IDACORP, Inc.
Medium-Term Notes, Series A
Due From Nine Months to Forty Years
From Date of Issue
Selling Agency Agreement
November 12, 2002
Wachovia Securities, Inc.
301 South College
Charlotte, NC 28288
Dear Sirs:
IDACORP, Inc., an Idaho corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale by the Company of up to
$300,000,000 aggregate principal amount of its Medium-Term Notes, Series A, Due
from Nine Months to Forty Years from Date of Issue (the "Notes"). The Notes will
be issued under the Indenture for Senior Debt Securities, dated as of February
1, 2001, between the Company and Deutsche Bank Trust Company Americas, formerly
known as Bankers Trust Company, (the "Trustee"), as trustee, as supplemented and
amended by the First Supplemental Indenture thereto (the "Supplemental
Indenture"). The Indenture for Senior Debt Securities 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 you acting solely in the
capacity as agent for the Company pursuant to Section 2(a) and not as principal,
the term "Purchaser" shall refer to you acting solely as principal pursuant to
Section 2(b) and not as agent, and the term "you" shall refer to you whether at
any time you are acting in both such capacities or in either such capacity.
The Company has previously entered into a Selling Agency Agreement
dated February 28, 2001 with Goldman, Sachs & Co., as agent (the "February 28,
2001 Selling Agency Agreement"), with respect to the issue and sale by the
Company of up to $300,000,000 aggregate principal amount of the Notes. This
Agreement is being entered into pursuant to Section 2(a) of the February 28,
2001 Selling Agency Agreement.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such form (File Number 333-64737), including a basic
prospectus, which as amended by Amendment No. 1 thereto has become
effective, for the registration under the Act of $300,000,000 aggregate
amount of its common stock, without par value, preferred stock, without par
value, which may be represented by depository shares, and unsecured debt
securities (the "Securities"), including the Notes. Such registration
statement, as amended at the date of this Agreement, meets the requirements
set forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all
other material respects with said Rule. The Company has filed or will file
with the Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act a supplement to the form of prospectus included in such
registration statement relating to the Notes and the plan of distribution
thereof (the "Prospectus Supplement"). In connection with the sale of Notes
the Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement (each a "Pricing Supplement") specifying the interest
rates, maturity dates and, if appropriate, other similar terms of the Notes
sold pursuant hereto or the offering thereof.
(b) (i) As of the Execution Time and on the Effective Date, the
Registration Statement complied and (ii) on each date any supplement to the
Prospectus (as defined herein) relating to the Notes is filed with the
Commission, as of the date of a Terms Agreement and at the date of delivery
by the Company of any Notes sold hereunder (a "Closing Date"), the
Prospectus, as supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the respective rules thereunder; (iii) as of the Execution Time
and on the Effective Date, the Registration Statement, as amended as of
either such time, did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; (iv) on
each date any supplement to the Prospectus relating to the Notes is filed
with the Commission, as of the date of a Terms Agreement and on any Closing
Date, the Prospectus, as supplemented as of any such time, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) on any
Closing Date no stop order suspending the effectiveness of the Registration
Statement shall be in effect nor shall there have been instituted or
threatened any proceeding for such purpose; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
of the Trustee (Form T-1), or amendments thereto, under the Trust Indenture
Act or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with
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information, if any, furnished in writing to the Company by you
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have
been duly authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture.
(d) As of the time any Notes are issued and sold, the issue and sale
of the Notes and the compliance by the Company with all of the provisions
of the Notes, the Indenture, and this Agreement, and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in any violation of
the provisions of the Restated Articles of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such orders as have been, 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
Agent.
(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
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Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
2. Appointment of Agent; Solicitation by the Agent 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 the Agent
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, the Agent 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. The Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by the Agent and accepted by the Company, but the 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 the Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that if approved by
the Company the Agent may purchase Notes as principal pursuant to Section 2(b).
The 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. The 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 Agent 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 Agent will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised it that such
solicitation may be resumed.
The Company agrees to pay the Agent a commission, for the Agent's
services in acting as an agent and not for a purchase by the 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 the Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal amount of
the Notes sold by the Company. Such commission shall be payable as specified in
the Procedures.
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The Company may from time to time offer Securities or Notes for sale
otherwise than through the Agent or the agent under the February 28, 2001
Selling Agency Agreement 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 the Agent or the agent under the February 28, 2001 Selling
Agency Agreement, except that the Company may accept offers to purchase Notes
through an agent other than the Agent or the agent under the February 28, 2001
Selling Agency Agreement if the Company gives the Agent and the agent under the
February 28, 2001 Selling Agency Agreement 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 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 you determine that the Company shall sell Notes directly to you
as principal, each such sale of Notes shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating to such sale.
Each such supplemental agreement is herein referred to as a "Terms
Agreement". Each Terms Agreement shall describe the Notes to be purchased
by the Purchaser pursuant thereto and shall specify the aggregate principal
amount of such Notes, the price to be paid to the Company for such Notes,
the maturity date of such Notes, the rate at which interest will be paid on
such Notes, the dates on which interest will be paid on such Notes and the
record date with respect to each such payment of interest, the Closing Date
for the purchase of such Notes, the place of delivery of the Notes and
payment therefor, the method of payment and any requirements for the
delivery of opinions of counsel, certificates from the Company or its
officers or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify the
period of time referred to in Section 4(1) and certain terms of the
reoffering of the Notes. Any Terms Agreement shall be substantially in the
form attached hereto as Exhibit B and may take the form of an exchange of
any standard form of written telecommunication between the Purchaser and
the Company. The Purchaser's commitment to purchase Notes shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to a Terms Agreement shall be made not later than the Closing Date agreed to in
such Terms Agreement, against payment of funds to the Company in the net amount
due to the Company for such Notes by the method and in the form set forth in the
Procedures unless otherwise agreed to between the Company and the Purchaser in
such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such
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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. The Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes (including
by way of resale by a Purchaser of Notes), the Company will not file any
amendment to the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in the maturity dates, interest rates,
issuance prices or other similar terms of any Notes or (iii) an amendment
or a supplement relating to an offering of Securities other than the Notes)
unless the Company has furnished you through your counsel a copy for your
review prior to filing and given 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 you
(i) when the Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of any offering of Notes, any amendment of the Registration
Statement (except periodic or current reports filed under the Exchange Act)
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) notify you to suspend solicitation of offers to purchase
Notes (and, if so notified by the
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Company, 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
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 you
copies of such documents.
(d) As soon as practicable, the Company will make generally available
to its security holders and to you an earnings statement or statements of
the Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to 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
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 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.
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(h) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the Closing Date
relating to such acceptance, as though made at and as of such time (it
being understood that for purposes of the foregoing affirmation and
covenant such representations and warranties shall relate to the
Registration Statement and Prospectus as amended or supplemented at each
such time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of the
Closing Date for the sale of such Notes, after giving effect to the
issuance of such Notes, of any other Notes to be issued on or prior to such
Closing Date and of any other Securities to be issued and sold by the
Company on or prior to such Closing Date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the
Company will not exceed the amount of Securities registered pursuant to the
Registration Statement. The Company will inform you promptly upon your
request of the aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the
interest rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto or a change in the principal amount of Securities
remaining to be sold or (iii) in the form of an 8-K filed with the
Commission solely for the purpose of filing exhibits pursuant to Item 601
of Regulation S-K), the Company will deliver or cause to be delivered
promptly to 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 your reasonable judgment, 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 you a written opinion of counsel for the
Company, dated the date of the effectiveness of such
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amendment or the date of the filing of such supplement, in form
satisfactory to 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 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 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 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 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 your reasonable judgment, 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 debt securities issued by the
Company (other than the Notes being sold pursuant to such Terms Agreement).
(m) Notwithstanding the foregoing, it is agreed that if, at any time
and from time to time during the term of this Agreement, the Company should
deliver to the Agent 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 Agent 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 Agent, prior to the
resumption of any sale of Notes hereunder, the most recent certificate,
opinions and letter which would have been required except for the
suspension.
(n) During the term of this Agreement, the Company shall furnish to
the Agent (i) copies of all annual, quarterly and other reports furnished
to shareholders of the
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Company, (ii) copies of all annual, quarterly and current reports (without
exhibits but including documents incorporated therein by reference) of the
Company filed with the Commission under the Exchange Act, (iii) copies of
all announcements made to the general financial community and (iv) notice
of (x) any decrease in the rating or (y) credit watch with negative
implications, in either case of the Notes or any other debt securities of
the Company, by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act).
(o) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by the Agent 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 the Agent have any duty or
obligation to the Company or to any such person to exercise the judgment
permitted to be exercised under this Section 4(o)).
5. Conditions to the Obligations of the Agent. The obligations of the
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 the Agent the opinions of
LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel to the Company and Robert
W. Stahman, Esq., General Counsel for the Company, dated the Execution Time
substantially in the forms of Exhibits D and E hereto.
(c) The Agent shall have received from Sullivan & Cromwell, its
counsel, 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 Agent may reasonably
require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them
to pass upon such matters. In rendering their opinions, Sullivan & Cromwell
may rely upon the
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opinion described above of Robert W. Stahman, Esq., General Counsel for the
Company, as to all matters of Idaho law.
(d) The Company shall have furnished to the Agent a certificate of the
Company, signed by the Chairman of the Board or the President or the
principal financial or accounting officer of the Company, dated the
Execution Time, to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to the
obligation of the Agent 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
the Agent a letter or letters (which may refer to letters previously
delivered to the Agent), 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
the Agent such further information, documents and certificates as the Agent
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 the Agent and its counsel, this Agreement and all obligations
of the Agent hereunder may be cancelled at any time by the Agent. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for
the Company, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations of a
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all
-11-
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) To the extent agreed to between the Company and the Purchaser in a
Terms Agreement, the Purchaser shall have received, appropriately updated,
(i) a certificate of the Company, dated as of the Closing Date, to the
effect set forth in Section 5(d) (except that references to the Prospectus
shall be to the Prospectus as supplemented as of the date of such Terms
Agreement), (ii) the opinions of LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
and Robert W. Stahman, Esq., counsel for the Company, dated as of the
Closing Date, to the effect referred to in Section 5(b), (iii) the
opinion(s) of Sullivan & Cromwell, counsel for the Purchaser, dated as of
the Closing Date, to the effect referred to in Section 5(c), and (iv) the
letter of Deloitte & Touche, independent accountants for the Company, dated
as of the Closing Date, to the effect referred to in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the
Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be cancelled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancellation shall be given to the Company
in writing or by telephone or telegraph confirmed in writing.
7. Indemnification. (a) The Company will indemnify and hold you
harmless against any losses, claims, damages or liabilities, joint or several,
to which you may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus, or any
amendment or supplement thereto, and any other prospectus relating to the Notes,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse 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
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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 Exhibit 25.1 to the Registration Statement which shall
constitute the Statement of Eligibility of the Trustee on Form T-1, or
amendments thereto, under the Indenture and provided further that the Company
shall not be liable to 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 you within the meaning of the Act.
(b) 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 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
-13-
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and 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 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 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 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 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. Your obligations in this subsection (d) to
contribute are several in proportion to the respective purchases made by or
through you to
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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 the Agent or by you insofar as this Agreement
relates to the Agent, by giving written notice of such termination to the 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 debt securities by Moody's
Investors Service Inc., Standard & Poor's Corporation or Fitch IBCA 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.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed,
-15-
delivered or telegraphed and confirmed to you, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 1221 W. Idaho Street, Boise, Idaho
83702-5627, attention of the Secretary.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the controlling
persons referred to in Section 7 hereof and no other person will have any right
or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
-16-
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 between the
Company and you.
Very truly yours,
IDACORP, Inc.
By: /s/ Darrel T. Anderson
-----------------------------------
Darrel T. Anderson
Vice President, Chief
Financial Officer and Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
WACHOVIA SECURITIES, INC.
/s/ Keith Mauney
- -------------------------
Keith Mauney
17
SCHEDULE I
Commissions:
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The Company agrees to pay the Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by the 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 0.700
20 years to less than 30 years 0.750
30 years to less than 40 years 0.825
40 years or more 0.900
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 Agent:
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Notices to Wachovia Securities, Inc. shall be directed to it at 301
South College, Charlotte, NC 28288
Attention of Jim Williams
Tel: (704) 383-8766
Fax: (704) 383-9519
EXHIBIT A
IDACORP, Inc.
Medium-Term Notes, Series A, Administrative Procedures
Book-Entry Form
The Medium-Term Notes, Series A, Due from Nine Months to Forty Years
from Date of Issue (the "Notes") of IDACORP, Inc. (the "Company") are to be
offered on a continuing basis. Wachovia Securities, Inc., as agent (the
"Agent"), has agreed to use its reasonable best efforts to solicit purchases of
Notes issued in fully registered form. The Agent will not be obligated to
purchase Notes for its own account. The Notes are being sold pursuant to a
Selling Agency Agreement between the Company and the agent named therein 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 for Senior Debt Securities, dated as of
February 1, 2001 between the Company and Deutsche Bank Trust Company Americas,
formerly known as Bankers Trust Company (the "Trustee"), as trustee, as
supplemented, pursuant to the First Supplemental Indenture dated as of February
1, 2001 (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by the
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 the Agent acting
solely as principal, unless otherwise agreed to between the Company and the
Agent acting as principal.
Each Note will be represented by a Global Security (as defined
hereinafter) delivered to Deutsche Bank Trust Company Americas ("Deutsche Bank")
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 Agent 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 Agent and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agent 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, Deutsche Bank 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 Deutsche Bank to DTC dated as of February
1, 2001 and a Medium-Term Note Certificate Agreement between Deutsche Bank 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 $300,000,000 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
Numbers: Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of a series of CUSPIP
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. Deutsche
Bank, the Company and DTC have obtained
from the CUSIP Service Bureau a written
list of such reserved CUSIP numbers.
Deutsche Bank 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 Deutsche Bank has
assigned to Global Securities. Deutsche
Bank 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
A-2
Global Securities. Upon obtaining such
additional CUSIP numbers, Deutsche Bank or
the Company shall deliver a list of such
additional CUSIP numbers to DTC.
Registration: Global Securities will be issued only in
fully registered form without coupons.
Each Global Security will be registered in
the name of Cede & Co., as nominee for
DTC, or such other name as may be
requested by DTC, on the bond register for
the Notes maintained under the Indenture.
The beneficial owner of a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Book-Entry Note, the
"Participants") to act as agent or agents
for such owner in connection with the
book-entry system maintained by DTC, and
DTC will record in book-entry form, in
accordance with instructions provided by
such Participants, a credit balance with
respect to such beneficial owner in such
Book-Entry Note in the account of such
Participants. The ownership interest of
such beneficial owner (or such
participant) in such Book-Entry Note will
be recorded through the records of such
Participants or through the separate
records of such Participants and one or
more indirect participants in DTC.
Transfers Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferees of
such Note.
Exchanges After the first Interest Payment Date on
individual issues of the Notes, Deutsche
Bank 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 Deutsche Bank)
a written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, Deutsche Bank 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
A-3
CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On
the specified exchange date, Deutsche Bank
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 period or the last date to
which interest has been paid, if any, for
each subsequent interest period, on the
Global Security representing such
Book-Entry Note, and will be calculated
and paid in the manner described in such
Book-Entry Note and in the Prospectus (as
defined in the Agency Agreement), as
supplemented by the applicable Pricing
Supplement. Unless otherwise specified
therein, each payment of interest on a
Book-Entry Note will include interest
accrued to but excluding the Interest
Payment Date or to but excluding Maturity
(other than a Maturity of a Book-Entry
Note occurring on the 31st day of a month,
in which case such payment of interest
will include interest accrued to but
excluding the 30th day of such month).
Interest payable at the Maturity of a
Book-Entry Note will be payable to the
Person to whom the principal of such Note
is payable. Standard & Poor's Corporation
will use the information received in the
pending deposit message described under
Settlement Procedure "C" below in order to
include the amount of any interest payable
and certain other information regarding
the related Global Security in the
appropriate (daily or weekly) bond report
published by Standard & Poor's
Corporation.
Regular Record Dates. Unless otherwise
specified pursuant to Settlement Procedure
"A" below, the Regular Record Dates with
respect to the Interest Payment Dates set
forth below shall be March 15 and
September 15.
Interest Payment Dates. Unless otherwise
specified pursuant to Settlement Procedure
"A" below, interest payments on
Book-Entry Notes will be made semiannually
on April 1 and October 1 of each year and
at Maturity; provided, however, that if an
Interest Payment Date for a Book-Entry
Note is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and
A-4
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: Interest on Book-Entry Notes (including
interest for partial periods) will be
calculated on the basis of a 360-day year
of twelve 30-day months.
Payment of Principal Payment of Interest Only. Promptly after
and Interest: each Regular Record Date, Deutsche Bank
will deliver to the Company and DTC's
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
Deutsche Bank, as paying agent, the total
amount of interest due on such Interest
Payment Date (other than at Maturity), and
Deutsche Bank 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, Deutsche
Bank 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. Deutsche Bank, 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 Deutsche Bank, as
paying agent, the principal amount of such
Global Security, together with interest
due at such Maturity. Deutsche Bank 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, Deutsche Bank will deliver to the
Company a written statement indicating the
A-5
total principal amount of Outstanding
Global Securities as of the immediately
preceding Business Day. If the Maturity of
a Book-Entry Note is not a Business Day,
the payment due on such day shall be made
on the next succeeding Business Day and no
interest shall accrue on such payment for
the period from and after such Maturity.
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 Deutsche Bank in immediately available
funds on such date. The Company will make
such payment on such Global Securities by
instructing Deutsche Bank to withdraw
funds from an account (Account # 381544)
maintained by the Company at Deutsche Bank
or by wire transfer to Deutsche Bank. The
Company will confirm any such instructions
in writing to Deutsche Bank. Prior to 10
A.M. (New York City time) on the date of
Maturity or as soon as possible
thereafter, Deutsche Bank 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 Deutsche Bank 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 Deutsche Bank shall have any
direct responsibility or liability for the
payment by DTC to such Participants of the
principal of and interest on the
Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be
withheld from any interest payment on a
Book-Entry Note will be determined and
withheld by the Participant, indirect
participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial owner
of such Note.
A-6
Procedures upon Company Notice to Trustee Regarding
Company's Exercise of Exercise of Optional Redemption. At least
Optional Redemption: 35 days prior to the date on which it
intends to redeem a Book-Entry Note, the
Company will notify the Trustee that it is
exercising such option with respect 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 Rate Setting The Company and the Agent will discuss
and Posting: from time to time the aggregate principal
amount of, the issuance price of, 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 Agent. If
the Company decides to set prices of, and
rates borne by, any Book-Entry Notes in
respect of which the Agent is 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 Agent
of the prices and rates to be posted.
Acceptance and Rejection Unless otherwise instructed by the
of Orders: Company, the Agent will advise the Company
promptly by telephone of all orders to
purchase Book-Entry Notes received by the
Agent, other than those rejected by it in
whole or in part in the reasonable
exercise of its discretion. Unless
otherwise agreed by the Company and the
Agent, 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
Pricing Supplement: is accepted by or on behalf of the
Company, the Company will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the applicable
interest rates and other terms of such
Book-Entry Note and will arrange to have
such Pricing Supplement filed with the
Commission in accordance with the
applicable paragraph of Rule 424(b) under
the Act and will supply at least ten
copies thereof (and additional
A-7
copies if requested) to you in your
capacity as the Agent having 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
Solicitation; sole discretion, to instruct the Agent to
Amendment or suspend at any time, for any period of
Supplement: time or permanently, the solicitation of
orders to purchase Book-Entry Notes.
Upon receipt of such instructions, the
Agent will forthwith suspend solicitation
until such time as the Company has advised
it 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 Agent and Deutsche Bank whether
such orders may be settled and whether
copies of the Prospectus as in effect at
the time of the suspension, together with
the appropriate Pricing Supplement, may be
delivered in connection with the
settlement of such orders. The Company
will have the sole responsibility for such
decision and for any arrangements that may
be made in the event that the Company
determines that such orders may not be
settled or that copies of such Prospectus
may not be so delivered.
If the Company decides to amend or
supplement the Registration Statement (as
defined in the Agency Agreement) or the
Prospectus, it will promptly advise the
Agent and furnish the Agent 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 Agent and Deutsche Bank with
copies of any such supplement, and confirm
to the Agent that such supplement has been
filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Procedures For Rate When the Company has determined to change
Changes: the interest rates of Book-Entry Notes
being offered, it will promptly advise the
Agent and the Agent will forthwith suspend
solicitation of orders. The Agent will
telephone the Company with recommendations
as to the changed interest rates. At such
time as the Company has advised
A-8
the Agent of the new interest rates, the
Agent 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 Agent
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 the
Agent).
Confirmation: For each order to purchase a Book-Entry
Note solicited by the 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 Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company
through the 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.
A-9
2. Principal amount.
3. Issue Date.
4. Original Interest Accrual Date.
5. Settlement date.
6. Interest rate.
7. Interest Payment Dates, if other
than April 1 and October 1.
8. Regular Record Dates, if other than
March 15 and September 15.
9. Redemption provisions, if any.
10. Maturity date.
11. Purchase Price.
12. Presenting Agent's commission,
determined as provided in Section
2 of the Agency Agreement and
certification that the purchasers
were solicited solely by the
Agent.
13. Net proceeds to the Company.
B. Deutsche Bank will assign a CUSIP
number to the Global Security
representing such Book-Entry Note
and the Company will advise Deutsche
Bank 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. Deutsche Bank
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
Deutsche Bank 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 $300,000,000 (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. Deutsche Bank will enter a
pending deposit message through
DTC's Participant Terminal System
providing the following settlement
information to DTC (which shall
route
A-10
such information to Standard &
Poor's Corporation) and the
Presenting Agent:
1. The information set forth in
Settlement Procedure "A".
2. Initial Interest Payment Date for
such Book-Entry Note, number of days
by which such date succeeds the
related Regular Record Date and
amount of interest payable on such
Interest Payment Date.
3. CUSIP number of the Global Security
representing such Book-Entry Note.
4. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
D. To the extent the Company has not
already done so, the Company will
deliver to the Trustee a Global
Security in a form that has been
approved by the Company, the Agent
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 Deutsche Bank's participant
account at DTC.
G. Deutsche Bank will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Book-Entry Note to Deutsche Bank'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
Deutsche Bank'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 Deutsche Bank to DTC
that (i) the Global Security
representing such Book-Entry Note
has been issued and authenticated
and (ii) Deutsche Bank is holding
such Global Security pursuant to the
Medium-Term Note Certificate
Agreement between Deutsche Bank 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
A-11
Note to the participant accounts of
the Participants with respect to
such Book-Entry Note and (ii) to
debit the settlement accounts of
such Participants and credit the
settlement account of the Presenting
Agent for an amount equal to the
price of such Book-Entry Note.
I. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "G" and "H"
will be settled in accordance with
SDFS operating procedures in effect
on the settlement date.
J. Deutsche Bank will, upon receipt
of funds from the Presenting Agent
in accordance with Settlement
Procedure "G", credit to an account
of the Company (Account # 381544)
maintained at Deutsche Bank funds
available for immediate use in the
amount transferred to Deutsche Bank
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 Procedures For orders of Book-Entry Notes solicited
Timetable: by the Agent and accepted by the Company
for settlement on the first Business 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
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
A-12
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable
but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the
sale date and no later than 2:00 P.M. on
the Business Day before the settlement
date, respectively. Settlement Procedure
"I" is subject to extension in accordance
with any extension of Fedwire closing
deadlines and in the other events
specified in SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, Deutsche Bank
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 Settle: If Deutsche Bank fails to enter an SDFS
deliver order with respect to a Book-Entry
Note pursuant to Settlement Procedure "G",
Deutsche Bank 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 Deutsche Bank's participant
account. DTC will process the withdrawal
message, provided that Deutsche Bank'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, Deutsche Bank 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.
A-14
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such Note by
the beneficial purchaser thereof (or a
Person, including an indirect participant
in DTC, acting on behalf of such
purchaser), such Participants and, in
turn, the Presenting Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders
entered pursuant to Settlement Procedures
"H" and "G", respectively. The Presenting
Agent will notify the Company by telephone
of such failure. Thereafter, Deutsche
Bank 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, Deutsche
Bank 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.
Deutsche Bank Not to Risk Nothing herein shall be deemed to require
Funds: Deutsche Bank to risk or expend its own
funds in connection with any payment to
the Company, DTC, the Agent or the
purchaser, it being understood by all
parties that payment made by Deutsche Bank
to the Company, DTC, the Agent or the
purchaser shall be made only to the extent
that funds are provided to Deutsche Bank
for such purpose.
Authenticity of Signatures: The Company will cause Deutsche Bank to
furnish the Agent from time to time with
the specimen signatures of each of
Deutsche Bank's officers, employees or
agents who have been authorized by
Deutsche Bank to authenticate Book-Entry
Notes, but the Agent will have no
obligation or liability to the Company or
Deutsche Bank in respect of the
authenticity of the signature of any
officer, employee or agent of the Company
or Deutsche Bank on any Book-Entry Note.
Advertising Costs: The Company will determine with the Agent
the amount of advertising that may be
appropriate in soliciting offers to
purchase the Book-Entry Notes.
Advertising expenses will be paid by the
Company.
A-14
Periodic Statements from Periodically, Deutsche Bank will send to
Deutsche Bank: the Company a statement setting forth the
principal amount of Book-Entry 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 Deutsche Bank but which have not
yet been settled.
A-15
EXHIBIT B
IDACORP, Inc.
Medium-Term Notes, Series A
Due from Nine Months
to Forty Years from Date of Issue
TERMS AGREEMENT
IDACORP, Inc.
1221 W. Idaho St.
Boise, Idaho 83702-5627
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated November 12, 2002, between [Agent], and
you, the undersigned agrees to purchase the following Notes of IDACORP, Inc.:
[Add additional terms as may be needed to identify Notes.]
Aggregate Principal Amount: $
Issue Date:
Original Interest Accrual Date:
Interest Rate:
Maturity Date:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued
interest from , 20 ]
Settlement Date:
Price to Public:
Purchase Date and Time:
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:
IDACORP, Inc.
By: ________________________
Title:
B-2
EXHIBIT C
Pursuant to Section 5(e) of the Selling Agency Agreement, the
accountants shall furnish a letter to the Agent to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
rules and regulations thereunder adopted by the SEC;
(ii) In their opinion, the consolidated financial statements and
consolidated financial statement schedules audited by them and included or
incorporated by reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the related rules and
regulations adopted by the SEC, and, if applicable, they have performed the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 71,
Interim Financial Information, on the consolidated interim financial statements
for the periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Agent;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included or incorporated by reference in the
Prospectus and included or incorporated by reference in item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for the five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on Form
10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing has come to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
statements of comprehensive income, consolidated balance sheets,
consolidated statements of cash flows and consolidated statements of
capitalization included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q and
the related rules and regulations adopted by the SEC;
(B) any material modifications should be made to the unaudited
consolidated financial statements described in (A), included or
incorporated by reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(C) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (except for shares of Idaho Power Company 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 Agent, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur, for declarations of
dividends, or which are described in such letter; and
(D) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (C) there were any decreases in consolidated
revenues, net income or earnings on common stock or other items specified
by the Agent, or any increases in any items specified by the Agent, in each
case as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the Agent, 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 Agent 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 Agent or
in documents incorporated by reference in the Prospectus specified by the Agent,
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.
C-2
EXHIBIT D
_______, 2002
To the Agent referred to in the
Selling Agency Agreement
Relating to:
$300,000,000 Principal Amount of
Medium-Term Notes, Series A, of IDACORP, Inc.
Ladies and Gentlemen:
With reference to the issuance and sale by IDACORP, Inc., an Idaho
corporation (the "Company"), pursuant to the Selling Agency Agreement, dated
________, 2002 (the "Agency Agreement"), between the Company and you of up to
$300,000,000 aggregate principal amount of Medium-Term Notes, Series A (the
"Notes"), to be issued under the Company's Indenture for Senior Debt Securities,
dated as of February 1, 2001, between the Company and Deutsche Bank Trust
Company Americas, formerly known as Bankers Trust Company (the "Trustee"), as
supplemented by the First Supplemental Indenture, dated as of February 1, 2001,
between the Company and the Trustee (said Indenture for Senior Debt Securities,
as so supplemented, being hereinafter called the "Indenture"), we advise you
that we are counsel to the Company and in that capacity have reviewed or
participated in the preparation of (1) the Indenture; (2) the registration
statement (File No. 333-64737) and amendment no. 1 thereto 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 November 6, 1998 (the "Base Prospectus"),
as supplemented by a prospectus supplement relating to the Notes, dated February
28, 2001 (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 Indenture 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 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 are entitled to the benefits
afforded by the Indenture, subject to
bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting 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, it being understood that we
express no opinion as to any consents or approvals required to be obtained, or
other actions required to be taken, under the securities or blue sky laws of any
jurisdiction.
In passing upon the form of the Registration Statement and the form of
the Base Prospectus, as supplemented by the Prospectus Supplement, we
necessarily assume the correctness and completeness of the representations made
to us and the statements made to us or included in the Registration Statement
and the Base Prospectus, as supplemented by the Prospectus Supplement, by the
Company and take no responsibility therefor. In the course of the preparation by
the Company of the Registration Statement and the Base Prospectus, we had
conferences with certain of its officers and representatives, with other counsel
for the Company and with Deloitte & Touche LLP, the independent certified public
accountants who examined certain of the financial statements included or
incorporated by reference in the Registration Statement. Our examination of the
Registration Statement and the Base Prospectus, as supplemented by the
Prospectus Supplement, and our discussions in the above-mentioned conferences
did not disclose to us any information which gives us reason to believe that, at
the effective date, the Registration Statement contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of
the Prospectus Supplement, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Also, nothing that has come to our attention in the course of our
examination of the Registration Statement or the Prospectus or in our
discussions in the above-mentioned conferences that has caused us to believe
that the Prospectus, as of the date and time of the delivery of this letter,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do not express any
opinion or belief as to the financial statements or other
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financial data contained or incorporated by reference in the Registration
Statement or the Prospectus.
We express no opinion as to the law of any jurisdiction other than the
law of the State of New York and the federal laws of the United States. As to
all matters of Idaho law and as to the matters set forth in paragraph 5 above,
we have relied upon an opinion of even date herewith addressed to you by Robert
W. Stahman, Esq., General Counsel for the Company.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
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EXHIBIT E
_________, 2002
To the Agent referred to in the
Selling Agency Agreement
Relating to:
$300,000,000 Principal Amount of
Medium-Term Notes, Series A, of IDACORP, Inc.
Ladies and Gentlemen:
In connection with the issuance and sale pursuant to the Selling
Agency Agreement, dated __________, 2002 (the "Agency Agreement"), between
IDACORP, Inc., an Idaho corporation (the "Company"), and you of up to
$300,000,000 aggregate principal amount of the Company's Medium-Term Notes,
Series A (the "Notes"), to be issued under an Indenture for Senior Debt
Securities, dated as of February 1, 2001, between the Company and Deutsche Bank
Trust Company Americas, formerly known as Bankers Trust Company (the "Trustee"),
as supplemented by the First Supplemental Indenture, dated as of February 1,
2001, between the Company and the Trustee (collectively, the "Indenture"), I am
the Company's General Counsel, and I am familiar with its legal status and that
of its property. I am also familiar with the registration statement (File No.
333-64737) and amendment no. 1 thereto 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 November 6, 1998 (the "Base
Prospectus"), as supplemented by a prospectus supplement relating to the Notes,
dated February 28, 2001 (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 thereon, I am of the opinion that:
(1) The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Idaho, and has full power and
authority to own its properties and conduct its business in all material
respects as described in the Prospectus as amended or supplemented;
(2) To the best of my knowledge and other than as set forth in the
Prospectus as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which would individually or in the aggregate have a material adverse
effect on the consolidated financial position or results of operations of the
Company and its subsidiaries considered as a whole; and, to the best of my
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(3) The Agency Agreement has been duly authorized, executed and
delivered by the Company;
(4) The Notes, when issued and paid for as contemplated in the Agency
Agreement, will be legal, valid and binding obligations of the Company,
enforceable in accordance with their terms and are entitled to the benefits
afforded by the Indenture, subject to bankruptcy, insolvency, reorganization or
other laws of general applicability relating to or affecting creditors' rights
and to general principles of equity (whether considered in a proceeding at law
or in equity); and the Notes and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(5) The Indenture has been duly authorized, executed and delivered by
the Company 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 creditors' rights
and to general principles of equity (whether considered in a proceeding at law
or in equity).
(6) The issue and sale of the Notes and the compliance by the Company
with all of the provisions of the Notes, the Indenture and the Agency Agreement
with respect to the Notes and the consummation of the transactions therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such actions result
in any violation of the provisions of the 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 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
(8) 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, it being understood that I
express no opinion as to any consents or approvals required to be obtained, or
other actions required to be taken, under state securities or Blue Sky laws of
any jurisdiction.
I have no reason to believe that the Registration Statement, at the
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Base Prospectus, as supplemented
by the Prospectus Supplement, as of the date of the Prospectus
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Supplement, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; it being
understood that I express no opinion or belief as to the financial statements or
other financial data contained or incorporated by reference in the Registration
Statement or the Prospectus. Also, nothing that has come to my attention in the
course of my examination of the Registration Statement or the Prospectus that
has caused me to believe that the Prospectus, as of the date and time of the
delivery of this letter, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Very truly yours,
Robert W. Stahman
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