<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IDAHO POWER COMPANY
(Exact name of registrant as specified in its charter)
IDAHO 82-0130980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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1221 WEST IDAHO STREET
BOISE, IDAHO 83702-5627
(208) 388-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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<TABLE>
<S> <C> <C>
JAN B. PACKWOOD J. LAMONT KEEN ROBERT W. STAHMAN, ESQ.
President Senior Vice President-Administration and Vice President, General Counsel
and Chief Executive Officer Chief Financial Officer and Secretary
Idaho Power Company Idaho Power Company Idaho Power Company
1221 West Idaho Street 1221 West Idaho Street 1221 West Idaho Street
Boise, Idaho 83702-5627 Boise, Idaho 83702-5627 Boise, Idaho 83702-5627
(208) 388-2200 (208) 388-2200 (208) 388-2200
</TABLE>
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
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COPIES TO:
ELIZABETH W. POWERS, ESQ.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
(212) 424-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE 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. / /
<PAGE>
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, 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>
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Proposed
Proposed maximum
Title of each class of securities Amount to be maximum offering aggregate offering Amount of
to be registered (1) registered (1) (2) price per unit (3) price (2) (3) registration fee (3)
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<S> <C> <C> <C> <C>
First Mortgage Bonds
Serial Preferred Stock,
without par value
Debt Securities
Total.................. $200,000,000 100% $200,000,000 $52,800
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</TABLE>
(1) Such indeterminate number or amount of first mortgage bonds, serial
preferred stock and debt securities of Idaho Power Company as may
from time to time be issued at indeterminate prices. Securities
registered hereunder 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 $200,000,000.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
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.
Pursuant to Rule 429, the prospectus filed as part of this
registration statement is being filed as a combined prospectus in connection
with this registration statement and registration statement File No. 33- 51215.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
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 OF 1933 OR UNTIL THIS 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>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
Subject to Completion, Dated March 23, 2000
PROSPECTUS
$200,000,000
IDAHO POWER COMPANY
First Mortgage Bonds
Serial Preferred Stock,
Without Par Value
Debt Securities
We may offer from time to time, in one or more series:
- our first mortgage bonds
- our serial preferred stock, without par value, and
- our unsecured debt securities.
We may offer these securities in any combination in one or more
offerings up to a total amount of $200,000,000. This prospectus provides you
with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
this prospectus and any supplements carefully before you invest.
We may offer these securities directly or through underwriters, agents
or dealers, as described in the "Plan of Distribution". The supplements to this
prospectus will describe the terms of any particular plan of distribution,
including any underwriting arrangements.
Our principal executive offices are located at 1221 West Idaho Street,
Boise, Idaho 83702-5627, and our telephone number is (208) 388-2200.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________, 2000.
<PAGE>
ABOUT IDAHO POWER COMPANY
We are an electric public utility incorporated in Idaho in 1989. Our
company began operations in 1915, as a Maine corporation. In 1998, we
reorganized into a holding company structure and became the principal subsidiary
of IDACORP, Inc. IDACORP owns all of our outstanding common stock.
We are engaged in the generation, purchase, transmission, distribution
and sale of electric energy. Our service territory covers an approximate
20,000-square-mile area in southern Idaho, eastern Oregon and northern Nevada,
with an estimated population of 793,600. As of December 31, 1999, we supplied
electric energy to 384,440 general business customers.
FORWARD-LOOKING INFORMATION
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, we are hereby filing cautionary statements. These
cautionary statements identify important factors that could cause our actual
results to differ materially from those projected in forward-looking statements
made in this prospectus or any prospectus supplement, in presentations, in
response to questions or otherwise. Any statements that express, or involve
discussions as to, expectations, beliefs, plans, objectives, assumptions or
future events or performance are not statements of historical facts and may be
forward-looking. These statements often, but not always, use words or phrases
such as "anticipates", "believes", "estimates", "expects", "intends", "plans",
"predicts", "projects", "will likely result", "will continue" or similar
expressions. Forward-looking statements involve estimates, assumptions and
uncertainties and are qualified in their entirety by reference to, and are
accompanied by, the following important factors. These factors are difficult to
predict, contain uncertainties, are beyond our control and may cause actual
results to differ materially from those contained in forward-looking statements:
- prevailing governmental policies and regulatory actions,
including those of the Federal Energy Regulatory
Commission, the Idaho Public Utilities Commission, the
Oregon Public Utility Commission and the Public Utilities
Commission of Nevada, with respect to allowed rates of
return, industry and rate structure, acquisition and
disposition of assets and facilities, operations and
construction of plant facilities, recovery of purchased
power and other capital investments, and present or
prospective wholesale and retail competition, including
but not limited to retail wheeling and transmission costs
- economic and geographic factors including political and
economic risks
- changes in and compliance with environmental and safety
laws and policies
- weather conditions
- competition for retail and wholesale customers
- pricing and transportation of commodities
- year 2000
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- market demand, including structural market changes
- changes in tax rates or policies or in rates of inflation
- changes in project costs
- unanticipated changes in operating expenses and capital
expenditures
- capital market conditions
- competition for new energy development opportunities and
- legal and administrative proceedings, whether civil or
criminal, and settlements that influence our business and
profitability.
Any forward-looking statement speaks only as of the date on which we
make the statement. We undertake no obligation to update any forward-looking
statements to reflect events or circumstances after the date on which we make
the statement or to reflect the occurrence of unanticipated events. New factors
emerge from time to time; we cannot predict all factors or assess the impact of
all factors on our business, or the extent to which any factor, or combination
of factors, may cause results to differ materially from those contained in any
forward-looking statement.
DESCRIPTION OF THE FIRST MORTGAGE BONDS
GENERAL. We will issue the first mortgage bonds offered in this
prospectus under our Indenture of Mortgage and Deed of Trust, dated as of
October 1, 1937. Bankers Trust Company is the corporate trustee, and Stanley
Burg serves as individual trustee. We have amended and supplemented this
indenture in the past and will supplement it again by one or more supplemental
indentures relating to these first mortgage bonds.
This section briefly summarizes some of the provisions of the indenture
and uses some terms that are not defined in this prospectus but that are defined
in the indenture. This summary is not complete. The indenture is on file with
the Securities and Exchange Commission, and we have incorporated it by reference
in this prospectus. You should read the indenture for a complete understanding
of its provisions and for the definitions of some terms used in this summary.
We issue bonds in series. Each series of bonds may have different
terms. We will include all of the following information about a specific series
of bonds in the prospectus supplement relating to those bonds:
- the designation and series of the bonds
- the aggregate principal amount of the bonds
- the offering price of the bonds
- the date or dates on which the bonds will mature
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<PAGE>
- the interest rate or rates for the bonds, or how we will
determine the interest rate or rates
- the dates on which we will pay the interest on the bonds
- the denominations in which we may issue the bonds
- the terms pursuant to which we may redeem the bonds, if
any
- whether we will issue all or a portion of the bonds in
global form and
- any other terms or provisions relating to the bonds that
are not inconsistent with the provisions of the indenture.
FORM AND EXCHANGE. Unless we state otherwise in the prospectus
supplement:
- we will issue the bonds in fully registered form without
coupons
- a holder of bonds may exchange bonds, without charge, for
an equal aggregate principal amount of bonds of the same
series, having the same issue date and with identical
terms and provisions and
- a holder of bonds may transfer bonds, without charge,
other than applicable stamp taxes or other governmental
charges.
We may issue all or some of the bonds in book-entry form, which means
that global notes, not certificates, will represent the bonds. If we issue
global notes representing any bonds, then a depository that we select will keep
a record of the beneficial interests in the global notes and record any
transfers of beneficial interests.
We will describe any additional requirements as to the form and
method of exchange of bonds in the prospectus supplement.
INTEREST AND PAYMENT. We will pay principal, premium, if any, and
interest in U.S. dollars at Bankers Trust Company in New York City, and, at our
option, at our office in Boise, Idaho.
MAINTENANCE REQUIREMENTS. We will file a certificate with the corporate
trustee within 90 days after the close of each calendar year stating that:
- we have made the necessary expenditures to maintain our
property in good condition as an operating system or
- we will designate an additional amount that should be
spent for this purpose.
If we designate an additional amount, we must deliver to the corporate trustee,
within 30 days, cash equal to that amount less the following deductions:
- expenditures made after the close of the year to maintain
the property and
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<PAGE>
- any allowances for waiver of our right to issue additional
bonds under the indenture.
INDENTURE, SECTION 38
We may withdraw this cash for reimbursement for later expenditures on:
- property maintenance, repairs, renewals and replacements
- waiver of our right to issue additional bonds under the
indenture or
- the purchase or redemption of bonds of any series, unless a
supplemental indenture provides otherwise for a particular
series of bonds.
We must spend or appropriate 15% of our annual gross operating revenues for
maintenance, retirement or amortization of our properties. We may, however,
anticipate or make up these expenditures or appropriations within the five years
that immediately follow or precede a particular year. INDENTURE, SECTION 38;
SECOND SUPPLEMENTAL, SECTION 15
IMPROVEMENT OR SINKING FUND. The sinking or improvement fund
requirement no longer applies to any series, including bonds issued under this
prospectus. TWENTY-SEVENTH SUPPLEMENTAL, SECTION 14
SECURITY. The indenture secures all bonds issued under the indenture
equally and ratably, without preference, priority or distinction. We may issue
additional first mortgage bonds in the future, and those first mortgage bonds
will also be secured by the indenture. In the opinion of our general counsel,
the lien of the indenture constitutes a first mortgage on all the properties
that we own, except as discussed below, subject only to liens for taxes and
assessments that are not delinquent and minor excepted encumbrances. Certain of
our properties are subject to easements, leases, contracts, covenants,
compensation awards and similar encumbrances and minor defects and clouds common
to properties. In the opinion of our general counsel, none of these interferes
with our operations.
The indenture does not create a lien on the following excepted
property:
- revenues or profits, or notes or accounts receivable,
contracts or choses in action, except as permitted by law
during a completed default
- securities or cash, except when pledged
- merchandise or equipment manufactured or acquired for resale.
The indenture creates a lien on our interest in property that we
subsequently acquire other than excepted property, subject to limitations in the
case of consolidation, merger or sale of substantially all our assets.
INDENTURE, SECTION 87 We have covenanted to execute and deliver instruments that
are necessary to carry out the purposes of the indenture and to create a lien on
after-acquired property that the indenture covers. GRANTING CLAUSES
The indenture does not contain any covenants or other provisions to
provide holders of the first mortgage bonds special protection in the event of a
highly-leveraged transaction.
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<PAGE>
ISSUANCE OF ADDITIONAL BONDS. The indenture limits the aggregate
principal amount of bonds at any one time outstanding to $900 million. We may
amend the indenture and increase this amount without consent of the holders of
first mortgage bonds. INDENTURE, SECTIONS 22 AND 121; TWENTY-SIXTH SUPPLEMENTAL,
ARTICLE IV The indenture contains some restrictions on increasing the amount of
prior lien bonds. INDENTURE, SECTION 46
We may issue additional bonds that rank equally with the bonds in
principal amount equal to:
- 60% of the cost or fair value, whichever is less, of property
additions made after December 31, 1943, less the amount of
prior lien bonds thereon INDENTURE, ARTICLE V
- the principal amount of first mortgage bonds or prior lien
bonds referred to above, retired or then to be retired
INDENTURE, ARTICLES V AND VI
or
- the amount of cash that we deposit with the corporate trustee
for the purpose, which we may withdraw on the same basis as
bonds may be issued INDENTURE, ARTICLE VII.
We may not issue bonds as provided above, with certain exceptions,
unless we meet a net earnings requirement. Generally, the indenture requires
that our net earnings must be at least twice the annual interest requirements on
all outstanding debt of equal or prior rank, including the bonds that we propose
to issue. Under certain circumstances, the net earnings test does not apply,
including the issuance of refunding bonds to retire outstanding bonds which
mature in less than two years or which are of an equal or higher interest rate,
or prior lien bonds.
We calculate net earnings before deduction of:
- property retirement expenses, depreciation or depletion
- interest expense on indebtedness
- amortization of debt discount and expense and
- any taxes measured by or dependent on net income
We may include only a limited amount of revenue from property not subject to the
lien of the indenture in net earnings. INDENTURE, SECTION 7
Property additions consist of electric or gas property, or property
used in connection therewith. Property additions exclude securities, contracts,
merchandise and equipment for consumption or resale, materials and supplies,
property used principally for production or gathering of natural gas, or any
power sites and uncompleted works under Idaho state permits. In determining net
property additions, we deduct all retired funded property from gross property
additions except to the extent of certain credits respecting released funded
property. INDENTURE, SECTION 4 The indenture restricts issuance of bonds based
on property additions that are subject to prior liens to no more than 15% of all
bonds
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<PAGE>
outstanding. However, the prior liens must not exceed 50% of the cost or fair
value, whichever is less, of these property additions. INDENTURE, SECTION 26
As of January 31, 2000, we could issue under the indenture
approximately $800 million of additional first mortgage bonds based on unfunded
property additions and $110 million of additional first mortgage bonds based on
retired first mortgage bonds.
We estimate that at January 31, 2000, unfunded property additions were
approximately $1.3 billion.
RELEASE OF PROPERTIES. Generally, we may release property from the lien
of the indenture by doing the following:
- depositing cash with the corporate trustee
- substituting property additions or
- waiving our right to issue additional bonds on the basis of
retired bond credits, without application of the net earnings
test.
INDENTURE, SECTION 59
AMENDMENT OF THE INDENTURE. Generally we may modify or amend the
indenture with the consent of the holders of 75% in principal amount of all
outstanding first mortgage bonds. However, when an amendment does not affect all
series of first mortgage bonds, holders of 75% of the principal amount of all
outstanding first mortgage bonds of each series affected must also consent to
the amendment.
We have reserved the right to amend the indenture without consent of
the holders of any series of first mortgage bonds created after May 1, 1978,
including bonds to be issued under this prospectus, to change the percentage
required above for amendments from 75% to 60%.
In most cases, unless the bondholder consents, we cannot make the
following modifications:
- extend the maturity of the bond
- reduce the interest rate
- create any lien equal or prior to the lien of the indenture or
- deprive any bondholder of a lien upon the mortgaged property.
INDENTURE, SECTIONS 113, 121; TWENTY-THIRD SUPPLEMENTAL, SECTION 9
EVENTS OF DEFAULT. The following are defaults, sometimes called
completed defaults, under the indenture:
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- failure to pay the principal of any bond when due and payable
whether at maturity or otherwise
- failure to pay interest on any bond for 60 days
- failure to pay principal of or interest on any outstanding
prior lien bond
- failure to observe certain covenants concerning bankruptcy,
insolvency or receivership or
- failure to perform other covenants, agreements or conditions
contained in the indenture for 90 days after the corporate
trustee gives us notice.
INDENTURE, SECTION 65
MISCELLANEOUS. The indenture provides that the corporate trustee, upon
request of the holders of a majority in interest of the outstanding first
mortgage bonds, if properly indemnified to its satisfaction, must take action to
enforce the lien of the indenture. INDENTURE, SECTION 92; SIXTH SUPPLEMENTAL,
ARTICLE XXIII
We covenant in the indenture to deliver a certificate to the trustee
annually, within 90 days after the close of the fiscal year, to show that we are
in compliance with the terms of the indenture and that we have not defaulted
under the indenture. TWENTY-SIXTH SUPPLEMENTAL, SECTION 8; THIRTY-THIRD
SUPPLEMENTAL, SECTION 8
DESCRIPTION OF THE NEW PREFERRED STOCK
GENERAL. Our charter authorizes us to issue the following capital
stock:
- 50,000,000 shares of common stock, par value $2.50 per share
- 215,000 shares of 4% preferred stock, par value $100 per share
- 150,000 shares of serial preferred stock, par value $100 per
share and
- 3,000,000 shares of serial preferred stock, without par value.
In this section, we summarize certain rights and privileges of the new
preferred stock, which is part of the serial preferred stock, without par value.
Our description outlines these provisions in general terms. For a fuller
understanding of these provisions, you should read our charter which is on file
with the Securities and Exchange Commission and incorporated by reference in
this prospectus. We also refer you to Idaho corporate law.
We issue preferred stock in series. Some terms of a series may differ
from those of another series. The prospectus supplement will describe the terms
for each series. The board of directors will also describe these terms in a
statement of resolution establishing the series. We will file this statement of
resolution with the Secretary of State of Idaho and with the Securities and
Exchange
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<PAGE>
Commission. You should read this document to understand the terms of the
preferred stock more fully.
The terms of the preferred stock will include any of the following that
apply to the series:
- the title of the series of new preferred stock
- the number of shares in the series
- the dividend rate or rates or how we will determine the rate
or rates and the dividend payment dates
- whether we will list the series on a national securities
exchange
- the date or dates, if any, on which we MUSt redeem the series
of new preferred stock or MAY redeem it at our option and any
restrictions on such redemptions
- any sinking fund or other provisions which obligate us to
repurchase all or any part of the series of new preferred
stock
- the amount we must pay on the series in case of our
liquidation, dissolution or winding up
- the voting rights, if any, of the series.
DIVIDEND RIGHTS. Each series of the new preferred stock will be
entitled to dividends only when and as declared by our board of directors. These
dividends are cumulative. The new preferred stock will rank prior to the common
stock and equally with the preferred stocks of all series as to dividends.
The charter requires the board of directors to pay dividends, or
declare and set dividends apart for payment, on the outstanding serial preferred
stock, without par value, and the serial preferred stock, $100 par value, for
each dividend period during or for which dividends have been paid, or declared
and set apart for payment, on the 4% Preferred Stock. The charter also requires
that dividends not be paid, or declared and set apart for payment, on any
outstanding series of the serial preferred stock, without par value, or serial
preferred stock, $100 par value, unless dividends are paid, or declared and set
apart for payment, upon all of the outstanding preferred stocks for all dividend
periods terminating on the same or an earlier date.
LIQUIDATION RIGHTS. Upon our dissolution or liquidation, we must pay
amounts due to holders of the preferred stocks before we distribute any assets
to holders of common stock. These amounts consist of the full par value or
stated value of the preferred stock, plus any accumulated and unpaid dividends.
VOTING RIGHTS. Except as we specify below, the capital stock has the
following voting rights:
- each share of 4% preferred stock has 20 votes
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- the serial preferred stock, $100 par value, and the serial
preferred stock, without par value, have the voting rights, if
any, that the board of directors gives them and
- the common stock has one vote per share.
Shareholders cannot cumulate votes when they elect directors.
If we have cumulated but not paid dividends on the 4% preferred stock
in an amount equivalent to four or more quarters, these shareholders are
entitled at each succeeding annual meeting of shareholders to elect a majority
of the board of directors until we eliminate the unpaid dividends. All
shareholders entitled to vote without distinction as to class elect the
remaining directors. This right is subject to the rights of holders of the
serial preferred stock, without par value, discussed below.
If we have cumulated but not paid dividends on the serial preferred
stock, without par value, in an amount equivalent to six or more quarters, these
shareholders are entitled at each succeeding annual meeting of shareholders to
elect two directors until we eliminate the unpaid dividends. The two directors
are elected from those directors who would otherwise be elected by the
shareholders without distinction as to class. All shareholders entitled to vote
without distinction as to class elect the remaining directors, subject to the
rights of holders of 4% preferred stock discussed above.
Our charter and the laws of Idaho may also give preferred shareholders
special voting rights in certain matters, such as the following:
- approving certain mergers
- amending the terms of the preferred stocks
- creating new stock that is prior or equal to the preferred
stocks or
- issuing additional preferred stocks, under certain
circumstances.
The charter contains special voting provisions concerning amendment or
repeal of certain sections of the charter.
The charter also contains requirements that we must meet if we
consummate a merger or certain other transactions with a shareholder who owns
10% or more of our outstanding voting stock. Unless two-thirds of our directors
meeting certain criteria specified in the charter, such as non-affiliation with
the shareholder, approve the business combination, we must meet:
- fair price requirements, described in the charter, and
- 80% of the shareholders entitled to vote must approve the
business combination.
Unless we meet an earnings test, the holders of 4% preferred stock and
of serial preferred stock, $100 par value, have the following voting rights when
we issue certain types of stock.
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As long as any shares of 4% preferred stock are outstanding, a majority
of holders of this stock must approve the following issuances:
- additional shares of 4% preferred stock and
- shares of stock of any class with relative rights and
preferences equal to or superior to those of the 4% preferred
stock with respect to:
- payment of dividends or
- distribution of assets in liquidation.
However, we may issue the stock without a vote if our gross income,
after deducting taxes and depreciation, for twelve consecutive months within the
fifteen months preceding the proposed transaction is 1 3/4 times the sum of our
annual interest and preferred dividend requirements.
As long as any shares of serial preferred stock, $100 par value, are
outstanding, a majority of holders of this stock must approve the following
issuances:
- additional shares of serial preferred stock, $100 par value,
and
- shares of stock of any class with relative rights and
preferences equal to or superior to those of the serial
preferred stock, $100 par value, with respect to:
- payment of dividends or
- distribution of assets in liquidation.
However, we may issue the stock without a vote if (1) we issue shares
to refinance preferred stock or (2) our gross income, after deducting taxes and
depreciation, for twelve consecutive months within the fifteen months preceding
the proposed transaction, is 1 1/2 times the sum of annual interest and
preferred dividend requirements.
THE BOARD. The board of directors consists of three classes. Each class
has, as nearly as possible, an equal number of directors who serve staggered
three-year terms. If cause exists, shareholders entitled to vote can remove a
director from office by a two-thirds vote. If cause does not exist, they must
vote unanimously to remove a director.
OTHER PROVISIONS. When issued and sold for its purchase price, the new
preferred stock will be fully paid and nonassessable and the holders will not be
liable for further calls or assessment. The new preferred stock will have no
subscription rights, conversion rights or preemptive rights.
Unless we state otherwise in the prospectus supplement, we have not
restricted our rights to repurchase or redeem the new preferred stock while
there is any arrearage in dividend payments or sinking fund installments on the
new preferred stock.
MISCELLANEOUS. We are the transfer agent and registrar for the new
preferred stock.
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DESCRIPTION OF DEBT SECURITIES
GENERAL. We will issue the debt securities offered in this prospectus
under a debt securities indenture. We will indicate the trustee under this
indenture in the prospectus supplement. We may amend and supplement this
indenture and will supplement it by one or more supplemental indentures relating
to these debt securities.
This section briefly summarizes certain of the provisions of the debt
securities indenture and uses some terms that are not defined in this prospectus
but that are defined in the indenture. This summary is not complete. The form of
the indenture is on file with the Securities and Exchange Commission, and we
have incorporated it by reference in this prospectus. You should read the
indenture for a complete understanding of its provisions and for the definition
of some terms used in this summary. In the summary below, we have included
references to section numbers of the indenture so that you can easily locate
these provisions.
The debt securities that we may issue under this indenture will be
unsecured. The indenture does not limit the amount of debt securities that we
may issue; it does not restrict the amount or type of other debt that we may
issue or contain any other provisions that would afford holders of the debt
securities protection in the event of a highly leveraged transaction. We may use
other indentures or documentation containing provisions different from those
included in the indenture under which we are offering these debt securities in
connection with future issues of debt securities. We may also offer our first
mortgage bonds, which are secured indebtedness and which are described above
under the caption "Description of the First Mortgage Bonds". As of January 31,
2000, there were $557 million in aggregate principal amount of our first
mortgage bonds outstanding.
The debt securities that we are offering in this prospectus will rank
as equal in right of payment to our other unsecured indebtedness that is
outstanding now or that we may issue in the future, except for any indebtedness
that, by its terms, is subordinate to these debt securities.
We will issue debt securities in series. Each series of debt securities
may have different terms and, in some cases, debt securities of the same series
may have different terms. The prospectus supplement relating to a particular
series of debt securities will contain the following information about those
debt securities:
- the title of the series
- any limit on the aggregate principal amount of the series
- the date or dates on which we will issue the debt securities
of that series and on which we will pay the principal amount
and any premium
- the rate or rates at which the debt securities of that series
will bear interest, or how we will determine the rate or rates
- the date or dates from which interest will accrue
- the dates on which we will pay interest on the debt securities
of that series and the regular record dates for the interest
payment dates
-12-
<PAGE>
- the place or places where we will pay the principal of,
premium, if any, and interest, if different from those we
describe in this prospectus
- any redemption terms, including mandatory redemption through a
sinking fund or otherwise, redemption at our option and
redemption at the option of the holder
- the denominations in which we will issue the debt securities
of that series, if other than denominations of $1,000 and any
integral multiple of $1,000
- the provisions for the satisfaction and discharge of the
indenture if different from those we describe in this
prospectus and
- any other terms of the debt securities of the series.
FORM AND EXCHANGE. Unless we state otherwise in the prospectus
supplement:
- we will issue the debt securities in fully registered form
without coupons
- a holder of debt securities may exchange debt securities,
without charge, for an equal aggregate principal amount of
debt securities of the same series, having the same issue date
and with identical terms and provisions and
- a holder of debt securities may transfer debt securities,
without charge, other than applicable stamp taxes or other
governmental charges.
Unless we state otherwise in the prospectus supplement, the transfer of
debt securities may be registered and exchanged at the corporate trust office of
the trustee, in New York, New York, as security registrar. We may change the
place for registration or transfer and exchange. We may designate one or more
additional places for registration and exchange, all at our discretion.
We are not required to execute or to provide for the registration of
transfer or exchange of any debt security
- during a period of 15 days prior to giving any notice of
redemption with respect to that debt security or
- that has been selected for redemption in whole or in part,
except the unredeemed portion of any debt security being
redeemed in part.
INDENTURE, SECTIONS 3.6 AND 4.2
We may issue all or some of the debt securities in book-entry form,
which means that global notes, not certificates, will represent the debt
securities. If we issue global notes representing any debt securities, then a
depository that we select will keep a record of the beneficial interests in the
global notes and record any transfers of beneficial interests.
We will describe any additional requirements as to the form and method
of exchange of debt securities in the prospectus supplement. INDENTURE, SECTION
3.1
-13-
<PAGE>
PAYMENT OF DEBT SECURITIES. Unless we state otherwise in the prospectus
supplement, we will pay interest on each debt security to the person in whose
name the debt security is registered as of the close of business on the regular
record date for that interest payment date. We will pay the interest due at
maturity to the person to whom principal is paid. If we have defaulted in the
payment of interest on any debt security, we may pay the defaulted interest to
the holder of the debt security as of the close of business on a special record
date that is not less than 10 days prior to the date we propose to pay the
defaulted interest. Notice of the special record date will be given by mail at
least 15 days before the special record date. We may also pay defaulted interest
in any other lawful manner permitted by requirements of any securities exchange
on which the debt security may be listed, if the trustee deems that manner of
payment practicable. INDENTURE, SECTION 3.8
Unless we state otherwise in the prospectus supplement, we will pay the
principal of and premium, if any, and interest at maturity at the corporate
trust office of the trustee, in New York, New York, as our paying agent. We may
change the place of payment. We may appoint one or more additional paying agents
and may remove any paying agent, all at our discretion. INDENTURE, SECTION 4.2
REDEMPTION. We will describe any terms for the optional or mandatory
redemption of a particular series of debt securities in the prospectus
supplement. Unless we state in the prospectus supplement that the debt
securities of that series are redeemable at the option of a holder, debt
securities will be redeemable only at our option. In order to exercise our right
to redeem any debt security, we must give the holder notice by mail at least 30
days prior to the date fixed for redemption. If we want to redeem fewer than all
the debt securities of a series, the trustee will choose the particular debt
securities to be redeemed by a method of random selection, substantially pro
rata, that the trustee believes is fair and appropriate and which complies with
the requirements of the principal national securities exchange, if any, on which
the debt securities of that series are listed. If the debt securities to be
redeemed have different terms and different maturities, we may select the
particular debt securities to be redeemed.
If we are redeeming the debt securities at our option, we may make the
redemption conditional upon the paying agent or agents receiving from us, on or
prior to the date fixed for redemption, enough money to redeem all of the debt
securities called for redemption, including accrued interest, if any. If
sufficient money has not been received, the notice will not be effective and we
will not be required to redeem the debt securities. INDENTURE, SECTION 14.2
CONSOLIDATION, MERGER OR SALE. The indenture provides that we will not
consolidate with, merge with or into any other corporation, whether or not we
are the surviving corporation, or sell, assign, transfer or lease all or
substantially all of our properties and assets as an entirety or substantially
as an entirety to any person or group of affiliated persons, in one transaction
or a series of related transactions, unless:
- the successor corporation, if we are not the surviving
corporation, is a corporation organized under the laws of the
United States or any state thereof or the District of Columbia
and expressly assumes in writing all of our obligations under
the outstanding debt securities and the indenture
-14-
<PAGE>
- immediately before and after giving effect to the transaction
or series of transactions, no event of default, and no
default, shall have occurred and be continuing and
- we deliver to the trustee an officer's certificate and an
opinion of counsel stating that the transaction and the
supplemental indenture comply with the indenture.
INDENTURE, ARTICLE NINE
EVENTS OF DEFAULT. The following are events of default with respect to
any series of debt securities:
- failure to pay the principal of, or premium, if any, on, any
debt security of that series when due and payable at maturity,
and upon redemption, but excluding any failure by us to
deposit money in connection with any redemption that is at our
option, and the time for payment has not been extended or
deferred
- failure to pay interest on any debt security of that series
when due and our failure continues for 30 days, and the time
for payment has not been extended or deferred
- failure to make a sinking fund payment when due with respect
to debt securities of that series
- failure to observe or perform any other covenant, warranty or
agreement contained in the debt securities of that series or
in the indenture (other than a covenant, agreement or warranty
included in the indenture solely for the benefit of another
series of debt securities), and our failure continues for 60
days after we have received written notice from the trustee or
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series;
- certain events relating to our bankruptcy, insolvency or
reorganization and
- any other event of default with respect to debt securities of
that series specified in the applicable prospectus supplement.
INDENTURE, SECTION 6.1
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 the indenture. Unless we cure the
default, the trustee is required to give notice of any default known to it
within ninety (90) days after the default has occurred (the term "default"
includes any event which after notice or passage of time or both would be an
event of default); except that, in the case of an event of default or default in
payment, the trustee is protected in withholding notice if and so long as the
board of directors, the executive committee or directors or responsible officers
of the trustee in good faith determine that the withholding of notice is in the
interest of the holders. INDENTURE, SECTION 6.11
If an event of default with respect to debt securities of any series,
other than due to events of bankruptcy, insolvency or reorganization, occurs and
is continuing, the trustee or the holders of at
-15-
<PAGE>
least 25% in aggregate principal amount of the outstanding debt securities of
that series, by notice in writing to us, and to the trustee if given by the
holders, may declare the unpaid principal of and accrued interest to the date of
acceleration on all the outstanding debt securities of that series to be due and
payable immediately. The holders of a majority of the principal amount of the
outstanding debt securities of that series, upon the conditions provided in the
indenture, may rescind an acceleration and its consequences with respect to that
series.
If an event of default occurs due to bankruptcy, insolvency or
reorganization, all unpaid principal of and accrued interest on the outstanding
debt securities of all series will become immediately due and payable without
any declaration or other act on the part of the trustee or any holder.
INDENTURE, SECTION 6.2
The holders of a majority in principal amount of the outstanding debt
securities of any series will 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 debt
securities of that series. INDENTURE, SECTION 6.9.
Subject to the provisions of the indenture relating to the duties of
the trustee, if an event of default shall occur and be continuing, the trustee
will be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders, unless the holders
have offered to the trustee reasonable indemnity. INDENTURE, SECTION 7.2
The indenture provides that we must periodically file statements with
the trustee regarding compliance by us with all conditions and covenants
contained in the indenture. INDENTURE, SECTION 4.6
MODIFICATION OF INDENTURE. We may modify the indenture, without notice
to or the consent of any holders of debt securities, with respect to certain
matters, including:
- to add one or more covenants or other provisions for the
benefit of holders of debt securities of one or more series or
to surrender any of our rights or powers; and
- to cure any ambiguity, defect or inconsistency or to correct
or supplement any provision which may be inconsistent with any
other provision of the indenture.
INDENTURE, SECTION 10.1
In addition, we may modify certain of our rights and obligations and
the rights of holders of the debt securities with the consent of the holders of
at least a majority in aggregate principal amount of the outstanding debt
securities. INDENTURE, SECTION 10.2
No amendment or modification may, without the consent of each holder of
any outstanding debt security affected:
- change the stated maturity of any debt security
- reduce the principal amount of, or the rate of interest on, or
the amount of any premium on, or extend the time for payment
or change the method of calculating interest on, any debt
security, or extend the time for payment of those amounts or
-16-
<PAGE>
reduce the amount of principal of an original issue discount
security that would be due and payable upon acceleration of
maturity
- impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security
- reduce the percentage in principal amount of outstanding debt
securities of any series necessary to modify or amend the
indenture, or to waive compliance with certain provisions of
the indenture or defaults or events of default and their
consequences or
- subordinate any debt securities to any other of our
indebtedness.
INDENTURE, ARTICLE TEN
WAIVER. The holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of any series may waive any default or
event of default with respect to that series, except a default or event of
default in the payment of the principal of, or premium, if any, or any interest
or with respect of a provision which under the indenture cannot be modified or
amended without the consent of the holder of each outstanding debt securities of
that series. INDENTURE, SECTION 6.10
DEFEASANCE. Unless we state otherwise in the prospectus supplement
relating to the debt securities of a particular series, the indenture provides
that we shall be discharged from our obligations under the indenture with
respect to any series of debt securities at any time prior to the maturity date
or redemption of that series when
- we have irrevocably deposited with the trustee, in trust,
- sufficient funds to pay the principal of and premium,
if any, and interest to the maturity date or
redemption on, the debt securities of that series, or
- an 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 income thereon, be
sufficient to pay when due the principal of, and
premium, if any, and interest to the maturity date or
redemption on, the debt securities of that series,
and
- we have paid all other sums payable with respect to the debt
securities of that series.
Upon the discharge of the indenture with respect to a particular
series, the holders of debt securities of that series shall no longer be
entitled to the benefits of the indenture, except for purposes of registration
of transfer, exchange and replacement of lost, stolen or mutilated debt
securities. INDENTURE, SECTIONS 12.1 AND 12.3
CONCERNING THE TRUSTEE. We and our affiliates may conduct banking
transactions with the trustee in the normal course of business.
-17-
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
AND RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
Twelve Months Ended
-------------------------------------
December 31,
-------------------------------------
1995 1996 1997 1998 1999
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.......................... 3.32 3.42 3.18 3.23 3.26
Supplemental Ratio of Earnings to Fixed Charges(1).......... 3.22 3.32 3.10 3.14 3.17
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements.................... 2.73 2.83 2.83 2.84 2.89
Supplemental Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividend
Requirements(1).......................................... 2.67 2.77 2.76 2.78 2.82
</TABLE>
- --------------------
(1) Includes fixed charges related to our guaranty of the American Falls
Reservoir District long-term bonds and of the Milner Dam Inc. notes.
USE OF PROCEEDS
Unless we state otherwise in the prospectus supplement, we will add the
net proceeds from the sale of the securities to our general funds. We may use
our general funds for any of the following purposes:
- to acquire property
- to construct additional electric facilities
- to improve or maintain our service
- to redeem or purchase outstanding preferred stock and debt
securities and
- to repay short-term borrowings.
If we do not use the proceeds immediately, we may temporarily invest them in
short-term instruments.
PLAN OF DISTRIBUTION
We may sell the securities:
- through underwriters or dealers
- through agents or
- directly to a limited number of purchasers or to a single
purchaser.
THROUGH UNDERWRITERS OR DEALERS. If we use underwriters in the sale,
the underwriters will buy the securities for their own account. The underwriters
may resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of the sale. The underwriters may sell the securities directly or
through underwriting syndicates that managing underwriters represent. Unless we
state otherwise in the prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to
-18-
<PAGE>
certain conditions, and the underwriters will be obligated to purchase all of
the securities if they purchase any of them.
If we use a dealer in the sale, we will sell those securities to the
dealer as principal. The dealer may then resell the securities to the public at
varying prices determined at the time of resale.
Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
THROUGH AGENTS. We may from time to time designate one or more agents
to sell the securities. Unless we state otherwise in the prospectus supplement,
any agent will agree to use its best efforts to solicit purchases for the period
of its appointment.
DIRECTLY. We may sell the securities directly to one or more
purchasers. In this case, there will be no underwriters or agents.
GENERAL INFORMATION.
The prospectus supplement will state:
- the names of any underwriters, dealers or agents
- the terms of the securities offered
- the purchase price of the securities and the proceeds we will
receive from the sale
- any initial public offering price
- any underwriting discounts and other items constituting
underwriters' compensation and
- any discounts or concessions allowed or reallowed or paid to
dealers
We may authorize agents, underwriters or dealers to solicit offers from
certain institutions. We may sell the securities to these institutions for
delayed delivery at a specified date in the future. At that time, they will pay
the public offering price on the terms we describe in the prospectus supplement.
We may agree to indemnify underwriters, dealers and agents against
certain civil liabilities, including liabilities under the Securities Act of
1933.
WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
these reports at any of the facilities of the Securities and Exchange Commission
listed below:
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<PAGE>
<TABLE>
<CAPTION>
PUBLIC REFERENCE FACILITIES REGIONAL OFFICE REGIONAL OFFICE
- --------------------------- --------------- ---------------
<S> <C> <C>
450 Fifth Street, N.W. 500 W. Madison Street 7 World Trade Center
Washington, DC 20549 Suite 1400 Suite 1300
Chicago, IL 60661-2511 New York, NY 10048
</TABLE>
You may obtain copies of our filed reports from the SEC upon payment of
a duplicating fee. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference facilities. The SEC maintains an Internet site that
contains reports, proxy and information statements and other information about
issuers that file automatically. The address of that site is http://www.sec.gov.
This prospectus is part of a registration statement that we filed with
the SEC. This prospectus does not contain all information in, or exhibits to,
the registration statement. You may inspect the registration statement and
exhibits without charge at the SEC's office, 450 Fifth Street, N.W., Washington,
D.C. 20549, and you may obtain copies upon payment of a duplicating fee.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the following documents that we filed with the SEC (SEC file number
1-3198):
- Annual Report on Form 10-K for the year ended December 31,
1999 and
- All documents we file under Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 after the date of this
prospectus and before we terminate the offering.
We will provide to each person, including any beneficial owner, to whom
a prospectus is delivered, a copy of any or all of the information that has been
incorporated by reference in the prospectus but not delivered with the
prospectus. You may obtain a copy of any of these documents at no cost, by
written or oral request to us at the following address:
Shareowner Services
Idaho Power Company
1221 W. Idaho Street
Boise, ID 83702
Telephone 208-388-2200
LEGAL OPINIONS
LeBoeuf, Lamb, Greene & MacRae, L.L.P., New York, New York and Robert
W. Stahman, Vice President, General Counsel and Secretary for Idaho Power
Company, will pass upon the legality of the securities for Idaho Power Company.
Sullivan & Cromwell will pass upon the legality of the securities for any
underwriter, dealer or agent. LeBoeuf, Lamb, Greene & MacRae, L.L.P. and
Sullivan & Cromwell may, for matters governed by the laws of Idaho, rely upon
the opinion of Mr.
-20-
<PAGE>
Stahman. As of December 31, 1999, Mr. Stahman owned 21,806 shares of common
stock of IDACORP, Idaho Power's parent company. Mr. Stahman is acquiring
additional shares of IDACORP common stock at regular intervals through employee
stock plans.
EXPERTS
The financial statements and the related financial statement schedule
of Idaho Power Company incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K for the year ended December 31, 1999 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.
Robert W. Stahman, Vice President, General Counsel and Secretary of the
Company, has reviewed the statements under "Description of the First Mortgage
Bonds" relating to the lien of the indenture and the statements as to matters of
law and legal conclusions in the documents incorporated by reference. We make
these statements in reliance upon his opinion and authority as an expert.
----------------------------------------
-21-
<PAGE>
================================================================================
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with different information. We are offering
to sell securities and seeking offers to buy securities only in states where
offers and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
ABOUT IDAHO POWER COMPANY ....................................... 2
FORWARD-LOOKING INFORMATION ..................................... 2
DESCRIPTION OF THE FIRST
MORTGAGE BONDS ............................................. 3
DESCRIPTION OF THE NEW
PREFERRED STOCK ............................................ 8
DESCRIPTION OF DEBT SECURITIES .................................. 12
RATIOS OF EARNINGS TO FIXED CHARGES
AND RATIOS OF EARNINGS TO
COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND
REQUIREMENTS ............................................... 18
USE OF PROCEEDS ................................................. 19
PLAN OF DISTRIBUTION ............................................ 19
WHERE YOU CAN FIND MORE
INFORMATION ................................................ 20
INFORMATION INCORPORATED BY
REFERENCE .................................................. 20
LEGAL OPINIONS .................................................. 21
EXPERTS ......................................................... 21
</TABLE>
================================================================================
================================================================================
IDAHO POWER COMPANY
-------------
FIRST MORTGAGE BONDS
SERIAL PREFERRED STOCK,
WITHOUT PAR VALUE
DEBT SECURITIES
-------------
-------------
PROSPECTUS
-------------
___________, 2000
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses in connection
with the offering described in this Registration Statement:
<TABLE>
<S> <C>
Registration fee.................................. $ 52,800
Accountants' fees*................................ 30,000
Printing and engraving fees*...................... 30,000
Legal fees*....................................... 330,000
Indenture recording fees*(1)...................... 5,000
Trustee's fees*(1)................................ 28,000
Registrar fees*(2)................................ 10,000
Rating Agency fees*(1)............................ 50,000
Regulatory Agency fees*........................... 3,000
Blue Sky fees and expenses*....................... 10,000
Other*............................................ 1,200
--------
Total*.................... $550,000
========
</TABLE>
- ------------------
* Estimated
(1) Required only if securities are issued as first mortgage bonds or debt
securities.
(2) Required only if securities are issued as preferred stock.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 30-1-850 ET SEQ. of the Idaho Business Corporation Act provide
for indemnification of Idaho Power Company's directors and officers in a variety
of circumstances, which may include liabilities under the Securities Act of
1933, as amended.
Article 12 of Idaho Power Company's Restated Articles of Incorporation,
as amended, provides that Idaho Power 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 Idaho Power Company
provides that Idaho Power 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 Idaho Power Company may enter
into indemnification agreements with any director, officer, employee or agent to
the extent permitted under any applicable law.
II-1
<PAGE>
Pursuant to underwriting agreements filed or to be filed as exhibits to
the registration statement relating to underwritten offerings of securities, the
underwriters may agree to indemnify each officer and director of Idaho Power
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. Agency agreements may contain similar
agreements.
Idaho Power Company has liability insurance protecting its directors
and officers against liability by reason of their being or having been directors
or officers. The premium, payable solely by Idaho Power Company, is not
separately allocable to the sale of the securities registered hereby. In
addition, Idaho Power Company has entered into indemnification agreements with
its directors and officers to provide for indemnification to the maximum extent
permitted by law.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
1.1 -- The Underwriting Agreement for First
Mortgage Bonds 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 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.
1.3 -- The Underwriting Agreement for
Preferred Stock will be filed as an
exhibit to a Current Report on Form
8-K and incorporated herein by
reference.
*2 333-48031 2 -- Agreement and Plan of Exchange
between IDACORP, Inc. and Idaho
Power Company, dated as of
February 2, 1998.
*4.1 33-00440 4(a)(xiii) -- Restated Articles of Incorporation of
Idaho Power Company as filed with the
Secretary of State of Idaho on June 30,
1989.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
*4.2 33-65720 4(a)(ii) -- Statement of Resolution Establishing
Terms of Flexible Auction Series A,
Serial Preferred Stock, Without Par
Value (cumulative stated value of
$100,000 per share), as filed with the
Secretary of State of Idaho on
November 5, 1991.
*4.3 33-65720 4(a)(iii) -- Statement of Resolution Establishing
Terms of 7.07% Serial Preferred Stock,
Without Par Value (cumulative stated
value of $100 per share), as filed with
the Secretary of State of Idaho on June
30, 1993.
*4.4 33-56071 3(d) -- Articles of Share Exchange, as filed
with the Secretary of State of Idaho on
September 29, 1998.
4.5 -- Form of Resolution Establishing Terms
of New Preferred Stock will be filed as
an exhibit to a Current Report on Form
8-K and incorporated herein by
reference.
*4.6 33-41166 4(b) -- Waiver resolution to Restated Articles
of Incorporation of Idaho Power
Company adopted by Shareholders on
May 1, 1991.
*4.7 1-3198 Form 10-Q 3(c) -- By-laws of the Company amended on
for Quarter End September 9, 1999, and presently in
9/30/99 effect.
*4.8 2-3413 B-2 -- Mortgage and Deed of Trust, dated as
of October 1, 1937, between the
Company and Bankers Trust Company
and R.G. Page, as Trustees.
*4.9 -- Supplemental Indentures to Mortgage
and Deed of Trust:
</TABLE>
<TABLE>
<CAPTION>
NUMBER DATED
------ -----
<S> <C> <C> <C>
1-MD B-2-a First July 1, 1939
2-5395 7-a-3 Second November 15, 1943
2-7237 7-a-4 Third February 1, 1947
2-7502 7-a-5 Fourth May 1, 1948
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
NUMBER DATED
------ -----
<S> <C> <C> <C>
2-8398 7-a-6 Fifth November 1, 1949
2-8973 7-a-7 Sixth October 1, 1951
2-12941 2-C-8 Seventh January 1, 1957
2-13688 4-J Eighth July 15, 1957
2-13689 4-K Ninth November 15, 1957
2-14245 4-L Tenth April 1, 1958
2-14366 2-L Eleventh October 15, 1958
2-14935 4-N Twelfth May 15, 1959
2-18976 4-O Thirteenth November 15, 1960
2-18977 4-Q Fourteenth November 1, 1961
2-22988 4-B-16 Fifteenth September 15, 1964
2-24578 4-B-17 Sixteenth April 1, 1966
2-25479 4-B-18 Seventeenth October 1, 1966
2-45260 2(c) Eighteenth September 1, 1972
2-49854 2(c) Nineteenth January 15, 1974
2-51722 2(c)(i) Twentieth August 1, 1974
2-51722 2(c)(ii) Twenty-first October 15, 1974
2-57374 2(c) Twenty-second November 15, 1976
2-62035 2(c) Twenty-third August 15, 1978
33-34222 4(d)(iii) Twenty-fourth September 1, 1979
33-34222 4(d)(iv) Twenty-fifth November 1, 1981
33-34222 4(d)(v) Twenty-sixth May 1, 1982
33-34222 4(d)(vi) Twenty-seventh May 1, 1986
33-00440 4(c)(iv) Twenty-eighth June 30, 1989
33-34222 4(d)(vii) Twenty-ninth January 1, 1990
33-65720 4(d)(iii) Thirtieth January 1, 1991
33-65720 4(d)(iv) Thirty-first August 15, 1991
33-65720 4(d)(v) Thirty-second March 15, 1992
33-65720 4(d)(vi) Thirty-third April 1, 1993
1-3198 4 Thirty-fourth December 1, 1993
Form 8-K
dated 12/17/93
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
*4.10 1-3198 4(b) -- Instruments relating to Idaho Power
Form 10-K 10(c) Company American Falls bond
for 1998 guarantee.
*4.11 33-65720 4(f) -- Agreement of Idaho Power Company to
furnish certain debt instruments.
4.12 -- Form of Supplemental Indenture
relating to the First Mortgage Bonds.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
4.13 -- Form of Indenture for Debt Securities
between Idaho Power Company, and , as
Trustee. The form(s) of 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.
5.1 -- Opinion and consent of Robert W.
Stahman, Esq.
5.2 -- Opinion and consent of LeBoeuf, Lamb,
Greene & MacRae, L.L.P.
*12.1 1-3198 12(d) -- Computation of Idaho Power Company
Form 10-K for Year Ratios of Earnings to Fixed Charges.
End 12/31/99
*12.2 1-3198 12(e) -- Computation of Idaho Power Company
Form 10-K for Year Supplemental Ratios of Earnings to
End 12/31/99 Fixed Charges.
*12.3 1-3198 12(f) -- Computation of Idaho Power Company
Form 10-K for Year Ratios of Earnings to Combined Fixed
End 12/31/99 Charges and Preferred Stock Dividend
Requirements.
*12.4 1-3198 12(g) -- Computation of Idaho Power Company
Form 10-K for Year Supplemental Ratios of Earnings to
End 12/31/99 Combined Fixed Charges and Preferred
Stock Dividend Requirements.
23 -- Consent of Deloitte & Touche LLP.
24 -- Power of Attorney
(included on the 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 Mortgage and Deed of Trust
pursuant to which First Mortgage Bonds
may be issued.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
25.2 -- Form T-1, Statement of Eligibility
under the Trust Indenture Act of 1939
of the trustee under the Debt Securities
Indenture dated as of , pursuant
to which Debt Securities may be issued
will be filed as an exhibit to a Current
Report on Form 8-K and incorporated
herein by reference.
25.3 -- Form T-2, Statement of Eligibility
under the Trust Indenture Act of 1939
of Stanley Burg under the Mortgage and
Deed of Trust pursuant to which First
Mortgage Bonds may be issued.
</TABLE>
- ------------------
* Previously Filed and Incorporated Herein By Reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(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;
(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 Rule
424(b), 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;
II-6
<PAGE>
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
Securities Act of 1933, 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 be 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 purposes of determining any liability under the
Securities Act of 1933, 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 the registration statement shall be deemed to be
a new registration statement relating to the securities being
offered therein, 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 Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, 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 registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the questions 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-7
<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, State of Idaho, on the 22nd day of March,
2000.
IDAHO POWER COMPANY
By /s/ JAN B. PACKWOOD
---------------------------
Jan B. Packwood
President and Chief
Executive Officer
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 or dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ JON H. MILLER Chairman of the Board March 22, 2000
- -----------------------------------------
(Jon H. Miller)
/s/ JAN B. PACKWOOD President, Chief Executive Officer and March 22, 2000
- ----------------------------------------- Director
(Jan B. Packwood)
/s/ J. LAMONT KEEN Senior Vice President - Administration March 22, 2000
- ----------------------------------------- and Chief Financial Officer (Principal
(J. LaMont Keen) Financial Officer)
/s/ DARREL T. ANDERSON Vice President - Finance and Treasurer March 22, 2000
- ----------------------------------------- (Principal Accounting Officer)
(Darrel T. Anderson)
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ ROTCHFORD L. BARKER Director March 22, 2000
- -----------------------------------------
(Rotchford L. Barker)
/s/ ROBERT D. BOLINDER Director March 22, 2000
- -----------------------------------------
(Robert D. Bolinder)
/s/ ROGER L. BREEZLEY Director March 22, 2000
- -----------------------------------------
(Roger L. Breezley)
/s/ JOHN B. CARLEY Director March 22, 2000
- -----------------------------------------
(John B. Carley)
/s/ PETER T. JOHNSON Director March 22, 2000
- -----------------------------------------
(Peter T. Johnson)
/s/ JACK K. LEMLEY Director March 22, 2000
- -----------------------------------------
(Jack K. Lemley)
/s/ EVELYN LOVELESS Director March 22, 2000
- -----------------------------------------
(Evelyn Loveless)
/s/ PETER S. O'NEILL Director March 22, 2000
- -----------------------------------------
(Peter S. O'Neill)
/s/ ROBERT A. TINSTMAN Director March 22, 2000
- -----------------------------------------
(Robert A. Tinstman)
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
1.1 -- The Underwriting Agreement for First
Mortgage Bonds 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 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.
1.3 -- The Underwriting Agreement for
Preferred Stock will be filed as an
exhibit to a Current Report on Form
8-K and incorporated herein by
reference.
*2 333-48031 2 -- Agreement and Plan of Exchange,
between IDACORP, Inc. and Idaho
Power Company, dated as of
February 2, 1998.
*4.1 33-00440 4(a)(xiii) -- Restated Articles of Incorporation of
Idaho Power Company as filed with the
Secretary of State of Idaho on June 30,
1989.
*4.2 33-65720 4(a)(ii) -- Statement of Resolution Establishing
Terms of Flexible Auction Series A,
Serial Preferred Stock, Without Par
Value (cumulative stated value of
$100,000 per share), as filed with the
Secretary of State of Idaho on
November 5, 1991.
*4.3 33-65720 4(a)(iii) -- Statement of Resolution Establishing
Terms of 7.07% Serial Preferred Stock,
Without Par Value (cumulative stated
value of $100 per share), as filed with
the Secretary of State of Idaho on June
30, 1993.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
*4.4 33-56071 3(d) -- Articles of Share Exchange, as filed
with the Secretary of State of Idaho on
September 29, 1998.
4.5 -- Form of Resolution Establishing Terms
of New Preferred Stock will be filed as
an exhibit to a Current Report on Form
8-K and incorporated herein by
reference.
*4.6 33-41166 4(b) -- Waiver resolution to Restated Articles
of Incorporation of Idaho Power
Company adopted by Shareholders on
May 1, 1991.
*4.7 1-3198 Form 10-Q 3(c) -- By-laws of the Company amended on
for Quarter End September 9, 1999, and presently in
9/30/99 effect.
*4.8 2-3413 B-2 -- Mortgage and Deed of Trust, dated as
of October 1, 1937, between the
Company and Bankers Trust Company
and R.G. Page, as Trustees.
*4.9 -- Supplemental Indentures to Mortgage
and Deed of Trust:
</TABLE>
<TABLE>
<CAPTION>
NUMBER DATED
------ -----
<S> <C> <C> <C>
1-MD B-2-a First July 1, 1939
2-5395 7-a-3 Second November 15, 1943
2-7237 7-a-4 Third February 1, 1947
2-7502 7-a-5 Fourth May 1, 1948
2-8398 7-a-6 Fifth November 1, 1949
2-8973 7-a-7 Sixth October 1, 1951
2-12941 2-C-8 Seventh January 1, 1957
2-13688 4-J Eighth July 15, 1957
2-13689 4-K Ninth November 15, 1957
2-14245 4-L Tenth April 1, 1958
2-14366 2-L Eleventh October 15, 1958
2-14935 4-N Twelfth May 15, 1959
2-18976 4-O Thirteenth November 15, 1960
2-18977 4-Q Fourteenth November 1, 1961
2-22988 4-B-16 Fifteenth September 15, 1964
2-24578 4-B-17 Sixteenth April 1, 1966
2-25479 4-B-18 Seventeenth October 1, 1966
2-45260 2(c) Eighteenth September 1, 1972
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NUMBER DATED
------ -----
<S> <C> <C> <C>
2-49854 2(c) Nineteenth January 15, 1974
2-51762 2(c)(i) Twentieth August 1, 1974
2-51722 2(c)(ii) Twenty-first October 15, 1974
2-57374 2(c) Twenty-second November 15, 1976
2-62035 2(c) Twenty-third August 15, 1978
33-34222 4(d)(iii) Twenty-fourth September 1, 1979
33-34222 4(d)(iv) Twenty-fifth November 1, 1981
33-34222 4(d)(v) Twenty-sixth May 1, 1982
33-34222 4(d)(vi) Twenty-seventh May 1, 1986
33-00440 4(c)(iv) Twenty-eighth June 30, 1989
33-34222 4(d)(vii) Twenty-ninth January 1, 1990
33-65720 4(d)(iii) Thirtieth January 1, 1991
33-65720 4(d)(iv) Thirty-first August 15, 1991
33-65720 4(d)(v) Thirty-second March 15, 1992
33-65720 4(d)(vi) Thirty-third April 1, 1993
1-3198 4 Thirty-fourth December 1, 1993
Form 8-K
dated 12/17/93
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
*4.10 1-3198 4(b) -- Instruments relating to Idaho Power
Form 10-K 10(c) Company American Falls bond guarantee.
for 1998
*4.11 33-65720 4(f) -- Agreement of Idaho Power Company to
furnish certain debt instruments.
4.12 -- Form of Supplemental Indenture
relating to the First Mortgage Bonds.
4.13 -- Form of Indenture for Debt Securities
between Idaho Power Company, and
, as Trustee. The form(s) of 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.
5.1 -- Opinion and consent of Robert W. Stahman, Esq.
5.2 -- Opinion and consent of LeBoeuf, Lamb,
Greene & MacRae, L.L.P.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FILE NUMBER AS EXHIBIT
- ------- ----------- ----------
<S> <C> <C> <C>
*12.1 1-3198 12(d) -- Computation of Idaho Power Company
Form 10-K for Year Ratios of Earnings to Fixed Charges.
End 12/31/99
*12.2 1-3198 12(e) -- Computation of Idaho Power Company
Form 10-K for Year Supplemental Ratios of Earnings to
End 12/31/99 Fixed Charges.
*12.3 1-3198 12(f) -- Computation of Idaho Power Company
Form 10-K for Year Ratios of Earnings to Combined Fixed
End 12/31/99 Charges and Preferred Stock Dividend
Requirements.
*12.4 1-3198 12(g) -- Computation of Idaho Power Company
Form 10-K for Year Supplemental Ratios of Earnings to
End 12/31/99 Combined Fixed Charges and Preferred
Stock Dividend Requirements.
23 -- Consent of Deloitte & Touche LLP.
24 -- Power of Attorney
(included on the 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 Mortgage and Deed of Trust
pursuant to which First Mortgage Bonds
may be issued.
25.2 -- Form T-1, Statement of Eligibility
under the Trust Indenture Act of 1939
of the trustee under the Debt Securities
Indenture dated as of ,
pursuant to which Debt Securities may
be issued will be filed as an exhibit to a
Current Report on Form 8-K and
incorporated herein by reference.
25.3 -- Form T-2, Statement of Eligibility
under the Trust Indenture Act of 1939
of Stanley Burg under the Mortgage and
Deed of Trust pursuant to which First
Mortgage Bonds may be issued.
</TABLE>
- ------------------
* Previously Filed and Incorporated Herein By Reference.
II-13
<PAGE>
Exhibit 4.12
-----------------------------------------------------
IDAHO POWER COMPANY
TO
BANKERS TRUST COMPANY
AND
STANLEY BURG,
As Trustees under its Mortgage and Deed of Trust
dated as of October 1, 1937.
---------------
_______________ Supplemental Indenture
providing among other things for Bonds of __________ Series
Dated as of __________, 200_
-----------------------------------------------------
<PAGE>
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
Page
<S> <C>
Parties and Recitals....................................................................
Granting Clause and Property Description................................................
DESCRIPTION OF BONDS OF __________ SERIES
Section 1. General terms and redemption provisions......................................
Section 2. Exchange and transfers of Bonds..............................................
Section 3. Form of Bonds................................................................
Section 4. Temporary Bonds..............................................................
ISSUE OF BONDS OF __________ SERIES
Section 5. Issue of Bonds...............................................................
COVENANTS
Section 6. Application of Original Indenture............................................
Section 7. Lawful ownership.............................................................
Section 8. Annual certificate as to defaults............................................
THE TRUSTEES
Acceptance of trust.....................................................................
Recitals deemed made by the Company.....................................................
MISCELLANEOUS PROVISIONS
Meanings of terms.......................................................................
Ratification and Confirmation...........................................................
Counterparts............................................................................
Testimonium.............................................................................
Signatures and seals....................................................................
Acknowledgments.........................................................................
Affidavits..............................................................................
</TABLE>
- ---------------------
(1) This table of contents shall not have any bearing upon the
interpretation of this Supplemental Indenture.
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of the _____ day of
__________, 200_ made and entered into by and between IDAHO POWER COMPANY, a
corporation of the State of Idaho (successor by merger to Idaho Power Company, a
corporation of the State of Maine, hereinafter sometimes called the "Maine
Company"), whose address is 1221 West Idaho Street, Boise, Idaho 83702-5627
(hereinafter sometimes called the "Company"), party of the first part, and
BANKERS TRUST COMPANY, a corporation of the State of New York whose post office
address is Four Albany Street, New York, N.Y. 10006 (hereinafter sometimes
called the "Corporate Trustee"), and Stanley Burg (hereinafter sometimes called
the "Individual Trustee"), parties of the second part (the Corporate Trustee and
the Individual Trustee being hereinafter together sometimes called the
"Trustees"), as Trustees under the Mortgage and Deed of Trust dated as of
October 1, 1937 hereinafter referred to;
WHEREAS, the Maine Company has heretofore executed and
delivered to the Trustees its Mortgage and Deed of Trust (hereinafter sometimes
referred to as the "Original Indenture"), dated as of October 1, 1937, to secure
the payment both of the principal of and interest and premium, if any, on all
Bonds at any time issued and outstanding thereunder and to declare the terms and
conditions upon which Bonds are to be issued thereunder; and
WHEREAS, the Maine Company was merged into the Company on June
30, 1989;
and
WHEREAS, in order to evidence the succession of the Company to
the Maine Company and the assumption by the Company of the covenants and
conditions of the Maine Company in the Bonds and in the Original Indenture, as
supplemented, contained, and to enable the Company to have and exercise the
powers and rights of the Maine Company under the Original Indenture, as
supplemented, in accordance with the terms thereof, the Company executed and
delivered to the Trustees a Twenty-eighth Supplemental Indenture, dated as of
June 30, 1989 (which supplemental indenture is hereinafter sometimes called the
"Twenty-eighth Supplemental Indenture"); and
WHEREAS, said Twenty-eighth Supplemental Indenture was
recorded in the records of the County of Elko, Nevada; the Counties of Baker,
Grant, Harney, Malheur, Union and Wallowa, Oregon; the Counties of Ada, Adams,
Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon,
Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, Lemhi,
Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and
Washington, Idaho; the Counties of Lincoln and Sweetwater, Wyoming; and with the
Secretary of State of Montana; and
WHEREAS, in accordance with the terms of the Original
Indenture the Maine Company or the Company has executed and delivered to the
Trustees the following supplemental indentures in addition to the Twenty-eighth
Supplemental Indenture:
<PAGE>
<TABLE>
<CAPTION>
DESIGNATION DATED AS OF
----------- -----------
<S> <C>
First Supplemental Indenture............................................ July 1, 1939
Second Supplemental Indenture........................................... November 15, 1943
Third Supplemental Indenture............................................ February 1, 1947
Fourth Supplemental Indenture........................................... May 1, 1948
Fifth Supplemental Indenture............................................ November 1, 1949
Sixth Supplemental Indenture............................................ October 1, 1951
Seventh Supplemental Indenture.......................................... January 1, 1957
Eighth Supplemental Indenture........................................... July 15, 1957
Ninth Supplemental Indenture............................................ November 15, 1957
Tenth Supplemental Indenture............................................ April 1, 1958
Eleventh Supplemental Indenture......................................... October 15, 1958
Twelfth Supplemental Indenture.......................................... May 15, 1959
Thirteenth Supplemental Indenture....................................... November 15, 1960
Fourteenth Supplemental Indenture....................................... November 1, 1961
Fifteenth Supplemental Indenture........................................ September 15, 1964
Sixteenth Supplemental Indenture........................................ April 1, 1966
Seventeenth Supplemental Indenture...................................... October 1, 1966
Eighteenth Supplemental Indenture....................................... September 1, 1972
Nineteenth Supplemental Indenture....................................... January 15, 1974
Twentieth Supplemental Indenture........................................ August 1, 1974
Twenty-first Supplemental Indenture..................................... October 15, 1974
Twenty-second Supplemental Indenture.................................... November 15, 1976
Twenty-third Supplemental Indenture..................................... August 15, 1978
Twenty-fourth Supplemental Indenture.................................... September 1, 1979
Twenty-fifth Supplemental Indenture..................................... November 1, 1981
Twenty-sixth Supplemental Indenture..................................... May 1, 1982
Twenty-seventh Supplemental Indenture................................... May 1, 1986
Twenty-ninth Supplemental Indenture..................................... January 1, 1990
Thirtieth Supplemental Indenture........................................ January 1, 1991
Thirty-first Supplemental Indenture..................................... August 15, 1991
Thirty-second Supplemental Indenture.................................... March 15, 1992
Thirty-third Supplemental Indenture..................................... April 1, 1993
Thirty-fourth Supplemental Indenture.................................... December 1, 1993
(2)
</TABLE>
- -------------------
(2) Here will be inserted additional, executed supplemental indentures.
-2-
<PAGE>
each of which is supplemental to the Original Indenture (the Original Indenture
and all indentures supplemental thereto together being hereinafter sometimes
referred to as the "Indenture"); and
WHEREAS, the Original Indenture and said Supplemental
Indentures (except said Fifteenth Supplemental Indenture) have each been
recorded in the records of the County of Elko, Nevada; the Counties of Baker,
Grant, Harney, Malheur, Union and Wallowa, Oregon; the Counties of Ada, Adams,
Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon,
Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, Lemhi,
Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and
Washington, Idaho; the Counties of Lincoln and Sweetwater, Wyoming; and with the
Secretary of State of Montana; and
WHEREAS, the Maine Company or the Company has heretofore
issued Bonds, under and in accordance with the terms of the Indenture in the
following series and aggregate principal amounts:
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ -------- ------------
<S> <C> <C>
3-3/4% Series due 1967...................................... $18,000,000 None
3-1/8% Series due 1973...................................... 18,000,000 None
2-3/4% Series due 1977...................................... 5,000,000 None
3% Series due 1978.......................................... 10,000,000 None
2-3/4% Series due 1979...................................... 12,000,000 None
3-1/4% Series due 1981...................................... 15,000,000 None
4-1/2% Series due 1987...................................... 20,000,000 None
4-3/4% Series due 1987...................................... 15,000,000 None
4% Series due April 1988.................................... 10,000,000 None
4-1/2% Series due October 1988.............................. 15,000,000 None
5% Series due 1989.......................................... 15,000,000 None
4-7/8% Series due 1990...................................... 15,000,000 None
4-1/2% Series due 1991...................................... 10,000,000 None
5-1/4% Series due 1996...................................... 20,000,000 None
6-1/8% Series due 1996...................................... 30,000,000 None
7-3/4% Series due 2002...................................... 30,000,000 None
8-3/8% Series due 2004...................................... 35,000,000 None
10% Series due 2004......................................... 50,000,000 None
8-1/2% Series due 2006...................................... 30,000,000 None
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ -------- ------------
<S> <C> <C>
9% Series due 2008.......................................... 60,000,000 None
10-1/4% Series due 2003..................................... 62,000,000 None
First Mortgage Bonds, 1984 Series........................... 10,100,000 None
16.10% Series due 1991-1992................................. 50,000,000 None
Pollution Control Series A.................................. 49,800,000 49,800,000
8.65% Series due 2000....................................... 80,000,000 80,000,000
9.50% Series due 2021....................................... 75,000,000 75,000,000
9.52% Series due 2031....................................... 25,000,000 25,000,000
8% Series due 2004.......................................... 50,000,000 50,000,000
8 3/4% Series due 2027...................................... 50,000,000 50,000,000
Secured Medium-Term Notes, Series A......................... 190,000,000 160,000,000
Secured Medium-Term Notes, Series B......................... 197,000,000 197,000,000
(3)
</TABLE>
which bonds are hereinafter sometimes called bonds of the First through
__________ Series; and
WHEREAS, the Company, in accordance with the provisions of the
Indenture and pursuant to appropriate resolutions of its Board of Directors, has
duly determined to make, execute and deliver to the Trustees this __________
Supplemental Indenture for the purposes herein provided, including the issuance
of a __________ Series of Bonds under the Indenture, in the aggregate principal
amount of up to __________ Million Dollars ($__________), to be designated as
"First Mortgage Bonds, _____% Series due __________" ["First Mortgage Bonds,
Secured Medium-Term Notes, Series _____"](4) (herein sometimes called the "Bonds
of __________ Series"); and
WHEREAS, it is also now desired, for the purpose of more
effectually carrying out the purposes of the Original Indenture, to confirm
specifically the subjection to the lien thereof and of the Indenture of the
certain property acquired by the Company in addition to the property
specifically described in the Original Indenture and in said First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Sixteenth, Seventeenth,
- ----------------
(3) Here will be inserted additional outstanding series of bonds.
(4) Bracketed language will be inserted in lieu of words "First Mortgage
Bonds, _____% Series due in any supplemental indenture relating to the
issuance of First Mortgage Bonds which are designated "Secured
Medium-Term Notes, Series ______".
-4-
<PAGE>
Eighteenth, Nineteenth, Twenty-first, Twenty-second, Twenty-third,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth,
Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third,
Thirty-fourth and __________5 Supplemental Indentures; and
WHEREAS, all things necessary to make said Bonds of _________
Series, when duly authenticated by the Corporate Trustee and issued by the
Company, valid and legally binding obligations of the Company and to make the
Original Indenture, as heretofore supplemented and as supplemented hereby, a
valid and legally binding instrument for the security thereof, have been
performed, and the execution and delivery of this __________ Supplemental
Indenture and the issue of said Bonds as in this __________ Supplemental
Indenture provided have been in all respects duly authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in consideration of the premises and of One Dollar to it
duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in order to secure the
payment both of the principal of and interest and premium, if any, on all Bonds
at any time issued and outstanding under the Indenture, according to their tenor
and effect, and the performance of all the provisions of the Indenture and of
said Bonds, the Company has duly executed and delivered to the Trustees this
__________ Supplemental Indenture and has granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed and
by these presents does grant, bargain, sell, release, convey, assign, transfer,
mortgage, pledge, set over and confirm unto Stanley Burg and (to the extent of
its legal capacity to hold the same for the purposes hereof) unto Bankers Trust
Company, as Trustees as aforesaid, and to their successor or successors in said
trust, and to them and their successors, heirs and assigns forever, all
property, whether real, personal or mixed (except any hereinafter expressly
excepted), and wheresoever situated, acquired since the date of said Original
Indenture by and now or hereafter owned by the Company.
TOGETHER with all and singular the tenements, hereditaments
and appurtenances belonging or in any wise appertaining to the aforesaid
Property or any part thereof, with the reversion and reversions, remainder and
remainders, and (subject to the provisions of Section 57 of the Original
Indenture) the tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises and every part
and parcel thereof.
- ----------------
(5) Here will be inserted additional, executed supplemental indentures.
-5-
<PAGE>
It is not intended herein or hereby to include in or subject
to the lien of the Indenture, and the granting clauses hereof shall not be
deemed to apply to, (1) any revenues, earnings, rents, issues, income or profits
of the mortgaged and pledged property, or any bills, notes or accounts
receivable, contracts or choses in action, except to the extent permitted by law
in case a completed default specified in Section 65 of the Indenture shall have
occurred and be continuing and either or both of the Trustees, or a receiver or
trustee, shall have entered upon or taken possession of the mortgaged and
pledged property, or (2) in any case, unless specifically subjected to the lien
thereof, any bonds, notes, evidences of indebtedness, shares of stock, or other
securities or any cash (except cash deposited with the Corporate Trustee
pursuant to any provisions of the Indenture) or any goods, wares, merchandise,
equipment or apparatus manufactured or acquired for the purpose of sale or
resale in the usual course of business.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed by the Company as aforesaid, or
intended so to be, unto the Individual Trustee and (to the extent of its legal
capacity to hold the same for the purposes hereof) unto the Corporate Trustee,
and their successors, heirs and assigns forever;
IN TRUST, NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the same provisions
and covenants as are set forth in the Original Indenture, as amended or modified
by said First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second,
Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh,
Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first, Thirty-second,
Thirty-third and Thirty-fourth Supplemental Indentures and this _________(6)
Supplemental Indenture.
And it is hereby covenanted, declared and decreed by and
between the parties hereto, for the benefit of those who shall hold the Bonds
and interest coupons, or any of them, issued and to be issued under the
Indenture, as follows:
ARTICLE I
DESCRIPTION OF BONDS OF __________ SERIES.
a. The __________ Series of Bonds to be executed,
authenticated and delivered under and secured by the Indenture shall be Bonds of
__________ Series, designated as "First Mortgage Bonds, _____% Series due
__________" of the Company. The Bonds of __________ Series shall be executed,
authenticated and delivered in accordance with the
- -------------
(6) Here will be inserted additional, executed supplemental indentures.
-6-
<PAGE>
provisions of, and shall in all respects be subject to, all of the terms,
conditions and covenants of the Original Indenture, except insofar as the terms
and provisions of the Original Indenture have been or are amended or modified by
said First through __________ Supplemental Indentures or by this __________
Supplemental Indenture. Bonds of __________ Series shall mature on __________,
and shall be issued as registered Bonds without coupons in denominations of
$1,000 and in any multiple thereof, and shall bear interest, payable on
__________ and __________ of each year, at the rate of _____% per annum until
the principal shall have become due and payable, and, if default shall be made
in the payment of said principal when due and payable, at the rate of _____% per
annum thereafter until the Company's obligation with respect to payment of said
principal shall have been discharged as provided in the Indenture; provided,
however, that if Bonds of __________ Series shall have been declared due and
payable prior to their stated maturity and such declaration shall have been
annulled as provided in the Indenture, the principal of such Bonds shall not be
deemed to have been so declared due and payable. The principal of and interest
and premium, if any, on the Bonds of __________ Series shall be payable at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, and, at the option of the Company, interest on each said Bond may also be
payable at the office of the Company in Boise, Idaho, in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for public and private debts. The interest on the Bonds of __________ Series,
whether in temporary or definitive form, shall be payable without presentation
of such Bonds and (subject to the provisions of this Section 1) only to or upon
the written order of the registered holders thereof.
Except as provided in the next succeeding sentence of this
Section 1, each Bond of __________ Series shall be dated the date of its
authentication and interest shall be payable on the principal represented
thereby from the __________ or __________, as the case may be, next preceding
the date thereof to which interest has been paid, unless the date thereof is a
__________ or __________ to which interest has been paid, in which case such
interest shall be payable from such date or unless such date is prior to
__________, in which case interest shall be payable from __________. Each Bond
of __________ Series authenticated between the record date for any interest
payment date and such interest payment date shall be dated the date of its
authentication, but interest shall be payable from such interest payment date;
provided, however, that if the Company shall default in the payment of the
interest due on such interest payment date, any Bond of __________ Series so
authenticated shall bear interest from the __________ or __________, as the case
may be, next preceding the date of such Bond, to which interest has been paid.
Interest on any Bond of __________ Series shall be paid to the
registered holder of such Bond of __________ Series, or, notwithstanding the
cancellation thereof, the Bond of __________ Series in exchange or substitution
for which such Bond shall have been issued, at the close of business on the
applicable record date; provided, however, that if the Company shall default in
the payment of the interest due on any interest payment date on the principal
represented by any Bond of __________ Series, such defaulted interest shall be
paid to the registered holder of such Bond (or any Bond or Bonds of __________
Series issued upon transfer or exchange
-7-
<PAGE>
thereof) on the date of payment of such defaulted interest or, at the election
of the Company, to the person in whose name such Bond (or any Bond or Bonds of
__________ Series issued upon transfer or exchange thereof) is registered on a
subsequent record date established by notice given by mail by or on behalf of
the Company to the holders of Bonds of __________ Series not less than ten (10)
days preceding such subsequent record date. The term "record date" as used in
this Section 1 shall mean, with respect to any semi-annual interest payment date
thereafter, the close of business on __________ or __________, as the case may
be, next preceding such interest payment date or, in the case of defaulted
interest, the close of business on any subsequent record date established as
provided above.
The Bonds of __________ Series, in definitive form, shall be,
at the option of the Company, fully engraved or shall be lithographed or printed
on steel engraved borders or shall be partially lithographed or printed and
partially engraved on steel engraved borders or shall be printed on safety paper
or shall be typewritten.
(7)[a. The __________ Series of Bonds to be executed,
authenticated and delivered under and secured by the Indenture shall be Secured
Medium-Term Notes, Series _____, designated as "First Mortgage Bonds, Secured
Medium-Term Notes, Series _____ "of the Company. The Bonds of __________ Series
shall be executed, authenticated and delivered in accordance with the provisions
of, and shall in all respects be subject to, all of the terms, conditions and
covenants of the Original Indenture, except insofar as the terms and provisions
of the Original Indenture have been or are amended or modified by said First
through __________ Supplemental Indentures or by this __________ Supplemental
Indenture. Bonds of __________ Series shall be issued from time to time in an
aggregate principal amount not to exceed $__________, be issued as registered
Bonds without coupons in the denominations of $1,000 or in any multiple thereof;
each Bond of __________ Series shall mature on such date not less than
__________ nor more than __________ from date of issue, shall bear interest at
such rate or rates (which may be either fixed or variable) and have such other
terms and provisions not inconsistent with the Indenture as the Board of
Directors may determine in accordance with a resolution filed with the Corporate
Trustee and a written order referring to this __________ Supplemental Indenture;
the principal of and interest on each said Bond to be payable at the office or
agency of the Company in the Borough of Manhattan, The City of New York and, at
the option of the Company, interest on each said Bond may also be payable at the
office of the Company in Boise, Idaho, in such coin or currency of the United
States of America as at the time of payment is legal tender for public and
private debts. Interest on Bonds of __________ Series which bear
- ------------------
(7) These provisions will be inserted in lieu of Section 1 above in any
supplemental indenture relating to the issuance of First Mortgage Bonds
which are designated "Secured Medium-Term Notes, Series _____".
-8-
<PAGE>
interest at a fixed rate shall be payable semiannually on __________ and
__________ of each year and at maturity (each an interest payment date).
Interest on Bonds of __________ Series which bear interest at a variable rate
shall be payable on the dates (each an interest payment date) set forth in a
resolution filed with the Corporate Trustee referring to this __________
Supplemental Indenture.
Notwithstanding the foregoing, so long as there is no existing
default in the payment of interest on the Bonds of __________ Series, all Bonds
of __________ Series authenticated by the Corporate Trustee after the Record
Date hereinafter specified for any interest payment date, and prior to such
interest payment date (unless the date of first authentication of Bonds of such
designated interest rate and maturity is after such Record Date), shall be dated
the date of authentication, but shall bear interest from such interest payment
date, and the person in whose name any Bond of __________ Series is registered
at the close of business on any Record Date with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date, notwithstanding the cancellation of such Bond of __________ Series, upon
any transfer or exchange thereof subsequent to the Record Date and on or prior
to such interest payment date. If the date of first authentication of the Bonds
of __________ Series of a designated interest rate and maturity is after such
Record Date and prior to the corresponding interest payment date, such Bonds
shall bear interest from the Original Interest Accrual Date but payment of
interest shall commence on the second interest payment date succeeding the
Original Interest Accrual Date. "Record Date" for Bonds of __________ Series
which bear interest at a fixed rate shall mean __________ for interest payable
__________ and __________ for interest payable __________, and for Bonds of
__________ Series which bear interest at a variable rate, the date 15 calendar
days prior to any interest payment date, provided that, interest payable on the
maturity date will be payable to the person to whom the principal thereof shall
be payable. "Original Interest Accrual Date" with respect to Bonds of __________
Series of a designated interest rate and maturity shall mean the date of first
authentication of Bonds of such designated interest rate and maturity unless a
written order filed with the Corporate Trustee on or before such date shall
specify another date from which interest shall accrue, in which case "Original
Interest Accrual Date" shall mean such other date specified in the written order
for Bonds of such designated interest rate and maturity.
The Bonds of __________ Series, in definitive form, shall be,
at the option of the Company, fully engraved or shall be lithographed or printed
on steel engraved borders or shall be partially lithographed or printed and
partially engraved on steel borders or shall be printed on safety paper or shall
be typewritten.]
The holders of the Bonds of __________ Series consent that the
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the holders of Bonds of __________ Series entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, those persons who
are holders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such persons
continue to be holders after
-9-
<PAGE>
such record date. No such consent shall be valid or effective for more than 90
days after such record date.
[HERE WILL BE INSERTED REDEMPTION PROVISIONS.]
b. At the option of the registered holder, any Bonds of
__________ Series, upon surrender thereof for cancellation at the office or
agency of the Company in the Borough of Manhattan, The City of New York,
together with a written instrument of transfer (if so required by the Company or
by the Trustees) in form approved by the Company duly executed by the registered
holder or by his duly authorized attorney, shall be exchangeable for a like
aggregate principal amount and maturity of Bonds of __________ Series of other
authorized denominations. Bonds of __________ Series may bear such legends as
may be necessary to comply with any law or with any rules or regulations made
pursuant thereto or with the rules or regulations of any stock exchange or to
conform to usage with respect thereto.
Bonds of __________ Series shall be transferable at the office
or agency of the Company in the Borough of Manhattan, The City of New York.
Notwithstanding the foregoing provisions of this Section 2,
the Company shall not be required to make any transfers or exchanges of Bonds of
__________ Series for a period of fifteen (15) days next preceding any mailing
of notice of redemption, and the Company shall not be required to make transfers
or exchanges of the principal amount of any Bonds of __________ Series so called
or selected for redemption.
c. The Bonds of __________ Series shall be substantially of
the tenor and purport recited in the Original Indenture, and the form thereof
shall be as established by resolution of the Board of Directors or the Executive
Committee of the Board of Directors of the Company, which resolution may provide
that any provisions of such form of Bond may appear on the reverse of such form.
d. Until Bonds of __________ Series in definitive form are
ready for delivery, the Company may execute, and upon its request in writing,
the Corporate Trustee shall authenticate and deliver, in lieu thereof, Bonds of
__________ Series in temporary form, as provided in Section 15 of the Original
Indenture.
ARTICLE II
ISSUE OF BONDS OF __________ SERIES.
e. The Bonds of __________ Series for the aggregate principal
amount of up to __________ Million Dollars ($___________) may be executed by the
Company and delivered to the Corporate Trustee and shall be authenticated by the
Corporate Trustee and
-10-
<PAGE>
delivered to or upon the order or orders of the Company, evidenced by a writing
or writings signed by the Company by its President or a Vice President and its
Treasurer or an Assistant Treasurer, pursuant to and upon compliance with the
provisions of Article V, Article VI or Article VII of the Indenture.
ARTICLE III
COVENANTS.
THE COMPANY HEREBY COVENANTS, WARRANTS AND AGREES:
f. That all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to the property
hereinabove described and conveyed and to the estate, rights, obligations and
duties of the Company and Trustees and the beneficiaries of the trust with
respect to said property, and to the Trustees and their successors as trustees
of said property, in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the execution of the
Original Indenture and had been specifically and at length described in and
conveyed to the Individual Trustee and (to the extent of its legal capacity to
hold the same for the purposes of the Indenture) the Corporate Trustee by the
Original Indenture as a part of the property therein stated to be conveyed.
g. That it is lawfully seized and possessed of all of the
mortgaged and pledged property described in the granting clauses of the
Indenture, which has not heretofore been released from the lien thereof; that it
had or has, at the respective times of execution and delivery of the Original
Indenture, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth,
Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first (as corrected by
the Twenty-second), Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth,
Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth,
Thirty-first, Thirty-second, Thirty-third and Thirty-fourth Supplemental
Indentures, and this __________(8) Supplemental Indenture, good right and lawful
authority to mortgage and pledge the mortgaged and pledged property described
therein, as provided in and by the Indenture; and that such mortgaged and
pledged property is, at the actual date of the initial issue of the Bonds of
__________ Series, free and clear of any mortgage, lien, charge or encumbrance
thereon or affecting the title thereto (other than excepted encumbrances) prior
to the lien of the Indenture, except as set forth in the granting clauses of the
Indenture.
h. That it will deliver to the Corporate Trustee annually,
within ninety (90) days after the close of each fiscal year, commencing with the
fiscal year 200_, a certificate from the principal executive officer, principal
financial officer or principal accounting officer as
- ---------------
(8) Here will be inserted additional, executed supplemental indentures.
-11-
<PAGE>
to his or her knowledge of the Company's compliance with all conditions and
covenants under the Indenture. For purposes of this Section 8, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under the Indenture.
ARTICLE IV
THE TRUSTEES.
The Trustees hereby accept the trust hereby declared and
provided and agree to perform the same upon the terms and conditions in the
Original Indenture, as heretofore supplemented and as supplemented by this
__________ Supplemental Indenture, and in this __________ Supplemental Indenture
set forth, and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this ____________
Supplemental Indenture or the due execution hereof by the Company or for or in
respect of the recitals contained herein, all of which recitals are made by the
Company only.
ARTICLE V
MISCELLANEOUS PROVISIONS.
All terms contained in the __________ Supplemental Indenture
shall, for all purposes hereof, have the meanings given to such terms in Article
I of the Original Indenture, as amended by Article IV of the Second Supplemental
Indenture.
Except as hereby expressly amended and supplemented, the
Original Indenture heretofore amended and supplemented is in all respects
ratified and confirmed, and all the terms and provisions thereof shall be and
remain in full force and effect.
This __________ Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original; but such counterparts together constitute but one and the same
instrument.
-12-
<PAGE>
IN WITNESS WHEREOF, Idaho Power Company, party hereto of the
first part, caused its corporate name to be hereunto affixed and this instrument
to be signed and sealed by its President or a Vice President and its corporate
seal to be attested by its Secretary or an Assistant Secretary for and on its
behalf, and Bankers Trust Company, one of the parties hereto of the second part,
in token of its acceptance of the trust hereby created has caused its corporate
name to be hereunto affixed and this instrument to be signed and sealed by an
Assistant Vice President and its corporate seal to be attested by an Assistant
Vice President and Stanley Burg, one of the parties hereto of the second part,
has for all like purposes hereunto set his hand and affixed his seal, each on
the date hereinafter acknowledged, as of the day and year first above written.
IDAHO POWER COMPANY
By_________________________________
Attest:
______________________________
Executed, sealed and delivered by
IDAHO POWER COMPANY
in the presence of:
______________________________
______________________________
-13-
<PAGE>
BANKERS TRUST COMPANY
By___________________
Attest:
______________________________
Executed, sealed and delivered by
BANKERS TRUST COMPANY,
in the presence of:
______________________________[L.S.]
Stanley Burg
Executed, sealed and delivered by
STANLEY BURG,
in the presence of:
______________________________
______________________________
-14-
<PAGE>
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the _____ day of __________ , in the year 200_, before me
personally came ____________________, to me known, who being by me duly sworn
did depose and say that he resides at _____________________________; that he is
the ___________________ of Idaho Power Company, one of the corporations
described in and which executed the above instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order; the said
____________________, having personally appeared and known to me to be the
___________________ of said corporation that executed the instrument,
acknowledged to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate first above
written.
________________________________________
Notary Public, State of Idaho
-15-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of __________ , in the year 200_, before me
personally came ____________________, to me known, who being by me duly sworn
did depose and say that he resides at _____________________________; that he is
an ___________________ of Bankers Trust Company, one of the corporations
described in and which executed the above instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order; the said
____________________, having personally appeared and known to me to be an
___________________ of said corporation that executed the instrument,
acknowledged to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate first above
written.
________________________________________
Notary Public, State of New York
No. __________
Qualified in __________ County
Certificate filed in New York County
Commission Expires __________
-16-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of __________, in the year 200_, before me,
_______________, a Notary Public in and for the State of New York in the County
of New York, personally appeared and came STANLEY BURG, to me known and known to
me to be the person described in and who executed the within and foregoing
instrument and whose name is subscribed thereto and acknowledged to me that he
executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate first above
written.
________________________________________
Notary Public, State of New York
No. __________
Qualified in __________ County
Certificate filed in New York County
Commission Expires __________
-17-
<PAGE>
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
__________, being first duly sworn, upon oath, deposes and
says: that he is an officer, to wit, the __________ of Idaho Power Company, a
corporation, the mortgagor described in the foregoing indenture or mortgage, and
makes this affidavit on behalf of said Idaho Power Company; that said indenture
or mortgage is made in good faith without any design to hinder, delay or defraud
creditors, to secure the indebtedness mentioned to be thereby secured.
________________________________________
Subscribed and sworn to before me
this _____ day of __________, 200_.
________________________________________
Notary Public, State of Idaho
-18-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
__________, being first duly sworn, upon oath, deposes and
says: that he is an officer, to wit, an __________ of Bankers Trust Company, a
corporation, one of the mortgagees and trustees named in the foregoing indenture
or mortgage, and makes this affidavit on behalf of said Bankers Trust Company;
that said indenture or mortgage is made in good faith without any design to
hinder, delay or defraud creditors, to secure the indebtedness mentioned or
provided for therein.
________________________________________
Subscribed and sworn to before me
this _____ day of __________, 200_.
________________________________________
Notary Public, State of New York
No. __________
Qualified in __________ County
Certificate filed in New York County
Commission Expires __________
-19-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
STANLEY BURG, being first duly sworn, upon oath, deposes and
says: that he is one of the mortgagees and trustees named in the foregoing
indenture or mortgage; that said indenture or mortgage is made in good faith
without any design to hinder, delay or defraud creditors, to secure the
indebtedness mentioned or provided for therein.
________________________________________
Stanley Burg
Subscribed and sworn to before me
this _____ day of __________, 200_.
________________________________________
Notary Public, State of New York
No. __________
Qualified in __________ County
Certificate filed in New York County
Commission Expires __________
-20-
<PAGE>
Exhibit 4.13
================================================================================
IDAHO POWER COMPANY
TO
[TRUSTEE],
TRUSTEE
INDENTURE
Dated as of __________ __, 2000
DEBT SECURITIES
================================================================================
<PAGE>
IDAHO POWER COMPANY
---------
*Reconciliation and tie between Trust Indenture Act of 1939,
as amended by the Trust Reform Act of 1990, and Indenture, dated as of
___________,2000.
<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>
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* 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>
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Parties...................................................................1
Recitals..................................................................1
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined.......................................1
Affiliate.................................................2
Authenticating Agent......................................2
Authorized Newspaper......................................2
Board of Directors........................................2
Board Resolution..........................................2
Business Day..............................................3
Commission................................................3
Company...................................................3
Company Order and Company Request.........................3
Corporate Trust Office....................................3
Depository................................................3
Dollar ($)................................................3
Exchange Act..............................................3
Event of Default..........................................4
GAAP......................................................4
Global Security...........................................4
Government Obligations....................................4
Holder, Registered Holder and Securityholder..............4
include...................................................4
Indenture.................................................4
interest..................................................5
Interest Payment Date.....................................5
Maturity..................................................5
Officer...................................................5
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......................................7
Record Date...............................................7
</TABLE>
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* This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture or to have any bearing upon the interpretation of any
of its terms or provisions.
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<TABLE>
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Redemption Date...............................................7
Redemption Price..............................................7
Registered Holder.............................................7
Regular Record Date...........................................7
Responsible Officer...........................................7
Securities Act................................................7
Securities Register...........................................7
Securities Registrar..........................................7
Security or Securities........................................7
Special Record Date...........................................7
Stated Maturity...............................................7
Tranche.......................................................7
Trust Indenture Act...........................................8
Trustee.......................................................8
Vice President................................................8
ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally ..............................................9
SECTION 2.2. Form of Trustee's Certificate of
Authentication...........................................9
SECTION 2.3 Form of Trustee's Certificate of
Authentication by an Authenticating Agent...............10
SECTION 2.4. Securities Issuable in the Form of Global
Securities..............................................10
ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series........................13
SECTION 3.2. Form and Denominations......................................15
SECTION 3.3. Authentication, Dating and Delivery of
Securities.............................................15
SECTION 3.4. Execution of Securities.....................................18
SECTION 3.5. Certificate of Authentication...............................19
SECTION 3.6. Registration, Registration of Transfer and
Exchange...............................................19
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities.............................................20
SECTION 3.8. Payment of Interest; Interest Rights
Preserved..............................................21
SECTION 3.9. Cancellation of Securities; Destruction
Thereof................................................22
SECTION 3.10. Temporary Securities........................................23
SECTION 3.11. Computation of Interest.....................................23
</TABLE>
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ARTICLE IV.
COVENANTS OF THE Company
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SECTION 4.1. Payment of Securities.......................................25
SECTION 4.2. Offices or Agency...........................................25
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee.................................................26
SECTION 4.4. Paying Agents ............................................26
SECTION 4.5. Maintenance of Corporate Existence..........................27
SECTION 4.6. Certificates to Trustee.....................................27
ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
Company AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Information as to
Names and Addresses of Securityholders.................28
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists..................................................28
SECTION 5.3. Reports by the Company......................................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
</TABLE>
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ARTICLE VII.
CONCERNING THE TRUSTEE
<S> <C>
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default........................43
SECTION 7.2. Certain Rights of the Trustee................................44
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof.....................................45
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 Company.............................................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 Company 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 Company or Holders.......................60
SECTION 9.4. Qualifications for Voting....................................61
SECTION 9.5. Regulations..................................................61
SECTION 9.6. Voting.......................................................62
</TABLE>
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SECTION 9.7. No Delay of Rights by Reason of Meeting.......................62
ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders..........................................63
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders..........................................65
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..................................67
ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1 When Company May Merge, Etc...................................68
SECTION 11.2 Opinion of Counsel............................................68
SECTION 11.3 Successor Corporation Substituted.............................68
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series...............................................70
SECTION 12.2. Satisfaction and Discharge of Indenture.......................71
SECTION 12.3. Application of Trust Money....................................72
SECTION 12.4. Repayment of Moneys Held by Paying Agent......................72
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee
and Paying Agent.........................................72
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Company Exempt from
Individual Liability.....................................74
SECTION 13.2. Provisions of Indenture for the Sole Benefit
of Parties and Securityholders...........................74
SECTION 13.3. Successors and Assigns of Company Bound by
Indenture................................................74
SECTION 13.4. Notices to Holders; Waiver....................................74
SECTION 13.5. Addresses for Notices.........................................75
</TABLE>
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SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein..................................................75
SECTION 13.7. Separability Clause...........................................76
SECTION 13.8. Legal Holidays ...............................................76
SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act......................................77
SECTION 13.10. Governing Law ................................................77
SECTION 13.11. Counterparts ................................................77
SECTION 13.12. Effect of Headings............................................77
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article......................................78
SECTION 14.2. Notice of Redemption; Selection of
Securities...............................................78
SECTION 14.3. Payment of Securities Called for Redemption...................80
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>
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<PAGE>
INDENTURE, dated as of __________ __,2000, between IDAHO POWER
COMPANY, an Idaho corporation (herein, subject to Article XI, sometimes called
the "Company"), having its principal office at 1221 West Idaho Street, Boise,
Idaho 83702- 5627, and [TRUSTEE], a [New York banking] corporation, as Trustee
(hereinafter, subject to Article VII, called the "Trustee"), having its
principal corporate trust office at ___________________________________.
RECITALS OF THE COMPANY
The Company 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 (herein 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 Company, 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 of the Securities
or of the Securities of any series, without giving 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
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<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.
"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.
"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 or financial journal
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; or, in the alternative, shall mean such form of
communication as may have come into general use for the dissemination of
information of import similar to that of the information specified to be
published by the provisions hereof. 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. In case, by reason of the suspension of publication of any
Authorized Publication, or for any other cause, it shall be impractical without
unreasonable expense to make publication of any notice in an Authorized
Publication as required by this Indenture, then such method of publication or
notification as shall be made with the approval of the Trustee shall be deemed
the equivalent of the required publication of such notice in an Authorized
Publication.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any committee of such Board of Directors or Officer duly
authorized to act with respect to a particular matter 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 Company 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.
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<PAGE>
"BUSINESS DAY", when used with respect to any Place of Payment
or any other location specified in the Securities or this Indenture, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or location are generally
authorized or obligated by law, regulation or executive order to close, except
as may be otherwise specified as contemplated by Section 3.1.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, 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" means (except as otherwise provided in Section 7.13)
Idaho Power Company, an Idaho corporation, and, subject to Article XI, its
successors and assigns.
"COMPANY ORDER" and "COMPANY REQUEST" mean a written order or
request signed in the name of the Company by the president, any vice president
or the treasurer or controller and by any assistant treasurer, any assistant
controller, the secretary or any assistant secretary of the Company, and
delivered to the Trustee.
"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.
"DEPOSITORY" means, with respect to the Securities of any
series or any Tranche thereof, which, in accordance with the determination of
the Company, 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 Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Company 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 or Tranche thereof means the Depository with respect to the
Securities of that series or Tranche.
"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.
"EXCHANGE ACT" means the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, in each case as amended
from time to time.
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"EVENT OF DEFAULT" means any event or condition
specified as such in Section 6.1.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Standards Accounting Board, and as are
applicable to the financial statements of the Company, in each case as of the
date of any computation required hereunder.
"GLOBAL SECURITY" means, with respect to all or any part of
any series of Securities, a Security executed by the Company 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 a Company
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 entitled to the benefit of the full
faith and credit thereof, 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 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
-4-
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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, with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"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.
"OFFICER" means the Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary, any Assistant Controller or any
Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by an
Officer and delivered to the Trustee, except as otherwise specifically set forth
herein.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Company or who may be
other counsel reasonably satisfactory to the Trustee.
"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 the date of determination, 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 Company) or shall have been set aside, segregated
and held in trust by the Company for the Holders of such Securities (if
the Company 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
-5-
<PAGE>
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
Company is presented that such Security is held by a person in whose
hands such Security is a legal, valid and binding obligation of the
Company).
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 Security 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 Security as contemplated by Section 3.1.
"PAYING AGENT" means any person authorized by the Company to
pay the principal of, or premium, if any, or interest, if any, on, any
Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of which Securities,
which may be in one or more Tranches, including the rate or rates of interest,
if any, thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company or
its agents from time to time subsequent to the initial request for
authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 3.1.
The term "PERSON" means any individual, corporation, limited
liability company, partnership, limited liability 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 any Security, the
place or places where the principal of, and premium, if any, and interest, if
any, on, the such Security are payable as specified pursuant to Section 3.1.
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"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.
"RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities shall have the meaning assigned to it in Section 3.8.
"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".
"REGULAR RECORD DATE" for the Interest Payable on any Interest
Payment Date on a Security means the date specified for that purpose pursuant to
Section 3.1.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"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.
"SPECIAL RECORD DATE" for the payment of any defaulted
interest means a date fixed pursuant to Section 3.7.
"STATED MATURITY" means, with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) are identical except as to principal amount and/or date of
issuance.
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"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"TRUST INDENTURE ACT" means, to the extent required by such amendment, the Trust
Indenture Act of 1939 as so amended.
"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.
"VICE PRESIDENT" means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president".
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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 Company 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 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 to the rules of any securities exchange or automated quotation system on
which such Securities are listed or quoted and (with respect to Global
Securities) 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 Company 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 Company shall execute, and the Trustee shall,
in accordance with Section 3.3 and the Company Order delivered to the Trustee
thereunder, authenticate and make available for delivery, one or more Global
Securities, each of 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 such Global Security, (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)
if required by the Depository, shall bear a legend reflecting the Depository's
interest in such Global Security.
(b) Notwithstanding any provision of Section 3.6, any Global
Security thereof 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 Tranche, or to a successor Depository for such series selected or
approved by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for Securities of a series
or Tranche thereof notifies the Company that it is unwilling or unable to
continue as Depository for Securities of such series or Tranche or if at any
time the Depository shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depository is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such
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condition, as the case may be, this Section shall no longer be applicable to the
Securities of such series or Tranche and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series or Tranche, will authenticate and make
available for delivery, Securities of such series or Tranche, 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 or
Tranche in exchange for such Global Security or Global Securities.
The Company may at any time determine that Securities of any
series or Tranche thereof 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 or Tranche. In such event the Company will execute and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Securities of such series or Tranche, will authenticate and make
available for delivery Securities of such series or Tranche, 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 or
Tranche in exchange for such Global Security.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities or Tranche thereof, the Depository for such
series or Tranche may surrender a Global Security for such series or Tranche in
exchange in whole or in part for individual Securities of such series or Tranche
on such terms as are acceptable to the Company and such Depository. Thereupon,
the Company 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 or Tranche, 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 Company will execute and the Trustee will
authenticate and make available for delivery individual Securities in registered
form in authorized denominations.
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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 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, and set forth in an Officer's Certificate, or established in
one or more indentures supplemental hereto prior to the issuance of Securities
of a series:
(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, any
Overdue Rate (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
Regular Record Date, 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 Company, pursuant to any sinking
fund or otherwise;
(9) the obligation, if any, of the Company 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) in case the Securities of the series do not bear
interest, the applicable dates for the purpose of clause (a) of Section
5.1;
(15) if other than as set forth in Article XII, provisions for
the satisfaction and discharge of the Securities of the series and this
Indenture;
(16) any trustees, paying agents, transfer agents or
registrars with respect to the Securities of the series;
(17) 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;
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(18) any restrictions on transfer with respect to the
Securities of the series and any legend reflecting such restrictions to
be placed on such Securities;
(19) 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;
(20) any exceptions to Section 13.8 or in the definition of
"Business Day" with respect to the Securities of the series; and
(21) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the Securities of such
series shall be denominated and in which payments or principal of, and
any premium and interest on, such Securities shall or may be payable;
(22) any other terms of the series (which terms shall not be
contrary to the provisions of this Indenture).
With respect to Securities of a Series subject to a Periodic
Offering, 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
Company 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.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section, would
affect the rights, duties, obligations, liabilities or immunities of the Trustee
under this Indenture.
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 Company may deliver Securities of any series,
executed by the Company,
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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 a Company
Order, without any further action by the Company; 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 a
Company 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 Company Order and procedures. If provided for in such procedures, such
Company Order may authorize authentication and delivery pursuant to oral
instructions from the Company 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 Officer's Certificate or an executed supplemental
indenture setting forth the terms of such Securities as provided in
Section 3.1;
(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 duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Company enforceable in
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accordance with their terms, except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally and
by general principles of equity, (regardless of whether
enforceability is considered in a proceeding in equity or at
law); and
(c) that no consent, approval, authorization, order,
registration or qualification of or with any court or any
governmental agency or body having jurisdiction over the
Company is required for the execution and delivery of such
Securities by the Company, except such as have been obtained
(and except that no opinion need be expressed as to state
securities or "blue sky" laws);
Notwithstanding the provisions of Section 3.1 and of the
immediately preceding paragraph, with respect to Securities of a series subject
to a Periodic Offering, the Trustee shall be entitled to receive the Officer's
Certificate otherwise required pursuant to Section 3.3(3) and the Opinion of
Counsel required by Section 3.3(4) only once at or prior to the time of the
first authentication and delivery of such Securities (provided that such Opinion
of Counsel addresses the authentication and delivery of all such Securities) and
that, in lieu of the opinions described in clauses (b) and (c) above, Counsel
may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant
to such procedures as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly
authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) when such Securities shall have been
authenticated and delivered by the Trustee in accordance with
this Indenture and the Company Order or Orders or the
specified procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, such
Securities will constitute valid obligations of the Company
enforceable in accordance with their terms except to the
extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors rights generally and by
the effect of general principles of equity (regardless of
whether
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enforceability is considered in a proceeding in equity
or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with the
terms and conditions of this Indenture, upon the Opinion or Opinions of Counsel,
the Officer's Certificate and the certificates and other documents delivered
pursuant to this Section 3.3 at or prior to the time of the first authentication
and delivery of Securities of such series until any of such opinions,
certificates or other documents have been superseded or revoked or expire by
their terms; PROVIDED, HOWEVER, that any request by the Company to the Trustee
to authenticate and deliver Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request
the statements made in the most recent Officer's Certificate delivered pursuant
to Section 3.3(3) are true and correct 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
Company, 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 Company 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 Company 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 Company 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
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Company, 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 Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the original execution of such
Security, shall be the proper officers of the Company, 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 Company 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 Company 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 Company 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 Company shall execute and the Trustee or any Authenticating Agent
shall authenticate and make available for delivery in the name of transferee or
transferees
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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 Company or the
Securities Registrar) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company 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
Company, 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 Company 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 Company 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 Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall, except as otherwise provided in this
Section, execute, and upon an Company 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 Company and to the Trustee and any agent of the Company 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 Company
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and the Trustee and any agent of the Company 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 Company 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 Company 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 Company and to the Trustee and any agent of
the Company 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 Company and the Trustee and any agent of
the Company 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 Company, 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 the Regular 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 Regular Record Date and prior to such Interest Payment Date,
and, if provided for in the
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Board Resolution pursuant to Section 3.1, in the case of a Security issued
between a Regular Record Date and the initial Interest Payment Date relating to
such Regular 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 "Regular 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 Company,
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 Company 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 Company at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may make payment of any defaulted interest to
the Holder of Securities at the close of business on a Special Record
Date established by notice given by mail, by or on behalf of the
Company, to such Holder not less than 15 days preceding such Special
Record Date, such Special Record Date to be not less than 10 days
preceding the date for payment of such defaulted interest.
(2) The Company 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 Company
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,
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registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, shall, if surrendered to the Company 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 Company in a company order, destroy such cancelled
Securities and deliver certification of their destruction to the Company. If the
Company 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 Company of definitive Securities of any series, the Company 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 Company
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 Company 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
Company 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 Company at its
own expense and without any charge therefor except that in case of any such
exchange involving any registration of transfer the Company 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
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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 Company
The Company covenants and agrees for the benefit of each
series of Securities (except to the extent that any series of 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 Company 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.
SECTION 4.2. OFFICES OR AGENCY. So long as any of the
Securities remain Outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York, New York, an office or agency where such
Securities may be presented or surrendered for payment, where such Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of such Securities 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 Company 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 Company 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 Company hereby appoints the Trustee and any Authenticating Agent
appointed hereunder its agents to receive all such presentations, surrenders,
notices and demands.
The Company 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 one or more series, or any Tranche thereof 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 Company of its obligation to maintain for such
purposes an office or agency in the Borough of Manhattan, The City of New York.
The Company will promptly
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notify the Trustee of any such designation or rescission thereof.
SECTION 4.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Company, 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 Company shall appoint
a Paying Agent other than the Trustee with respect to the Securities of any
series or Tranche thereof, 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 or Tranche (whether
such sums have been paid to it by the Company 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 Tranche, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Company (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 or Tranche thereof 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 Company shall act as its own Paying Agent with respect
to the Securities of any series or Tranche thereof, 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 or Tranche, set aside, segregate and hold in trust for
the benefit of the Holders of the Securities of such series or Tranche a sum
sufficient to pay such principal, premium, if any, or interest, if any, so
becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any series or Tranche thereof, 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 or Tranche thereof, deposit with a designated
Paying Agent for such series or Tranche a sum sufficient to pay
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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 Company 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
Company may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series or Tranches 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 Company 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 Company
will preserve its corporate existence, but this covenant shall not require the
Company to continue its corporate existence in the event of a consolidation or
merger of the Company with or into any other corporation in accordance with
Article XI as a result of which the Company shall lose its corporate identity,
or in the event of a sale, transfer or lease of the property of the Company as
an entirety or substantially as an entirety in accordance with Article XI.
SECTION 4.6. CERTIFICATES TO TRUSTEE. The Company will, on or
before May 1 in each year, commencing with the year 2001, 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, 2000 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 Company
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 Company 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
Company AND THE TRUSTEE
SECTION 5.1. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO
NAMES AND ADDRESSES OF SECURITYHOLDERS. The Company 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 later than June 30 and December 31 in
each year, and at such other times as the Trustee may request in
writing, as of a date no more than 15 days prior to the date such
information is so furnished;
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 received by it pursuant to Section 5.1 and similar
information received by it in any other capacity under this Indenture and afford
Holders access to the information preserved by it, all to such extent, if any,
and in such manner as shall be required by the Trust Indenture Act.
(b) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company 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 (a) 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 (a).
SECTION 5.3. REPORTS BY THE COMPANY. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company
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 Company 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
Company is not required to file information, documents or reports
pursuant to either
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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 Company 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
Company 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
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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 Company (or by any other
obligor on the Securities of such series) to the Trustee in its
individual capacity on the date of such report, with a brief
description of any property held as collateral security therefor,
except any indebtedness based upon a creditor relationship arising in
any manner described in Section 7.13(b)(2), (3), (4) or (6);
(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities of any series which
the Trustee has not previously reported; and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities of any
series, except action in respect of a default, notice of which has been
or is to be withheld by it in accordance with the provisions of Section
6.11.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of original execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
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(1) to all Holders of Securities, as the names and addresses
of such Holders appear in the Securities Register;
(2) to such Holders of Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section, to each Holder of a Security of any series whose name
and address are preserved at the time by the Trustee, as provided in
subsection (a) of Section 5.2.
(d) A copy of each such report shall, at the time of such
transmission to the Securityholders of any series, be furnished to the Company
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 Company 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 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
(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 any of the Securities of such
series; or
(d) default in the performance or observance of any other
covenant or agreement of the Company 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 Company by the Trustee, or to the Company 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 Company 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 Company 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 Company 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 Company 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 Company (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
Company (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 Company 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
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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 Company
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 Company 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 Company 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
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any further amounts payable to the Trustee, its agents and counsel pursuant to
the provisions of Section 7.6.
In case the Company 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 Company 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 Company 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 Company 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 Company 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.
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All rights of action and of asserting claims under this
Indenture or under any of the Securities may be enforced by the Trustee without
the possession of any of the Securities or the production thereof in any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 6.3. APPLICATION OF PROCEEDS. Any moneys collected by
the Trustee pursuant to this Article in respect of any series of the Securities,
together with any other sums held by the Trustee (as such) hereunder (other than
sums held in trust for the benefit of the Holders of particular Securities),
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal,
upon presentation (except in respect of Subdivision First below) of the several
Securities in respect of which moneys have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which moneys have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 7.6;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee), so far as it may be
enforceable under applicable law, upon the overdue installments of
interest at the Overdue Rate applicable to
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such series, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and premium, if any, and interest, if any, with interest upon the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee), so far as payment of the
same is enforceable under applicable law, upon overdue installments of
interest, if any, at the Overdue Rate applicable to such series; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the
payment of such principal, premium, if any, and interest, if any,
without preference or priority of principal and premium, if any, over
interest, or of interest, if any, over principal and premium, if any,
or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal, premium, if
any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the
Company 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 Company 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
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Company, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
SECTION 6.6. LIMITATIONS ON SUITS BY SECURITYHOLDERS. No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute an action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or with respect
to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to
institute such action or proceeding in its own name as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder of any Security and with the Trustee, that no one or more
Holders of Securities of any series shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
For the protection and enforcement of the provisions of this Section, each and
every Holder of Securities of any series and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 6.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO
INSTITUTE CERTAIN SUITS. Nothing contained in this Indenture or in the
Securities of any series shall affect or impair the obligation of the Company,
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
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the Holder of any other Security, unless such Holder consents thereto or unless
and to the extent that the institution or prosecution thereof or the entry of
judgment therein, would, under applicable law, result in the surrender,
impairment, waiver or loss of the lien, if any, of this Indenture upon any
property subject to such lien.
SECTION 6.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER OF DEFAULT. Except as provided in Section 6.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holder of any
Security is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any
Security of any series to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holder of any Security may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holder of such Security.
SECTION 6.9. CONTROL BY HOLDERS OF SECURITIES. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
this Indenture; PROVIDED that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture, and PROVIDED, FURTHER,
that (subject to the provisions of Section 7.1) the Trustee shall have the right
to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee or a trust committee of directors or responsible officers of
the Trustee shall determine that the action or proceedings so directed would
expose the Trustee to personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood
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that (subject to Section 7.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
As between the Trustee and the Holders of the Securities,
nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 6.10. WAIVER OF PAST DEFAULTS. Prior to the
acceleration with respect to Securities of any series as provided in Section
6.1, the Holders of not less than a majority in aggregate principal amount of
the Securities of such series at the time Outstanding, may on behalf of the
Holders of all the Securities of such series waive any past default or Event of
Default described in clause (d) or (g) of Section 6.1 which relates to fewer
than all series of Securities then Outstanding, and the Holders of a majority in
aggregate principal amount of the Securities then Outstanding affected thereby
(each series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (d) or (g) (if the
Event of Default under clause (d) or (g) relates to all series of Securities
then Outstanding) of Section 6.1, the Holders of a majority in aggregate
principal amount of all the Securities then Outstanding (voting as one class)
may waive any such default or Event of Default, and its consequences except a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Company, 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
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of the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors or responsible officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 6.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING
TO PAY COSTS. The parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or, in
the case of any suit relating to or arising under clause (d) or (g) of Section
6.1 (if the suit relates to Securities of more than one but fewer than all
series), 10% in aggregate principal amount of Securities Outstanding affected
thereby, or, in the case of any suit relating to or arising under clause (d),
(g) (if the suit under clause (d) or (g) relates to all the Securities then
Outstanding), (e) or (f) of Section 6.1, 10% in aggregate principal amount of
all Securities Outstanding, or to any suit instituted by any Holder of
Securities for the enforcement of the payment of the principal of, or premium,
if any, or interest, if any, on, any Security on or after the due date expressed
in such Security.
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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 Company
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 Company;
(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 Company or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Company 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 Company, 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 Company 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 Company 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
Company and receive, collect, hold and retain collections from the Company with
the same rights it would have if it were not
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the Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such
agent.
SECTION 7.5. MONEYS HELD BY TRUSTEE. Subject to the provisions
of Section 4.4, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. The Trustee shall have no liability for
interest on money it receives and holds in trust except as specifically provided
herein.
SECTION 7.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM. The Company covenants and agrees to pay the Trustee from time
to time, and the Trustee shall be entitled to such compensation as the Company
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 Company 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 Company 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 Company 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
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shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken,' suffered or omitted by it under the provisions of this
Indenture upon the good faith thereof.
SECTION 7.8. QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
The Trustee for the Securities of any series issued hereunder shall be subject
to the provisions of Section 310(b) of the Trust Indenture Act during the period
of time provided for therein. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE.
There shall at all times be a Trustee hereunder for each series of Securities,
which shall be at all times either
(i) a corporation organized and doing business under
the laws of the United States of America or of any State or
territory or the District of Columbia, authorized under such
laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, territory or
District of Columbia authority, or
(ii) a corporation or other person organized and
doing business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation or
order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000. If
such corporation publishes reports of condition at least annually, pursuant to
law or to requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 7.9, the combined capital and surplus
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of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee for the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section 7.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article. Neither
the Company nor any person directly or indirectly controlling, controlled by, or
under common control with the Company 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
Company 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 Company 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 Company 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 Company 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 Company may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors of the Company, 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 Company 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 Company 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 Company 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 Company 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 Company 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 Company 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 Company.
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
COMPANY. (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
Company 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 Company 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 Company
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 Company 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 Company) 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
Company 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
Company 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 Company 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 Company 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 Company; 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 Company 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 Company 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 Company 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 "COMPANY" 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 Company
Request, there shall be an authenticating agent (the "Authenticating Agent")
appointed, for such period as the Company 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 Company. 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 Company. 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
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eligible in accordance with the provisions of this Section 7.14, the Trustee
shall upon Company Request appoint a successor Authenticating Agent, and the
Company 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 Company 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 Company may (but shall not be required to) set a record
date for purposes of determining the identity of Securityholders entitled to
vote or consent to any action by vote or consent authorized or permitted under
this Indenture, which record date shall be the later of 10 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 5.1 of this Indenture prior
to such solicitation. If a record date is fixed, those persons who were
Securityholders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
SECTION 8.2. PROOF OF EXECUTION OF INSTRUMENTS BY HOLDERS OF
SECURITIES. Subject to Sections 7.1, 7.2 and 9.5, the execution of any
instrument by a Holder of a Security or his agent or proxy may be proved in any
reasonable manner that the Trustee deems sufficient, including, without
limitation, in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or
other officer authorized to take acknowledgments of deeds, that the
person executing such instrument acknowledged to him the execution
thereof, or by an affidavit or written statement of a witness to such
execution. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other person
acting in a representative capacity, such certificate, affidavit or
written statement shall also constitute sufficient proof of his
authority.
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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 Company, the
Trustee and any agent of the Company 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 Company, the Trustee nor any agent of
the Company 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 Company, the Trustee or any agent of the Company
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. Not withstanding the foregoing,
with respect to any Global Security, nothing herein shall prevent the Company or
the Trustee or any agent of the Company 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 COMPANY 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 Company 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 Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities
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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
Company 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 Company 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 Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Company 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 Company, 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 Company 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 COMPANY OR HOLDERS. In case
at any time the Company, 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 Company 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 Company 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 Company or by Holders of Securities as provided in Section 9.3, in which
case the Company 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 Company 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 Company, 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
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
under this Indenture and the Securities;
(c) to add to the covenants of the Company 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 or Tranche thereof, 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 Company 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 Company, 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 Company 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 Company without consent of the Holder of each Security of
such series so affected.
Upon the request of the Company, 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 Company in the execution of such supplemental indenture
unless such supplemental indenture adversely affects the Trustee's own rights,
duties or immunities
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under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 10.3. NOTICE OF SUPPLEMENTAL INDENTURE. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 10.2, the Company 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 Company 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 Company 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.
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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 Company and the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, 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 WHEN COMPANY MAY MERGE, ETC. The Company shall
not consolidate with, or merge with or into any other corporation (whether or
not the Company shall be the surviving corporation), or sell, assign, transfer
or lease all or substantially all of its properties and assets as an entirety or
substantially as an entirety to any Person or group of affiliated Persons, in
one transaction or a series of related transactions, unless:
(1) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or with
which or into which the Company is merged or the Person (or group of
affiliated Persons) to which all or substantially all the properties
and assets of the Company as an entirety or substantially as an
entirety are sold, assigned, transferred or leased shall be a
corporation (or constitute corporations) organized and existing under
the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture; and
(2) immediately before and after giving effect to such
transaction or series of related transactions, no Event of Default
shall have occurred and be continuing.
SECTION 11.2 OPINION OF COUNSEL. The Company shall deliver to
the Trustee prior to the proposed transaction(s) covered by Section 11.1 an
Officer's Certificate and an Opinion of Counsel stating that the transaction(s)
and such supplemental indenture comply with this Indenture and that all
conditions precedent to the consummation of the transaction(s) under this
Indenture have been met.
SECTION 11.3 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any lease, sale, assignment, or transfer of all or substantially
all of the property and assets of the Company in accordance with Section 11.1,
the successor corporation formed by such consolidation or into which the Company
is merged or the successor corporation or affiliated group of corporations to
which such lease, sale, assignment, or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation or
corporations had been named as the Company herein, and thereafter, except in the
case
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of a lease, the predecessor corporation or corporations shall be relieved of all
obligations and covenants under this Indenture and the Securities and in the
event of such conveyance or transfer, except in the case of a lease, any such
predecessor corporation may be dissolved and liquidated.
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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(15), the Company 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 Company and upon Company 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 Company and thereafter
repaid to the Company 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 Company 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 Company 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 Company 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 Company 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 Company 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 Company; PROVIDED, HOWEVER, that
the Company 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 Company
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 Company upon Company Request.
SECTION 12.2. SATISFACTION AND DISCHARGE OF INDENTURE. Upon
compliance by the Company 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 Company 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 Company Request and receipt of an Opinion of Counsel and an
Officers' Certificate (and at the expense of the Company), 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 Company 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 Company 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 Company 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 Company 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 Company.
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 Company, 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 Company by the Trustee on demand; and the Holder of any of such
Securities entitled to receive such payment shall thereafter look only to the
Company for the payment thereof; PROVIDED, HOWEVER, that the Company or the
Trustee, before making any such repayment, shall at the expense of the Company
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 Company.
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 COMPANY 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 Company or of any successor, either
directly or through the Company 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 COMPANY BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company 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
Company may be given or served by registered mail addressed (until another
address is filed by the Company with the Trustee) as follows: Idaho Power
Company, ________________, Attention: ____________ (with a concurrent copy to
the General Counsel). Any notice, direction, request or demand by the Company 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
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company 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
Company 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 Company, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company, 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
Company 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 Company, 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 any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day in any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities, other than a provision in Securities of
any series, or any Tranche thereof, or in the indenture supplemental hereto,
Board Resolution or Officer's Certificate that establishes the terms of the
Securities of such series or Tranche, which specifically states that such
provision shall apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at
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the Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, to such Business Day.
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 Company 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 Company 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.
Unless otherwise provided as to a particular series of Securities
or any Tranche thereof, if at the time of publication or mailing of any notice
of redemption the Company shall not have deposited with the Trustee or Paying
Agent and/or irrevocably directed the Trustee or Paying Agent to apply, from
money held by it available to be used for the redemption of Securities, an
amount in cash sufficient to redeem all of the
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Securities called for redemption, including accrued interest, if any, to the
Redemption Date, such notice shall state that it is subject to the receipt of
the redemption moneys by the Trustee or Paying Agent before the Redemption Date
(unless such redemption is mandatory) and such notice shall be of no effect
unless such moneys are so received before such date.
If fewer than all the Securities of any series are to be redeemed
the notice of redemption shall specify the numbers of the Securities of such
series to be redeemed. In case any Security of any series is to be redeemed in
part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the Redemption
Date, upon surrender of such Security, a new Security or Securities of such
series in principal amount equal to the unredeemed portion thereof will be
issued, or, in the case of Securities providing appropriate space for such
notation, at the option of the Holders the Trustee, in lieu of delivering a new
Security or Securities as aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.
On or before the Redemption Date with respect to the
Securities of any series stated in the notice of redemption given as provided in
this Section 14.2, the Company 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 Company 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 any series, or any Tranche
thereof, are to be redeemed, and if at the time the Company shall have given
notice of redemption to the Trustee in accordance with Section 14.2, there shall
not be on file with the Trustee and in effect a Holders' Redemption Agreement,
as hereinafter defined, the particular Securities to be redeemed shall be
selected by the Trustee, from the Outstanding Securities of such series or
Tranche not previously called for redemption, substantially pro rata, by lot or
by any other method the Trustee considers fair and appropriate and that complies
with the requirements of the principal national securities exchange, if any, on
which such Securities are listed, and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a denomination
larger than the minimum authorized denomination for Securities of that series or
Tranche; provided that in case the Securities of such series or Tranche have
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different terms and maturities, the Securities to be redeemed shall be selected
by the Company and the Company shall give notice thereof to the Trustee;
provided, however, that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and fewer
than all of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
If at the time the Company shall have given notice of redemption
to the Trustee in accordance with Section 14.2, there shall be on file with the
Trustee and in effect a Holders' Redemption Agreement, as hereinafter defined,
then the Trustee shall select, in accordance with the provisions of said
Holders' Redemption Agreement, the Securities or parts thereof to be redeemed.
For the purposes of this Indenture, the term "Holders' Redemption
Agreement' shall mean an agreement, reasonably satisfactory to the Trustee,
executed as provided in this Section, which provides for the method to be
followed by the Trustee in selecting Securities or parts of Securities for
redemption out of any funds held by the Trustee to be applied to such
redemption. A Holder's Redemption Agreement may be made with respect to a single
series of Securities, or Tranche thereof, in which case it shall be executed by
or on behalf of the Holders of all Outstanding Securities of such series or
Tranche, or it may be made with respect to all Outstanding Securities in which
case it shall be executed by or on behalf of the Holders of all Securities
Outstanding hereunder.
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 and the Company has
deposited, on or before the Redemption Date, with the Trustee (and/or having
irrevocably directed the Trustee to apply, from money held by it available to be
used for the redemption of Securities) an amount in cash sufficient to redeem
all of the Securities to be redeemed, 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 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
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Payment in such notice specified, such Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price, together with any interest accrued thereon to the applicable Redemption
Date, except that if such Redemption Date is an Interest Payment Date, interest
shall be paid as provided in Section 3.8.
Upon presentation of any Security redeemed in part only, the
Company 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
Company, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
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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 Company 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 Company, 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 a company order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company 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 Company will deliver to the Trustee a certificate signed by a
Vice President, the Treasurer or any Assistant Treasurer of the Company
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 Company 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 Company 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 Company 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 Company if the Company 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 Company if the Company 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 Company 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 Company 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 Company if the Company 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 Company 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 Company shall
pay to the Trustee (or, if the Company 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 Company 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
Company if the Company 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 Company) 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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<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.
IDAHO POWER COMPANY
By ______________________
Name:
Title:
[Seal]
Attest:
______________________
Name:
Title:
[Trustee]
By ______________________
Name:
Title:
[Seal]
Attest:
______________________
Name:
Title:
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<PAGE>
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
At ____________________, on this ____ day of ________ 2000,
before me, a Notary Public in and for the County of ______________ and State of
______________, personally appeared ______________________________ and
_____________________, the ___________________ and ___________, respectively, of
Idaho Power Company, 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 Idaho Power
Company.
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 _________,2000
before me, a Notary Public in and for the County and State of New York,
personally appeared _________________________ and ____________________, the
_____________________ and __________________, respectively, of [trustee] ___, 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 [Trustee}.
NOTARIAL SEAL
----------------------------------
Notary Public
My Commission Expires:
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<PAGE>
Exhibit 5.1
Robert W. Stahman, Esq.
Vice President, General Counsel
and Secretary
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702-5627
March 22, 2000
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702-5627
Ladies and Gentlemen:
I am General Counsel to Idaho Power Company, 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 proposes 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") relating to $200,000,000 in aggregate principal amount of its (i) serial
preferred stock, without par value (the "Preferred Stock"); (ii) unsecured debt
securities (the "Debentures"); and (iii) first mortgage bonds (the "Bonds")
(with the Debentures referred to as the "Debt Securities" and collectively with
the Preferred Stock referred to as 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 Bonds will be issued in one or more series pursuant to the
Indenture of Mortgage and Deed of Trust dated as of October 1, 1937 (the "First
Mortgage Bond Indenture") between the Company and Bankers Trust Company and R.G.
Page (Stanley Burg, successor individual trustee), as trustees, which is filed
as an exhibit to the Registration Statement. The Debentures will be issued in
one or more series pursuant to a Debt Securities Indenture (the "Debenture
Indenture") between the Company and the trustee, the form of which 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
Registration Statement; (ii) the Restated Articles of Incorporation, as amended,
and Amended Bylaws of the Company; (iii) the First Mortgage Bond Indenture; (iv)
the Debenture
<PAGE>
Idaho Power Company March 22, 2000
Indenture; (v) resolutions adopted by the Board of Directors of the Company
relating to the Registration Statement and (vi) such other instruments,
certificates, records and documents, and such matters of law, as I have
considered necessary or appropriate for the purposes hereof. 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, relied upon the
aforesaid Registration Statement, Restated Articles of Incorporation, Amended
Bylaws, First Mortgage Bond Indenture, Debenture Indenture, resolutions,
instruments, certificates, records 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) appropriate authorizations by the Idaho Public Utilities
Commission, the Public Service Commission of Wyoming and the Public Utility
Commission of Oregon shall have been granted, (ii) the Registration Statement,
as finally amended (including any necessary post-effective amendments), shall
have become effective under the Securities Act, (iii) the First Mortgage Bond
Indenture and the Debenture 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 (iv) 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 Debenture Indenture shall have been duly executed and
delivered by the Company and the trustee and (ii) a Board Resolution within the
meaning of the First Mortgage Bond Indenture or Debenture Indenture, as the case
may be, shall have been issued or a supplemental indenture entered into, in
accordance with the First Mortgage Bond Indenture or Debenture
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<PAGE>
Idaho Power Company March 22, 2000
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 trustee of the proper papers
with respect to the Debt Securities of a particular series, the Debt Securities
of such series shall be issuable under the terms of the First Mortgage Bond
Indenture or Debenture 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 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 First Mortgage Bond
Indenture or Debenture 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) appropriate authorizations by the Idaho Public Utilities
Commission, the Public Service Commission of Wyoming and the Public Utility
Commission of Oregon shall have been granted, (ii) the Registration Statement,
as finally amended (including any necessary post-effective amendments), shall
have become effective under the Securities Act and (iii) 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.
(7) When (i) the Board of Directors of the Company shall have taken
appropriate action to authorize the issuance and sale of the series of Preferred
Stock, (ii) the Articles of Amendment to the Restated Articles of Incorporation,
as amended, 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
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<PAGE>
Idaho Power Company March 22, 2000
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.
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. Except as set forth in
paragraphs 2 and 6 above, my opinions expressed above are limited to the laws of
the State of Idaho 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 under the caption "Legal
Opinions" in said Registration Statement and any amendments thereto and in the
Prospectus constituting a part thereof.
Very truly yours,
/s/ Robert W. Stahman
Robert W. Stahman
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<PAGE>
Exhibit 5.2
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019-5389
March 22, 2000
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702-5627
Ladies and Gentlemen:
We have acted as counsel to Idaho Power Company, 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 proposes
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") relating to $200,000,000 in aggregate principal amount of its
(i) serial preferred stock, without par value (the "Preferred Stock"); (ii)
unsecured debt securities (the "Debentures"); and (iii) first mortgage bonds
(the "Bonds") (with the Debentures referred to as the "Debt Securities" and
collectively with the Preferred Stock referred to as 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 Bonds will be issued in one or more series pursuant to the
Indenture of Mortgage and Deed of Trust dated as of October 1, 1937 (the "First
Mortgage Bond Indenture") between the Company and Bankers Trust Company and R.G.
Page (Stanley Burg, successor individual trustee), as trustees, which is filed
as an exhibit to the Registration Statement. The Debentures will be issued in
one or more series pursuant to a Debt Securities Indenture (the "Debenture
Indenture") between the Company and the trustee, the form of which 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
1
<PAGE>
Idaho Power Company
March 22, 2000
Page 2
satisfaction, of (i) the Registration Statement; (ii) the Restated Articles of
Incorporation and Amended Bylaws of the Company; (iii) the First Mortgage Bond
Indenture; (iv) the Debenture Indenture; (v) resolutions adopted by the Board of
Directors of the Company relating to the Registration Statement and (vi) such
other instruments, certificates, records and documents, and such matters of law,
as we have considered necessary or appropriate for the purposes hereof. 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 any facts material to our opinion, we
have, when relevant facts were not independently established, relied upon the
aforesaid Registration Statement, Restated Articles of Incorporation, Amended
Bylaws, First Mortgage Bond Indenture, Debenture Indenture, resolutions,
instruments, certificates, records and documents. We have also assumed the
regularity of all corporate procedures.
Based upon the foregoing, and subject to the qualifications and
limitations contained in this opinion, we are of the opinion that:
(1) When (i) appropriate authorizations by the Idaho Public Utilities
Commission, the Public Service Commission of Wyoming and the Public Utility
Commission of Oregon shall have been granted, (ii) the Registration Statement,
as finally amended (including any necessary post-effective amendments), shall
have become effective under the Securities Act, (iii) the First Mortgage Bond
Indenture and the Debenture 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 (iv) 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 Debenture Indenture shall have been duly executed and
delivered by the Company and the trustee and (ii) a Board Resolution within the
meaning of the First Mortgage Bond Indenture or Debenture Indenture shall have
been issued or a supplemental indenture entered into, in accordance with the
First
2
<PAGE>
Idaho Power Company
March 22, 2000
Page 3
Mortgage Bond Indenture or Debenture 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 trustee of the proper papers
with respect to the Debt Securities of a particular series, the Debt Securities
of such series shall be issuable under the terms of the First Mortgage Bond
Indenture or Debenture 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
Securities of such series will be legally issued and binding obligations of the
Company and will be entitled to the benefits of the First Mortgage Bond
Indenture or Debenture 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) appropriate authorizations by the Idaho Public Utilities
Commission, the Public Service Commission of Wyoming and the Public Utility
Commission of Oregon shall have been granted, (ii) the Registration Statement,
as finally amended (including any necessary post-effective amendments), shall
have become effective under the Securities Act and (iii) 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.
(6) When (i) the Board of Directors of the Company shall have taken
appropriate action to authorize the issuance and sale of the series of Preferred
Stock, (ii) the Articles of Amendment to the Restated Articles of Incorporation,
as amended, of the Company relating to the series of Preferred Stock shall have
been filed with the Secretary of State of Idaho in the form
3
<PAGE>
Idaho Power Company
March 22, 2000
Page 4
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.
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 and the federal
laws of the United States. Insofar as this opinion involves matters of the law
of the State of Idaho, Oregon and Wyoming, 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.
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. We are not passing
upon matters relating to the incorporation of the Company, titles to property,
liens, licenses, franchises, water rights or conformity to the laws of the State
of Idaho, Montana, Nevada, Oregon or Wyoming, or upon questions of the recording
of, or the validity or priority of the lien of, the mortgage securing the Bonds.
In giving such consent, we do not thereby concede that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
4
<PAGE>
Exhibit 23
Independent Auditors' Consent
Idaho Power Company:
We consent to the incorporation by reference in this Registration
Statement of Idaho Power Company on Form S-3 of our reports dated January 31,
2000, appearing in the Annual Report on Form 10- K of IDACORP, Inc. and Idaho
Power Company for the year ended December 31, 1999 and to the reference to us
under the heading "Experts" in the prospectus, which is part of this
Registration Statement.
Deloitte & Touche LLP
March 22, 2000
Boise, Idaho
- --------------------------------------------------------------------------------
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)
------------------------------------------------------
IDAHO POWER COMPANY
(Exact name of obligor as specified in its charter)
IDAHO 82-0130980
(State or other jurisdiction or organization) (IRS EmployerIdentification no.)
1221 West Idaho Street
Boise, Idaho 87302-5627
(208) 388-2200
(Address, including zip code and telephone
of principal executive offices)
------------------------------------------------------
First Mortgage Bonds
(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 6, 1998,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
September 25, 1998, and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated December 16,
1998, copies 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 June 22, 1999. 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,
1999. 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 this 23rd day
of March, 2000
BANKERS TRUST COMPANY
By: _________________________________
Vincent Chorney
Assistant Vice President
-4-
<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 this 23rd day
of March, 2000.
BANKERS TRUST COMPANY
/s/ Vincent Chorney
---------------------
By: Vincent Chorney
Assistant Vice President
-5-
<PAGE>
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
----------------------------
Under Section 8007
Of the Banking Law
----------------------------
Bankers Trust Company
130 Liberty Street
New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks,
State of New York, August 31, 1998
<PAGE>
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary and a Vice President 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 the corporation was filed by the
Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is
hereby restated without further amendment or change to read as herein set forth
in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A. Blair,
James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton
Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter,
John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young,
all being persons of full age and citizens of the United States, and a majority
of us being residents of the State of New York, desiring to form a corporation
to be known as a Trust Company, do hereby associate ourselves together for that
purpose under and pursuant to the laws of the State of New York, and for such
purpose we do hereby, under our respective hands and seals, execute and duly
acknowledge this Organization Certificate in duplicate, and hereby specifically
state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust
Company.
II. The place where its business is to be transacted is the City of New
York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is
hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares
with a par value of $10 each designated as Common Stock and 1,000 shares with a
par value of One Million Dollars ($1,000,000) each designated as Series
Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock,
dividends may be declared and paid or set apart for payment upon the Common
Stock out of any assets or funds of the corporation legally available for the
payment of dividends.
<PAGE>
2. Voting Rights: Except as otherwise expressly provided with respect to
the Series Preferred Stock or with respect to any series of the Series Preferred
Stock, the Common Stock shall have the exclusive right to vote for the election
of directors and for all other purposes, each holder of the Common Stock being
entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or a sum sufficient for the
payment in full set aside, the remaining net assets of the corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests, to the exclusion of the holders of the Series
Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall
be entitled, as such, as a matter of right, to subscribe for or purchase any
part of any new or additional issue of stock of any class or series whatsoever,
any rights or options to purchase stock of any class or series whatsoever, or
any securities convertible into, exchangeable for or carrying rights or options
to purchase stock of any class or series whatsoever, whether now or hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to
time by the Board of Directors as herein provided in one or more series. The
designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may, to
the extent permitted by law, be similar to or may differ from those of any other
series. The Board of Directors of the corporation is hereby expressly granted
authority, subject to the provisions of this Article III, to issue from time to
time Series Preferred Stock in one or more series and to fix from time to time
before issuance thereof, by filing a certificate pursuant to the Banking Law,
the number of shares in each such series of such class and all designations,
relative rights (including the right, to the extent permitted by law, to convert
into shares of any class or into shares of any series of any class), preferences
and limitations of the shares in each such series, including, buy without
limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may
at any time, or from time to time, be increased or decreased by the Board
of Directors, notwithstanding that shares of the series may be outstanding
at the time of such increase or decrease, unless the Board of Directors
shall have otherwise provided in creating such series) and the distinctive
designation thereof;
(ii) The dividend rate on the shares of such series, whether or not
dividends on the shares of such series shall be cumulative, and the date
or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable,
and, if redeemable, the date or dates upon or after which they shall be
redeemable, the amount or amounts per share (which shall be, in the case
of each share, not less than its preference upon involuntary liquidation,
plus an amount equal to all dividends thereon accrued and unpaid, whether
or not earned or declared) payable thereon in the case of the redemption
thereof, which amount may vary at different redemption dates or otherwise
as permitted by law;
(iv) The right, if any, of holders of shares of such series to
convert the same into, or exchange the same for, Common Stock or other
stock as permitted by law, and the terms and conditions of such
<PAGE>
conversion or exchange, as well as provisions for adjustment of the
conversion rate in such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon
the voluntary and involuntary liquidation, dissolution or winding up of
the corporation;
(vi) Whether the holders of shares of such series shall have voting
power, full or limited, in addition to the voting powers provided by law
and, in case additional voting powers are accorded, to fix the extent
thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with the
organization certificate of the corporation or with the resolution or
resolutions adopted by the Board of Directors providing for the issue of
any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical
in all respects, except that shares of any one series issued at different times
may differ as to dates, if any, from which dividends thereon may accumulate. All
shares of Series Preferred Stock of all series shall be of equal rank and shall
be identical in all respects except that to the extent not otherwise limited in
this Article III any series may differ from any other series with respect to any
one or more of the designations, relative rights, preferences and limitations
described or referred to in subparagraphs (I) to (vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each
series shall be declared and paid or set apart for payment before any dividends
shall be declared and paid or set apart for payment on the Common Stock with
respect to the same quarterly dividend period. Dividends on any shares of Series
Preferred Stock shall be cumulative only if and to the extent set forth in a
certificate filed pursuant to law. After dividends on all shares of Series
Preferred Stock (including cumulative dividends if and to the extend any such
shares shall be entitled thereto) shall have been declared and paid or set apart
for payment with respect to any quarterly dividend period, then and not
otherwise so long as any shares of Series Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for payment with
respect to the same quarterly dividend period on the Common Stock out the assets
or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank,
preference and priority as to dividends irrespective of whether or not the rates
of dividends to which the same shall be entitled shall be the same and when the
stated dividends are not paid in full, the shares of all series of the Series
Preferred Stock shall share ratably in the payment thereof in accordance with
the sums which would by payable on such shares if all dividends were paid in
full, provided, however, that nay two or more series of the Series Preferred
Stock may differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the
certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or for any other
purpose and the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or winding up
of the corporation, whether voluntary or involuntary, each series of Series
Preferred Stock shall have preference and priority over the Common Stock for
payment of the amount to which each outstanding series of Series Preferred Stock
shall be entitled in accordance with the provisions thereof and each holder of
Series Preferred Stock shall be entitled to be paid in full such amount, or have
a sum sufficient for the payment in full set aside, before any payments shall be
made to the holders of the Common Stock. If, upon liquidation, dissolution or
winding up of the corporation, the assets of the corporation or proceeds
thereof, distributable among the holders of the shares of all series of the
Series Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective amounts
which would be payable
<PAGE>
if all amounts payable thereon were paid in full. After the payment to the
holders of Series Preferred Stock of all such amounts to which they are
entitled, as above provided, the remaining assets and funds of the corporation
shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series shall
be made redeemable as provided in clause (iii) of paragraph 1 of section (b) of
this Article III, the corporation, at the option of the Board of Directors, may
redeem at any time or times, and from time to time, all or any part of any one
or more series of Series Preferred Stock outstanding by paying for each share
the then applicable redemption price fixed by the Board of Directors as provided
herein, plus an amount equal to accrued and unpaid dividends to the date fixed
for redemption, upon such notice and terms as may be specifically provided in
the certificate filed pursuant to law with respect to the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the
corporation shall be entitled, as such, as a matter or right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock,
Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established
hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A"
(hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall
initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased
or otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall
be entitled to receive non-cumulative cash dividends when, as and if declared by
the Board of Directors of the corporation, out of funds legally available
therefor, from the date of original issuance of such shares (the "Issue Date")
and such dividends will be payable on March 28, June 28, September 28 and
December 28 of each year (:Dividend Payment Date") commencing September 28,
1990, at a rate per annum as determined in paragraph 3(b) below. The period
beginning on the Issue Date and ending on the day preceding the firs Dividend
Payment Date and each successive period beginning on a Dividend Payment Date and
ending on the date preceding the next succeeding Dividend Payment Date is herein
called a "Dividend Period". If any Dividend payment Date shall be, in The City
of New York, a Sunday or a legal holiday or a day on which banking institutions
are authorized by law to close, then payment will be postponed to the next
succeeding business day with the same force and effect as if made on the
Dividend Payment Date, and no interest shall accrue for such Dividend Period
after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in respect
of Series A Preferred Stock (the "Dividend Rate") shall be determined on the
basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the
basis of the offered rates for deposits in U.S. dollars having a maturity of
three months commencing on the second London Business Day immediately following
such Dividend Determination Date, as such rates appear on the Reuters Screen
LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If
at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in
respect of such Dividend Determination Dates will be the arithmetic mean
(rounded to the nearest one-hundredth of a percent, with five one-thousandths of
a percent rounded upwards) of such offered rates. If fewer than those offered
rates appear, LIBOR in respect of such Dividend Determination Date will be
determined as described in paragraph (ii) below.
<PAGE>
(ii) On any Dividend Determination Date on which fewer than those offered rates
for the applicable maturity appear on the Reuters Screen LIBO Page as specified
in paragraph (I) above, LIBOR will be determined on the basis of the rates at
which deposits in U.S. dollars having a maturity of three months commending on
the second London Business Day immediately following such Dividend Determination
Date and in a principal amount of not less than $1,000,000 that is
representative of a single transaction in such market at such time are offered
by three major banks in the London interbank market selected by the corporation
at approximately 11:00 A.M., London time, on such Dividend Determination Date to
prime banks in the London market. The corporation will request the principal
London office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such Dividend
Determination Date will be the arithmetic mean (rounded to the nearest
one-hundredth of a percent, with five one-thousandths of a percent rounded
upwards) of such quotations. If fewer than two quotations are provided, LIBOR in
respect of such Dividend Determination Date will be the arithmetic mean (rounded
to the nearest one-hundredth of a percent, with five one-thousandths of a
percent rounded upwards) of the rates quoted by three major banks in New York
City selected by the corporation at approximately 11:00 A.M., New York City
time, on such Dividend Determination Date for loans in U.S. dollars to leading
European banks having a maturity of three months commencing on the second London
Business Day immediately following such Dividend Determination Date and in a
principal amount of not less than $1,000,000 that is representative of a single
transaction in such market at such time; provided, however, that if the banks
selected as aforesaid by the corporation are not quoting as aforementioned in
this sentence, then, with respect to such Dividend Period, LIBOR for the
preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the lower
of 18% of 50 basis points above LIBOR for such Dividend Period as LIBOR is
determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with resect to
any Dividend Period, the second London Business Day prior to the commencement of
such Dividend Period; and the term "London Business Day" shall mean any day that
is not a Saturday or Sunday and that, in New York City, is not a day on which
banking institutions generally are authorized or required by law or executive
order to close and that is a day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have
the voting power and rights set forth in this paragraph 4 and shall have no
other voting power or rights except as otherwise may from time to time be
required by law.
So long as any shares of Series A Preferred Stock remain outstanding, the
corporation shall not, without the affirmative vote or consent of the holders of
at least a majority of the votes of the Series Preferred Stock entitled to vote
outstanding at the time, given in person or by proxy, either in writing or by
resolution adopted at a meeting at which the holders of Series A Preferred Stock
(alone or together with the holders of one or more other series of Series
Preferred Stock at the time outstanding and entitled to vote) vote separately as
a class, alter the provisions of the Series Preferred Stock so as to materially
adversely affect its rights; provided, however, that in the event any such
materially adverse alteration affects the rights of only the Series A Preferred
Stock, then the alteration may be effected with the vote or consent of at least
a majority of the votes of the Series A Preferred Stock; provided, further, that
an increase in the amount of the authorized Series Preferred Stock and/or the
creation and/or issuance of other series of Series Preferred Stock in accordance
with the organization certificate shall not be, nor be deemed to be, materially
adverse alterations. In connection with the exercise of the voting rights
contained in the preceding sentence, holders of all series of Series Preferred
Stock which are granted such voting rights (of which the Series A Preferred
Stock is the initial series) shall vote as a class (except as specifically
provided otherwise) and each holder of Series A Preferred Stock shall have one
vote for each share of stock held and each other series shall have such number
of votes, if any, for each share of stock held as may be granted to them.
The foregoing voting provisions will not apply if, in connection with the
matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article III,
upon any liquidation, dissolution or winding up of the corporation, whether
voluntary or involuntary, the holders of the Series A Preferred Stock shall
<PAGE>
have preference and priority over the Common Stock for payment out of the assets
of the corporation or proceeds thereof, whether from capital or surplus, of
$1,000,000 per share (the "liquidation value") together with the amount of all
dividends accrued and unpaid thereon, and after such payment the holders of
Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article
III, Series A Preferred Stock may be redeemed, at the option of the corporation
in whole or part, at any time or from time to time at a redemption price of
$1,000,000 per share, in each case plus accrued and unpaid dividends to the date
of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series A Preferred Stock to be redeemed in the
following manner: a notice specifying the shares to be redeemed and the time and
place or redemption (and, if less than the total outstanding shares are to be
redeemed, specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series A Preferred Stock to be redeemed at their respective
addressees as the same shall appear upon the books of the corporation, not more
than sixty (60) days and not less than thirty (30) days previous to the date
fixed for redemption. In the event such notice is not given to any shareholder
such failure to give notice shall not affect the notice given to other
shareholders. If less than the whole amount of outstanding Series A Preferred
Stock is to be redeemed, the shares to be redeemed shall be selected by lot or
pro rata in any manner determined by resolution of the Board of Directors to b
fair and proper. From and after the date fixed in any such notice as the date of
redemption (unless default shall be made by the corporation in providing moneys
at the time and place of redemption for the payment of the redemption price) all
dividends upon the Series A Preferred Stock so called for redemption shall cease
to accrue, and all rights of the holders of said Series A Preferred Stock as
stockholders in the corporation, except the right to receive the redemption
price (without interest) upon surrender of the certificate representing the
Series A Preferred Stock so called for redemption, duly endorsed for transfer,
if required, shall cease and terminate. The corporation's obligation to provide
moneys in accordance with the preceding sentence shall be deemed fulfilled if,
on or before the redemption date, the corporation shall deposit with a bank or
trust company (which may e an affiliate of the corporation) having an office in
the Borough of Manhattan, City of New York, having a capital and surplus of at
least $5,000,000 funds necessary for such redemption, in trust with irrevocable
instructions that such funds be applied to the redemption of the shares of
Series A Preferred Stock so called for redemption. Any interest accrued on such
funds shall be paid to the corporation from time to time. Any funds so deposited
and unclaimed at the end of two (2) years from such redemption date shall be
released or repaid to the corporation, after which the holders of such shares of
Series A Preferred Stock so called for redemption shall look only to the
corporation for payment of the redemption price.
IV. The name, residence and post office address of each member of the
corporation are as follows:
Name Residence Post Office Address
James A. Blair 9 West 50th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54th Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78th Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
<PAGE>
Granville W. Garth 160 West 57th Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57th Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
William H. Porter 56 East 67th Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49th Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for
himself does, hereby declare that he will accept the responsibilities and
faithfully discharge the duties of a director therein, if elected to act as
such, when authorized accordance with the provisions of the Banking Law of the
State of New York.
VII. The number of directors of the corporation shall not be less that 10
nor more than 25."
4. The foregoing restatement of the organization certificate was
authorized by the Board of Directors of the corporation at a meeting held on
July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th
day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th
day of August, 1998.
James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
<PAGE>
Lea Lahtinen
----------------------------
Lea Lahtinen
<PAGE>
State of New York )
) ss:
County of New York )
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice
President and 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 6th day of August, 1998.
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>
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 "RESTATED ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law,"
dated August 6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City
of New York, this 31st day of August in the Year of our Lord one thousand nine
hundred and ninety-eight.
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 Secretary and a Vice President 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 Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) 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."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1500 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 25th
day of September, 1998
James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and 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 25th day
of September, 1998
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, 2000
<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 September 16, 1998, providing for an increase in authorized
capital stock from $3,001,666,670 consisting of 200,166,667 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 to $3,501,666,670
consisting of 200,166,667 shares with a par value of $10 each designated as
Common Stock and 1,500 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 25th day of September in the Year of our Lord one thousand
nine hundred and ninety-eight.
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 Secretary and a Vice President 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 Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1500 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 Three Billion, Six Hundred Twenty-Seven Million, Three Hundred
Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into
Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred
Sixty-Seven (212,730,867) shares with a par value of $10 each designated
as Common Stock and 1500 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 16th
day of December, 1998
James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and 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 16th day
of December, 1998
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, 2000
<PAGE>
State of New York,
Banking Department
I, P. VINCENT CONLON, 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 December 16, 1998, providing for an increase in
authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each
designated as Common Stock and 1,500 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 18th day of December in the Year of our Lord one thousand nine
hundred and ninety-eight.
P. Vincent Conlon
----------------------------
Deputy Superintendent of Banks
<PAGE>
BY-LAWS
JUNE 22, 1999
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 seven nor more than fifteen, 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.
<PAGE>
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 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 provided, however, that there shall be at least ten regular monthly
meetings during a calendar year. 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.
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.
<PAGE>
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.
<PAGE>
ARTICLE IV
OFFICERS
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
<PAGE>
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.
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.
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.
<PAGE>
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.
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
<PAGE>
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
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
<PAGE>
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, Vincent Chorney, Assistant Vice President 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.
/s/ Vincent Chorney
-------------------
Vincent Chorney
Assistant Vice President
DATED: March 23, 2000
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/99
Address: 130 Liberty Street Vendor ID: D
City, State ZIP: New York, NY 10006 Transit#: 21001003
State#: 36-4840 FFIEC 031
Cert#: 00623 Page RC-1
11
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1999
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
<TABLE>
<CAPTION>
| C400 |
--------------------------------
Dollar Amounts in Thousands | RCFD |
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS | / / / / / / / / / / / / / / / /|
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / / / / / /|
a. Non interest-bearing balances and currency and coin (1) ....................... | 0081 2,138,000 |1.a.
b. Interest-bearing balances (2) ................................................. | 0071 5,465,000 |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 1,811,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell............. | 135 19,558,000 3.
4. Loans and lease financing receivables: | / / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 22,038,000 | / / / / / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses......................RCFD 3123 458,000 | / / / / / / / / / / / / / / / |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 21,580,000 |4.d.
5. Trading Assets (from schedule RC-D) .............................................. | 3545 18,767,000 |5.
6. Premises and fixed assets (including capitalized leases) .......................... | 2145 877,000 |6.
7. Other real estate owned (from Schedule RC-M) ...................................... | 2150 88,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 948,000 |8.
9. Customers' liability to this bank on acceptances outstanding ...................... | 2155 230,,000 |9.
10. Intangible assets (from Schedule RC-M) ............................................ | 2143 100,000 |10.
11. Other assets (from Schedule RC-F) ................................................. | 2160 3,956,000 |11.
12. Total assets (sum of items 1 through 11) .......................................... | 2170 75,518,000 |12.
</TABLE>
__________________________
(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: 06/30/99
Address: 130 Liberty Street Vendor ID: D
City, State ZIP: New York, NY 10006 Transit#: 21001003
State#: 36-4840 FFIEC 031
Cert#: 00623 Page RC-1
12
<TABLE>
<CAPTION>
Schedule RC--Continued
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES
13. Deposits: | / / / / / / / / / / / / / / / /|
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 16,538,000 |13.a.
(1) Non interest-bearing(1) .................................................... | RCON 6631 2,636,000 |13.a.(1)
(2) Interest-bearing ........................................................... | RCON 6636 13,902,000 |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / / / / / / /|
part II) | RCFN 2200 18,293,000 |13.b.
(1) Non interest-bearing ....................................................... | RCFN 6631 3,202,000 |13.b.(1)
(2) Interest-bearing ........................................................... RCFN 6636 15,091,000 |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 5,772,000 |14.
15. a. Demand notes issued to the U.S. Treasury ....................................... | RCON 2840 500,000 |15.a.
b. Trading liabilities (from Schedule RC-D)........................................ | RCFD 3548 15,013,000 |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 3,157,000 |16.a.
b. With a remaining maturity of more than one year through three years............ | A547 2,990,000 |16.b.
c. With a remaining maturity of more than three years.............................. | A548 364,000 16.c
17. Not Applicable. | / / / / / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding .......................... | RCFD 2920 230,000 |18.
19. Subordinated notes and debentures (2).............................................. | RCFD 3200 331,000 |19.
20. Other liabilities (from Schedule RC-G) ............................................ | RCFD 2930 6,588,000 |20.
21. Total liabilities (sum of items 13 through 20) .................................... | RCFD 2948 69,776,000 |21.
22. Not Applicable | / / / / / / / / / / / / / |
| / / / / / / / / / / / / / |22.
EQUITY CAPITAL | / / / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus ..................................... | RCFD 3838 1,500,000 |23.
24. Common stock ...................................................................... | RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) .......................... | RCFD 3839 541,000 |25.
26. a. Undivided profits and capital reserves ......................................... | RCFD 3632 1,798,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ......... | RCFD 8434 (5,000) |26.b.
c. Accumulated net gains (losses) on cash flow hedges______________________ | RCFD 4336 0 |26c.
27. Cumulative foreign currency translation adjustments ............................... | RCFD 3284 (219,000) |27.
28. Total equity capital (sum of items 23 through 27) ................................. | RCFD 3210 5,742,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)...................... | RCFD 3300 75,518,000 |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 Number
best describes the most comprehensive level of auditing work performed -----------------------------
for the bank by independent externa auditors as of any date during 1997.......... | RCFD 6724 N/A | M.1
</TABLE>
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 non interest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-2
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF AN
INDIVIDUAL DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
------------------------------
STANLEY BURG ###-##-####
(Name of Trustee) (Social Security Number)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Business address, street, (Zip Code)
city and state)
------------------------------------------------------
IDAHO POWER COMPANY
(Exact name of obligor as specified in its charter)
IDAHO 82-0130980
(State or other jurisdiction of (IRS Employer Identification no.)
incorporation or organization)
1221 West Idaho Street
Boise, Idaho 83702-5627
(208) 388-2200
(Address, including zip code and telephone
of principal executive offices)
------------------------------------------------------
First Mortgage Bonds
(Title of the indenture securities)
<PAGE>
1. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each affiliation.
None.
2. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility and
qualification.
None.
------------------------------------------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, I,
Stanley Burg, have signed this statement of eligibility in The City of New
York and State of New York, on the 23rd of March 2000.
By: /s/ Stanley Burg
-------------------------------
Stanley Burg
(SIGNATURE OF TRUSTEE)
