IDAHO POWER COMPANY
First Mortgage Bonds,
Secured Medium-Term Notes, Series B
Due From Nine Months to Forty Years
From Date of Issue
Selling Agency Agreement
November 17, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABN AMRO Incorporated
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
Idaho Power Company, an Idaho corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale by the Company of
up to $83,000,000 aggregate principal amount of its First Mortgage Bonds,
Secured Medium-Term Notes, Series B, Due from Nine Months to Forty Years from
Date of Issue (the "Notes"). The Notes will be issued under the Indenture of
Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and
Bankers Trust Company, (the "Trustee") and R.G. Page (▇▇▇▇▇▇▇ ▇▇▇▇, successor
individual trustee), as trustees, as supplemented and amended by all indentures
supplemental thereto including the Thirty-fourth Supplemental Indenture relating
to the Notes dated as of December 1, 1993 (the "Supplemental Indenture"). The
Indenture of Mortgage and Deed of Trust as it has been and may be supplemented
as of any specified date is hereinafter referred to as the "Indenture". Unless
otherwise specifically provided for and set forth in a Pricing Supplement (as
defined below), the Notes will be issued in minimum denominations of $1,000 and
in denominations exceeding such amount by integral multiples of $1,000, will be
issued only in fully registered form and will have the interest rates,
maturities and, if applicable, other terms set forth in such Pricing Supplement.
The Notes will be issued, and the terms thereof established, in accordance with
the Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A, as they may be amended from time to time (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to Notes issued pursuant to such Terms
Agreement). The Procedures may be amended only by written agreement of the
Company and you after notice to the Trustee. For the purposes of this Agreement,
the term "Agent" shall refer to any of you acting solely in the capacity as
agent for the Company pursuant to Section 2(a) and not as principal
(collectively, the "Agents"), the term "Purchaser" shall refer to one of you
acting solely as principal pursuant to Section 2(b) and not as agent, and the
term "you" shall refer to you collectively whether at any time any of you is
acting in both such capacities or in either such capacity. In acting under this
Agreement, in whatever capacity, each of you is acting individually and not
jointly.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, you as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Number 33-51215), including a basic
prospectus, which has become effective, for the registration under the Act
of $200,000,000 aggregate amount of its first mortgage bonds and serial
preferred stock, without par value (the "Securities"), including the Notes.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act
and complies in all other material respects with said Rule. The Company has
filed or will file with the Commission pursuant to the applicable paragraph
of Rule 424 (b) under the Act a supplement to the form of prospectus
included in such registration statement relating to the Notes and the plan
of distribution thereof (the "Prospectus Supplement"). In connection with
the sale of Notes the Company proposes to file with the Commission pursuant
to the applicable paragraph of Rule 424(b) under the Act further
supplements to the Prospectus Supplement (each a "Pricing Supplement")
specifying the interest rates, maturity dates and, if appropriate, other
similar terms of the Notes sold pursuant hereto or the offering thereof.
(b)(i) As of the Execution Time and on the Effective Date, the
Registration Statement complied and (ii) on each date any supplement to the
Prospectus (as defined herein) relating to the Notes is filed with the
Commission, as of the date of a Terms Agreement and at the date of delivery
by the Company of any Notes sold hereunder (a "Closing Date"), the
Prospectus, as supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the respective rules thereunder; (iii) as of the
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Execution Time and on the Effective Date, the Registration Statement, as
amended as of either such time, did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; (iv) on each date any supplement to the Prospectus relating to
the Notes is filed with the Commission, as of the date of a Terms Agreement
and on any Closing Date, the Prospectus, as supplemented as of any such
time, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
and (v) on any Closing Date no stop order suspending the effectiveness of
the Registration Statement shall be in effect nor shall there have been
instituted or threatened any proceeding for such purpose; provided,
however, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statements of Eligibility (Forms T-1 and T-2), or amendments thereto, under
the Trust Indenture Act of the Trustees or (ii) the information contained
in or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have
been duly authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture.
(d) As of the time any Notes are issued and sold, the issue and sale
of the Notes and the compliance by the Company with all of the provisions
of the Notes, the Indenture, and this Agreement, and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in any violation of
the provisions of the Restated Articles of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
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Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Notes
or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such orders as have been issued by the
Idaho Public Utilities Commission (which grants authority to sell the Notes
through December 31, 1999), the Public Utility Commission of Oregon and the
Public Service Commission of Wyoming and are in full force and effect, and
such as have been, or will have been prior to any Closing Date, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the sale and
distribution of the Notes by the Agents.
(e) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which the Company's most recent Annual Report on Form 10-K is
filed. "Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall mean
the form of basic prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus" shall mean the
Basic Prospectus as supplemented by the Prospectus Supplement and any
applicable Pricing Supplement. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at
the Execution Time. "Rule 415" and "Rule 424", refer to such rules under
the Act. Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3, which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, the Prospectus Supplement or the Prospectus,
as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
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2. Appointment of Agents; Solicitation by the Agents of Offers to Purchase;
Sales of Notes to a Purchaser. (a) Subject to the terms and conditions set forth
herein and to the reservation by the Company of the right to sell Securities
directly on its own behalf, the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase of all or part of the Notes
from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, when requested by the Company to use its reasonable best efforts to
solicit offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and in the
Procedures. Each Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such Agent shall not,
except as otherwise provided in this Agreement, be obligated to disclose the
identity of any purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that if approved by
the Company any Agent may purchase Notes as principal pursuant to Section 2(b).
Each Agent agrees that in carrying out the transactions contemplated by the
Agreement, it will observe and comply with all securities or blue sky laws,
regulations, rules and ordinances in any jurisdiction in which the Notes may be
offered, sold or delivered applicable to it as Agent hereunder. Each Agent
agrees not to cause any advertisement of the Notes to be published in any
newspaper or periodical or posted in any public place and not to publicly issue
any circular relating to the Notes other than the Prospectus, except in any case
with the prior express consent of the Company.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised them that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, for such Agent's
services in acting as an agent and not for a purchase by such Agent as
principal, on the Closing Date with respect to each sale of Notes by the Company
as a result of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate
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principal amount of the Notes sold by the Company. Such commission shall be
payable as specified in the Procedures.
The Company may from time to time offer Securities or Notes for sale
otherwise than through an Agent and from time to time may appoint additional
agents to sell the Notes; provided, however, that so long as this Agreement
shall be in effect, the Company shall not solicit or accept offers to purchase
Notes through any agent other than an Agent, except that the Company may accept
offers to purchase Notes through an agent other than an Agent if the Company
gives the Agents reasonable prior notice of such acceptance and any such agent
enters into an agreement with the Company on terms which are substantially
similar to those contained in or incorporated in this Agreement.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result of
such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the Company
and any of you determine that the Company shall sell Notes directly to any of
you as principal, each such sale of Notes shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating to such sale. Each
such supplemental agreement is herein referred to as a "Terms Agreement". Each
Terms Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto and shall specify the aggregate principal amount of such Notes,
the price to be paid to the Company for such Notes, the maturity date of such
Notes, the rate at which interest will be paid on such Notes, the dates on which
interest will be paid on such Notes and the record date with respect to each
such payment of interest, the Closing Date for the purchase of such Notes, the
place of delivery of the Notes and payment therefor, the method of payment and
any requirements for the delivery of opinions of counsel, certificates from the
Company or its officers or a letter from the Company's independent public
accountants as described in Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(1) and certain terms of the
reoffering of the Notes. Any Terms Agreement shall be substantially in the form
attached hereto as Exhibit B and may take the form of an exchange of any
standard form of written telecommunication between the Purchaser and the
Company. The Purchaser's commitment to purchase Notes shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant to a
Terms Agreement shall be made not later than the Closing Date agreed to in such
Terms Agreement, against
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payment of funds to the Company in the net amount due to the Company for such
Notes by the method and in the form set forth in the Procedures unless otherwise
agreed to between the Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a Terms
Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser
at a price equal to 100% of the principal amount thereof less a percentage equal
to the commission applicable to an agency sale of a Note of identical maturity
and (ii) may be resold by such Purchaser at varying prices related to prevailing
market prices determined at the time of resale or, if set forth in the
applicable Terms Agreement and Pricing Supplement, at a fixed public offering
price. In connection with any resale of Notes purchased, a Purchaser may use a
selling or dealer group and may reallow to any broker or dealer any portion of
the discount or commission payable pursuant hereto. Any resale at a discount may
not exceed the amount set forth in the Pricing Supplement relating to such
Notes.
3. Offering and Sale of Notes. Each Agent and Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes (including
by way of resale by a Purchaser of Notes), the Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in the maturity dates, interest rates,
issuance prices or other similar terms of any Notes or (iii) an amendment
or a supplement relating to an offering of Securities other than the Notes)
unless the Company has furnished each of you through your counsel a copy
for your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each supplement
to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when, prior to termination of any offering of Notes, any amendment of
the Registration Statement (except periodic or current reports filed under
the Exchange Act) shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of the Registration Statement
or supplement to the Prospectus or
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for any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose and
(v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) notify each of you to suspend solicitation of offers to
purchase Notes (and, if so notified by the Company, each of you shall
forthwith suspend such solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement is satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement, if such an
amendment is required, resume your obligation to solicit offers to purchase
Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to each of
you copies of such documents.
(d) As soon as practicable, the Company will make generally available
to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
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(e) The Company will furnish to each of you and your counsel, without
charge, copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may
reasonably request.
(f) The Company will use its best efforts to arrange for the
qualification of the Notes for sale under the laws of such jurisdictions as
any of you may reasonably designate, will maintain such qualifications in
effect so long as required for the distribution of the Notes, except that
the Company shall not be required to qualify as a foreign corporation or
dealer in securities or to execute a general consent to service of process
in any jurisdiction.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of printing
or other production and delivery of the Registration Statement, the
Prospectus, all amendments thereof and supplements thereto, the
Supplemental Indenture, this Agreement, any Terms Agreement and all other
documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements of your
counsel incurred in compliance with Section 4(f) (such fees not to exceed
$10,000), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse each of you as requested for
all out-of-pocket expenses (including pre-approved advertising expenses),
if any, incurred by you in connection with the implementation of this
program and (iii) pay the reasonable fees and expenses of your counsel
incurred in connection with the implementation of this program.
(h) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the Closing Date
relating to such acceptance, as though made at and as of such time (it
being understood that for purposes of the foregoing affirmation and
covenant such representations and warranties shall relate to the
Registration Statement and Prospectus as amended or supplemented at each
such time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of the
Closing Date for the sale of such Notes, after giving effect to the
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issuance of such Notes, of any other Notes to be issued on or prior to such
Closing Date and of any other Securities to be issued and sold by the
Company on or prior to such Closing Date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the
Company will not exceed the amount of Securities registered pursuant to the
Registration Statement. The Company will inform you promptly upon your
request of the aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the
interest rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto or a change in the principal amount of Securities
remaining to be sold or (iii) in the form of an 8-K filed with the
Commission solely for the purpose of filing exhibits pursuant to Item 601
of Regulation S-K), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company, signed by the
Chairman of the Board or the President or the principal financial or
accounting officer of the Company, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in form
reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 5(d) but modified to relate to the last day of the
fiscal quarter for which financial statements of the Company were last
filed with the Commission and to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the
interest rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto or a change in the principal amount of Securities
remaining to be sold or (iii) in the form of an 8-K filed with the
Commission solely for the purpose of filing exhibits pursuant to Item 601
of Regulation S-K or (iv) setting forth or incorporating by reference
financial statements or other information as of and for a fiscal quarter,
unless, in the case of clause (iv) above, in the reasonable judgment of any
of you, such financial statements or other information are of such a nature
that an opinion of counsel should be furnished), the Company shall furnish
or cause to be furnished promptly to
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each of you a written opinion of counsel for the Company, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement or, in lieu of such opinion, counsel last furnishing such an
opinion to you may furnish each of you with a letter to the effect that you
may rely on such last opinion to the same extent as though it were dated
the date of such letter authorizing reliance (except that statements in
such last opinion will be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated five business
days after the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form satisfactory to each of you, of the
same tenor as the letter referred to in Section 5(e) with such changes as
may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter; provided, however, that, if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, the
Company's independent public accountants may limit the scope of such
letter, which shall be satisfactory in form to each of you, to the
unaudited financial statements, the related "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included in
such amendment or supplement, unless, in the reasonable judgment of any of
you, such letter should cover other information or changes in specified
financial statement line items.
(l) During the period, if any, specified in any Terms Agreement, the
Company shall not, without the prior consent of the Purchaser thereunder,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any first mortgage bonds issued by
the Company (other than the Notes being sold pursuant to such Terms
Agreement).
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(m) Notwithstanding the foregoing, it is agreed that if, at any time
and from time to time during the term of this Agreement, the Company should
deliver to the Agents notification of its decision to suspend any sale of
Notes hereunder, then during the period of any such suspension or
suspensions the Company shall be relieved of its obligation to provide to
the Agents the certificate, opinions and letter required pursuant to
Sections 4(i), 4(j) and 4(k) hereof. However, whenever such a suspension is
lifted, the Company shall be required to deliver to the Agents, prior to
the resumption of any sale of Notes hereunder, the most recent certificate,
opinions and letter which would have been required except for the
suspension.
(n) The Company confirms as of the Execution Time and on the Effective
Date, and each acceptance by the Company of an offer to purchase Notes will
be deemed an affirmation, that the Company is not subject to the provisions
of Section 517.075 of the Florida Securities and Investor Protection Act.
(o) During the term of this Agreement, the Company shall furnish to
each Agent (i) copies of all annual, quarterly and other reports furnished
to shareholders of the Company, (ii) copies of all annual, quarterly and
current reports (without exhibits but including documents incorporated
therein by reference) of the Company filed with the Commission under the
Exchange Act, (iii) copies of all announcements made to the general
financial community and (iv) notice of (x) any decrease in the rating or
(y) credit watch with negative implications, in either case of the Notes or
any other debt securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act).
(p) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have
the right to refuse to purchase such Note if, subsequent to the agreement
to purchase such Note, any change, condition or development specified in
any of Sections 8(b)(iii), (iv) or (v) shall have occurred (with the
judgment of the Agent which presented the offer to purchase such Note being
substituted for any judgment of a Purchaser required therein) the effect of
which is, in the judgment of the Agent which presented the offer to
purchase such Note, so material and adverse as to make it impractical or
inadvisable to proceed with the sale and delivery of such Note (it being
understood that under no circumstance shall any such Agent have any duty or
obligation to the Company or to any such person to exercise the judgment
permitted to be exercised under this Section 4(p)).
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5. Conditions to the Obligations of the Agents. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus relating to the Notes is filed with the Commission and as of each
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinions of
▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the Company and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq., General Counsel for the Company, dated the Execution Time
substantially in the forms of Exhibits D and E hereto.
(c) Each Agent shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Agents, such opinion or opinions, dated the Execution Time, with
respect to the incorporation of the Company, the validity of the Indenture
and the Notes, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose of enabling
them to pass upon such matters. In rendering their opinions, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ may rely upon the opinion described above of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq., General Counsel for the Company, as to all matters of Idaho, Montana,
Nevada, Oregon and Wyoming law.
(d) The Company shall have furnished to each Agent a certificate of
the Company, signed by the Chairman of the Board or the President or the
principal financial or accounting officer of the Company, dated the
Execution Time, to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be
-13-
performed or satisfied as a condition to the obligation of the Agents to
solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent audited financial
statements included in or incorporated by reference in the Prospectus,
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and its
subsidiaries considered as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated by the Prospectus.
(e) At the Execution Time, Deloitte & Touche shall have furnished to
each Agent a letter or letters (which may refer to letters previously
delivered to the Agents), dated as of the Execution Time to the effect set
forth in Exhibit C hereto.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents and certificates as the
Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be cancelled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered
at the office of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the
Company, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations of a
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
-14-
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) To the extent agreed to between the Company and the Purchaser in a
Terms Agreement, the Purchaser shall have received, appropriately updated,
(i) a certificate of the Company, dated as of the Closing Date, to the
effect set forth in Section 5(d) (except that references to the Prospectus
shall be to the Prospectus as supplemented as of the date of such Terms
Agreement), (ii) the opinions of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.,
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., counsel for the Company, dated as of the
Closing Date, to the effect referred to in Section 5(b), (iii) the
opinion(s) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Purchaser, dated as of
the Closing Date, to the effect referred to in Section 5(c), and (iv) the
letter of Deloitte & ▇▇▇▇▇▇, independent accountants for the Company, dated
as of the Closing Date, to the effect referred to in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the
Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and
the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be cancelled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancellation shall be given to the Company
in writing or by telephone or telegraph confirmed in writing.
7. Indemnification. (a) The Company will indemnify and hold harmless each
of you against any losses, claims, damages or liabilities, joint or several, to
which you may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus, or any
amendment or supplement thereto, and any other prospectus relating to the Notes,
or arise out of or are based upon the omission or alleged
-15-
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse each
of you for any legal or other expenses reasonably incurred by you in connection
with investigating or defending against such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus, or such amendment or supplement and any other prospectus
relating to the Notes, in reliance upon and in conformity with information
furnished in writing to the Company by you or on your behalf for inclusion
therein or arising out of, or based upon, statements in or omissions from
Exhibits 25(a) and 25(b) to the Registration Statement which shall constitute
the Statements of Eligibility on Forms T-1 and T-2, or amendments thereto, of
the Trustees under the Indenture and provided further that the Company shall not
be liable to any of you under the indemnity agreement in this subsection on
account of any such loss, claim, damage or liability of yours arising from the
sale of the Notes to any person, if at or prior to the written confirmation of
such sale a copy of the Prospectus (exclusive of the documents incorporated by
reference therein), or of the Prospectus as then amended or supplemented
(exclusive of the documents incorporated by reference therein) shall not have
been given or sent to such person by you or on your behalf. This indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
The foregoing indemnity agreement shall, upon the same terms and
conditions, extend to and inure to the benefit of each person, if any, who
controls any of you within the meaning of the Act.
(b) Each of you will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, or any amendment or
supplement thereto, and any other prospectus relating to the Notes, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in a
-16-
preliminary prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, or such amendment or supplement,
and any other Prospectus relating to the Notes, in reliance upon and in
conformity with information furnished in writing to the Company by you or
on your behalf for inclusion therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending against any such loss, claim,
damage, liability or action as such expenses are incurred. This indemnity
agreement shall be in addition to any liability which you may otherwise
have.
The foregoing indemnity agreement shall, upon the same terms and
conditions, extend to and inure to the benefit of each director of the Company,
each of its officers who has signed the Registration Statement and each person,
if any, who controls the Company within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in
-17-
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each of you
on the other from the offering of the Notes to which such loss, claim,
damage or liability (or actions in respect thereof) relates and also the
relative fault of the Company on the one hand and each of you on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each of you on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total discounts and commissions received by you. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or any of you on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each of you
agree that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), you shall not be required to contribute
any amount in excess of the amount by which the total price at which the
Notes sold by or through you to the public exceeds the amount of any
damages which you have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of
each of you in this subsection (d) to contribute are several in proportion
to the respective purchases made by or through you to which such loss,
claim, damage or liability (or action in respect thereof) relates and are
not joint.
8. Termination. (a) This Agreement will continue in effect until terminated
as provided in this Section 8. This Agreement may be terminated either by the
Company as to any Agent or by any of you insofar as this Agreement relates to
any Agent,
-18-
by giving written notice of such termination to such Agent or the Company, as
the case may be. This Agreement shall so terminate at the close of business on
the first business day following the receipt of such notice by the party to whom
such notice is given. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in the fourth paragraph
of Section 2(a), Section 4(g), Section 7 and Section 9.
(b) Each Terms Agreement shall be subject to termination in the absolute
discretion of the Purchaser, by written notice given to the Company prior to
delivery of any payment for any Note to be purchased thereunder, if subsequent
to the agreement to purchase such Note and prior to such payment time (i) there
shall have occurred any change in or affecting the business or properties of the
Company and its subsidiaries taken as a whole the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impracticable
or inadvisable to enforce contracts for the sale of such Note, (ii) there shall
have been any decrease in the rating of any of the Company's first mortgage
bonds by ▇▇▇▇▇'▇ Investors Service Inc. or Standard & Poor's Corporation the
effect of which is, in the judgment of the Purchaser, so material and adverse as
to make it impracticable or inadvisable to enforce contracts for the sale of
such Notes, (iii) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iv) a banking moratorium shall have been declared
by either Federal or New York State authorities or (v) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets of the United States is such as to make it, in the judgment of
the Purchaser, impracticable or inadvisable to enforce contracts for the sale of
such Notes as contemplated by the Prospectus.
9. Survival of Certain Provisions. The respective representations,
warranties, indemnities and other statements of the Company or its officers and
of you set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of you or the
Company or any of the persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(g) and 7
hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement applicable to any purchase of a Note for which an
agreement to purchase exists prior to the termination hereof shall survive any
termination of this Agreement. If at the time of termination of this Agreement
any Purchaser shall own any Notes with the intention of selling them, the
provisions of Section 4 shall remain in effect until such Notes are sold by the
Purchaser.
-19-
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of you, will be mailed, delivered or
telegraphed and confirmed to such of you, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of
the Secretary.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, their respective successors, the controlling persons
referred to in Section 7 hereof and no other person will have any right or
obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
-20-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and you.
Very truly yours,
Idaho Power Company
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇
------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇
Senior Vice President -
Administration and Chief
Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
--------------------------
ABN AMRO Incorporated
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, VP
----------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
-21-
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
---- ---------------
9 months to less than 12 months 0.125%
12 months to less than 18 months 0.150
18 months to less than 2 years 0.200
2 years to less than 3 years 0.250
3 years to less than 4 years 0.350
4 years to less than 5 years 0.450
5 years to less than 6 years 0.500
6 years to less than 7 years 0.550
7 years to less than 10 years 0.600
10 years to less than 15 years 0.625
15 years to less than 20 years 0.675
20 years or more 0.750
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notice to Agents:
Notices to (1) ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
shall be directed to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
29th floor
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Notices to (2) ABN AMRO Incorporated shall be directed to it
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of Legal Department
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Notices to (3) ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
shall be directed to it at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention of ▇▇▇▇ ▇. ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-22-
EXHIBIT A
IDAHO POWER COMPANY
First Mortgage Bonds,
Secured Medium-Term Notes, Series B, Administrative Procedures
Book-Entry Form
The First Mortgage Bonds, Secured Medium-Term Notes, Series B, Due from
Nine Months to Forty Years from Date of Issue (the "Notes") of Idaho Power
Company (the "Company") are to be offered on a continuing basis. ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., ABN AMRO Incorporated and ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., as agents (each an
"Agent"), have agreed to use their reasonable best efforts to solicit purchases
of Notes issued in fully registered form. The Agents will not be obligated to
purchase Notes for their own account. The Notes are being sold pursuant to a
Selling Agency Agreement between the Company and the agents named therein
(including the Agents) dated the date hereof (the "Agency Agreement"). The Notes
have been registered with the Securities and Exchange Commission (the
"Commission"). The Notes will be issued under the Company's Indenture of
Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and
Bankers Trust Company (the "Trustee") and R.G. ▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇, successor
individual trustee), as trustees, as supplemented, pursuant to the Thirty-fourth
Supplemental Indenture dated as of December 1, 1993 (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by an Agent
acting solely as principal and not as agent. In the event of any such purchase,
the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by a Global Security (as defined hereinafter)
delivered to Bankers Trust Company ("Bankers Trust") as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC
(a "Book- Entry Note"). An owner of a Book-Entry Note will not be entitled to
receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Finance Department. The Company will
advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in
accordance with the administrative procedures set forth below, as adjusted in
accordance with changes in DTC's operating requirements. Unless otherwise
defined herein, terms defined in the Indenture and the Notes shall be used
herein as therein defined. Only fixed rate Notes may be issued. To the extent
the procedures set forth below conflict with the provisions of the Notes, the
Indenture, DTC's operating requirements or the Agency Agreement, the relevant
provisions of the Notes, the Indenture, DTC's operating requirements and the
Agency Agreement shall control.
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Bankers Trust will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and Bankers Trust to DTC dated as of December
17, 1993 and a Medium-Term Note Certificate Agreement between Bankers Trust and
DTC, dated as of October 21, 1988, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book- Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$83,000,000 principal amount of all such Book-Entry Notes
that have the same Issue Date, original issue discount
provisions, if any, Interest Payment Dates, Regular Record
Dates, redemption, repayment and extension provisions, if
any, Maturity Date, and interest rate (collectively, the
"Terms"). Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. Each
Global Security will bear an original issue date, which will
be (i) with respect to an original Global Security (or any
portion thereof), the original issue date specified in such
Global Security and (ii) following a consolidation of Global
Securities, with respect to the Global Security resulting
from such consolidation, the most recent Interest Payment
Date to which interest has been paid or duly provided for on
the predecessor Global Securities, regardless of the date of
authentication of such resulting Global Security. No Global
Security will represent any securities in certificated form.
Identification The Company has arranged with the CUSIP
-2-
Numbers: Service Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series of CUSIP
numbers, which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing
Book-Entry Notes and book-entry medium-term notes issued by
the Company with other series designations. Bankers Trust,
the Company and DTC have obtained from the CUSIP Service
Bureau a written list of such reserved CUSIP numbers.
Bankers Trust will assign CUSIP numbers to Global Securities
as described below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that Bankers Trust has assigned to Global
Securities. Bankers Trust will notify the Company at any
time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and, if it deems
necessary, the Company will reserve additional CUSIP numbers
for assignment to Global Securities. Upon obtaining such
additional CUSIP numbers, Bankers Trust or the Company shall
deliver a list of such additional CUSIP numbers to DTC.
Registration: Global Securities will be issued only in fully registered
form without coupons. Each Global Security will be
registered in the name of Cede & Co., as nominee for DTC, or
such other name as may be requested by DTC, on the bond
register for the Notes maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to
such Book-Entry Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner in such Book-Entry Note in the account of
such Participants. The ownership interest of such beneficial
owner (or such participant) in such Book-Entry Note will be
recorded through the records of such Participants or through
the separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain
-3-
cases, one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of such
Note.
Exchanges: After the first Interest Payment Date on individual issues
of the Notes, Bankers Trust may deliver to DTC's
Reorganization Department, Interactive Data Control and the
CUSIP Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to the
resulting Global Security described below) specifying (i)
the CUSIP numbers of two or more outstanding Global
Securities that represent Book-Entry Notes having the same
Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its participants
(including Bankers Trust) a written reorganization notice to
the effect that such exchange will occur on such date. Prior
to the specified exchange date, Bankers Trust will deliver
to the CUSIP Service Bureau a written reorganization notice
setting forth such exchange date and such new CUSIP number
and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no
longer be valid. On the specified exchange date, Bankers
Trust will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Maturities: Each Book-Entry Note will mature on a date not less than
nine months nor more than forty years after the Issue Date
for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or any amount in excess thereof that is an integral
multiple of $1,000.
Interest: General. Interest, if any, on each Book- Entry Note will
accrue from the Original Interest Accrual Date for the first
interest
-4-
period or the last date to which interest has been paid, if
any, for each subsequent interest period, on the Global
Security representing such Book-Entry Note, and will be
calculated and paid in the manner described in such
Book-Entry Note and in the Prospectus (as defined in the
Agency Agreement), as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date or to but
excluding Maturity (other than a Maturity of a Book-Entry
Note occurring on the 31st day of a month, in which case
such payment of interest will include interest accrued to
but excluding the 30th day of such month). Interest payable
at the Maturity of a Book-Entry Note will be payable to the
Person to whom the principal of such Note is payable.
Standard & Poor's Corporation will use the information
received in the pending deposit message described under
Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other information
regarding the related Global Security in the appropriate
(daily or weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Dates with respect
to the Interest Payment Dates set forth below shall be March
15 and September 15.
Interest Payment Dates. Unless otherwise specified pursuant
to Settlement Procedure "A" below, interest payments on
Book-Entry Notes will be made semiannually on April 1 and
October 1 of each year and at Maturity; provided, however,
that if an Interest Payment Date for a Book-Entry Note is
not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after
such Interest Payment Date; provided further, that in the
case of a Book-Entry Note issued between a Regular Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following
the next succeeding Regular Record Date.
Calculation of Interest on Book-Entry Notes (including interest for partial
Interest: periods) will be
-5-
calculated on the basis of a 360-day year of twelve 30-day
months.
Payment of Payment of Interest Only. Promptly after each Regular Record
Principal and Date, Bankers Trust will deliver to the Company and DTC's
Interest: Dividend Department a written notice setting forth, by CUSIP
number, the amount of interest to be paid on each Global
Security on the following Interest Payment Date (other than
an Interest Payment Date coinciding with Maturity) and the
total of such amounts. DTC will confirm the amount payable
on each Global Security on such Interest Payment Date by
reference to the appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation. The Company will
pay to Bankers Trust, as paying agent, the total amount of
interest due on such Interest Payment Date (other than at
Maturity), and Bankers Trust will pay such amount to DTC, at
the times and in the manner set forth below under "Manner of
Payment".
Payments at Maturity. On or about the first Business Day of
each month, Bankers Trust will deliver to the Company and
DTC a written list of principal and interest to be paid on
each Global Security maturing in the following month.
Bankers Trust, the Company and DTC will confirm the amounts
of such principal and interest payments with respect to each
such Global Security on or about the fifth Business Day
preceding the Maturity of such Global Security. On or before
Maturity, the Company will pay to Bankers Trust, as paying
agent, the principal amount of such Global Security,
together with interest due at such Maturity. Bankers Trust
will pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment". If any maturity
of a Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal and
interest due at Maturity of such Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company. On the first
Business Day of each month, Bankers Trust will deliver to
the Company a written statement indicating the total
principal amount of Outstanding Global Securities as of
-6-
the immediately preceding Business Day. If the Maturity of a
Book-Entry Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the period
from and after such Maturity.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment
Date or at Maturity shall be paid by the Company to Bankers
Trust in immediately available funds on such date. The
Company will make such payment on such Global Securities by
instructing Bankers Trust to withdraw funds from an account
(Account # 500-15-307) maintained by the Company at Bankers
Trust or by wire transfer to Bankers Trust. The Company will
confirm any such instructions in writing to Bankers Trust.
Prior to 10 A.M. (New York City time) on the date of
Maturity or as soon as possible thereafter, Bankers Trust
will pay by separate wire transfer (using Fedwire message
entry instructions in a form previously specified by DTC) to
an account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal (together
with interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Maturity), interest payments shall be made to DTC, in funds
available for immediate use by DTC, in accordance with
existing arrangements between Bankers Trust and DTC. On each
such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants
in whose names the Book-Entry Notes represented by such
Global Securities are recorded in the book-entry system
maintained by DTC. Neither the Company nor Bankers Trust
shall have any direct responsibility or liability for the
payment by DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding pay-
-7-
ments and materials directly to the beneficial owner of such
Note.
Procedures upon Company Notice to Trustee Regarding Exercise of Optional
Company's Redemption. At least 35 days prior to the date on which it
Exercise of intends to redeem a Book-Entry Note, the Company will notify
Optional the Trustee that it is exercising such option with respect
Redemption: to such Book-Entry Note on such date.
Trustee Notice to DTC Regarding Company's Exercise of
Optional Redemption. After receipt of notice that the
Company is exercising its option to redeem a Book-Entry
Note, the Trustee will, at least 30 days before the
redemption date for such Book-Entry Note, deliver to DTC a
notice identifying such Book-Entry Note by CUSIP number and
informing DTC of the Company's exercise of such option with
respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any redemption
date, the Company shall deposit with such Trustee an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for all the
Book-Entry Notes or portions thereof which are to be repaid
on such redemption date. Such Trustee will use such money to
repay such Book-Entry Notes pursuant to the terms set forth
in such Notes.
Procedure for The Company and the Agents will discuss from time to time
Rate Setting the aggregate principal amount of, the issuance price of,
and Posting: and the interest rates to be borne by, Book-Entry Notes that
may be sold as a result of the solicitation of orders by the
Agents. If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which the
Agents are to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if the
Company decides to change prices or rates previously posted
by it, it will promptly advise the Agents of the prices and
rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each Agent will
Rejection of advise the Company promptly by telephone of all orders to
Orders: purchase Book-Entry Notes received by such Agent, other
than those rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless otherwise
agreed by the Company and
-8-
the Agents, the Company has the sole right to accept orders
to purchase Book-Entry Notes and may reject any such orders
in whole or in part.
Preparations of If any order to purchase a Book-Entry Note is accepted by or
Pricing on behalf of the Company, the Company will prepare a pricing
Supplement: supplement (a "Pricing Supplement") reflecting the
applicable interest rates and other terms of such Book-Entry
Note and will arrange to have ten copies thereof filed with
the Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act and will supply at least ten
copies thereof (and additional copies if requested) to the
Agent which presented the order (the "Presenting Agent").
The Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of such
Book-Entry Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its sole discretion, to
Solicitation; instruct the Agents to suspend at any time, for any period
Amendment or of time or permanently, the solicitation of orders to
Supplement: purchase Book-Entry Notes. Upon receipt of such
instructions, the Agents will forthwith suspend solicitation
until such time as the Company has advised them that such
solicitation may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and Bankers Trust whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements
that may be made in the event that the Company determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement
-9-
the Registration Statement (as defined in the Agency
Agreement) or the Prospectus, it will promptly advise the
Agents and furnish the Agents with the proposed amendment or
supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance
with the terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may file
with the Commission any such supplement to the Prospectus
relating to the Notes. The Company will provide the Agents
and Bankers Trust with copies of any such supplement, and
confirm to the Agents that such supplement has been filed
with the Commission pursuant to the applicable paragraph of
Rule 424(b).
Procedures For When the Company has determined to change the interest rates
Rate Changes: of Book-Entry Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend
solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the Agents of
the new interest rates, the Agents may resume solicitation
of orders. Until such time only "indications of interest"
may be recorded.
Delivery of A copy of the Prospectus (including the Prospectus
Prospectus: Supplement) and a Pricing Supplement relating to a
Book-Entry Note must accompany or precede the earliest of
any written offer of such Book-Entry Note, confirmation of
the purchase of such Book- Entry Note and payment for such
Book-Entry Note by its purchaser. If notice of a change in
the terms of the Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry Note is placed
and the time written confirmation thereof is sent by the
Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the Presenting
Agent will deliver a Prospectus and Pricing Supplement as
herein described with respect to each Book-Entry Note sold
by it. The Company will make such delivery if such
Book-Entry Note is sold directly by the Company to a
purchaser (other than an Agent).
-10-
Confirmation: For each order to purchase a Book-Entry Note solicited by
any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-
Entry Note shall constitute "settlement" with respect to
such Book-Entry Note. All orders accepted by the Company
will be settled on the third Business Day following the date
of sale of such Book-Entry Note pursuant to the timetable
for settlement set forth below unless the Company and the
purchaser agree to settlement on another day which shall be
no earlier than the next Business Day following the date of
sale.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company by
telephone (confirmed in writing) of the following
settlement information:
1. Exact name of the purchaser.
2. Principal amount.
3. Issue Date.
4. Original Interest Accrual Date.
5. Settlement date.
6. Interest rate.
7. Redemption provisions, if any.
8. Maturity date.
9. Purchase Price.
10. Presenting Agent's commission, determined as provided
in Section 2 of the Agency Agreement and certification
that the purchasers were solicited solely by such
Agent.
-11-
11. Net proceeds to the Company.
B. Bankers Trust will assign a CUSIP number to the Global
Security representing such Book-Entry Note and the
Company will advise Bankers Trust by telephone
(confirmed in writing at any time on the same date) or
electronic transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number and
the name of the Presenting Agent. Bankers Trust will
also notify the Presenting Agent by telephone of such
CUSIP number as soon as practicable. Each such
communication by the Company shall constitute a
representation and warranty by the Company to Bankers
Trust and the Presenting Agent that (i) such Note is
then, and at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by the
Company, (ii) such Note, and the Global Security
representing such Note, will conform with the terms of
the Indenture for such Note, and (iii) upon
authentication and delivery of such Global Security,
the aggregate initial offering price of all Notes
issued under the Indenture will not exceed $200,000,000
(except for Book-Entry Notes represented by Global
Securities authenticated and delivered in exchange for
or in lieu of Global Securities pursuant to the
Indenture).
C. Bankers Trust will enter a pending deposit message
through DTC's Participant Terminal System providing the
following settlement information to DTC (which shall
route such information to Standard & Poor's
Corporation) and the Presenting Agent:
1. The information set forth in Settlement Procedure "A".
2. Initial Interest Payment Date for such Book-Entry Note,
number of days by which such date succeeds the related
Regular Record Date and amount of interest payable on
such Interest Payment Date.
3. CUSIP number of the Global Security representing such
Book-Entry Note.
4. Whether such Global Security will
-12-
represent any other Book-Entry Note (to the extent
known at such time).
D. To the extent the Company has not already done so, the
Company will deliver to the Trustee a Global Security
in a form that has been approved by the Company, the
Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp
the appropriate legend, as instructed by DTC, if not
already set forth thereon, and authenticate the Global
Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to Bankers Trust's
participant account at DTC.
G. Bankers Trust will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Book-Entry Note to Bankers Trust's
participant account and credit such Book-Entry Note to
the Presenting Agent's participant account and (ii)
debit the Presenting Agent's settlement account and
credit Bankers Trust's settlement account for an amount
equal to the price of such Book-Entry Note less the
Presenting Agent's commission. The entry of such a
deliver order shall constitute a representation and
warranty by Bankers Trust to DTC that (i) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (ii) Bankers Trust is
holding such Global Security pursuant to the Medium-
Term Note Certificate Agreement between Bankers Trust
and DTC.
H. The Presenting Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Book-Entry Note to the Presenting
Agent's participant account and credit such Book-Entry
Note to the participant accounts of the Participants
with respect to such Book-Entry Note and (ii) to debit
the settlement accounts of such Participants and credit
the settlement account of the Presenting Agent for an
amount equal to the price of such Book-Entry Note.
-13-
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. Bankers Trust will, upon receipt of funds from the
Presenting Agent in accordance with Settlement
Procedure "G", credit to an account of the Company
(Account # 500-15-307) maintained at Bankers Trust
funds available for immediate use in the amount
transferred to Bankers Trust in accordance with
Settlement Procedure "G".
K. The Presenting Agent will confirm the purchase of such
Book-Entry Note to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by any Agent and
Procedures accepted by the Company for settlement on the first Business
Timetable: Day after the sale date, Settlement Procedures "A" through
"K" set forth above shall be completed as soon as possible
but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first Business Day after the sale
date and no later than 2:00 P.M. on the Business Day before
the
-14-
settlement date, respectively. Settlement Procedure "I" is
subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified
in SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, Bankers Trust will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
Failure to If Bankers Trust fails to enter an SDFS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "G", Bankers Trust may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Book-Entry
Note to Bankers Trust's participant account. DTC will
process the withdrawal message, provided that Bankers
Trust's participant account contains a principal amount of
the Global Security representing such Book-Entry Note that
is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company and will make
appropriate entries in its records. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, Bankers Trust will
exchange such Book-Entry Note for two Global Securities, one
of which shall represent such Book-Entry Notes and shall be
cancelled immediately after issuance and the other of which
shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf
-15-
of such purchaser), such Participants and, in turn, the
Presenting Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and "G", respectively.
The Presenting Agent will notify the Company by telephone of
such failure. Thereafter, Bankers Trust will deliver the
withdrawal message and take the related actions described in
the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, Bankers Trust will
provide, in accordance with Settlement Procedure "E", for
the authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
Bankers Trust Nothing herein shall be deemed to require Bankers Trust to
Not to Risk risk or expend its own funds in connection with any payment
Funds: to the Company, DTC, the Agents or the purchaser, it being
understood by all parties that payment made by Bankers Trust
to the Company, DTC, the Agents or the purchaser shall be
made only to the extent that funds are provided to Bankers
Trust for such purpose.
Authenticity of The Company will cause Bankers Trust to furnish the Agents
Signatures: from time to time with the specimen signatures of each of
Bankers Trust's officers, employees or agents who have been
authorized by Bankers Trust to authenticate Book-Entry
Notes, but the Agents will have no obligation or liability
to the Company or Bankers Trust in respect of the
authenticity of the signature of any officer, employee or
agent of the Company or Bankers Trust on any Book-Entry
Note.
Advertising The Company will determine with the Agents the amount of
Costs: advertising that may be appropriate in soliciting offers to
purchase the Book-Entry Notes. Advertising expenses will be
paid by the Company.
-16-
Periodic Periodically, Bankers Trust will send to the Company a
Statements from statement setting forth the principal amount of Book-Entry
Bankers Trust: Notes outstanding as of that date and setting forth a brief
description of any sales of Book-Entry Notes of which the
Company has advised Bankers Trust but which have not yet
been settled.
-17-
EXHIBIT B
Idaho Power Company
First Mortgage Bonds,
Secured Medium Term Notes, Series B
Due from Nine Months
to Forty Years from Date of Issue
TERMS AGREEMENT
Idaho Power Company
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Subject in all respects to the terms and conditions of the Selling Agency
Agreement (the "Agreement") dated , 199 , between [Agents], and you, the
undersigned agrees to purchase the following Notes of Idaho Power Company:
[Add additional terms as may be needed to identify Notes.]
Aggregate Principal Amount: $
Issue Date:
Original Interest Accrual Date:
Interest Rate:
Maturity Date:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from
, 199 ]
Settlement Date:
Price to Public:
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment: [same day funds]
Redemption Provisions, if any:
Modification, if any, in the requirements to deliver the documents specified in
Section 6(b) of the Agreement:
Period during which additional Notes may not be sold pursuant to Section 4(1) of
the Agreement:
Syndicate Provisions:
(Set forth any provisions relating
to underwriters' default and step-
up of amounts to be purchased.)
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
[Purchaser]
By:____________________
Accepted:
Idaho Power Company
By:________________________
Title:
-2-
EXHIBIT C
Pursuant to Section 5(e) of the Selling Agency Agreement, the accountants
shall furnish a letter to the Agents to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
rules and regulations thereunder adopted by the SEC;
(ii) In their opinion, the consolidated financial statements and
consolidated financial statement schedules audited by them and included or
incorporated by reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the related rules and
regulations adopted by the SEC, and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements for the
periods specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the Agents;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included or incorporated by reference in the
Prospectus and included or incorporated by reference in item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for the five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on Form
10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing has come to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets, consolidated statements of cash flows and consolidated
statements of capitalization included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related rules and regulations adopted by the SEC or are
not in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited financial statements
referred to in Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (except for shares of 4% preferred stock) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net assets or other items specified by the
Agents, in each case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur, for declarations of dividends, or
which are described in such letter; and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (D) there were any decreases in consolidated
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revenues, net income or earnings on common stock or other items specified
by the Agents, or any increases in any items specified by the Agents, in
each case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the Agents,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur, for declarations of dividends, or
which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Agents which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the Agents
or in documents incorporated by reference in the Prospectus specified by the
Agents, and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement, except as described in such letter.
All references in this Exhibit C to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
amended or supplemented (including the documents incorporated by reference
therein) in relation to the Notes for purposes of the letter delivered at the
Closing Date for such Notes.
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EXHIBIT D
, 19
To the Agents referred to in the
Selling Agency Agreement
Relating to:
$83,000,000 Principal Amount of
First Mortgage Bonds, Secured Medium
Term Notes, Series B, of Idaho Power Company
Ladies and Gentlemen:
With reference to the issuance and sale by Idaho Power Company, an Idaho
corporation (the "Company"), pursuant to the Selling Agency Agreement, dated
[ ] (the "Agency Agreement"), between the Company and you of up to
$83,000,000 aggregate principal amount of First Mortgage Bonds, Secured Medium
Term Notes, Series B (the "Notes"), to be issued under the Company's Indenture
of Mortgage and Deed of Trust, dated as of October 1, 1937, as supplemented by
all indentures supplemental thereto, the latest such supplemental indenture
being the Thirty-fourth Supplemental Indenture, dated as of December 1, 1993,
(said Indenture of Mortgage and Deed of Trust, as so supplemented, being
hereinafter called the "Mortgage"), we advise you that we are counsel to the
Company and in that capacity have reviewed or participated in the preparation of
(1) the Mortgage; (2) the registration statement (File No. 33-51215) relating to
the Notes filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act") (said registration
statement, as amended to the date of effectiveness, including the documents
incorporated by reference therein as of such date pursuant to Item 12 of Form
S-3 (the "Incorporated Documents") being hereinafter called the "Registration
Statement"); (3) the prospectus, dated December 8, 1993 (the "Base Prospectus"),
as supplemented by a prospectus supplement relating to the Notes, dated December
17, 1993 (the "Prospectus Supplement") (such prospectus, as so supplemented,
including the incorporated documents, being hereinafter referred to as the
"Prospectus"); and (4) the Agency Agreement. Terms not otherwise defined herein
shall have the meanings given to them in the Agency Agreement.
We have reviewed such corporate records, certificates and other documents
as we have considered necessary or appropriate for purposes of this opinion.
Upon the basis of such review, we are of the opinion that:
(1) The Mortgage has been duly authorized, executed and delivered by the
Company, is a legal, valid and binding instrument enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization or other laws of
general
applicability relating to or affecting mortgagees' and other creditors' rights,
and to general principles of equity (whether considered in a proceeding at law
or in equity) and has been qualified under the Trust Indenture Act of 1939, as
amended.
(2) The Notes, when issued and paid for as contemplated in the Agency
Agreement, will be legal, valid and binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefit of the
security provided by the Mortgage, subject to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or affecting
mortgagees' and other creditors' rights and to general principles of equity
(whether considered in a proceeding at law or in equity).
(3) The Agency Agreement has been duly authorized, executed and delivered
by the Company.
(4) The Registration Statement, as of its effective date, and the Base
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, complied as to form in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934, as
amended, and the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement is effective under the Act;
and, to the best of our knowledge, no proceedings for a stop order with respect
thereto are pending or threatened under Section 8(d) of the Act.
(5) All regulatory consents and approvals required to be obtained by the
Company from any governmental body or bodies in connection with the Company's
issuance and sale of the Notes in the manner set forth in the Agency Agreement
have been obtained and are in effect [except that the order of the Idaho Public
Utilities Commission grants authority to sell the Notes through ];
it being understood that we express no opinion as to any consents or approvals
required to be obtained, or other actions required to be taken, under the
securities or blue sky laws of any jurisdiction.
In passing upon the form of the Registration Statement and the form of the
Base Prospectus, as supplemented by the Prospectus Supplement, we necessarily
assume the correctness and completeness of the representations made to us and
the statements made to us or included in the Registration Statement and the Base
Prospectus, as supplemented by the Prospectus Supplement, by the Company and
take no responsibility therefor. In the course of the preparation by the Company
of the Registration Statement and the Base Prospectus, we had conferences with
certain of its officers and representatives, with other counsel for the Company
and with Deloitte & Touche LLP, the independent certified public accountants who
examined certain of the financial statements included or incorporated by
reference in the Registration Statement. Our examination of the Registration
Statement and the Base Prospectus, as supplemented by the Prospectus Supplement,
and our discussions in the above-mentioned conferences did not
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disclose to us any information which gives us reason to believe that, at the
effective date, the Registration Statement contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the Base
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Also, nothing that has come to our attention in the course of our
examination of the Registration Statement or the Prospectus or in our
discussions in the above-mentioned conferences that has caused us to believe
that the Prospectus, as of the date and time of the delivery of this letter,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do not express any
opinion or belief as to the financial statements or other financial data
contained or incorporated by reference in the Registration Statement or the
Prospectus.
We express no opinion as to the law of any jurisdiction other than the law
of the State of New York and the federal laws of the United States. As to
matters set forth in paragraph 5 above, we have relied upon an opinion of even
date herewith addressed to you by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel for
the Company. We are not passing upon matters relating to the incorporation of
the Company, titles to property, liens, licenses, franchises, water rights or
conformity to the laws of the States of Idaho, Montana, Nevada, Oregon or
Wyoming, or upon questions of the recording of, or the validity or priority of
the lien of, the Mortgage.
Very truly yours,
LeBoeuf, ▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P.
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EXHIBIT E
, 19
To the Agents referred to in the
Selling Agency Agreement
Relating to:
$83,000,000 Principal Amount of
First Mortgage Bonds, Secured Medium
Term Notes, Series B, of Idaho Power Company
Ladies and Gentlemen:
In connection with the issuance and sale pursuant to the Selling Agency
Agreement, dated [ ] (the "Agency Agreement"), between Idaho Power
Company, an Idaho corporation (the "Company"), and you of up to $83,000,000
aggregate principal amount of the Company's First Mortgage Bonds, Secured Medium
Term Notes, Series B (the "Notes"), to be issued under an Indenture of Mortgage
and Deed of Trust, dated as of October 1, 1937, between the Company and Bankers
Trust Company and R.G. Page, as Trustees (▇▇▇▇▇▇▇ ▇▇▇▇, successor individual
trustee) (the "Trustees"), as supplemented by all indentures supplemental
thereto, the latest such supplemental indenture being the Thirty-fourth
Supplemental Indenture, dated as of December 1, 1993 between the Company and the
Trustees (collectively, the "Mortgage"), I am the Company's General Counsel, and
I am familiar with its legal status and that of its property. I am also familiar
with the registration statement (File No. 33-51215) filed under the Securities
Act of 1933, as amended (the "Act"), with the Securities and Exchange Commission
(such registration statement as amended to the date of effectiveness, including
the documents incorporated by reference therein as of such date pursuant to Item
12 of Form S-3 (the "Incorporated Documents") being hereinafter referred to as
the "Registration Statement"), the prospectus, dated December 8, 1993 (the "Base
Prospectus"), as supplemented by a prospectus supplement relating to the Notes,
dated December 17, 1993 (the "Prospectus Supplement") (such prospectus, as so
supplemented, including the incorporated documents, being hereinafter referred
to as the "Prospectus"), and the Agency Agreement. Terms not otherwise defined
herein shall have the meanings given to them in the Agency Agreement.
I have made such examination of corporate and other records and documents
and of matters of law as in my opinion are necessary or desirable for the
purpose of this opinion, and based ▇▇▇▇▇▇▇, I am of the opinion that:
(1) The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Idaho, and has full power and
authority to own its properties and conduct its business in all material
respects as described in the Prospectus as amended or supplemented;
(2) To the best of my knowledge and other than as set forth in the
Prospectus as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which would individually or in the aggregate have a material adverse
effect on the consolidated financial position or results of operations of the
Company and its subsidiaries considered as a whole; and, to the best of my
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(3) The Agency Agreement has been duly authorized, executed and delivered
by the Company;
(4) The Notes, when issued and paid for as contemplated in the Agency
Agreement, will be legal, valid and binding obligations of the Company,
enforceable in accordance with their terms and entitled to the benefit of the
security provided by the Mortgage, subject to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or affecting
mortgagees' and other creditors' rights and to general principles of equity
(whether considered in a proceeding at law or in equity); and the Notes and the
Mortgage conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(5) The Mortgage has been duly authorized, executed and delivered by the
Company and constitutes a valid lien to the extent that it purports to be one
upon the property described therein as being subject to the lien thereof (except
any which has been duly released from the lien thereof) and is a legal, valid
and binding instrument, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting mortgagees' and other creditors' rights and to general
principles of equity (whether considered in a proceeding at law or in equity);
said Mortgage has been duly recorded and filed in such manner and in such places
as are required by law in order to establish, preserve and protect the lien of
said Mortgage;
(6) The issue and sale of the Notes and the compliance by the Company with
all of the provisions of the Notes, the Mortgage and the Agency Agreement with
respect to the Notes and the consummation of the transactions therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions or, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or
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assets of the Company is subject, nor will such actions result in any violation
of the provisions of the Restated Articles of Incorporation, as amended or
By-laws, as amended, of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties;
(7) The description of the Company's property in the Mortgage is adequate
to constitute the Mortgage a lien thereon. The Company has good and marketable
fee title to all real property upon which the Mortgage purports to create a
lien, except water rights, leases, licenses, franchises, easements and other
interests in real property of a similar nature, as to which it has good and
valid title, in each case free and clear of all liens, charges and encumbrances
other than excepted encumbrances as defined in the Mortgage and the lien of the
Mortgage, subject to minor defects and clouds common to property of the size and
character of that of the Company. Such minor defects and clouds are in my
opinion not important and do not materially interfere with the operations of the
Company or materially detract from the value of its property;
(8) The Company has such valid franchises, permits, licenses, easements and
consents, free from burdensome restrictions, as are required by law for the
operation of the Company's system and as are required for the adequate conduct
of its business in the territory which it serves;
(9) The Registration Statement, as of its effective date, and the Base
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, complied as to form in all material respects with the
requirements of the Act and the Securities Exchange Act of 1934, as amended, and
the applicable instructions, rules and regulations of the Securities and
Exchange Commission thereunder; the Registration Statement is effective under
the Act; and, to the best of my knowledge, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8(d) of the Act; and
(10) All regulatory consents and approvals required to be obtained by the
Company from any governmental body or bodies in connection with the Company's
issuance and sale of the Notes in the manner set forth in the Agency Agreement
have been obtained and are in effect [except that the order of the Idaho Public
Utilities Commission grants authority to sell the Notes through ];
it being understood that I express no opinion as to any consents or approvals
required to be obtained, or other actions required to be taken, under state
securities or Blue Sky laws of any jurisdiction.
I have no reason to believe that the Registration Statement, at the
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Base Prospectus, as supplemented
by
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the Prospectus Supplement, as of the date of the Prospectus Supplement,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that I express no opinion or belief as to the financial statements or other
financial data contained or incorporated by reference in the Registration
Statement or the Prospectus. Also, nothing that has come to my attention in the
course of my examination of the Registration Statement or the Prospectus that
has caused me to believe that the Prospectus, as of the date and time of the
delivery of this letter, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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