Trustee; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be subject
to the provisions of Section 310(b) of the Trust Indenture Act during the period
of time provided for therein. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.9. Persons Eligible for Appointment as
Trustee. There shall at all times be a Trustee hereunder for
each series of Securities, which shall be at all times either
(i) a corporation organized and doing business under
the laws of the United States of America or of any State or
territory or the District of Columbia, authorized under such
laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, territory or
District of Columbia authority, or
(ii) a corporation or other person organized and
doing business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation or
order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $100,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 7.9, the combined capital and surplus of
such corporation shall be deemed to be its combined
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capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee for the Securities of any series shall
cease to be eligible in accordance with the provisions of this Section 7.9, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Issuer nor any person directly or indirectly
controlling, controlled by, or under common control with the Issuer shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of resignation to the
Issuer and by mailing notice thereof by first-class mail to Holders of the
Securities at their last addresses as they shall appear on the Security
Register. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities for at least six
months may, subject to the provisions of Section 6.12, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request
therefor by the Issuer or by any Securityholder who has been a bona
fide Holder of a Security or Securities for at least six months unless
the Trustee's duty to resign is stayed in accordance with the
provisions of Section 310(b) of the Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.9 and shall fail to resign after
written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent; or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or
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control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any case, the Issuer may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.12, any Securityholder who has been a bona fide Holder
of a Security or Securities for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(iv) The Holders of a majority in aggregate principal amount
of the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 8.1 of the action in that regard taken by the Securityholders.
(v) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective until acceptance of appointment by the
successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee hereunder; but nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
all amounts due to the Trustee under Section 7.6, the Trustee ceasing to act
shall, subject to Section 4.4, pay over to the successor trustee all moneys at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any successor trustee, the Issuer shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any Trustee
ceasing to act, shall, nevertheless, retain a prior lien upon all property or
funds held or collected by
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such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.6.
No successor trustee shall accept appointment as provided in
this Section 7.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 7.11, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
7.10. If the Issuer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 7.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation in which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to substantially all of the corporate trust
business of the Trustee, shall be the successor of the trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 7.8 and eligible under the provisions of Section 7.9, without the
execution or filing of any paper or any further act (including the giving of any
notice to Securityholders) on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided for the certificate of authentication of the Trustee.
SECTION 7.13. Preferential Collection of Claims Against the
Issuer. (a) Subject to the provisions of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Issuer or any other obligor of the Securities within three months prior to
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a default, as defined in subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of other indenture
securities (as defined in this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period
and valid as against the Issuer and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Issuer
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Issuer and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than Issuer) who is liable
thereon, (ii) the proceeds of a bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Issuer in bankruptcy or receivership or in the proceedings for
reorganization pursuant to the Federal Bankruptcy Code or applicable
state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee has no
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reasonable cause to believe that a default as defined by subsection (c)
of this Section would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Holders of the Securities and the holders
of other indenture securities in such manner that the Trustee, such Holders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Issuer of the
funds and property in such special account and before crediting to the
respective claims of the Trustee, Holders of the Securities and the holders of
other indenture securities dividends on claims filed against the Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Holders of Securities and the holders of other indenture
securities, in accordance with the
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provisions of this paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the Trustee, the
Holders of Securities and the holders of other indenture securities with respect
to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distribution as between the secured and unsecured portions of
such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this subsection (a) as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a) if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section a
creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the Holders of
the applicable series of Securities at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
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(4) an indebtedness created as a result of services rendered
or premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3)
of this Section;
(5) the ownership of stock or of some other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities of
the applicable series or upon the other indenture securities when and
as such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the Trust
Indenture Act) outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon the goods, wares or merchandise or
the receivables or proceeds arising from the sale of goods, wares or
merchandise previously constituting the security, provided that the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Issuer arising from the making,
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drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 7.14. Authenticating Agent. So long as any Securities
remain Outstanding, if the Corporate Trust Office of the Trustee is not located
in the Borough of Manhattan, The City of New York, or otherwise upon an Issuer
Request, there shall be an authenticating agent (the "Authenticating Agent")
appointed, for such period as the Issuer shall elect, by the Trustee to act as
its agent on its behalf and subject to its direction in connection with the
authentication and delivery of Securities. Securities authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by such
Trustee. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a Certificate
of Authentication executed on behalf of such Trustee by such Authenticating
Agent. Such Authenticating Agent shall at all times be a corporation organized
and doing business under the laws of the United States of America or of any
State or of the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$20,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If the Corporate Trust Office of the Trustee is
not located in the Borough of Manhattan, The City of New York, the
Authenticating Agent shall have its principal office and place of business in
the Borough of Manhattan, The City of New York.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of resignation to
the Trustee and to the Issuer. The Trustee may at any time terminate the agency
of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.14,
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the Trustee shall upon Issuer Request appoint a successor Authenticating Agent,
and the Issuer shall provide notice of such appointment to all Holders of
Securities in the manner and to the extent provided in Section 13.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Issuer agrees to pay or to cause to be paid to the
Authenticating Agent from time to time reasonable compensation for its services.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in good faith at the direction of the Trustee.
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ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced
(a) by any instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, or (b) by the
record of Holders voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Holders. The Issuer may (but shall not be required to) set a record
date for purposes of determining the identity of Securityholders entitled to
vote or consent to any action by vote or consent authorized or permitted under
this Indenture, which record date shall be the later of 10 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 5.1 of this Indenture prior
to such solicitation. If a record date is fixed, those persons who were
Securityholders at such record date (or their duty designated proxies), and only
those persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date. No such vote or consent shall be
valid or effective for more than 120 days after such record date.
SECTION 8.2. Proof of Execution of Instruments by Holders of
Securities. Subject to Sections 7.1, 7.2 and 9.5, the execution of any
instrument by a Holder of a Security or his agent or proxy may be proved in any
reasonable manner that the Trustee deems sufficient, including, without
limitation, in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or
other officer authorized to take acknowledgments of deeds, that the
person executing such instrument acknowledged to him the execution
thereof, or by an affidavit or written statement of a witness to such
execution. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other person
acting in a representative capacity, such certificate, affidavit
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or written statement shall also constitute sufficient
proof of his authority.
The ownership of Securities shall be proved by the Securities
Register or by a certificate of the Securities Registrar.
The record of any Holders' meeting shall be proved in the
manner provided in Section 9.6.
SECTION 8.3. Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the person
in whose name any Security shall be registered upon the Security Register as the
absolute owner of such Security (notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of principal of, and
premium, if any, and (subject to Section 3.8) interest, if any, on, such
Security, and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by notice to the contrary. All such payments so made
to any Holder for the time being, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon such Security.
None of the Issuer, the Trustee or any agent of the Issuer or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interest
of a Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest. Notwithstanding the foregoing,
with respect to any Global Security, nothing herein shall prevent the Issuer or
the Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by any Depository
(or its nominee), as a Holder, with respect to such Global Security or impair,
as between such Depository and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
right of such Depository (or its nominee) as holder of such Global Security.
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned by
the Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for
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the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 7.1 and
7.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 8.5. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security, the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Securities the Holders of which have
consented to such action, may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security or such other
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
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ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee for the
Securities of such series, or to give any directions to the Trustee, or
to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article VI;
(2) to remove the Trustee and nominate a successor Trustee
pursuant to the provisions of Article VII;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be,
under any other provision of this Indenture or under applicable law.
SECTION 9.2. Call of Meetings by Trustee. The Trustee may at
any time call a meeting of Holders of Securities to take any action specified in
Section 9.1, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or such other Place of Payment, as the Trustee
shall determine. Notice of every meeting of the Holders of Securities, setting
forth the time and the place of such meeting, and in general terms the action
proposed to be taken at such meeting, shall be given to Holders of Securities of
the particular series in the manner and to the extent provided in Section 13.4.
Such notice shall be given not less than 20 nor more than 90 days prior to the
date fixed for the meeting.
SECTION 9.3. Call of Meetings by Issuer or Holders. In case at
any time the Issuer, pursuant to a resolution of its Board of Directors, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any or all series, as the case may be, shall have requested the
Trustee to call a meeting of Holders of Securities of any or all series, as the
case may be, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee for such series shall not
have given the notice of such meeting within 20 days after receipt of such
request, then the Issuer or such Holders may determine the time and the place in
the Borough of Manhattan or other Place of Payment for such
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meeting and may call such meeting to take any action authorized in Section 9.1,
by giving notice thereof as provided in Section 9.2.
SECTION 9.4. Qualifications for Voting. To be entitled to vote
at any meeting of Holders a person shall be (a) a Holder of one or more
outstanding Securities with respect to which such meeting is being held or (b) a
person appointed by an instrument in writing as proxy by such Holder. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Issuer and its counsel.
SECTION 9.5. Regulations. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of the Securities in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders of Securities as provided in Section 9.3, in which case
the Issuer or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting, shall be elected by majority vote of the meeting.
Subject to Section 8.4, at any meeting each Holder of
Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Outstanding") of Securities held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Securities held by him or
instruments in writing aforesaid duly designating him as the person to vote on
behalf of other Holders. At any meeting of Holders, the presence of persons
holding or representing Securities with respect to which such meeting is being
held in an aggregate principal amount sufficient to take action on the business
for the transaction of which such meeting was called shall constitute a quorum,
but, if less than a quorum is present, the persons holding or representing a
majority in aggregate principal amount of such Securities represented at the
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meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present. Any meeting of Holders of
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 9.2 or Section 9.3 may be adjourned from time to time by
persons holding or representing a majority in aggregate principal amount of such
Securities represented at the meeting, present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 9.6. Voting. The vote upon any resolution submitted to
any meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.2. The record shall
show the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Issuer and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 9.7. No Delay of Rights by Reason of Meeting. Nothing
in this Article contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders under any of the provisions of this Indenture or of the Securities
of any series.
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ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
under this Indenture and the Securities;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors shall consider to be for the protection of the Holders of any
series of Securities, and to make the occurrence and continuance of a
default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable and which shall not materially adversely affect the
interests of the Holders of any Securities;
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(e) to establish the form or terms of Securities of any series
as permitted by Section 3.1;
(f) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to
principal only), to provide for interchangeability thereof with
Securities in registered form of the same series and to make all
appropriate changes for such purpose, or to permit or facilitate the
issuance of Securities of any series in uncertificated form;
(g) to provide for the issuance under this Indenture of
Securities denominated or payable in currency other than Dollars and to
make all appropriate changes for such purpose;
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities,
pursuant to Section 7.11, or to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;
(i) to modify any restrictions on and procedures for resales
of Securities of any series that is not registered pursuant to the
Securities Act to reflect any change in applicable law or regulation
(or the interpretation thereof) or in practices relating to the resale
or transfer of restricted securities generally and to modify any
legends placed on such securities to reflect such restrictions and
procedures;
(j) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable to conform to provisions
of the Trust Indenture Act as at the time in effect, provided that such
action shall not materially adversely affect the interests of the
Holders of the Securities of any series; and
(k) otherwise to change or eliminate any of the provisions of
this Indenture; provided, however, that any such change or elimination
may only be effected when no Outstanding Security of any series created
prior to the execution of such supplemental indenture is entitled to
the benefit of such provision.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
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supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 10.2.
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article VIII) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series; provided that no such supplemental
indenture shall (a) change the Stated Maturity of any Security of such series,
or reduce the principal amount thereof or the amount of any premium thereon, or
reduce the rate, extend the time of payment or change the method of calculation
of interest thereon, or reduce any amount payable on redemption thereof or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration with respect thereto pursuant to
Section 6.1 or the amount thereof provable in bankruptcy pursuant to Section
6.2, or impair or adversely affect the right of any Securityholder to institute
suit for the payment thereof or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder, without the consent of the
Holder of each Security of such series so affected, or (b) reduce the aforesaid
percentage of the principal amount of Securities of such series, the consent of
the Holders of which is required for any such supplemental indenture or any
waiver of any obligations of the Issuer under this Indenture, without the
consent of the Holders of each Security of such series so affected; provided,
further, that, in the case of the Securities of a series issued to an IDACORP
Trust, so long as any of the corresponding series of Preferred Securities issued
by such IDACORP Trust remains outstanding, (i) no such amendment shall be made
that adversely affects the holders of such Preferred Securities in any material
respect, and no discharge of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of not less than a majority
of the aggregate Liquidation Amount (as defined in the related Trust Agreement)
of such Preferred Securities then outstanding unless and until the principal and
premium, if any, of the Securities
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of such series and all accrued and unpaid interest thereon have been paid in
full and (ii) no amendment shall be made to Section 6.7 of this Indenture that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the holders of each Preferred Security then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest thereon have been
paid in full.
Upon the request of the Issuer, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 8.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities or
Preferred Securities, or which modifies the rights of the Holders of Securities
of such series or holders of Preferred Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities or holders of Preferred Securities
of any other series.
SECTION 10.3. Notice of Supplemental Indenture. Promptly after
the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of Section 10.2, the Issuer shall mail a notice
thereof by first-class mail to the Holders of Securities of each series affected
thereby at their addresses as they shall appear on the Security Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.4. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith, but only with regard to the Securities of each series
affected by such supplemental indenture, and the respective rights,
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limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer and the Holders of any Securities of such series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes with regard to the Securities of such series.
SECTION 10.5. Documents To Be Given to Trustee. The Trustee,
subject to the provisions of Sections 7.1 and 7.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article complies with the
applicable provisions of this Indenture.
SECTION 10.6. Notation on Securities in Respect of
Supplemental Indentures. Securities of any series affected by any supplemental
indenture which are authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Issuer and the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Issuer, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
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ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on Certain
Terms. The Issuer will not, and will not permit any of its Subsidiaries to,
directly or indirectly, consolidate with, or merge into, or sell all or
substantially all of its assets to, any person, except that
(a) a Subsidiary may permit any person to be merged into such
Subsidiary, and such Subsidiary may consolidate with or merge into or
sell all or substantially all of its assets to the Issuer or another
Subsidiary or a person which thereupon becomes a Subsidiary;
(b) the Issuer may permit any person to be merged into the
Issuer or may, subject to Section 11.2, consolidate with or merge into,
or sell all or substantially all of its assets to, any solvent person
organized in the United States of America (substantially all of the
assets of which are located within the United States of America);
(c) the stock of a Subsidiary may be sold under circumstances
whereby all of the capital stock and debt of that Subsidiary owned by
the Issuer or another Subsidiary are being disposed of by the Issuer or
such other Subsidiary; or
(d) all or substantially all the assets of a Subsidiary may be
sold in a transaction approved by the Board of Directors of the Issuer;
provided that, immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing under this Indenture.
SECTION 11.2. Conditions to Consolidation or Merger, etc. The
Issuer covenants and agrees that it will not consolidate with or merge into any
other corporation, or sell all or substantially all of its assets, unless, and
the Issuer covenants and agrees that any such consolidation, merger or sale
shall be upon the condition that, the due and punctual payment of the principal
of, and premium, if any, and interest, if any, on, all the Securities of each
series according to their tenor, and the due and punctual performance and
observance of all the terms, covenants and conditions of this Indenture to be
performed or observed by the Issuer, shall, by a supplemental indenture hereto
pursuant to Section 10.1(b), be expressly assumed by the successor corporation,
if other than the Issuer, formed by or surviving any such consolidation or
merger or to which such sale, transfer or lease shall have been made, as
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fully and effectually as if such successor corporation had been an original
party to this Indenture.
Every such successor corporation, if other than the Issuer,
upon executing such supplemental indenture, in form satisfactory to the Trustee,
shall succeed to and be substituted for the Issuer with the same effect as if it
had been an original party hereto, and shall possess and from time to time may
exercise each and every power of the Issuer under this Indenture, and, in the
case of any such sale or transfer, the person named as the "Issuer" in the first
paragraph of this Indenture or any successor corporation which shall theretofore
have become such in the manner prescribed in this Article shall be released from
its liability hereunder and as obligor on all the Securities. Such successor
corporation thereupon may execute and deliver Securities under this Indenture,
either in the name of the Issuer (unless the Issuer shall have been released
from its liability hereunder and as obligor on the Securities as provided in the
next preceding sentence) or of such successor corporation, and any act or
proceeding required by this Indenture to be done or performed by any board or
officer of the Issuer may be done or performed with like force and effect by the
comparable board or officer of such successor corporation. Such change in
phraseology and form (but not in substance) may be made in the Securities as may
be appropriate in view of such consolidation, merger, sale, transfer or lease.
All the Securities when issued by such successor corporation shall in all
respects have the same legal priority as the Securities theretofore or
thereafter authenticated, issued and delivered in accordance with the terms of
this Indenture.
SECTION 11.3. Documents and Opinion To Be Furnished to the
Trustee. The Issuer covenants and agrees that if it shall consolidate with or
merge into any other corporation, or if it shall sell all or substantially all
of its assets, the Issuer will promptly furnish to the Trustee:
(1) An Officers' Certificate stating that the conditions and
covenants of the Issuer contained in Section 11.2 have been complied
with;
(2) An executed counterpart of any instrument or instruments
executed by the Issuer in the performance of such conditions and
covenants; and
(3) An Opinion of Counsel stating that in the opinion of such
counsel such conditions and covenants have been complied with and that
any instrument or instruments executed by the Issuer in the performance
of such conditions and covenants comply with the requirements of such
conditions and covenants.
The Trustee shall receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger or sale,
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any such assumption and any such supplemental indenture comply with this
Article.
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ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of Any
Series. Except as otherwise provided for the Securities of any series
established pursuant to Section 3.1(16), the Issuer shall be deemed to have
satisfied and discharged this Indenture with respect to the entire indebtedness
on all the Outstanding Securities of any particular series, and the Trustee, at
the expense of the Issuer and upon Issuer Request, shall execute proper
instruments acknowledging such satisfaction and discharge, when
(1) either
(A) all Outstanding Securities of such series
theretofore authenticated and delivered (other than (i) any
Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.7 and (ii) Outstanding Securities of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 12.5) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of
such series described in sub-clause (A) above (other than the
Securities referred to in the parenthetical phrase thereof)
not theretofore delivered to the Trustee for cancellation:
(i) the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee
as trust funds in trust an amount (except as
otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay and
discharge the entire indebtedness on all such
Outstanding Securities of such series for principal
(and premium, if any) and interest to the Stated
Maturity or any Redemption Date as contemplated by
Section 12.3, as the case may be; or
(ii) the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee
as obligations in trust such amount of Government
Obligations as will, in a written opinion of
independent public accountants delivered to the
Trustee, together with the predetermined and certain
income to accrue
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thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due
the entire indebtedness on all such Outstanding
Securities of such series for unpaid principal (and
premium, if any) and interest to the Stated Maturity
or any Redemption Date as contemplated by Section
12.3, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities of such series
including all fees due to the Trustee under Section 7.6;
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the due satisfaction and
discharge of this Indenture with respect to the entire indebtedness on
all Outstanding Securities of any such series have been complied with;
and
(4) if the Securities of such series are not to become due and
payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the
date of such deposit under arrangements satisfactory to the Trustee as
of the date of such deposit, then the Issuer shall have given, not
later than the date of such deposit, notice of such deposit to the
Holders of the Securities of such series.
Upon the satisfaction of the conditions set forth in this
Section 12.1 with respect to all the Outstanding Securities of any series, the
terms and conditions with respect thereto set forth in this Indenture shall no
longer be binding upon, or applicable to, the Issuer; provided, however, that
the Issuer shall not be discharged from (a) any obligations under Sections 7.6
and 7.10 and (b) any obligations under Section 3.6 or 3.7 and Section 5.1; and
provided, further, that in the event a petition for relief under the federal
Bankruptcy Code or a successor statute is filed with respect to the Issuer
within 91 days after the deposit, this Indenture with respect to the entire
indebtedness on all Securities of such series shall not be discharged, and in
such event the Trustee shall return such deposited funds or obligations as it is
then holding to the Issuer upon Issuer Request.
SECTION 12.2. Satisfaction and Discharge of Indenture. Upon
compliance by the Issuer with the provisions of Section 12.1 as to the
satisfaction and discharge of this Indenture with respect to each series of
Securities issued hereunder and if the Issuer has paid or caused to be paid all
other sums payable under this Indenture, this Indenture shall cease to be of any
further effect (except as otherwise provided
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herein). Upon Issuer Request and receipt of an Opinion of Counsel and an
Officers' Certificate (and at the expense of the Issuer), the Trustee shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Issuer under Sections 3.6, 3.7, 5.1, 7.6 and
7.10 and the obligations of the Trustee under Section 12.3 shall survive.
SECTION 12.3. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section 12.1 shall be held
irrevocably in trust and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Issuer and the Trustee. Such
money and obligations shall be applied by the Trustee, in accordance with the
provisions of the Securities, this Indenture and such escrow trust agreement, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal of (and premium, if any) and interest, if
any, on the Securities for the payment of which such money and obligations have
been deposited with the Trustee. If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund
requirement, the Issuer shall give the required notice of redemption or shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Issuer.
SECTION 12.4. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys with respect to such series then held by
any Paying Agent (and not required for such satisfaction and discharge) shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee and
Paying Agent. Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of, or premium, if any, or interest, if
any, on, Securities of any series and which shall not be applied but shall
remain unclaimed by the Holders of Securities of such series for two years after
the date upon which such payment shall have become due and payable, shall be
repaid to the Issuer by the Trustee on demand; and the Holder of any of such
Securities entitled to receive such payment shall thereafter look only to the
Issuer for the payment thereof; provided, however, that the Issuer or the
Trustee, before making any such repayment, shall at the expense of the Issuer
cause to be published once a week for two
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successive weeks (in each case on any day of the week) in an Authorized
Newspaper, or mail to each Holder, or both, a notice that said moneys have not
been so applied and that after a date named therein any unclaimed balance of
said moneys then remaining will be returned to the Issuer.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 12.3 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.1 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.3; provided,
however, that if the Company makes any payment of interest on or principal of
any Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of such Securities.
SECTION 13.2. Benefits of Indenture. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give
to any person, other than the parties hereto and their successors and the
Holders of the Securities, the holders of Senior Indebtedness to the extent
provided in Article XVI and the holders of the Preferred Securities to the
extent provided in Sections 6.1, 6.7, 6.10 and 10.2, any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and the Holders of the Securities.
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 13.4. Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed by
first class mail, postage prepaid, to such Holders as their names and addresses
appear on the Securities Register within the time prescribed. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance on such
waiver. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder, shall affect the sufficiency of
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such notice with respect to other Holders, and any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given.
In case by reason of the suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to publish any notice
to Holders otherwise required or permitted under this Indenture, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder.
SECTION 13.5. Addresses for Notices. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Securities of any series on the
Issuer may be given or served by registered mail addressed (until another
address is filed by the Issuer with the Trustee) as follows: IDACORP, Inc.,
________________, Attention: ____________ (with a concurrent copy to the General
Counsel). Any notice, direction, request or demand by the Issuer or any Holders
of Securities of any series to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if received at the Corporate Trust
Office of such Trustee.
SECTION 13.6. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent (including any covenants compliance with which
constitutes a condition precedent) provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent (including any
covenants compliance with which constitutes a condition precedent) have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
(other than annual certificates provided pursuant to Section 4.6) and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement
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as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 13.7. Separability Clause. In case any provision of
this Indenture or of the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 13.8. Legal Holidays. In any case where the date of
maturity of interest on or principal of (or premium, if any, on) the Securities
or the date fixed for redemption or repayment of any Security shall not be a
Business Day at any Place of Payment with respect to Securities of that series,
then (notwithstanding any other provisions of this Indenture or of the Security)
payment of such interest on or principal of (or premium, if any, on) the
Securities of such series need not be made on such date in such Place of Payment
but may be made on the next succeeding Business Day in such Place of Payment
with the same force and effect as if made on the date of maturity or the date
fixed for redemption or repayment, as the case may be,
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and no interest shall accrue for the period from and after such date by reason
of such delayed payment.
SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the former provision shall control.
SECTION 13.10. Governing Law. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes this Indenture shall be construed in accordance with the laws
of said State applicable to contracts made and to be wholly performed within
said State.
SECTION 13.11. Counterparts. This Indenture may be executed in
any number of counterparts, and on separate counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 13.12. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the interpretation hereof.
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ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their stated Maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.1 for Securities of such series. For purposes of Section 14.2, the redemption
of all Securities having the same terms within a series shall not be deemed to
be the redemption of fewer than all of the Securities of any series.
SECTION 14.2. Notice of Redemption; Selection of Securities.
In case the Issuer shall desire to exercise the right to redeem all or, as the
case may be, any part of the Securities of any series in accordance with their
terms, it shall fix a Redemption Date and shall provide notice of such
redemption at least 30 days prior to such Redemption Date to the Trustee and to
the Holders of Securities of such series so to be redeemed as a whole or in part
in the manner provided in Section 13.4. The notice provided in the manner herein
specified shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, failure to give such notice or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the CUSIP or other comparable number, the Place or
Places of Payment, that the Securities of such series are being redeemed at the
option of the Issuer pursuant to provisions contained in the terms of the
Securities of such series or in a supplemental indenture establishing such
series, if such be the case, together with a brief statement of the facts
permitting such redemption, that payment will be made upon presentation and
surrender of the applicable Securities at the Place or Places of Payment, that
the Redemption Price and any interest accrued to the Redemption Date will be
paid as specified in said notice, and that on and after said Redemption Date any
interest thereon or on the portions thereof to be redeemed will cease to accrue,
and any information that is required to be included therein by the Depository.
If fewer than all the Securities of any series are to be redeemed the notice of
redemption shall specify the numbers of the Securities of such series to be
redeemed. In case any Security of any series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the Redemption Date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued, or, in
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the case of Securities providing appropriate space for such notation, at the
option of the Holders the Trustee, in lieu of delivering a new Security or
Securities as aforesaid, may make a notation on such Security of the payment of
the redeemed portion thereof.
On or before the Redemption Date with respect to the
Securities of any series stated in the notice of redemption given as provided in
this Section 14.2, the Issuer will deposit with the Trustee or with one or more
Paying Agents an amount of money (except as otherwise specified as contemplated
by Section 3.1 for the Securities of such series) sufficient to redeem on such
Redemption Date all the Securities or portions thereof so called for redemption
at the applicable Redemption Price, together with accrued interest to such
Redemption Date. If the Issuer is acting as its own Paying Agent, it will
segregate such amount and hold it in trust as provided in Section 4.4.
If fewer than all the Securities of a series are to be
redeemed (including the redemption of fewer than all Securities having the same
terms within a series), the Issuer will give the Trustee written notice not less
than 60 days prior to the Redemption Date as to the aggregate principal amount
of Securities to be redeemed and the Trustee shall select, in such manner as in
its sole discretion it shall deem fair and appropriate, the Securities of such
series or portions thereof (in multiples of $1,000) to be redeemed.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 14.3. Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities of the series specified in such notice shall become due
and payable on the Redemption Date, and at the place or places stated in such
notice at the applicable Redemption Price, together with any interest accrued to
such Redemption Date, and on and after said Redemption Date (unless the Issuer
shall default in the payment of such Securities at the applicable Redemption
Price, together with any interest accrued to said Redemption Date) any interest
on the Securities or portion of Securities of any series so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities at a Place of Payment in such notice specified, such Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price, together with any interest accrued thereon to the
applicable Redemption Date, except that if such Redemption Date is an Interest
Payment Date, interest shall be paid as provided in Section 3.8.
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Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the Issuer,
a new Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 14.4. Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 45 days prior to the last date on which notice
of redemption may be given as being owned by, and not pledged or hypothecated
by, either (a) the Issuer or (b) an entity specifically identified in such
written statement directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
SECTION 14.5. Right of Redemption of Securities Initialy
Issued to an IDACORP Trust. In the case of the Securities of a series initially
issued to an IDACORP Trust, if specified as contemplated by Section 3.1, the
Issuer, at its option, may redeem such Securities (i) on or after the date ten
years after the Original Issue Date of such Securities, in whole at any time or
in part from time to time, or (ii) upon the occurrence and during the
continuation of a Tax Event or Investment Company Event, prior to the date ten
years after the Original Issue Date of such Securities and within 90 days
following the occurrence of such Tax Event or Investment Company Event in
respect of such IDACORP Trust, in whole (but not in part), in each case at a
Redemption Price specified as contemplated by Section 3.1.
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ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment".
SECTION 15.2. Satisfaction of Mandatory Sinking Fund Payment
with Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Issuer may at
its option, at any time but not less than 45 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired by the Issuer, except
Securities of such series which have been redeemed through the application of
mandatory sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by an Issuer Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Issuer by way of bona fide sale or other negotiation for value;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the mandatory sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 15.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Issuer will deliver to the Trustee a certificate signed by a
Vice President, the Treasurer or any Assistant Treasurer of the Issuer
specifying the amount of the next ensuing sinking fund payment for such series
pursuant to the terms of such series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of such series pursuant to
Section 15.2 and whether the Issuer intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Issuer shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the
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case of the failure of the Issuer to deliver such certificate (or to deliver the
Securities, if any, specified in such certificate within the time period
specified in Section 15.2), unless otherwise agreed by the Trustee, the sinking
fund payment due on the next succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit Securities as provided in
Section 15.2 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by the
Trustee (or by the Issuer if the Issuer is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund together with accrued interest, if any, to the applicable
Redemption Date. Any sinking fund moneys not so applied or allocated by the
Trustee (or by the Issuer if the Issuer is acting as its own Paying Agent) to
the redemption of Securities shall be added to the next sinking fund payment
received by the Trustee (or if the Issuer is acting as its own Paying Agent,
segregated and held in trust as provided in Section 4.4) for such series and,
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 15.3. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
Trustee (or if the Issuer is acting as its own Paying Agent, segregated and held
in trust as provided in Section 4.4) on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities of such series shall be applied by the Trustee (or by
the Issuer if the Issuer is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity.
The Trustee shall select or cause to be selected the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 14.2 and the Issuer shall cause notice of the redemption
thereof to be given in the manner provided in Section 14.2 except that the
notice of redemption shall also state that the Securities are being redeemed by
operation of the sinking fund and whether the sinking fund payment is mandatory
or optional, or both, as the case may be. Such notice having been duly given,
the redemption of the
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Securities shall be made upon the terms and in the manner stated in
Section 14.3.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee (or, if the Issuer is acting as its own Paying Agent, will
segregate and hold in trust as provided in Section 4.4) in cash a sum equal to
the principal and any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Issuer shall redeem any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Issuer if the Issuer is acting as its own Paying Agent) shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Issuer) for that purpose in accordance with the
terms of this Article. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities of such series; provided, however, that in case such
Event of Default or default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next sinking fund payment date
for the Securities of such series on which such moneys may be applied pursuant
to the provisions of this Section.
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ARTICLE XVI.
SUBORDINATION OF SECURITIES
SECTION 16.1. Securities Subordinate to Senior Indebtedness.
The Issuer covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of and premium, if any, and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
SECTION 16.2. No Payment When Senior Indebtedness in Default;
Payment Over of Proceeds Upon Dissolution, Etc. In the event that the Issuer
shall default in the payment of any principal of (or premium, if any) or
interest on any Senior Indebtedness when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, then, upon written notice of such default to the
Issuer by the holders of Senior Indebtedness or any trustee therefor, unless and
until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) shall be made or agreed to be made on account of the principal of
(or premium, if any) or interest on any of the Securities, or in respect of any
redemption, repayment, retirement, purchase or other acquisition of any of the
Securities.
In the event of (a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceedings relating to the Issuer, its creditors or its property, (b) any
proceeding for the liquidation, dissolution or other winding up of the Issuer,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (c) any assignment by the Issuer for the benefit of creditors or
(d) any other marshalling of the assets of the Issuer (each such event, if any,
herein sometimes referred to as a "Proceeding"), all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder of
any of the Securities on account thereof. Any payment or distribution, whether
in cash, securities or other property (other than securities of the Issuer or
any other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for these
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subordination provisions) be payable or deliverable in respect of the Securities
of any series shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all
sums owing with respect to Senior Indebtedness, the Holders of the Securities,
together with the holders of any obligations of the Issuer ranking on a parity
with the Securities, shall be entitled to be paid from the remaining assets of
the Issuer the amounts at the time due and owing on account of unpaid principal
of and premium, if any, and interest on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Issuer ranking junior to the Securities and such other obligations. In
the event that, notwithstanding the foregoing, any payment or distribution of
any character or any security, whether in cash, securities or other property
(other than securities of the Issuer or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior Indebtedness shall have been paid in full, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and Holders will take such action (including,
without limitation, the delivery of this Indenture to an agent for the holders
of Senior Indebtedness or consent to the filing of a financing statement with
respect hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
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<PAGE>
The provisions of this Section 16.2 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Issuer in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Issuer, otherwise
ranking on a parity with the Securities or ranking Junior to the Securities,
shall not be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Securities or ranking junior to the
Securities.
SECTION 16.3. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture, or in any of the
Securities, shall prevent (a) the Issuer at any time, except during the
conditions described in the first paragraph of Section 16.2 or the pendency of
any Proceeding referred to in Section 16.2, from making payments at any time of
principal of and premium, if any, or interest on the Securities, or (b) the
application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of and premium, if any, or interest on
the Securities or the retention of such payment by the Holders, if, at the time
of such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 16.4. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all amounts due or to become due
on all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Issuer which by its express terms is subordinated to
Senior Indebtedness of the Issuer to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of and
premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Issuer, its creditors other
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<PAGE>
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Issuer to or on account of the
Senior Indebtedness.
SECTION 16.5. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Issuer and the Holders of the Securities,
the obligations of the Issuer, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of and premium, if any, and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Issuer of the Holders of the Securities and creditors of the Issuer other than
their rights in relation to the holders of Senior Indebtedness; or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture including, without
limitation, filing and voting claims in any Proceeding, subject to the rights,
if any, under this Article of the holders of Senior Indebtedness to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 16.6. Trustee to Effectuate Subordination. Each Holder
of a Security by his or her acceptance thereof authorizes and directs the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 16.7. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Issuer or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Issuer with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any time and
from to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following:
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<PAGE>
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in
any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Issuer and any other Person.
SECTION 16.8. Notice to Trustee. The Issuer shall give prompt
written notice to the Trustee of any fact known to the Issuer which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Issuer or a holder of Senior
Indebtedness or from any trustee, agent or representative therefor; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, without
limitation, the payment of the principal of and premium, if any or interest on
any Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
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<PAGE>
SECTION 16.9. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Issuer
referred to in this Article, the Trustee, subject to the provisions of Section
7.1, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 16.10. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Issuer or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 16.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 16.12. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Issuer and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective seals to be hereunto affixed
and attested.
IDACORP, INC.
By
----------------------
Name:
Title:
[Seal]
Attest:
-------------------------
Name:
Title:
BANKERS TRUST COMPANY
By
----------------------
Name:
Title:
[Seal]
Attest:
-------------------------
Name:
Title:
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<PAGE>
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
At ____________________, on this ____ day of September 199__,
before me, a Notary Public in and for the County of ______________ and State of
______________, personally appeared ______________________________ and
_____________________, the ___________________ and ___________, respectively, of
IDACORP, Inc., each to me personally known, who respectively executed, and
affixed and attested the corporate seal on, the foregoing instrument on behalf
of said corporation, and severally acknowledged the same to be their free act
and deed in their said capacities and the free act and deed of IDACORP, Inc.
NOTARIAL SEAL
----------------------------------
Notary Public
My Commission Expires:
STATE OF NEW YORK )
) ss.
NEW YORK COUNTY )
At The City of New York, on this ____ day of September 199__,
before me, a Notary Public in and for the County and State of New York,
personally appeared _________________________ and ____________________, the
_____________________ and __________________, respectively, of Bankers Trust
___, to me personally known, who respectively executed, and affixed and attested
the corporate seal on, the foregoing instrument on behalf of said corporation,
and severally acknowledged the same to be their free act and deed in their said
capacities and the free act and deed of Bankers Trust ____.
NOTARIAL SEAL
----------------------------------
Notary Public
My Commission Expires:
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<PAGE>
EXHIBIT 4.4
CERTIFICATE OF TRUST
OF
IDACORP TRUST I
THIS CERTIFICATE OF TRUST of IDACORP Trust I (the "Trust"),
dated as of September 24, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801, et seq.).
(i) Name. The name of the business trust formed hereby is
IDACORP Trust I.
(ii) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are:
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1101 Centre Road, Suite 200
Wilmington, DE 19805-1266
(iii) Counterparts. This Certificate of Trust may be executed
in one or more counterparts, all of which together shall constitute one and the
same instrument.
(iv) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
Bankers Trust Company, not in its individual capacity but
solely as Trustee
By: /s/ James C. McDonough
--------------------------------
Name: James C. McDonough
Title: Vice President
Bankers Trust (Delaware), not in its individual capacity
but solely as Trustee
By: /s/ M. Lisa Wilkins
--------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ J. LaMont Keen
-----------------------------------
J. LaMont Keen, not in his individual capacity but solely
as Trustee
<PAGE>
EXHIBIT 4.5
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of September 24, 1998 (this
"Agreement"), among IDACORP, Inc., an Idaho corporation, as "Sponsor," and
Bankers Trust Company, a New York banking corporation, Bankers Trust (Delaware),
a Delaware banking corporation, and J. LaMont Keen, not in their individual
capacities but solely as trustees (the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "IDACORP Trust
I," in which name the Trustees, or the Sponsor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and sue and
be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement (including the prospectus,
prospectus supplements and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred
-1-
<PAGE>
Securities of the Trust under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended, including any amendments thereto; (ii) to file with the
New York Stock Exchange, the Pacific Exchange or any other national stock
exchange or The Nasdaq National Market (each, an "Exchange") and execute on
behalf of the Trust one or more listing applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable and (iv) to negotiate the terms of and to execute,
deliver and perform on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, including the Pricing Agreement attached
as an exhibit thereto, if any, in each case among the Trust, the Sponsor and the
several Underwriters named therein, substantially in the form included as an
exhibit to the 1933 Act Registration Statement. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by any of the Trustees, J. LaMont Keen, in
his capacity as a Trustee of the Trust, is hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing. In connection with all of the foregoing, the Sponsor hereby
constitutes and appoints J. LaMont Keen as its true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for the Sponsor
or in the Sponsor's name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
Any Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
-2-
<PAGE>
7. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
IDACORP, Inc., as Sponsor
By: /s/ J. LaMont Keen
--------------------------------
Name: J. LaMont Keen
Title: Vice President,
Chief Financial Officer and Treasurer
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ James C. McDonough
--------------------------------
Name: James C. McDonough
Title: Vice President
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Trustee
By: /s/ M. Lisa Wilkins
--------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ J. LaMont Keen
-----------------------------------
J. LaMont Keen, not in his individual capacity but
solely as Trustee
-3-
<PAGE>
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
IDACORP TRUST II
THIS CERTIFICATE OF TRUST of IDACORP Trust II (the "Trust"),
dated as of September 24, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801, et seq.).
(i) Name. The name of the business trust formed hereby is
IDACORP Trust II.
(ii) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are:
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1101 Centre Road, Suite 200
Wilmington, DE 19805-1266
(iii) Counterparts. This Certificate of Trust may be executed
in one or more counterparts, all of which together shall constitute one and the
same instrument.
(iv) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
Bankers Trust Company, not in its individual
capacity but solely as Trustee
By: /s/ James C. McDonough
-----------------------------------
Name: James C. McDonough
Title: Vice President
Bankers Trust (Delaware), not in its individual
capacity but solely as Trustee
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ J. LaMont Keen
-----------------------------------
J. LaMont Keen, not in his individual capacity
but solely as Trustee
<PAGE>
EXHIBIT 4.7
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of September 24, 1998 (this
"Agreement"), among IDACORP, Inc., an Idaho corporation, as "Sponsor," and
Bankers Trust Company, a New York banking corporation, Bankers Trust (Delaware),
a Delaware banking corporation, and J. LaMont Keen, not in their individual
capacities but solely as trustees (the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "IDACORP Trust
II," in which name the Trustees, or the Sponsor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and sue and
be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement (including the prospectus,
prospectus supplements and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred
<PAGE>
Securities of the Trust under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended, including any amendments thereto; (ii) to file with the
New York Stock Exchange, the Pacific Exchange or any other national stock
exchange or The Nasdaq National Market (each, an "Exchange") and execute on
behalf of the Trust one or more listing applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable and (iv) to negotiate the terms of and to execute,
deliver and perform on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, including the Pricing Agreement attached
as an exhibit thereto, if any, in each case among the Trust, the Sponsor and the
several Underwriters named therein, substantially in the form included as an
exhibit to the 1933 Act Registration Statement. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by any of the Trustees, J. LaMont Keen, in
his capacity as a Trustee of the Trust, is hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing. In connection with all of the foregoing, the Sponsor hereby
constitutes and appoints J. LaMont Keen as its true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for the Sponsor
or in the Sponsor's name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
Any Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
-2-
<PAGE>
7. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
IDACORP, Inc., as Sponsor
By: /s/ J. LaMont Keen
----------------------------------
Name: J. LaMont Keen
Title: Vice President,
Chief Financial Officer and Treasurer
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ James C. McDonough
----------------------------------
Name: James C. McDonough
Title: Vice President
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Trustee
By: /s/ M. Lisa Wilkins
----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ J. LaMont Keen
----------------------------------
J. LaMont Keen, not in his individual capacity
but solely as Trustee
-3-
<PAGE>
Exhibit 4.8
CERTIFICATE OF TRUST
OF
IDACORP TRUST III
THIS CERTIFICATE OF TRUST of IDACORP Trust III (the "Trust"),
dated as of September 24, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801, et seq.).
(i) Name. The name of the business trust formed hereby is
IDACORP Trust III.
(ii) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are:
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1101 Centre Road, Suite 200
Wilmington, DE 19805-1266
(iii) Counterparts. This Certificate of Trust may be executed
in one or more counterparts, all of which together shall constitute one and the
same instrument.
(iv) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
Bankers Trust Company, not in its individual
capacity but solely as Trustee
By: /s/ James C. McDonough
-----------------------------------
Name: James C. McDonough
Title: Vice President
Bankers Trust (Delaware), not in its individual
capacity but solely as Trustee
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ J. LaMont Keen
-----------------------------------
J. LaMont Keen, not in his individual capacity
but solely as Trustee
<PAGE>
Exhibit 4.9
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of September 24, 1998 (this
"Agreement"), among IDACORP, Inc., an Idaho corporation, as "Sponsor," and
Bankers Trust Company, a New York banking corporation, Bankers Trust (Delaware),
a Delaware banking corporation, and J. LaMont Keen, not in their individual
capacities but solely as trustees (the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "IDACORP Trust
III," in which name the Trustees, or the Sponsor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and sue and
be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement (including the prospectus,
prospectus supplements and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b) or
12(g) of the Securities Exchange Act of 1934, as
<PAGE>
amended, including any amendments thereto; (ii) to file with the New York Stock
Exchange, the Pacific Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable and (iv) to negotiate the terms of and to execute,
deliver and perform on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, including the Pricing Agreement attached
as an exhibit thereto, if any, in each case among the Trust, the Sponsor and the
several Underwriters named therein, substantially in the form included as an
exhibit to the 1933 Act Registration Statement. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by any of the Trustees, J. LaMont Keen, in
his capacity as a Trustee of the Trust, is hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing. In connection with all of the foregoing, the Sponsor hereby
constitutes and appoints J. LaMont Keen as its true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for the Sponsor
or in the Sponsor's name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
Any Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
7. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
IDACORP, Inc., as Sponsor
By: /s/ J. LaMont Keen
--------------------------------------------
Name: J. LaMont Keen
Title: Vice President,
Chief Financial Officer and Treasurer
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ James C. McDonough
--------------------------------------------
Name: James C. McDonough
Title: Vice President
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Trustee
By: /s/ M. Lisa Wilkins
--------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ J. LaMont Keen
-----------------------------------------------
J. LaMont Keen, not in his individual capacity
but solely as Trustee
-3-
<PAGE>
Draft of September 28, 1998
EXHIBIT 4.10
[THE FOLLOWING EXHIBIT 4.10 IS THE FORM OF AMENDED AND RESTATED
TRUST AGREEMENT TO BE USED BY EACH OF IDACORP TRUST I, IDACORP TRUST
II AND IDACORP TRUST III.]
FORM OF AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
IDACORP, INC., AS SPONSOR,
BANKERS TRUST COMPANY,
AS PROPERTY TRUSTEE,
BANKERS TRUST (DELAWARE),
AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF ________, 199___
IDACORP TRUST __
B3 359902.1 37652 00396
9/29/98 1:27 am
<PAGE>
Certain Sections of this Trust Agreement Relating
to Section 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Trust Agreement Section
- ----------- -----------------------
<S> <C>
Section 310(a)(1)...................................................... 8.7
(a)(2)................................................................. 8.7
(a)(3)................................................................. 8.9
(a)(4)................................................................. 2.7(a)(ii)
(b).................................................................... 8.8
Section 311(a)......................................................... 8.13
(b).................................................................... 8.13
Section 312(a)......................................................... 5.7
(b).................................................................... 5.7
(c).................................................................... 5.7
Section 313(a)......................................................... 8.14(a)
(b).................................................................... 8.14(a)
(c).................................................................... 10.8
Section 314(a)......................................................... 8.15
(b).................................................................... Not Applicable
(c)(1)................................................................. 8.16
(c)(2)................................................................. 8.16
(c)(3)................................................................. Not Applicable
(d).................................................................... Not Applicable
(e).................................................................... 1.1, 8.16
Section 315(a)......................................................... 8.1(a), 8.3(a)
(b).................................................................... 8.2, 10.8
(c).................................................................... 8.1(a)
(d).................................................................... 8.1, 8.3
(e).................................................................... 0.10(a)
Section 316 (a)(1)(A).................................................. 6.1(a), (b)
Section 316 (a)(1)(B).................................................. 6.1(a), (b)
Section 316 (a)(2) .................................................... Not Applicable
(b).................................................................... 5.14
(c).................................................................... 6.7
Section 317(a)(1)...................................................... Not Applicable
(a)(2)................................................................. Not Applicable
(b).................................................................... 5.9
Section 318(a)......................................................... 10.10
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement or to have any bearing upon the
interpretation of any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINED TERMS..........................................................................1
Section 1.1. Definitions....................................................................................1
ARTICLE II. ESTABLISHMENT OF THE TRUST.............................................................9
Section 2.1. Name...........................................................................................9
Section 2.2. Office of the Delaware Trustee; Principal Place of Business....................................9
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses................................9
Section 2.4. Issuance of the Preferred Securities..........................................................10
Section 2.5 Issuance of the Common Securities; Subscription and Purchase
of Debt Securities.........................................................................10
Section 2.6. Declaration of Trust..........................................................................11
Section 2.7. Authorization to Enter into Certain Transactions..............................................11
Section 2.8. Assets of Trust...............................................................................15
Section 2.9. Title to Trust Property.......................................................................15
ARTICLE III. PAYMENT ACCOUNT.......................................................................15
Section 3.1. Payment Account...............................................................................15
ARTICLE IV. CERTAIN TERMS OF THE TRUST SECURITIES........................................................15
Section 4.1. Distributions.................................................................................15
Section 4.2. Redemption....................................................................................16
Section 4.3. Subordination of Common Securities............................................................18
Section 4.4. Payment Procedures............................................................................19
Section 4.5. Tax Returns and Reports.......................................................................19
Section 4.6. Payments under Indenture......................................................................19
ARTICLE V. TRUST SECURITIES CERTIFICATES.........................................................20
Section 5.1. Initial Ownership.............................................................................20
Section 5.2. The Trust Securities Certificates.............................................................20
Section 5.3. Execution and Delivery of Trust Securities Certificates.......................................20
Section 5.4. Registration of Transfer and Exchange of Preferred Securities Certificates....................20
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............................21
Section 5.6. Persons Deemed Securityholders................................................................22
Section 5.7. Access to List of Securityholders' Names and Addresses........................................22
Section 5.8. Maintenance of Office or Agency...............................................................22
Section 5.9. Appointment of Paying Agent...................................................................22
Section 5.10. Ownership of Common Securities by Sponsor....................................................23
Book-Entry Preferred Securities Certificates; Common
Securities Certificate.......................................................................23
Section 5.12. Notices to Clearing Agency...................................................................24
Section 5.13. Definitive Preferred Securities Certificates.................................................24
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
Section 5.14. Rights of Securityholders....................................................................25
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.....................................................27
Section 6.1. Limitations on Voting Rights..................................................................27
Section 6.2. Notice of Meetings............................................................................28
Section 6.3. Meetings of Preferred Securityholders.........................................................28
Section 6.4. Voting Rights.................................................................................28
Section 6.5. Proxies, etc..................................................................................28
Section 6.6. Securityholder Action by Written Consent......................................................29
Section 6.7. Record Date for Voting and Other Purposes.....................................................29
Section 6.8. Acts of Securityholders.......................................................................29
Section 6.9. Inspection of Records.........................................................................30
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...............................................................30
Representations and Warranties of the Property Trustee and
the Delaware Trustee.........................................................................30
Section 7.2. Representations and Warranties of Sponsor.....................................................32
ARTICLE VIII. THE TRUSTEES.................................................................................32
Section 8.1. Certain Duties and Responsibilities...........................................................32
Section 8.2. Certain Notices...............................................................................33
Section 8.3. Certain Rights of Property Trustee............................................................34
Section 8.4. Not Responsible for Recitals or Issuance of Securities........................................36
Section 8.5. May Hold Securities...........................................................................36
Section 8.6. Compensation; Indemnity; Fees.................................................................36
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees..................................37
Section 8.8. Conflicting Interests.........................................................................38
Section 8.9. Co-Trustees and Separate Trustee..............................................................38
Section 8.10. Resignation and Removal; Appointment of Successor............................................40
Section 8.11. Acceptance of Appointment by Successor.......................................................41
Section 8.12. Merger, Conversion, Consolidation or Succession to Business..................................42
Section 8.13. Preferential Collection of Claims Against Sponsor or Trust...................................42
Section 8.14. Reports by the Property Trustee..............................................................42
Section 8.15. Reports to the Property Trustee..............................................................42
Section 8.16. Evidence of Compliance with Conditions Precedent.............................................42
Section 8.17. Number of Trustees...........................................................................43
Section 8.18. Delegation of Power..........................................................................43
ARTICLE IX. DISSOLUTION, LIQUIDATION AND MERGER..........................................................44
Section 9.1. Dissolution Upon Expiration Date..............................................................44
Section 9.2. Early Dissolution.............................................................................44
Section 9.3. Termination...................................................................................44
Section 9.4. Liquidation...................................................................................44
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust...........................46
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
ARTICLE X. MISCELLANEOUS PROVISIONS...............................................................47
Section 10.1. Limitation of Rights of Securityholders......................................................47
Section 10.2. Amendment....................................................................................47
Section 10.3. Separability.................................................................................48
Section 10.4. Governing Law................................................................................48
Section 10.5. Payments Due on Non-Business Day.............................................................49
Section 10.6. Successors...................................................................................49
Section 10.7. Headings.....................................................................................49
Section 10.8. Reports, Notices and Demands.................................................................49
Section 10.9. Agreement Not to Petition....................................................................50
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act......................................50
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.............................50
</TABLE>
-v-
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
___________________, 199__, among (i) IDACORP Inc., an Idaho corporation
(including any successors or assigns, the "Sponsor"), (ii) Bankers Trust
Company, a New York banking corporation, as property trustee, (the "Property
Trustee" and, in its separate corporate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) Bankers Trust (Delaware), a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), (iv)
_______________ _____________, an individual, and ___________________________,
an individual, each of whose address is c/o IDACORP, Inc., 1221 West Idaho
Street, Boise, Idaho 83702-5627 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Sponsor and the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into that certain Trust Agreement, dated as of September
__, 1998 (the "Original Trust Agreement"), and by the execution and filing with
the Secretary of State of the State of Delaware of the Certificate of Trust,
filed on September __, 1998, attached as Exhibit A; and
WHEREAS, the Sponsor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Trust to the Sponsor, (ii) the issuance and sale of the Preferred Securities
by the Trust pursuant to the Underwriting Agreement and (iii) the acquisition by
the Trust from the Sponsor of all of the right, title and interest in the Debt
Securities;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
<PAGE>
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section,
as the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a
whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.8.
"Administrative Trustee" means each of _______________ and
______________, solely in such Person's capacity as Administrative Trustee of
the Trust created and continued hereunder and not in such Person's individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of such Person or of any substantial
part of its property or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to
-2-
<PAGE>
pay its debts generally as they become due and its willingness to
be adjudicated a bankrupt, or the taking of corporate action by
such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates represented by a
global security, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the corporate trust office of the
Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Sponsor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust, having a Liquidation Amount of $[ ] and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
-3-
<PAGE>
"Corporate Trust Office" means the principal office of the
Property Trustee.
"Debt Security Redemption Date" means, with respect to any
Debt Securities to be redeemed under the Indenture, the date fixed for
redemption under the Indenture.
"Debt Securities" means the aggregate principal amount of the
Sponsor's ___% Subordinated Debt Securities, Series ___, issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates issued
as Book-Entry Preferred Securities Certificate as provided in Section 5.11(a)
and (b) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust created and continued hereunder and
not in its individual capacity, or its successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Event of Default" means (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) the
occurrence of an Event of Default with respect to a Debt Security.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Sponsor and Bankers Trust Company, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Trust Securities, as amended from time to
time.
"Global Security" means, with respect to all or any part of
any series of Securities, a Security executed by the Issuer and authenticated
and delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to an Issuer
Order, which shall be registered in the name of the Depository or its nominee
and the ownership of which will be registered in a "book-entry" or other system
maintained by a Clearing Agency.
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"Indenture" means the Subordinated Debt Securities Indenture,
dated as of September __, 1998, between the Sponsor and the Indenture Trustee,
as amended or supplemented from time to time.
"Indenture Trustee" means Bankers Trust Company, a New York
banking corporation, and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any
series of Trust Securities, Trust Securities of such series having a Liquidation
Amount equal to that portion of the principal amount of Debt Securities to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Preferred Securities based upon the relative
Liquidation Amounts of such classes and the proceeds of which will be used to
pay the Redemption Price of such Trust Securities, and (b) with respect to a
distribution of Debt Securities to Holders of any series of Trust Securities in
connection with a dissolution or liquidation of the Trust, Debt Securities
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $[ ] per Trust
Security.
"Liquidation Date" means the date on which Debt Securities are
to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Ministerial Action" means the taking of an action, such as
filing a form or making an election, or pursuing some other similar reasonable
measure that will have no adverse effect on the Trust, the Sponsor or the
Holders of the Trust Securities and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman or a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary, of the Sponsor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the principal executive,
financial or accounting officer of the Sponsor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
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(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Sponsor, and who shall
be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the
Property Trustee or delivered to the Property Trustee for
cancellation;
(b) Preferred Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that, if such Preferred Securities are
to be redeemed, notice of such redemption has been duly given pursuant
to this Trust Agreement; and
(c) Preferred Securities which have been paid or in
exchange for or in lieu of which other Preferred Securities have been
executed and delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Sponsor, any Trustee or any Affiliate of the
Sponsor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Sponsor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes
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to the satisfaction of the Administrative Trustees the pledgee's right so to act
with respect to such Preferred Securities and that the pledgee is not the
Sponsor or any Affiliate of the Sponsor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debt Securities will be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with Sections
4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust, having a Liquidation Amount of $[ ] and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore created and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debt Security Redemption Date and the stated
maturity of the Debt Securities shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount of such Trust Security, plus accumulated but unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Sponsor upon the concurrent redemption of a Like Amount of Debt
Securities, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
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"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register; any
such Person being a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Sponsor" has the meaning specified in the preamble to this
Trust Agreement.
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debt Securities, (b) any cash
on deposit in, or owing to, the Payment Account and (c) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the terms of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of __________, 199__, among the Trust, the Sponsor and the underwriters
named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
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Section 2.1. Name.
The Trust continued hereby shall be known as "IDACORP Trust
__," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place
of Business.
The address of the Delaware Trustee in the State of Delaware
is 1201 Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the Sponsor.
The principal executive office of the Trust is c/o IDACORP, Inc., 1221 West
Idaho Street, Boise, Idaho 83702-5627.
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Sponsor in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Sponsor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Sponsor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4. Issuance of the Preferred Securities.
On _________________, 1998, the Sponsor, on behalf of the
Trust and pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, [ ] Preferred Securities
having an aggregate Liquidation Amount of $________, against receipt of such
aggregate purchase price of such Preferred Securities of $________, which amount
the Administrative Trustee shall promptly deliver to the Property Trustee. If
there is a Closing Date as a result of the exercise of an over-allotment option
pursuant to the Underwriting Agreement, an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, up to [ ] Preferred Securities having an aggregate Liquidation Amount of
up to $_______, against receipt of such aggregate purchase price of such
Preferred Securities of $_______, which amount such Administrative Trustees
shall promptly deliver to the Property Trustee in accordance with instructions
provided by such Underwriters, on the date specified pursuant to the
Underwriting Agreement.
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Section 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debt Securities.
Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Sponsor Common
Securities Certificates, registered in the name of the Sponsor, _______________
Common Securities having an aggregate Liquidation Amount of $_______ against
payment by the Sponsor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Sponsor Debt Securities, registered in the name of the Trust and having
an aggregate principal amount equal to $_______, and, in satisfaction of the
purchase price for such Debt Securities, the Property Trustee, on behalf of the
Trust, shall deliver to the Sponsor the sum of $_______. If there is a Closing
Date as a result of the exercise of an over-allotment option pursuant to the
Underwriting Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Sponsor Common
Securities Certificates, registered in the name of the Sponsor, up to ________
Common Securities having an aggregate Liquidation Amount of up to $_______
against payment by the Sponsor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Sponsor Debt Securities, registered in the name of the Trust and having
an aggregate principal amount of up to $_______, and, in satisfaction of the
purchase price for such Debt Securities, the Property Trustee, on behalf of the
Trust, shall deliver to the Sponsor the amount received from one of the
Administrative Trustees pursuant to the last sentence of Section 2.4.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Debt Securities, and (b) to engage in those activities necessary, convenient
or incidental thereto. The Sponsor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein, except as required by the Delaware Business Trust
Act. The Delaware Trustee shall be one of the Trustees of the Trust for the sole
and limited purpose of fulfilling the requirements of Section 3807(a) of the
Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain
Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section and Article VIII, and in accordance
with the following provisions (i) and (ii), the Administrative
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Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority granted
to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each Administrative
Trustee shall have the power and authority to act on behalf of the
Trust with respect to the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust,
the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in
connection with the purposes and function of the
Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act of
1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the
Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Sponsor and
the registration of the Preferred Securities under
the Securities Exchange Act of 1934, as amended, and
the preparation and filing of all periodic and other
reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than
notices of default) and other information regarding
the Trust Securities and the Debt Securities to the
Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in
accordance with this Trust Agreement;
(G) registering transfer of the Trust
Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the State
of Delaware;
(I) unless otherwise required by the Trust
Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of
the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
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(J) the taking of any action incidental to
the foregoing as the Trustees may from time to time
determine is necessary or advisable to give effect to
the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the
effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of the Trust
with respect to the following matters:
(A) the establishment of the Payment
Account;
(B) the receipt of the Debt Securities;
(C) the collection of interest, principal
and any other payments made in respect of the Debt
Securities in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights,
powers and privileges of a holder of the Debt
Securities;
(F) the sending of notices of default and
other information regarding the Trust Securities and
the Debt Securities to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property
in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the State
of Delaware;
(I) after an Event of Default the taking of
any action incidental to the foregoing as the
Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such
action on any particular Securityholder);
(J) registering transfers of the Trust
Securities in accordance with this Trust Agreement;
(K) to engage in such Ministerial Activities
as shall be necessary, appropriate, convenient or
incidental to effect the repayment of
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the Preferred Securities and the Common Securities to
the extent the Debt Securities mature or are
redeemed; and
(L) except as otherwise provided in this
Section 2.7(a)(ii), the Property Trustee shall have
none of the duties, liabilities, powers or the
authority of the Administrative Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not cause the Trust to
(i) acquire any investments or engage in any activities not authorized by this
Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a "grantor
trust" for United States Federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt or (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Sponsor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the New York
Stock Exchange, the Pacific Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the
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registration of the Preferred Securities under Section 12(b) or 12(g)
of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the
execution and delivery of, the Underwriting Agreement providing for the
sale of the Preferred Securities; and
(vi) the taking of any other actions deemed by the
Sponsor necessary or desirable to carry out any of the foregoing
activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as a corporation for United States Federal income
tax purposes and so that the Debt Securities will be treated as indebtedness of
the Sponsor for United States Federal income tax purposes. In this connection,
the Sponsor and the Administrative Trustees are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Sponsor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
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(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debt Securities. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from _________________,
and shall be payable quarterly in arrears on [ ], [ ], [ ] and [ ] of each year,
commencing on _________, 199__ except as provided below. The Sponsor has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debt Securities for a period
not extending, in the aggregate, beyond the maturity date of the Debt Securities
(each, an "Extension Period"). During such Extension Period, no interest shall
be due and payable on the Debt Securities. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate, compounded quarterly during any such
Extension Period (to the extent permitted by applicable law). Payments of
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Sponsor may commence a new Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed beyond the maturity date of the Debt Securities. If any
date on which a Distribution is otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such next succeeding Business Day
is in the next succeeding calendar year, payment of such Distribution shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which distributions are payable
in accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
ownership interests in the Trust Property, and, as a practical matter, the
Distributions on the Trust Securities shall be payable at a rate of ____% per
annum (the "Coupon Rate") of the Liquidation Amount of the Trust Securities.
Distributions in arrears for more than one quarter will accumulate and compound
at the Coupon Rate. The term "Distributions" as used in this Trust Agreement
includes such cash distributions and any such accumulated amounts that are
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debt Securities held by the Property
Trustee and to the extent the Property Trustee has funds available therefor. The
amount of Distributions payable for any full period shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of Distributions
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payable for any period less than a full Distribution period will be computed on
the basis of a 360- day year of twelve 30-day months and the actual days elapsed
in a partial month in such period.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred Securities do not remain in book-
entry-only form, the relevant record date shall be the date 15 days prior to the
relevant Distribution Date.
Section 4.2. Redemption.
(a) On each Debt Security Redemption Date and on the stated
maturity of the Debt Securities, the Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if fewer than all the Outstanding Trust
Securities are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on and
after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debt Securities. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in
respect of any Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so long
as the Trust Securities are in book-entry-only form, irrevocably deposit with
the Clearing Agency for the Trust Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
If the Trust Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Trust Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Register for the
Trust Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited as
required, then immediately prior to the close of business (New York City time)
on the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price and any unpaid Distribution
payable on or prior to the Redemption Date, but in each case without interest,
and such Securities will cease to be outstanding. In the event that any date on
which any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such succeeding Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date. In
the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Sponsor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accrue, at the then applicable rate,
from the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually deposited, in which
case such date will be the date fixed for redemption for purposes of calculating
the Redemption Price provided, that if the Redemption Price is not deposited by
12:00 noon on such date, the next succeeding Business Day shall be the date
fixed for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
one Business Day prior to the relevant Redemption Date; provided, however, that
in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date 15 days prior to the relevant
Redemption Date.
(f) If fewer than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the Preferred Securities.
The particular Preferred Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption by such
method as the
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Property Trustee shal deem fair and appropriate. The Property Trustee shall
promptly notify the Security Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the Liquidation Amount of Preferred Securities that has been or
is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption Price of,
the Trust Securities, as applicable, shall be made, subject to Section 4.2(f),
pro rata among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from an
Event of Default with respect to any Debt Security shall have occurred and be
continuing, no payment of any Distribution on, or Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Event of Default with respect to any Debt Security, the
Holder of Common Securities will be deemed to have waived any right to act with
respect to any such Event of Default under this Trust Agreement until the effect
of all such Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Event of Default under
this Trust Agreement with respect to the Preferred Securities has been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have the right
to direct the Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which shall credit
the relevant Persons' accounts at such Clearing Agency on the applicable
distribution dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
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Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Sponsor's expense, and file all United States Federal, state
and local tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall (a)
prepare and file (or cause to be prepared and filed) the appropriate Internal
Revenue Service form required to be filed in respect of the Trust in each
taxable year of the Trust and (b) prepare and furnish (or cause to be prepared
and furnished) to each Securityholder the appropriate Internal Revenue Service
form required to be provided or the information required to be provided on such
form. The Administrative Trustees shall provide the Sponsor and the Property
Trustee with a copy of all such returns and reports promptly after such filing
or furnishing. The Trustees shall comply with United States Federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.
Section 4.6. Payments under Indenture.
Any amount payable hereunder to any Holder of Preferred
Securities (and any Owner with respect thereto) shall be reduced by the amount
of any corresponding payment such Holder (and Owner) has directly received
pursuant to Section 6.7 of the Indenture.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the
Sponsor pursuant to Section 2.3 and until the issuance of the Trust Securities,
and at any time during which no Trust Securities are outstanding, the Sponsor
shall be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in
minimum denominations of $[ ] Liquidation Amount and integral multiples of $[ ]
in excess thereof, and the Common Securities Certificates shall be issued in
denominations of $[ ] Liquidation Amount and integral multiples of $[ ] in
excess thereof. The Trust Securities Certificates shall be executed on behalf of
the Trust by manual signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due
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registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
Section 5.3. Execution and Delivery of Trust Securities
Certificates.
At each Time of Delivery, the Administrative Trustees shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust and
delivered to or upon the written order of the Sponsor, signed by its Chairman or
a Vice Chairman of the Board, President or a Vice President, and by its
Treasurer, Assistant Treasurer, Comptroller, an Assistant Comptroller, Secretary
or an Assistant Secretary without further corporate action by the Sponsor, in
authorized denominations.
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates.
The Sponsor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Sponsor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Property Trustee and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum
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sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial ownership interest in the assets of the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.6. Persons Deemed Securityholders.
The Administrative Trustees or the Securities Registrar shall
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar shall
be bound by any notice to the contrary.
Section 5.7. Access to List of Securityholders' Names and
Addresses.
In the event that the Property Trustee is no longer the
Securities Registrar, the Administrative Trustees or the Sponsor shall furnish
or cause to be furnished a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent record date (a) to the Property Trustee, quarterly not later than 10
days prior to a Distribution Date and (b) to the Property Trustee, promptly
after receipt by the Administrative Trustees or the Sponsor of a request
therefor from the Property Trustee in order to enable the Paying Agent to pay
Distributions in accordance with Section 4.1 hereof, in each case to the extent
such information is in the possession or control of the Administrative Trustees
or the Sponsor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee. The rights of Securityholders
to communicate with other Securityholders with respect to their rights under
this Declaration or under the Trust Securities, and the corresponding rights of
the Property Trustee shall be provided in the Trust Indenture Act. Each Holder,
by receiving and holding a Trust Securities Certificate, and each Owner shall be
deemed to have agreed not to hold the Sponsor, the Property Trustee or the
Administrative
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Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate the office of the
Bank as its principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Sponsor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders
from the Payment Account and shall report the amounts of such distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Paying Agent shall initially be the Bank, and any co-paying agent chosen by the
Bank, and acceptable to the Administrative Trustees and the Sponsor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees, the Property Trustee and
the Sponsor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Sponsor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
Section 5.10. Ownership of Common Securities by Sponsor.
At each Time of Delivery, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than
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transactions permitted by Section XI of the Indenture, any attempted transfer of
the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Sponsor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE" OTHER THAN IN ACCORDANCE WITH THE
TRUST AGREEMENT (AS DEFINED BELOW).
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred Securities
Certificate or Certificates representing Book-Entry Preferred Securities
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Preferred Securities
Certificate or Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no beneficial owner will receive a Definitive Preferred Securities
Certificate representing such beneficial owner's interest in such Preferred
Securities, except as provided in Section 5.13. Unless and until Definitive
Preferred Securities Certificates have been issued to beneficial owners pursuant
to Section 5.13:
(i) the provisions of this Section 5.11(a) shall
be in full force and effect;
(ii) the Securities Registrar and the Trustees shall
be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities and the giving of
instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and
shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Sponsor in the form of a definitive
Common Securities Certificate.
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Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued to Owners pursuant to
Section 5.13, the Trustees shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
If (a) the Sponsor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Sponsor is unable to locate a qualified successor, (b) the Sponsor at its option
advises the Trustees in writing that it elects to terminate the book-entry
system through the Clearing Agency or (c) after the occurrence of an Event of
Default with respect to any Debt Security, Owners of Preferred Securities
Certificates representing beneficial ownership interests aggregating at least a
majority of the Liquidation Amount advise the Property Trustee in writing that
the continuation of a book-entry system through the Clearing Agency is no longer
in the best interest of the Owners of Preferred Securities Certificates, then
the Property Trustee shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Property Trustee of
the typewritten Preferred Securities Certificate or Certificates representing
the Book Entry Preferred Securities Certificates by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall execute the Definitive Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the Securities
Registrar nor the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by the execution thereof by the Administrative Trustees
or any one of them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Securityholders shall not have any right or title therein
other than the undivided beneficial ownership interests in the assets of the
Trust conferred by their Trust Securities and they shall have no right to call
for any partition or division of property, profits or rights of the Trust except
as described below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement. By
acceptance of a beneficial interest in the Trust Securities, Holders agree to
treat the Debt Securities as indebtedness for all United States tax purposes.
The Trust Securities shall have no preemptive or similar rights and when issued
and delivered to
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Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon an Event of Default with respect to any Debt Security, the
Indenture Trustee fails or the holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities fail to declare the
principal of all of the Debt Securities to be immediately due and payable, the
Holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Sponsor and the Indenture Trustee; and upon any such declaration such principal
amount of and the accrued interest on all of the Debt Securities shall become
immediately due and payable, provided that the payment of principal and interest
on such Debt Securities shall remain subordinated to the extent provided in the
Indenture. At any time after such a declaration of acceleration with respect to
the Debt Securities has been made and before a judgment or decree for payment of
the money due has been obtained by the Indenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Sponsor and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Sponsor has paid or deposited with the
Indenture Trustee a sum sufficient to pay
(A) all overdue installments of interest
on all of the Debt Securities,
(B) the principal of (and premium, if any,
on) any Debt Securities which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Debt Securities, and
(C) all sums paid or advanced by the
Indenture Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Indenture Trustee and the Property Trustee, their agents and
counsel; and
(ii) all Events of Default with respect to the Debt
Securities, other than the non-payment of the principal of the Debt
Securities which has become due solely by such acceleration, have been
cured or waived as provided in Section 6.1 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default if a sum sufficient to pay all matured
installments of interest and principal (and premium, if any) due otherwise than
by acceleration has been deposited with the Indenture Trustee except a default
in respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding Debt
Security. No such rescission shall affect any subsequent default or impair any
right consequent thereon. Upon receipt by the
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Property Trustee of written notice declaring such an acceleration, or rescission
and annulment thereof, by Holders of the Preferred Securities all or part of
which is represented by Book-Entry Preferred Securities Certificates, a record
date shall be established for determining Holders of Outstanding Preferred
Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(c).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon an Event of Default with respect to
any Debt Security specified in Section 6.1 of the Indenture, any Holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Sponsor, pursuant to the Indenture, for enforcement of payment to
such Holder of the principal amount of or interest on Debt Securities having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). In connection with any such Direct Action, the
Holder of the Common Securities will be subrogated to the rights of any Holder
of the Preferred Securities to the extent of any payment made by the Sponsor to
such Holder of Preferred Securities as a result of such Direct Action. Except as
set forth in Section 5.14(b) and (c), the Holders of Preferred Securities shall
have no right to exercise directly any right or remedy available to the holders
of, or in respect of, the Debt Securities.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10
and 10.2 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debt Securities are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any
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remedy available to the Indenture Trustee, or executing any trust or power
conferred on the Indenture Trustee with respect to such Debt Securities, (ii)
waive any past default which is waivable under Section 6.1 of the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debt Securities shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Debt Securities,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that where a consent under
the Indenture would require the consent of each Holder of Debt Securities
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Preferred Securities, except by a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Indenture
Trustee with respect to the Debt Securities. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior to taking
any of the foregoing actions, the Trustees shall, at the expense of the Sponsor,
obtain an Opinion of Counsel experienced in such matters to the effect that the
Trust will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. Notwithstanding any
other provision of this Trust Agreement, no amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would be classified as
an association taxable as a corporation for United States Federal income tax
purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.8 to each Preferred Securityholder of
record, at his registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held.
The Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% in aggregate Liquidation Amount of the Preferred Securities (based
upon their Liquidation Amount) and the Administrative Trustees or
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the Property Trustee may, at any time in their discretion, call a meeting of
Preferred Security holders to vote on any matters as to which Preferred
Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by proxy, holding
a majority of the Preferred Securities (based upon their Liquidation Amount)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Security holders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $[ ] of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled
to vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the Administrative
Trustees may direct, for verification prior to the time at which such vote shall
be taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting
may be taken without a meeting if Securityholders holding a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
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For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or to
participate in any distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by Securityholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent duly appointed in writing; and, except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
liquidation amount.
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If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the benefit of
the Sponsor and the Securityholders that:
(a) the Property Trustee is a New York banking corporation
duly organized, validly existing and in good standing under the laws of
the State of New York;
(b) the Property Trustee meets the applicable eligibility
requirements set forth in Section 8.7, has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing in the State of
Delaware;
(d) the Delaware Trustee meets the applicable eligibility
requirements set forth in Section 8.7, has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
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(f) the execution, delivery and performance of this Trust
Agreement have been duly authorized by all necessary corporate or other
action on the part of the Property Trustee and the Delaware Trustee and
do not require any approval of stockholders of the Property Trustee and
the Delaware Trustee and such execution, delivery and performance will
not (i) violate the charter or by-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Property Trustee or the Delaware Trustee is a party or by which it is
bound, or (iii) violate any law, governmental rule or regulation of the
State of New York or the State of Delaware, as the case may be,
governing the corporate, banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein or
therein requires the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with respect to
any governmental authority or agency under any existing Federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
State of New York or the State of Delaware; and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware
Trustee, as the case may be, to enter into or perform its obligations
as one of the Trustees under this Trust Agreement.
Section 7.2. Representations and Warranties of Sponsor.
The Sponsor hereby represents and warrants for the benefit of
the Securityholders that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have
been, duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Securityholders will be,
as of each such date, entitled to the benefits of this Trust Agreement;
and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by
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the Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee,
subject to the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct. To the extent that, at law or in equity,
an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such
Administrative Trustee shall not be liable to the Trust or to any Securityholder
for such Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Sponsor and the Securityholders
to replace such other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement and, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action or its
own negligent failure to act, except that:
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(i) the Property Trustee shall not be liable for
any error of judgment made in good faith by an authorized officer of
the Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of the Debt
Securities and the Payment Account shall be to deal with such Property
in a similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for
any interest on any money received by it except as it may otherwise
agree with the Sponsor; and money held by the Property Trustee need not
be segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be
responsible for monitoring the compliance by the Administrative
Trustees or the Sponsor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Sponsor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Sponsor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Sponsor's exercise of its right to defer the payment of interest on the Debt
Securities pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
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(a) the Property Trustee may rely and shall be
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of
a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, Debt Security, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to
which the Preferred Securityholders are entitled to vote under the
terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Sponsor requesting written instructions of the Sponsor as
to the course of action to be taken and the Property Trustee shall take
such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from
taking, by the Sponsor; provided, however, that if the Property Trustee
does not receive such instructions of the Sponsor within ten Business
Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a matter
be established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel
(which counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in
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respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon and in accordance with such advice,
such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees; the Property Trustee shall have
the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, Debt Security, note or other evidence
of indebtedness or other paper or document, unless requested in writing
to do so by one or more Securityholders, but the Property Trustee may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(i) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, provided that the
Property Trustee shall be responsible for its own negligence or
recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(j) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this
Trust Agreement, the Property Trustee shall not be under any obligation
to take any action that is discretionary under the provisions of this
Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
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Section 8.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Sponsor, and the Trustees
do not assume any responsibility for their correctness. The Trustees shall not
be accountable for the use or application by the Sponsor of the proceeds of the
Debt Securities.
Section 8.5. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in
its individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Sponsor, as borrower, agrees:
(a) to pay to the Trustees from time to time
reasonable compensation for all services rendered by them hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable
law, to indemnify and hold harmless (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any Trustee, and (iv) any employee
or agent of the Trust or its Affiliates, (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by
this Trust Agreement, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence or
willful misconduct with respect to such acts or omissions.
(d) to the fullest extent permitted by applicable
law, to advance expenses (including legal fees) incurred by an
Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of
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such claim, demand, action, suit or proceeding upon receipt by the
Sponsor of (i) a written affirmation by or on behalf of the Indemnified
Person of its or his good faith belief that it or he has met the
standard of conduct set forth in this Section 8.6 and (ii) an
undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement or the resignation or removal of any
Trustee.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
Section 8.7. Corporate Property Trustee Required; Eligibility
of Trustees.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement. The Sponsor and any Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Trust Securities shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the
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income or profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Sponsor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and the Sponsor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as Depository for, trustee or agent
for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Sponsor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Sponsor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee jointly with the Property Trustee,
of all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Sponsor does not join in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default with respect to any Debt
Security has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Sponsor be required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Sponsor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
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(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Sponsor, may accept
the resignation of or remove any co-trustee or separate trustee appointed under
this Section, and, in case an Event of Default with respect to any Debt Security
has occurred and is continuing, the Property Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Sponsor. Upon the written request of the Property
Trustee, the Sponsor shall join with the Property Trustee in the execution,
delivery and performance of all instruments and agreements necessary or proper
to effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner provided
in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of
Successor.
No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation, the Relevant
Trustee may petition (pursuant to the Indenture, at the expense of the Sponsor),
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
Unless an Event of Default with respect to any Debt Security
shall have occurred and be continuing, any Trustee may be removed at any time by
Act of the Common Securityholder. If an Indenture Event of Default shall have
occurred and be continuing, the
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Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Event of Default with respect to any Debt Security
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the retiring Trustee, shall promptly appoint
a successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when an
Event of Default with respect to any Debt Security shall have occurred and be
continuing, the Preferred Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and such successor Trustee shall comply with the
applicable requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or
become incapable of acting as Administrative Trustee, at a time when an Event of
Default with respect to any Debt Security shall have occurred and be continuing,
the Common Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees and such successor Administrative Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common Securityholder or
the Preferred Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Sponsor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of remaining Administrative
Trustees if there are at least two of them or (b) otherwise by the Sponsor (with
the successor in each case being a Person who satisfies the eligibility
requirement for Administrative Trustees or Delaware Trustee, as the case may be,
set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
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In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Property Trustee or the
Delaware Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against
Sponsor or Trust.
If and when the Property Trustee or the Delaware Trustee shall
be or become a creditor of the Sponsor or the Trust (or any other obligor upon
the Debt Securities or the Trust Securities), the Property Trustee or the
Delaware Trustee, as the case may be, shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Sponsor or Trust (or any such
other obligor).
Section 8.14. Reports by the Property Trustee.
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(a) The Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Property Trustee shall, within sixty days after
each May 15 following the date of this Trust Agreement deliver to
Securityholders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Sponsor.
Section 8.15. Reports to the Property Trustee.
The Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Section 8.16. Evidence of Compliance with Conditions
Precedent.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person, subject to the applicable eligibility
requirements set forth herein.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any
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other provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Sponsor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically
dissolve on [December 31, 2048] (the "Expiration Date"). Thereafter, the Trust
Property shall be distributed in accordance with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event," the occurrence of which shall cause a dissolution of the
Trust:
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the Sponsor;
(b) the written direction to the Property Trustee
from the Sponsor at any time (which direction is optional and wholly
within the discretion of the Sponsor) to dissolve the Trust and
distribute Debt Securities to Securityholders in exchange for the
Preferred Securities;
(c) the redemption of all of the Preferred
Securities; and
(d) the entry of an order for dissolution of the
Trust by a court of competent jurisdiction.
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Section 9.3. Termination.
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
to Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debt Securities, subject to Section 9.4(d). Notice of liquidation shall be given
by the Property Trustee by first-class mail, postage prepaid mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debt Securities; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Debt Securities, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debt Securities to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debt Securities in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debt Securities
will be issued to Holders of Trust Securities Certificates, upon surrender of
such certificates to the Administrative Trustees or their agent for exchange,
(iii) the
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Sponsor shall use its reasonable efforts to have the Debt Securities listed on
the New York Stock Exchange, the Pacific Exchange or on such other exchange,
interdealer quotation system or self-regulatory organization as the Preferred
Securities are then listed, (iv) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Debt
Securities, accruing interest at the rate provided for in the Debt Securities
from the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such Debt
Securities) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debt Securities upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debt Securities in
the manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
wound-up by the Property Trustee in such manner as the Property Trustee
determines. In such event, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such winding-up, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
an Event of Default with respect to any Debt Security has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, convert
into, amalgamate, or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Sponsor, with the consent of
the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, convert into, amalgamate, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise,
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(ii) the Sponsor expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as the holder of
the Debt Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, the Sponsor has received an Opinion of Counsel to the effect that (a)
such merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity will be required to register
as an investment company under the 1940 Act and (viii) the Sponsor or any
permitted successor or assignee owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, convert into or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States Federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders.
The death, incapacity, dissolution, bankruptcy or termination
of any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Trust Agreement nor dissolve, terminate or
annul the trust nor entitle the legal representatives or heirs of such Person or
any Securityholder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
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(a) This Trust Agreement may be amended from time to time by
the Trustees and the Sponsor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will be classified
for United States Federal income tax purposes as a grantor trust at all times
that any Trust Securities are outstanding or to ensure that the Trust will not
be required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any such
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the Sponsor
with (i) the consent of Trust Securityholders representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for United States Federal income tax purposes or the Trust's
exemption from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder, this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the
Securityholders, this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Sponsor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Sponsor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Sponsor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or
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immunities under this Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
This Trust Agreement and the rights and obligations of each of
the Securityholders, the Trust and the Trustees with respect to this Trust
Agreement and the Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to conflict of law
principles).
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall
be a day that is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a Business Day (except
as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Sponsor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with
transactions permitted under Article X of the Indenture and pursuant to which
the assignee agrees in writing to perform the Sponsor's obligations hereunder,
the Sponsor shall not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Sponsor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common
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Securityholder or the Sponsor, to IDACORP, Inc., 1221 West Idaho Street, Boise,
Idaho 83702- 5627, Attention: Treasurer, facsimile no.: 208-388-6910. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to Bankers Trust Company, Four Albany Street, New York, New York 10006,
Attention: Corporate Trust Services Division; (b) with respect to the Delaware
Trustee, to Bankers Trust (Delaware), E.A. Delle Donne Corporate Center,
Montgomery Building, 1101 Centre Road, Suite 200, Wilmington, Delaware
19806-1266; and (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Sponsor, marked "Attention Administrative
Trustees of IDACORP Trust __." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Sponsor agree for the benefit of
the Securityholders that, until at least one year and one day after the Trust
has been terminated in accordance with Article IX, they shall not file, or join
in the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Sponsor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Sponsor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Sponsor against the Trust or
the commencement of such action and raise the defense that the Sponsor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust
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Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial ownership interests in the assets of the
Trust.
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL OWNERSHIP
INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
IDACORP, INC.
By: -----------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Property Trustee
By: -----------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE), as Delaware Trustee
By: -----------------------------------
Name:
-50-
<PAGE>
Title:
------------------------------------
[ ], as Administrative Trustee
------------------------------------
[ ], as Administrative Trustee
-51-
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
IDACORP TRUST ___
THIS CERTIFICATE OF TRUST of IDACORP Trust I (the "Trust"),
dated as of September __, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801, et seq.).
(i) Name. The name of the business trust formed hereby is
IDACORP Trust ___.
(ii) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are:
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1101 Centre Road, Suite 200
Wilmington, DE 19806-1266
(iii) Counterparts. This Certificate of Trust may be executed
in one or more counterparts, all of which together shall constitute one and the
same instrument.
(iv) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
Bankers Trust (Delaware), not in its individual
capacity but solely as Trustee
By:
---------------------------
Name:
Title:
Bankers Trust Company, not in its individual
capacity but solely as Trustee
By:
----------------------------
Name:
Title:
<PAGE>
----------------------------------------
J. LaMont Keen, not in his individual
capacity but solely as Trustee
<PAGE>
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: ___________________
General Counsel's Office
Re:
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the [TITLE OF PREFERRED SECURITIES] (the "Preferred Securities"), of IDACORP
Trust __, a Delaware business trust (the "Issuer"), formed pursuant to a Trust
Agreement between IDACORP, Inc. (the "Company") and Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein. The payment of distributions on the
Preferred Securities, and payments due upon liquidation of Issuer or redemption
of the Preferred Securities, to the extent the Issuer has funds available for
the payment thereof are guaranteed by the Company to the extent set forth in a
Guarantee Agreement dated ________, ____ by the Company with respect to the
Preferred Securities. The Company and the Issuer propose to sell the Preferred
Securities to certain Underwriters (the "Underwriters") pursuant to an
Underwriting Agreement dated ________, 1998 by and among the Underwriters, the
Issuer and the Company, and the Underwriters wish to take delivery of the
Preferred Securities through DTC. [ ] is acting as transfer agent and registrar
with respect to the Preferred Securities (then "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters, which is expected to occur on or about ________,
____, there shall be deposited with or on behalf of DTC one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's Preferred Securities nominee, Cede & Co.,
representing an aggregate of Preferred Securities and bearing the following
legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
<PAGE>
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer
provides for the voting by holders of the Preferred Securities under certain
limited circumstances. The Issuer shall establish a record date for such
purposes and shall, to the extent possible, give DTC notice of such record date
not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event
at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance
of rights with respect to, the Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the
amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission of multiple CUSIP numbers (if applicable) that includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
B-2
<PAGE>
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "[TITLE OF PREFERRED SECURITIES]."
8. Distribution payments or other cash payments with respect
to the Preferred Securities evidenced by the Global Certificate shall be
received by Cede & Co., as nominee of DTC, or its registered assigns in [ ]
funds on each payment date (or in accordance with existing arrangements between
the Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
B-3
<PAGE>
10. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities
Depository with respect to the Preferred Securities at any time by giving at
least 90 days' prior written notice to the Issuer and the Transfer Agent and
Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent
and Registrar the aggregate number of Preferred Securities deposited with it)
and discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Preferred Securities, make
available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its DTC
account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer and
the Transfer Agent and Registrar, and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of IDACORP Trust __.
Very truly yours,
IDACORP TRUST ____ (As Issuer)
By: ------------------------------
Name:
Title:
B-4
<PAGE>
[ ]
By: ------------------------------
Administrative Trustee
[ ]
(As Transfer Agent and Registrar)
By: ------------------------------
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
Authorized Officer
B-5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS DESCRIBED
IN THE TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number Of Common Securities
C-1
Certificate Evidencing Common Securities
of
IDACORP TRUST __
___% Common Securities
(Liquidation Amount $[ ] Per Common Security)
IDACORP Trust __, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that IDACORP, Inc.
(the "Holder") is the registered owner of (___) common securities of the Trust
representing undivided beneficial ownership interests of the Trust and
designated the ____% Common Securities (liquidation amount $[ ] per Common
Security) (the "Common Securities"). To the extent set forth in Section 5.10 of
the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of ________, ____, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the
Trust has executed this certificate this ____ day of ________, ____.
IDACORP TRUST __
By: ------------------------------
Name:
Administrative Trustee
<PAGE>
EXHIBIT D
If the Preferred Security is to be a Global Certificate
Insert--This Preferred Security is a Global Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
IDACORP Trust __ or its agent for registration of transfer, exchange or payment,
and any Preferred Security issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number Of Preferred Securities
P-_____ Cusip No._____
Certificate Evidencing Preferred Securities
of
IDACORP TRUST __
[DESIGNATION OF PREFERRED SECURITIES]
(Liquidation Amount $[ ] Per Preferred Security)
IDACORP Trust __, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
___________________ (the "Holder") is the registered owner of (___) preferred
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust and designated the [DESIGNATION OF PREFERRED
SECURITIES] (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of ________, ____, as the same
may be amended from time to time (the "Trust Agreement") including the
designation of the terms of Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
IDACORP,
D-2
<PAGE>
Inc., an Idaho corporation, and Bankers Trust Company, as guarantee trustee,
dated as of __________, 1998, as the same may be amended from time to time (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of __________, ____.
IDACORP TRUST __
By: ------------------------------
Name:
Administrative Trustee
D-3
<PAGE>
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this
Preferred Security to:
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ----------------------------------------
Signature: -------------------------------------------------
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
- -----------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
D-4
<PAGE>
EXHIBIT 4.12
GUARANTEE AGREEMENT
Between
IDACORP, INC.
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
__________, 199__
IDACORP TRUST /*/
- ---------------------
/*/ Insert I, II or III as applicable.
<PAGE>
IDACORP, INC.
---------
*Reconciliation and tie between Trust Indenture Act of 1939,
as amended by the Trust Reform Act of 1990, and Guarantee Agreement, dated as of
___________, 199_.
<TABLE>
<CAPTION>
Section of the Section of
Trust Indenture Act of 1939 Guarantee Agreement
- --------------------------- -------------------
<S> <C>
310(a)(1), (2) and (5)......................................... 4.1
310(a)(3) and (4).............................................. Inapplicable
310(b)......................................................... 2.8, 4.1
311(a)......................................................... 2.2(b)
311(b)......................................................... 2.2(b)
312(a)......................................................... 2.2(a)
312(b)......................................................... 2.2(b)
312(c)......................................................... 3.2(a)
313(a)......................................................... 2.3
313(b)(1)...................................................... Inapplicable
313(b)(2)...................................................... 2.3
313(c)......................................................... 2.3, 8.3(c)
313(d)......................................................... 2.3
314(a)......................................................... 2.4
314(b)......................................................... Inapplicable
314(c)(1) and (2).............................................. 2.4, 2.5
314(c)(3)...................................................... Inapplicable
314(d)......................................................... Inapplicable
314(e)......................................................... 2.4
315(a), (c) and (d)............................................ 3.1
315(b)......................................................... 2.7
315(e)......................................................... 3.2
316(a)(1)...................................................... 3.1, 5.4
316(a)(2)...................................................... Inapplicable
316(a) (last sentence)......................................... 1.1
316(b)......................................................... 8.2
317(a)......................................................... 3.1
317(b)......................................................... Inapplicable
318(a)......................................................... 2.1
</TABLE>
- ----------------
1 This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Guarantee Agreement or to have any bearing upon the
interpretation of any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS.........................................................................1
Section 1.1 Definitions...............................................................1
ARTICLE II. TRUST INDENTURE ACT................................................................4
Section 2.1 Trust Indenture Act; Application..........................................4
Section 2.2 List of Holders...........................................................4
Section 2.3 Reports by the Guarantee Trustee..........................................4
Section 2.4 Periodic Reports to the Guarantee Trustee. ...............................4
Section 2.5 Evidence of Compliance with Conditions Precedent..........................5
Section 2.6 Events of Default; Waiver.................................................5
Section 2.7 Event of Default; Notice..................................................5
Section 2.8 Conflicting Interests.....................................................5
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE ...............................6
Section 3.1 Powers and Duties of the Guarantee Trustee. ..............................6
Section 3.2 Certain Rights of Guarantee Trustee.......................................7
Section 3.3 Compensation; Indemnity; Fees.............................................9
ARTICLE IV. GUARANTEE TRUSTEE..................................................................9
Section 4.1 Guarantee Trustee: Eligibility............................................9
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee............10
ARTICLE V. GUARANTEE..........................................................................11
Section 5.1 Guarantee................................................................11
Section 5.2 Waiver of Notice and Demand..............................................11
Section 5.3 Obligations Not Affected.................................................11
Section 5.4 Rights of Holders........................................................12
Section 5.5 Guarantee of Payment.....................................................12
Section 5.6 Subrogation..............................................................13
Section 5.7 Independent Obligations..................................................13
ARTICLE VI. COVENANTS AND SUBORDINATION ......................................................13
Section 6.1 Subordination............................................................13
Section 6.2 Pari Passu Guarantees....................................................13
ARTICLE VII. TERMINATION......................................................................14
Section 7.1 Termination..............................................................14
</TABLE>
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII. MISCELLANEOUS...................................................................14
Section 8.1 Successors and Assigns...................................................14
Section 8.2 Amendments...............................................................14
Section 8.3 Notices..................................................................14
Section 8.4 Benefit..................................................................15
Section 8.5 Interpretation...........................................................16
Section 8.6 Governing Law............................................................16
</TABLE>
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______ __, 199__, is executed
and delivered by IDACORP, INC., an Idaho corporation (the "Guarantor") having
its principal office at 1221 West Idaho Street, Boise, Idaho 83702-5627, and
BANKERS TRUST COMPANY, a New York banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of IDACORP Trust
/*/, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of ________ __, 199__ (the "Trust Agreement"), among the Guarantor, as Sponsor,
the Property Trustee and the Delaware Trustee named therein and the Holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing $___________ aggregate Liquidation Amount (as defined in the
Trust Agreement) of its ____% Preferred Securities, Series /*/, Liquidation
Amount $___ per preferred security (the "Preferred Securities") representing
preferred undivided beneficial interests in the assets of the Issuer and having
the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debt
Securities (as defined in the Trust Agreement) of the Guarantor which will be
deposited with Bankers Trust Company, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I. DEFINITIONS
Section 1.1 Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
<PAGE>
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time; (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to any Preferred Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds on hand available therefor at
such time; and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Issuer, unless Debt Securities are distributed to the
Holders, the lesser of (a) the aggregate of the Liquidation Amount of $___ per
Preferred Security plus accumulated and unpaid Distributions on the Preferred
Securities to the date of payment and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
-2-
<PAGE>
"Indenture" means the Subordinated Indenture dated as of _________ __,
1998, as supplemented and amended, between the Guarantor and Bankers Trust
Company, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the Liquidation Amount of all then outstanding
Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the Board of Directors
of such Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers, and also, with respect to a particular matter, any other
officer, to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II. TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2 List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and December 31 of each
year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of a date not more
than 15 days prior to the delivery thereof, and (b) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the receipt by
the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case to the extent
such information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
Not later than 60 days after December 31 of each year, commencing 60
days after December 31, 199__, the Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust Indenture Act,
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314
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of the Trust Indenture Act, in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6 Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such Events of Default have been cured before the giving of such notice,
provided, that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
Section 2.8 Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions
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that by any provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Guarantee Agreement or indemnity satisfactory to it
against such risk or liability is not assured to it.
Section 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate.
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(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity satisfactory to it, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by
it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request and
shall be entitled to receive instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be fully protected
in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or
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in which the Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Guarantee Trustee shall be construed to be a duty to act in accordance with
such power and authority.
Section 3.3 Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Guarantee Trustee and its directors, officers,
agents and employees for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee will
not claim or exact any lien or charge on any Guarantee Payments as a result of
any amount due to it under this Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of
this Guarantee Agreement or the earlier resignation or removal of the Guarantee
Trustee.
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to
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the requirements of the supervising or examining authority, then, for
the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
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ARTICLE V. GUARANTEE
Section 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor shall notify the
Guarantee Trustee of any such payment.
Section 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) any amendment to the Indenture or the Trust Agreement;
(b) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(c) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debt Securities as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(d) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
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(e) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(f) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(g) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(h) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) if the Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement, without first
instituting a legal proceeding against the Issuer or any other Person. If the
Guarantor has failed to make a Guarantee Payment, a Holder may directly
institute a proceeding against the Guarantor for enforcement of this Guarantee
Agreement for such payment. The Guarantor waives any right or remedy to require
that any action on this Guarantee Agreement be brought first against the Issuer
or any other Person or entity before proceeding directly against the Guarantor.
Section 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer) or upon distribution of Debt Securities to Holders as provided in
the Trust Agreement.
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Section 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
Section 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1 Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness and Subordinated
Indebtedness (each as defined in the Indenture) to the extent and in the manner
set forth in the Indenture. The obligations of the Guarantor under this
Guarantee Agreement do not constitute Senior or Subordinated Indebtedness.
Section 6.2 Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with the obligations of the Guarantor under any similar
Guarantee Agreements issued by the Guarantor on behalf of the holders of the
Trust Securities issued by any IDACORP Trust (as defined in the Indenture).
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ARTICLE VII. TERMINATION
Section 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of Debt Securities to the Holders in exchange
for all of the Preferred Securities or (iii) full payment of the amounts payable
in accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must repay any sums paid with respect to Preferred Securities or this Guarantee
Agreement.
ARTICLE VIII. MISCELLANEOUS
Section 8.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article XI of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
Section 8.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of all the outstanding Preferred Securities. The provisions of Article IX of the
Trust Agreement concerning meetings of the Holders shall apply to the giving of
such approval.
Section 8.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
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IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
Facsimile No.: 208-388-6910
Attention: Treasurer
(b) if given to the Guarantee Trustee or the Issuer, in care of the
Guarantee Trustee, at the Issuer's (and the Guarantee Trustee's) address set
forth below or such other address as the Guarantee Trustee on behalf of the
Issuer may give notice to the Holders:
IDACORP Trust/*/
c/o IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
Facsimile No.: 208-388-6910
Attention: Treasurer
with a copy to:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Facsimile No.: 212-250-6961
Attention: Corporate Trust and Agency Group--
Corporate Market Services
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
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Section 8.5 Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 8.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
IDACORP, Inc.
By:
--------------------------------
Name:
Title:
-16-
<PAGE>
Bankers Trust Company
as Guarantee Trustee
By:
--------------------------------
Name:
Title:
-17-
<PAGE>
Exhibit 5.1
Robert W. Stahman, Esq.
General Counsel
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
September 29, 1998
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
Ladies and Gentlemen:
I am General Counsel to IDACORP, Inc., an Idaho corporation
(the "Company"), and have acted as such in connection with the preparation and
filing of a Registration Statement on Form S-3 (the "Registration Statement"),
which the Company and IDACORP Trust I, IDACORP Trust II and IDACORP Trust III,
each a statutory business trust created under the Business Trust Act of the
State of Delaware (the "Trusts"), propose to file on or shortly after the date
hereof with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). The Company will be
successor issuer to Idaho Power Company, an Idaho corporation ("Idaho Power"),
pursuant to a statutory share exchange ("Share Exchange") to be effected on
October 1, 1998 pursuant to an Agreement and Plan of Exchange dated as of
February 2, 1998 (the "Exchange Agreement") between Idaho Power and the Company,
for the purpose of establishing the Company as a holding company over Idaho
Power.
The Registration Statement relates to the following securities
of the Company: (i) unsecured senior debt securities (the "Senior Debt
Securities"); (ii) unsecured subordinated debt securities (the "Subordinated
Debt Securities", and together with the Senior Debt Securities, the "Debt
Securities"); (iii) preferred stock, without par value (the "Preferred Stock");
(iv) depositary shares (the "Depositary Shares"); and (v) common stock, without
par value (the "Common Stock"), and the Preferred Share Purchase Rights attached
thereto (the "Rights"), which Rights will be issued as a dividend by the Company
on October 1, 1998 to shareholders of record at the close of business on that
date and will be distributed by the Company with all Common Stock issued
thereafter (until the expiration date thereof) (the Common Stock and the Rights
collectively referred to as the "Common Shares").
<PAGE>
IDACORP, Inc. September 29, 1998
The Registration Statement also relates to the preferred
securities of the Trusts (the "Preferred Securities") and the guarantees of the
Preferred Securities by the Company to the extent described in the Prospectus
forming a part of the Registration Statement (the "Guarantees"), and together
with the Debt Securities, the Preferred Stock, the Depositary Shares, the Common
Shares and the Preferred Securities, the "Offered Securities"). The Offered
Securities will be issued from time to time pursuant to the provisions of Rule
415 under the Securities Act.
The Senior Debt Securities will be issued in one or more
series pursuant to an Indenture (the "Senior Indenture") between the Company and
Bankers Trust Company, as trustee (the "Senior Trustee"), the form of which is
filed as an exhibit to the Registration Statement. The Subordinated Debt
Securities will be issued in one or more series pursuant to an Indenture (the
"Subordinated Indenture") between the Company and Bankers Trust Company, as
trustee (the "Subordinated Trustee"), the form of which is filed as an exhibit
to the Registration Statement. The Preferred Securities will be issued pursuant
to an Amended and Restated Trust Agreement for each Trust, the form of which is
filed as an exhibit to the Registration Statement. The Guarantees of the
Preferred Securities are to be issued pursuant to the Guarantee Agreements
(each, a "Preferred Securities Guarantee") between the Company and Bankers Trust
Company (the "Guarantee Trustee"), the form of which Preferred Securities
Guarantee is filed as an exhibit to the Registration Statement.
For purposes of this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
Exchange Agreement; (ii) the Registration Statement; (iii) the Rights Agreement,
dated as of September 10, 1998, between the Company and The Bank of New York, as
Rights Agent (the "Rights Agreement"); (iv) the Restated Articles of
Incorporation and Amended Bylaws of the Company; (v) resolutions adopted by the
Board of Directors of the Company relating to the Share Exchange, the
Registration Statement, the Rights Agreement and the issuance and delivery of
Common Stock in connection with the Share Exchange; and (vi) such other
documents, certificates and records as I have deemed necessary or appropriate.
In such examination I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to
the original documents of all documents submitted to me as copies and the
authenticity of the originals of such latter documents. As to any facts material
to my opinion, I have, when relevant facts were not independently established,
-2-
<PAGE>
IDACORP, Inc. September 29, 1998
relied upon the aforesaid agreements, instruments, records, certificates and
documents.
Based upon the foregoing, and subject to the qualifications
and limitations herein expressed, I am of the opinion that:
(1) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Idaho;
(2) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act, and the Senior Indenture and the Subordinated
Indenture, including any necessary supplemental indentures, filed as exhibits to
the Registration Statement, shall have been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and (ii) a
prospectus supplement with respect to a particular series of Debt Securities
shall have been filed with the Commission in compliance with the Securities Act
and the rules and regulations thereunder, no further authorization, consent or
approval by any regulatory authority will be required for the valid issuance and
sale of the Debt Securities of such series.
(3) When (i) the Senior Indenture and the Subordinated
Indenture shall have been duly executed and delivered by the Company and the
Senior Trustee and the Subordinated Trustee, respectively, and (ii) a Board
Resolution within the meaning of the Senior Indenture or Subordinated Indenture,
as the case may be, shall have been issued or a supplemental indenture entered
into, in accordance with the Senior Indenture or Subordinated Indenture, as the
case may be, detailing the establishment of a particular series of Debt
Securities, such series of Debt Securities shall have been duly authorized by
the Company.
(4) Upon the execution and filing with the Senior Trustee and
the Subordinated Trustee, as applicable, of the proper papers with respect to
the Senior Debt Securities or Subordinated Debt Securities, as applicable, of a
particular series, the Debt Securities of such series shall be issuable under
the terms of the Senior Indenture or Subordinated Indenture, as applicable.
(5) When such series of Debt Securities shall have been duly
executed, authenticated and delivered in accordance with the corporate and
governmental authorizations and the instruments
-3-
<PAGE>
IDACORP, Inc. September 29, 1998
referred to above and the purchase price for such series of Debt Securities
shall have been received by the Company, the Debt Securities of such series will
be legally issued and binding obligations of the Company and will be entitled to
the benefits of the Senior Indenture or Subordinated Indenture, as applicable,
on a parity with the securities of other series which may be hereafter issued
thereunder pursuant to the terms of such indenture (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting the enforcement of creditors' rights
generally and by the effect of general principles of equity, regardless of
whether considered in a proceeding in equity or at law).
(6) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act, and a Preferred Securities Guarantee shall have been
duly qualified under the Trust Indenture Act and (ii) a prospectus supplement
with respect to such Preferred Securities Guarantee and the related series of
Preferred Securities shall have been filed with the Commission in compliance
with the Securities Act and the rules and regulations thereunder, no further
authorization, consent or approval by any regulatory authority will be required
with respect to the performance by the Company of its obligations with respect
to such Preferred Securities Guarantee.
(7) When (i) a Preferred Securities Guarantee shall have been
duly executed and delivered by the Company and the Guarantee Trustee and (ii)
the related series of Preferred Securities have been duly issued and sold and
the purchase price therefor shall have been received by the Trust in the manner
contemplated by the Registration Statement, the Preferred Securities Guarantee
will constitute a valid and binding obligation of the Company (except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of equity,
regardless of whether considered in a proceeding in equity or at law).
(8) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act and (ii) a prospectus supplement with respect to the
Common Shares shall have been filed with the Commission in compliance with the
Securities Act and the rules and regulations thereunder, no further
authorization, consent or approval by any regulatory
-4-
<PAGE>
IDACORP, Inc. September 29, 1998
authority will be required for the valid issuance and sale of the Common Shares.
(9) When (i) the Board of Directors of the Company shall have
taken appropriate action to authorize the issuance and sale of the Common
Shares, (ii) the Common Stock shall have been issued, sold and delivered in
accordance with the corporate and governmental authorizations and the
instruments referred to above and for the consideration contemplated in the
prospectus supplement, (iii) the Rights shall have been issued in accordance
with the terms of the Rights Agreement and in accordance with the corporate and
governmental authorizations and the instruments referred to above and (iv) the
Share Exchange shall have been consummated in accordance with the terms of the
Exchange Agreement and the laws of the State of Idaho, the Common Stock will be
validly issued, fully paid and non-assessable and the Rights will be validly
issued.
(10) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act and (ii) a prospectus supplement with respect to the
Preferred Stock shall have been filed with the Commission in compliance with the
Securities Act and the rules and regulations thereunder, no further
authorization, consent or approval by any regulatory authority will be required
for the valid issuance and sale of the Preferred Stock.
(11) When (i) the Board of Directors of the Company shall have
taken appropriate action to authorize the issuance and sale of a series of the
Preferred Stock, (ii) the Articles of Amendment to the Restated Articles of
Incorporation of the Company relating to the series of Preferred Stock shall
have been filed with the Secretary of State of Idaho in the form and manner
required by law and (iii) the series of Preferred Stock shall have been issued,
sold and delivered in accordance with the corporate and governmental
authorizations and the instruments referred to above and for the consideration
contemplated in the prospectus supplement, the series of Preferred Stock will be
validly issued, fully paid and non-assessable.
In regard to the Rights, I note that Section 30-1610 of the
Idaho Control Share Acquisition Law and Section 30-1706 of the Idaho Business
Combination Law each provides that nothing contained in either the Idaho Control
Share Acquisition Law (Sections 30-1601 through 30-1614) or the Idaho Business
Combination Law (Sections 30-1701 through 30-1710), respectively, is intended to
limit the corporate powers or authority of an
-5-
<PAGE>
IDACORP, Inc. September 29, 1998
"issuing public corporation" (as defined in such statutes), such as the Company,
to take actions "which the directors may appropriately determine to be in
furtherance of the protection of the interests of the corporation and its
shareholders, including without limitation the authority to . . . enter into . .
. arrangements", such as the Rights Agreement, that "deny rights . . . to the
holder or holders of at least a specified number of shares or percentage of
share ownership or voting power in certain circumstances."
Because I am not aware of any court decision applying the law
of the State of Idaho that addresses the effect of these statutory provisions or
the validity of plans similar to the Rights Agreement, it is difficult to
predict how a court applying the law of the State of Idaho would rule with
respect to the issues relating to the Rights. Nevertheless, I am able to advise
you of my conclusion concerning how a court applying the law of the State of
Idaho (including, but not limited to, Section 30- 1610 of the Idaho Control
Share Acquisition Law and Section 30- 1706 of the Idaho Business Combination
Law) likely would rule. I have conferred with LeBoeuf, Lamb, Greene & MacRae,
L.L.P., counsel to the Company, for purposes of rendering this opinion. LeBoeuf,
Lamb, Greene & MacRae, L.L.P. and I have concluded that a court applying the law
of the State of Idaho, when presented with novel questions concerning takeover
matters, such as the effect of the statutory provisions cited above and the
adoption by the Company of the Rights Agreement, most likely would apply the
corporate law of the State of Delaware, the most fully developed body of
corporate law in the United States. Accordingly, in rendering this opinion, I
have assumed that Delaware corporate law, with which I am familiar, provides an
indication of what standards a court would apply if it were required to apply
the law of the State of Idaho considering the matters relating to the Rights.
With respect to this opinion, I do not hold myself out as an
expert on the laws of any state other than the State of Idaho. My opinions
expressed above are limited to the laws of the State of Idaho, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to me
-6-
<PAGE>
IDACORP, Inc. September 29, 1998
under the caption "Legal Opinions" in said Registration Statement and any
amendments thereto and in the Prospectus constituting a part thereof.
Very truly yours,
Robert W. Stahman
-7-
<PAGE>
Exhibit 5.2
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019-5389
September 29, 1998
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
Ladies and Gentlemen:
We have acted as counsel to IDACORP, Inc., an Idaho
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-3 (the "Registration Statement"), which the
Company and IDACORP Trust I, IDACORP Trust II and IDACORP Trust III, each a
statutory business trust created under the Business Trust Act of the State of
Delaware (the "Trusts"), propose to file on or shortly after the date hereof
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). The Company will be
successor issuer to Idaho Power Company, an Idaho corporation ("Idaho Power"),
pursuant to a statutory share exchange ("Share Exchange") to be effected on
October 1, 1998 pursuant to an Agreement and Plan of Exchange dated as of
February 2, 1998 (the "Exchange Agreement") between Idaho Power and the Company,
for the purpose of establishing the Company as a holding company over Idaho
Power.
The Registration Statement relates to the following securities
of the Company: (i) unsecured senior debt securities (the "Senior Debt
Securities"); (ii) unsecured subordinated debt securities (the "Subordinated
Debt Securities", and together with the Senior Debt Securities, the "Debt
Securities"); (iii) preferred stock, without par value (the "Preferred Stock");
(iv) depositary shares (the "Depositary Shares"); and (v) common stock, without
par value (the "Common Stock"), and the Preferred Share Purchase Rights attached
thereto (the "Rights"), which Rights will be issued as a dividend by the Company
on October 1, 1998 to shareholders of record at the close of business on that
date and will be distributed by the Company with all Common Stock issued
thereafter (until the expiration date thereof) (the Common Stock and the Rights
collectively referred to as the "Common Shares").
<PAGE>
IDACORP, Inc.
September 29, 1998
Page 2
The Registration Statement also relates to the preferred
securities of the Trusts (the "Preferred Securities") and the guarantees of the
Preferred Securities by the Company to the extent described in the Prospectus
forming a part of the Registration Statement (the "Guarantees"), and together
with the Debt Securities, the Preferred Stock, the Depositary Shares, the Common
Shares and the Preferred Securities, the "Offered Securities"). The Offered
Securities will be issued from time to time pursuant to the provisions of Rule
415 under the Securities Act.
The Senior Debt Securities will be issued in one or more
series pursuant to an Indenture (the "Senior Indenture") between the Company and
Bankers Trust Company, as trustee (the "Senior Trustee"), the form of which is
filed as an exhibit to the Registration Statement. The Subordinated Debt
Securities will be issued in one or more series pursuant to an Indenture (the
"Subordinated Indenture") between the Company and Bankers Trust Company, as
trustee (the "Subordinated Trustee"), the form of which is filed as an exhibit
to the Registration Statement. The Preferred Securities will be issued pursuant
to an Amended and Restated Trust Agreement for each Trust, the form of which is
filed as an exhibit to the Registration Statement. The Guarantees of the
Preferred Securities are to be issued pursuant to the Guarantee Agreements
(each, a "Preferred Securities Guarantee") between the Company and Bankers Trust
Company (the "Guarantee Trustee"), the form of which Preferred Securities
Guarantee is filed as an exhibit to the Registration Statement.
For purposes of this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Exchange Agreement; (ii) the Registration Statement; (iii) the Rights Agreement,
dated as of September 10, 1998, between the Company and The Bank of New York, as
Rights Agent (the "Rights Agreement"); (iv) the Restated Articles of
Incorporation and Amended Bylaws of the Company; (v) resolutions adopted by the
Board of Directors of the Company relating to the Share Exchange, the
Registration Statement, the Rights Agreement and the issuance and delivery of
Common Stock in connection with the Share Exchange; and (vi) such other
documents, certificates and records as we have deemed necessary or appropriate.
In such examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies and the
authenticity of the originals of such latter documents. As to
<PAGE>
IDACORP, Inc.
September 29, 1998
Page 3
any facts material to our opinion, we have, when relevant facts were not
independently established, relied upon the aforesaid agreements, instruments,
records, certificates and documents.
Based upon the foregoing, and subject to the qualifications
and limitations herein expressed, we are of the opinion that:
(1) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act, and the Senior Indenture and the Subordinated
Indenture, including any necessary supplemental indentures, filed as exhibits to
the Registration Statement, shall have been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and (ii) a
prospectus supplement with respect to a particular series of Debt Securities
shall have been filed with the Commission in compliance with the Securities Act
and the rules and regulations thereunder, no further authorization, consent or
approval by any regulatory authority will be required for the valid issuance and
sale of the Debt Securities of such series.
(2) When (i) the Senior Indenture and the Subordinated
Indenture shall have been duly executed and delivered by the Company and the
Senior Trustee and the Subordinated Trustee, respectively, and (ii) a Board
Resolution within the meaning of the Senior Indenture or Subordinated Indenture,
as the case may be, shall have been issued or a supplemental indenture entered
into, in accordance with the Senior Indenture or Subordinated Indenture, as the
case may be, detailing the establishment of a particular series of Debt
Securities, such series of Debt Securities shall have been duly authorized by
the Company.
(3) Upon the execution and filing with the Senior Trustee and
the Subordinated Trustee, as applicable, of the proper papers with respect to
the Senior Debt Securities or Subordinated Debt Securities, as applicable, of a
particular series, the Debt Securities of such series shall be issuable under
the terms of the Senior Indenture or Subordinated Indenture, as applicable.
(4) When such series of Debt Securities shall have been duly
executed, authenticated and delivered in accordance with the corporate and
governmental authorizations and the instruments referred to above and the
purchase price for such series of Debt Securities shall have been received by
the Company, the Debt
<PAGE>
IDACORP, Inc.
September 29, 1998
Page 4
Securities of such series will be legally issued and binding obligations of the
Company and will be entitled to the benefits of the Senior Indenture or
Subordinated Indenture, as applicable, on a parity with the securities of other
series which may be hereafter issued thereunder pursuant to the terms of such
indenture (except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws affecting
the enforcement of creditors' rights generally and by the effect of general
principles of equity, regardless of whether considered in a proceeding in equity
or at law).
(5) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act, and a Preferred Securities Guarantee shall have been
duly qualified under the Trust Indenture Act and (ii) a prospectus supplement
with respect to such Preferred Securities Guarantee and the related series of
Preferred Securities shall have been filed with the Commission in compliance
with the Securities Act and the rules and regulations thereunder, no further
authorization, consent or approval by any regulatory authority will be required
with respect to the performance by the Company of its obligations with respect
to such Preferred Securities Guarantee.
(6) When (i) a Preferred Securities Guarantee shall have been
duly executed and delivered by the Company and the Guarantee Trustee and (ii)
the related series of Preferred Securities have been duly issued and sold and
the purchase price therefor shall have been received by the Trust in the manner
contemplated by the Registration Statement, the Preferred Securities Guarantee
will constitute a valid and binding obligation of the Company (except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of equity,
regardless of whether considered in a proceeding in equity or at law).
(7) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act and (ii) a prospectus supplement with respect to the
Common Shares shall have been filed with the Commission in compliance with the
Securities Act and the rules and regulations thereunder, no further
authorization, consent or approval by any regulatory
<PAGE>
IDACORP, Inc.
September 29, 1998
Page 5
authority will be required for the valid issuance and sale of the
Common Shares.
(8) When (i) the Board of Directors of the Company shall have
taken appropriate action to authorize the issuance and sale of the Common
Shares, (ii) the Common Stock shall have been issued, sold and delivered in
accordance with the corporate and governmental authorizations and the
instruments referred to above and for the consideration contemplated in the
prospectus supplement, (iii) the Rights shall have been issued in accordance
with the terms of the Rights Agreement and in accordance with the corporate and
governmental authorizations and the instruments referred to above and (iv) the
Share Exchange shall have been consummated in accordance with the terms of the
Exchange Agreement and the laws of the State of Idaho, the Common Stock will be
validly issued, fully paid and non-assessable and the Rights will be validly
issued.
(9) When (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective
under the Securities Act and (ii) a prospectus supplement with respect to the
Preferred Stock shall have been filed with the Commission in compliance with the
Securities Act and the rules and regulations thereunder, no further
authorization, consent or approval by any regulatory authority will be required
for the valid issuance and sale of the Preferred Stock.
(10) When (i) the Board of Directors of the Company shall have
taken appropriate action to authorize the issuance and sale of a series of the
Preferred Stock, (ii) the Articles of Amendment to the Restated Articles of
Incorporation of the Company relating to the series of Preferred Stock shall
have been filed with the Secretary of State of Idaho in the form and manner
required by law and (iii) the series of Preferred Stock shall have been issued,
sold and delivered in accordance with the corporate and governmental
authorizations and the instruments referred to above and for the consideration
contemplated in the prospectus supplement, the series of Preferred Stock will be
validly issued, fully paid and non-assessable.
In regard to the Rights, we note that Section 30-1610 of the
Idaho Control Share Acquisition Law and Section 30-1706 of the Idaho Business
Combination Law each provides that nothing contained in either the Idaho Control
Share Acquisition Law (Sections 30-1601 through 30-1614) or the Idaho Business
Combination Law (Sections 30-1701 through 30-1710), respectively,
<PAGE>
IDACORP, Inc.
September 29, 1998
Page 6
is intended to limit the corporate powers or authority of an "issuing public
corporation" (as defined in such statutes), such as the Company, to take actions
"which the directors may appropriately determine to be in furtherance of the
protection of the interests of the corporation and its shareholders, including
without limitation the authority to . . . enter into . . . arrangements", such
as the Rights Agreement, that "deny rights . . . to the holder or holders of at
least a specified number of shares or percentage of share ownership or voting
power in certain circumstances."
Because we are not aware of any court decision applying the
law of the State of Idaho that addresses the effect of these statutory
provisions or the validity of plans similar to the Rights Agreement, it is
difficult to predict how a court applying the law of the State of Idaho would
rule with respect to the issues relating to the Rights. Nevertheless, we are
able to advise you of our conclusion concerning how a court applying the law of
the State of Idaho (including, but not limited to, Section 30-1610 of the Idaho
Control Share Acquisition Law and Section 30-1706 of the Idaho Business
Combination Law) likely would rule. Although we are not admitted to practice in
the State of Idaho, we have conferred with Robert W. Stahman, Esq., Vice
President, General Counsel and Secretary of the Company, for purposes of
rendering this opinion. General Counsel and we have concluded that a court
applying the law of the State of Idaho, when presented with novel questions
concerning takeover matters, such as the effect of the statutory provisions
cited above and the adoption by the Company of the Rights Agreement, most likely
would apply the corporate law of the State of Delaware, the most fully developed
body of corporate law in the United States. Accordingly, in rendering our
opinion, we have assumed that Delaware corporate law, with which we are
familiar, provides an indication of what standards a court would apply if it
were required to apply the law of the State of Idaho considering the matters
relating to the Rights.
With respect to this opinion, we do not hold ourselves out as
experts on the laws of any state other than the State of New York. Our opinions
expressed above are limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States. Insofar as this opinion involves matters of the law of the State of
Idaho, we have relied upon an opinion of even date herewith addressed to you by
Robert W. Stahman, Vice President, General Counsel and Secretary of the Company.
<PAGE>
IDACORP, Inc.
September 29, 1998
Page 7
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to our firm contained
therein under the caption "Legal Opinions" in said Registration Statement and
any amendments thereto and in the Prospectus constituting a part thereof.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
<PAGE>
EXHIBIT 5.3
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
September 30, 1998
IDACORP Trust I
c/o IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702
Re: IDACORP Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for IDACORP, Inc.,
an Idaho corporation (the "Corporation"), and IDACORP Trust I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 24,
1998 as filed with the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on September 24, 1998;
(b) The Trust Agreement of the Trust, dated as of September
24, 1998 between the Corporation, as Sponsor, and the trustee of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus"), relating to
the ______% Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Corporation, the
Trust and others as set forth therein with the Securities and Exchange
Commission on September 30, 1998;
(d) A form of Amended and Restated Trust Agreement for the
Trust, to be entered into between the Corporation, as Sponsor, the trustees of
the Trust named therein, and
<PAGE>
IDACORP Trust I
September 30, 1998
Page 2
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust (the "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated
September 30, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Security Certificate for such Preferred Security and the payment for such
Preferred Security, in accordance with the Trust Agreement and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust Agreement and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
<PAGE>
IDACORP Trust I
September 30, 1998
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person for any purpose.
Very truly yours,
CDK
Richards, Layton & Finger, P.A.
<PAGE>
EXHIBIT 5.4
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
September 30, 1998
IDACORP Trust II
c/o IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702
Re: IDACORP Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for IDACORP, Inc.,
an Idaho corporation (the "Corporation"), and IDACORP Trust II, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 24,
1998 as filed with the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on September 24, 1998;
(b) The Trust Agreement of the Trust, dated as of September
24, 1998 between the Corporation, as Sponsor, and the trustee of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus"), relating to
the ______% Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Corporation, the
Trust and others as set forth therein with the Securities and Exchange
Commission on September 30, 1998;
(d) A form of Amended and Restated Trust Agreement for the
Trust, to be entered into between the Corporation, as Sponsor, the trustees of
the Trust named therein, and
<PAGE>
IDACORP Trust II
September 30, 1998
Page 2
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust (the "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated
September 30, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Security Certificate for such Preferred Security and the payment for such
Preferred Security, in accordance with the Trust Agreement and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust Agreement and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
<PAGE>
IDACORP Trust II
September 30, 1998
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person for any purpose.
Very truly yours,
CDK
Richards, Layton & Finger, P.A.
<PAGE>
EXHIBIT 5.5
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
September 30, 1998
IDACORP Trust III
c/o IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702
Re: IDACORP Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for IDACORP, Inc.,
an Idaho corporation (the "Corporation"), and IDACORP Trust III, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 24,
1998 as filed with the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on September 24, 1998;
(b) The Trust Agreement of the Trust, dated as of September
24, 1998 between the Corporation, as Sponsor, and the trustee of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus"), relating to
the ______% Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Corporation, the
Trust and others as set forth therein with the Securities and Exchange
Commission on September 30, 1998;
(d) A form of Amended and Restated Trust Agreement for the
Trust, to be entered into between the Corporation, as Sponsor, the trustees of
the Trust named therein, and
<PAGE>
IDACORP Trust III
September 30, 1998
Page 2
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust (the "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated
September 30, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Security Certificate for such Preferred Security and the payment for such
Preferred Security, in accordance with the Trust Agreement and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Trust Agreement and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
<PAGE>
IDACORP Trust III
September 30, 1998
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person for any purpose.
Very truly yours,
CDK
Richards, Layton & Finger, P.A.
<PAGE>
EXHIBIT 12.1
IDAHO POWER COMPANY
CONSOLIDATED FINANCIAL INFORMATION
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
TWELVE MONTHS
TWELVE MONTHS ENDED DECEMBER 31, ENDED
---------------------------------------------------------- JUNE 30,
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ---------- --------------
(THOUSANDS OF DOLLARS)
<S> <C> <C> <C> <C> <C> <C>
Computation of Ratio of Earnings to Fixed
Charges:
Consolidated net income............... $ 84,464 $ 74,930 $ 86,921 $ 90,618 $ 92,274 $ 93,079
---------- ---------- ---------- ---------- ---------- --------------
Income taxes:
Income taxes (incl amounts charged to
other income and deductions)........ 38,057 35,307 49,498 51,316 47,559 43,793
Investment tax credit adjustment...... (1,583) (1,064) (1,086) 776 (1,087) (470)
---------- ---------- ---------- ---------- ---------- --------------
Total income taxes.................. 36,474 34,243 48,412 52,092 46,472 43,323
---------- ---------- ---------- ---------- ---------- --------------
Income before income taxes................ 120,938 109,173 135,333 142,710 138,746 136,402
---------- ---------- ---------- ---------- ---------- --------------
Fixed Charges:
Interest on long-term debt............ 53,706 51,172 51,147 52,165 53,215 52,350
Expense and premium--net.............. 507 567 567 594 653 656
Interest on short-term bank loans..... 220 1,157 3,144 2,269 2,902 3,050
Other interest........................ 2,023 1,538 1,598 2,319 3,990 4,104
Interest portion of rentals........... 1,077 794 925 991 982 1,002
---------- ---------- ---------- ---------- ---------- --------------
Total fixed charges................. 57,533 55,228 57,381 58,338 61,742 61,162
---------- ---------- ---------- ---------- ---------- --------------
Earnings--as defined...................... $ 178,471 $ 164,401 $ 192,714 $ 201,048 $ 200,488 $ 197,564
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
Ratio of earnings to fixed charges........ 3.10x 2.98x 3.36x 3.45x 3.25x 3.23x
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
</TABLE>
<PAGE>
EXHIBIT 12.2
IDAHO POWER COMPANY
CONSOLIDATED FINANCIAL INFORMATION
SUPPLEMENTAL RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED
TWELVE MONTHS ENDED DECEMBER 31, JUNE 30,
---------------------------------------------------------- --------------
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ---------- --------------
(THOUSANDS OF DOLLARS)
<S> <C> <C> <C> <C> <C> <C>
Computation of Ratio of Earnings to Fixed
Charges:
Consolidated net income............... $ 84,464 $ 74,930 $ 86,921 $ 90,618 $ 92,274 $ 93,079
---------- ---------- ---------- ---------- ---------- --------------
Income taxes:
Income taxes (incl amounts charged to
other income and deductions)........ 38,057 35,307 49,498 51,316 47,559 43,793
Investment tax credit adjustment...... (1,583) (1,064) (1,086) 776 (1,087) (470)
---------- ---------- ---------- ---------- ---------- --------------
Total income taxes.................. 36,474 34,243 48,412 52,092 46,472 43,323
---------- ---------- ---------- ---------- ---------- --------------
Income before income taxes................ 120,938 109,173 135,333 142,710 138,746 136,402
---------- ---------- ---------- ---------- ---------- --------------
Fixed Charges:
Interest on long-term debt............ 53,706 51,172 51,147 52,165 53,215 52,350
Expense and premium--net.............. 507 567 567 594 653 656
Interest on short-term bank loans..... 220 1,157 3,144 2,269 2,902 3,050
Other interest........................ 2,023 1,538 1,598 2,319 3,990 4,104
Interest portion of rentals........... 1,077 794 925 991 982 1,002
---------- ---------- ---------- ---------- ---------- --------------
Total fixed charges................. 57,533 55,228 57,381 58,338 61,742 61,162
---------- ---------- ---------- ---------- ---------- --------------
Supplemental increment to fixed
charges*............................ 2,631 2,622 2,611 2,600 2,574 2,580
---------- ---------- ---------- ---------- ---------- --------------
Total supplemental fixed charges.... 60,164 57,850 59,992 60,938 64,316 63,742
---------- ---------- ---------- ---------- ---------- --------------
Supplemental Earnings--as defined......... $ 181,102 $ 167,023 $ 195,325 $ 203,648 $ 203,062 $ 200,144
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
Supplemental Ratio of earnings to fixed
charges................................. 3.01x 2.89x 3.26x 3.34x 3.16x 3.14x
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
</TABLE>
- ------------------------
* Explanation of increment:
Interest on the guaranty of American Falls Reservoir District bonds and
Milner Dam Inc. notes which are already included in operating expense.
<PAGE>
EXHIBIT 12.3
IDAHO POWER COMPANY
CONSOLIDATED FINANCIAL INFORMATION
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS REQUIREMENTS
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED
TWELVE MONTHS ENDED DECEMBER 31, JUNE 30,
---------------------------------------------------------- --------------
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ---------- --------------
(THOUSANDS OF DOLLARS)
<S> <C> <C> <C> <C> <C> <C>
Computation of Ratio of Earnings to Fixed
Charges:
Consolidated net income............... $ 84,464 $ 74,930 $ 86,921 $ 90,618 $ 92,274 $ 93,079
---------- ---------- ---------- ---------- ---------- --------------
Income taxes:
Income taxes (incl amounts charged to
other income and deductions)........ 38,057 35,307 49,498 51,316 47,559 43,793
Investment tax credit adjustment...... (1,583) (1,064) (1,086) 776 (1,087) (470)
---------- ---------- ---------- ---------- ---------- --------------
Total income taxes.................. 36,474 34,243 48,412 52,092 46,472 43,323
---------- ---------- ---------- ---------- ---------- --------------
Income before income taxes................ 120,938 109,173 135,333 142,710 138,746 136,402
---------- ---------- ---------- ---------- ---------- --------------
Fixed Charges:
Interest on long-term debt............ 53,706 51,172 51,147 52,165 53,215 52,350
Expense and premium--net.............. 507 567 567 594 653 656
Interest on short-term bank loans..... 220 1,157 3,144 2,269 2,902 3,050
Other interest........................ 2,023 1,538 1,598 2,319 3,990 4,104
Interest portion of rentals........... 1,077 794 925 991 982 1,002
---------- ---------- ---------- ---------- ---------- --------------
Total fixed charges................. 57,533 55,228 57,381 58,338 61,742 61,162
---------- ---------- ---------- ---------- ---------- --------------
Preferred dividends requirements...... 8,547 10,682 12,392 12,146 7,803 8,663
---------- ---------- ---------- ---------- ---------- --------------
Total fixed charges and preferred
dividends......................... 66,080 65,910 69,773 70,484 69,545 69,825
---------- ---------- ---------- ---------- ---------- --------------
Earnings--as defined...................... $ 178,471 $ 164,401 $ 192,714 $ 201,048 $ 200,488 $ 197,564
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
Ratio of earnings to fixed charges and
preferred dividends..................... 2.70x 2.49x 2.76x 2.85x 2.88x 2.83x
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
</TABLE>
<PAGE>
EXHIBIT 12.4
IDAHO POWER COMPANY
CONSOLIDATED FINANCIAL INFORMATION
SUPPLEMENTAL RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
REQUIREMENTS
<TABLE>
<CAPTION>
TWELVE MONTHS
TWELVE MONTHS ENDED DECEMBER 31, ENDED JUNE 30,
---------------------------------------------------------- --------------
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ---------- --------------
(THOUSANDS OF DOLLARS)
<S> <C> <C> <C> <C> <C> <C>
Computation of Ratio of Earnings to Fixed
Charges:
Consolidated net income............... $ 84,464 $ 74,930 $ 86,921 $ 90,618 $ 92,274 $ 93,079
---------- ---------- ---------- ---------- ---------- --------------
Income taxes:
Income taxes (incl amounts charged to
other income and deductions)........ 38,057 35,307 49,498 51,316 47,559 43,793
Investment tax credit adjustment...... (1,583) (1,064) (1,086) 776 (1,087) (470)
---------- ---------- ---------- ---------- ---------- --------------
Total income taxes.................. 36,474 34,243 48,412 52,092 46,472 43,323
---------- ---------- ---------- ---------- ---------- --------------
Income before income taxes................ 120,938 109,173 135,333 142,710 138,746 136,402
---------- ---------- ---------- ---------- ---------- --------------
Fixed Charges:
Interest on long-term debt............ 53,706 51,172 51,147 52,165 53,215 52,350
Expense and premium--net.............. 507 567 567 594 653 656
Interest on short-term bank loans..... 220 1,157 3,144 2,269 2,902 3,050
Other interest........................ 2,023 1,538 1,598 2,319 3,990 4,104
Interest portion of rentals........... 1,077 794 925 991 982 1,002
---------- ---------- ---------- ---------- ---------- --------------
Total fixed charges............... 57,533 55,228 57,381 58,338 61,742 61,162
Supplemental increment to fixed
charges*............................ 2,631 2,622 2,611 2,600 2,574 2,580
---------- ---------- ---------- ---------- ---------- --------------
Supplemental fixed charges.......... 60,164 57,850 59,992 60,938 64,316 63,742
Preferred dividends requirements...... 8,547 10,682 12,392 12,146 7,803 8,663
---------- ---------- ---------- ---------- ---------- --------------
Total supplemental fixed charges and
preferred dividends............... 68,711 68,532 72,384 73,084 72,119 72,405
---------- ---------- ---------- ---------- ---------- --------------
Supplemental Earnings--as defined......... $ 181,102 $ 167,023 $ 195,325 $ 203,648 $ 203,062 200,144
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
Supplemental Ratio of earnings to fixed
charges and preferred dividends......... 2.64x 2.44x 2.70x 2.79x 2.82x 2.76x
---------- ---------- ---------- ---------- ---------- --------------
---------- ---------- ---------- ---------- ---------- --------------
</TABLE>
- ------------------------
* Explanation of increment:
Interest on the guaranty of American Falls Reservoir District bonds and
Milner Dam Inc. notes which are already included in operating expense.
<PAGE>
EXHIBIT 15
September 29, 1998
IDACORP, Inc.
Boise, Idaho
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of Idaho Power Company and subsidiaries for the periods
ended March 31, 1998 and 1997 and June 30, 1998 and 1997, as indicated in our
reports dated May 8, 1998 and August 3, 1998, respectively; because we did not
perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in
Idaho Power Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998, are being used in this Registration Statement
of IDACORP, Inc., IDACORP Trust I, IDACORP Trust II and IDACORP Trust III on
Form S-3.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Boise, Idaho
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
IDACORP, Inc.
We consent to the incorporation by reference in this Registration Statement
of IDACORP, Inc., IDACORP Trust I, IDACORP Trust II and IDACORP Trust III on
Form S-3 of our report dated January 30, 1998 appearing in the Annual Report on
Form 10-K of Idaho Power Company for the year ended December 31, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
Deloitte & Touche LLP
September 29, 1998
Boise, Idaho
<PAGE>
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP, INC.
(Exact name of obligor as specified in charter)
IDAHO
(State or other jurisdiction of incorporation or organization)
82-0505802
(I.R.S. Employer Identification No.)
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligor's
principal executive offices)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP, INC.
(Exact name of obligor as specified in charter)
IDAHO
(State or other jurisdiction of incorporation or organization)
82-0505802
(I.R.S. Employer Identification No.)
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligor's
principal executive offices)
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP TRUST I
(Exact name of obligor as specified in its Trust Agreeement)
DELAWARE
(State or other jurisdiction of incorporation or organization)
TO BE APPLIED FOR
(I.R.S. Employer Identification No.)
C/O IDACORP, INC.
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligors principal executive offices)
PREFERRED SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.4
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP TRUST II
(Exact name of obligor as specified in its Trust Agreeement)
DELAWARE
(State or other jurisdiction of incorporation or organization)
TO BE APPLIED FOR
(I.R.S. Employer Identification No.)
C/O IDACORP, INC.
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligors principal executive offices)
PREFERRED SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.5
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP TRUST III
(Exact name of obligor as specified in its Trust Agreeement)
DELAWARE
(State or other jurisdiction of incorporation or organization)
TO BE APPLIED FOR
(I.R.S. Employer Identification No.)
C/O IDACORP, INC.
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligors principal executive offices)
PREFERRED SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.6
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP, INC.
(Exact name of obligor as specified in charter)
IDAHO
(State or other jurisdiction of incorporation or organization)
82-0505802
(I.R.S. Employer Identification No.)
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligor's principal executive offices)
GUARANTEE OF PREFERRED SECURITIES OF IDACORP TRUST I
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.7
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP, INC.
(Exact name of obligor as specified in charter)
IDAHO
(State or other jurisdiction of incorporation or organization)
82-0505802
(I.R.S. Employer Identification No.)
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligor's principal executive offices)
GUARANTEE OF PREFERRED SECURITIES OF IDACORP TRUST II
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.8
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
- ------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
IDACORP, INC.
(Exact name of obligor as specified in charter)
IDAHO
(State or other jurisdiction of incorporation or organization)
82-0505802
(I.R.S. Employer Identification No.)
1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388 2200
(Address, including zip code, and telephone number, including area code, of
obligor's principal executive offices)
GUARANTEE OF PREFERRED SECURITIES OF IDACORP TRUST III
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed
with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment
of the Organization Certificate of Bankers Trust Company dated June 19, 1997,
copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
- -2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
- -3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29 day of
September, 1998.
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
--------------------------------
Vincent Chorney
Assistant Vice President
- -4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York, this 27th day of June in the Year of our Lord one thousand nine
hundred and ninety-seven.
Manuel Kursky
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One
Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a
par value of $10 each designated as Common Stock and 600 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have
is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par
value of $10 each designated as Common Stock and 1000 shares with a par value of
One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
<PAGE>
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
<PAGE>
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
<PAGE>
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
<PAGE>
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc Parilla, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
--------------------------
ASSISTANT TREASURER
DATED: September 29, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
_______________
( C400 (
Dollar Amounts in Thousands ( RCFD
Bil Mil Thou (
ASSETS ( / / / / / / / / / / /
/ / / / / / / (
1. Cash and balances due from depository institutions (from Schedule RC-A):
( / / / / / / / / / / / / / / / / / / (
a. Noninterest-bearing balances and currency and coin (1)
............................... ( 0081 1,868,000 (1.a.
b. Interest-bearing balances (2)
..........................................................................
( 0071 2,041,000 (1.b.
2. Securities: ( / / / / / / / / /
/ / / / / / / / / (
a. Held-to-maturity securities (from Schedule RC-B, column A)
....................... ( 1754 0
(2.a.
b. Available-for-sale securities (from Schedule RC-B, column
D)...................... ( 1773 7,419,000 (2.b.
3. Federal funds sold and securities purchased under agreements to
resell................. ( 1350 41,837,000(3.
4. Loans and lease financing receivables:
( / / / / / / / / / / / / / / / / / / (
a. Loans and leases, net of unearned income (from Schedule RC-C)
RCFD 2122 20,707,000 ( / / / / / / / / / / / / / / / / / / (4.a.
b. LESS: Allowance for loan and lease
losses.................................... ..RCFD 3123 629,000 ( /
/ / / / / / / / / / / / / / / / / (4.b.
c. LESS: Allocated transfer risk reserve
............................................ ..RCFD 3128 0
( / / / / / / / / / / / / / / / / / / (4.c.
d. Loans and leases, net of unearned income,
( / / / / / / / / / / / / / / / / / / (
allowance, and reserve (item 4.a minus 4.b and 4.c)
............................................ ( 2125
20,078,000 (4.d.
5. Trading Assets (from schedule RC-D)
................................................................................
( 3545 49,665,000 (5.
6. Premises and fixed assets (including capitalized leases)
............................................ ( 2145
848,000 (6.
<PAGE>
7. Other real estate owned (from Schedule RC-M)
.......................................................
( 2150 180,000 (7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) ( 2130 92,000 (8.
9. Customers' liability to this bank on acceptances outstanding
.................................. ( 2155
512,000 (9.
10. Intangible assets (from Schedule RC-M)
.................................................................
( 2143 270,000 (10.
11. Other assets (from Schedule RC-F)
..........................................................................
( 2160 6,442,000 (11.
12. Total assets (sum of items 1 through 11)
.................................................................
( 2170 131,252,000 (12.
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK:
36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: ( 0 ( 0 ( 6 ( 2 ( 3
Schedule RC--Continued
____________________________
Dollar Amounts in Thousands ( / / / / / /
/ / Bil Mil Thou _(
LIABILITIES ( / / / / / / / / / / / /
/ / / / / / / / / / / / (
13. Deposits: ( / / / / / / / / /
/ / / / / / / / / / / / / / (
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I)
(RCON 2200 26,791,000(13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 3,362,000.........
( / / / / / / / / / / / / / / / / / / / (13.a.(1)
(2) Interest-bearing ..................RCON 6636 23,429,000.......
( / / / / / / / / / / / / / / / / / / / (13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E
( / / / / / / / / / / / / / / / / / / / / / (
part II) ( RCFN 2200
22,089,000 (13.b.
(1) Noninterest-bearing ...............RCFN 6631 1,810,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(1)
(2) Interest-bearing ..................RCFN 6636 20,279,000
( / / / / / / / / / / / / / / / / / / / / / / / (13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase
(RCFD 2800 19,274,000 (14.
15. a. Demand notes issued to the U.S. Treasury...........................
( RCON 2840 0 (15.a.
b. Trading liabilities (from Schedule RC-D).........................
( RCFD 3548 30,729,000 (15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
( / / / / / / / / / / / / / / / / / / / / / / / (
a. With a remaining maturity of one year or less....................
( RCFD 2332 7,891,000 (16.a.
b. With a remaining maturity of more than one year through three years
( A547 3,576,000 (16.b.
c. With a remaining maturity of more than three years................
( A548 2,872,000 (16.c
17. Not Applicable.
( / / / / / / / / / / / / / / / / / / / / / / / / / (17.
18. Bank's liability on acceptances executed and outstanding...............
( RCFD 2920 512,000 (18.
19. Subordinated notes and debentures (2)................................
( RCFD 3200 1,534,000 (19.
20. Other liabilities (from Schedule RC-G)...............................
( RCFD 2930 9,202,000 (20.
21. Total liabilities (sum of items 13 through 20).......................
( RCFD 2948 124,470,000 (21.
<PAGE>
22. Not Applicable ( / / / / / / / / / / / / / /
/ / / / / / / / / / / (22.
EQUITY CAPITAL ( / / / / / / / / / / /
/ / / / / / / / / / / / (
23. Perpetual preferred stock and related surplus...................
(RCFD 3838 1,000,000(23.
24. Common stock ...................................................
(RCFD 3230 2,001,000(24.
25. Surplus (exclude all surplus related to preferred stock)........
( RCFD 3839 540,000(25.
26. a. Undivided profits and capital reserves.....................
(RCFD 3632 3,693,000(26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities .......................................
(RCFD 8434 ( 71,000)(26.b.
27. Cumulative foreign currency translation adjustments.............
(RCFD 3284 ( 381,000)(27.
28. Total equity capital (sum of items 23 through 27)...............
(RCFD 3210 6,782,000(28.
29. Total liabilities and equity capital (sum of items 21 and 28)...
(RCFD 3300 131,252,000(29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
____________________ Number
auditors as of any date during 1997.......................................(
(RCFD 6724 N/A ( M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
