Exhibit 1.2
IDAHO POWER COMPANY
First Mortgage Bonds,
Secured Medium-Term Notes, Series F
Due From Nine Months to Thirty Years
From Date of Issue
Amended and Restated Selling Agency Agreement
June 19, 2007
Banc of America Securities LLC
Hearst Tower
214 North Tryon Street
Charlotte, NC 28255
J.P. Morgan Securities Inc.
270 Park Ave.
New York, NY 10017
KeyBanc Capital Markets Inc.
127 Public Square
Cleveland, OH 44114
RBC Capital Markets Corporation
One Liberty Plaza
New York, NY 10006
Wachovia Capital Markets, LLC
301 South College Street
Charlotte, NC 28288
Wedbush Morgan Securities Inc.
1000 Wilshire Boulevard, 9th Floor
Los Angeles, CA 90017
Wells Fargo Securities, LLC
123 N. Wacker Drive, Suite 1150
Chicago, IL 60606
Ladies and Gentlemen:
This Amended and Restated Selling Agency Agreement (this "Agreement")
amends and restates the Selling Agency Agreement dated May 9, 2005 among Idaho
Power Company, an Idaho corporation (the "Company"), and each of the other
parties thereto (the "Original Selling Agency Agreement") and also adds Wedbush
Morgan Securities Inc., as a party thereto and removes BNY Capital Markets, Inc.
and Piper Jaffray & Co. as parties thereto. By your execution of this Agreement,
each of you hereby waives receipt of any documents required to be provided to
you at the Execution Time pursuant to Sections 5(b), 5(c), 5(d), 5(e) and 5(f)
hereof.
The Company confirms its agreement with each of you with respect to
the issue and sale by the Company of up to $200,000,000 aggregate principal
amount of its First Mortgage Bonds, Secured Medium-Term Notes, Series F, Due
from Nine Months to Thirty Years from Date of Issue (the "Notes"). The Notes
will be issued under the Indenture of Mortgage and Deed of Trust, dated as of
October 1, 1937, between the Company and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company) (the "Trustee"), and R.G. Page
(Stanley Burg, successor individual trustee), as trustees, as supplemented and
amended by all indentures supplemental thereto including the Fortieth
Supplemental Indenture relating to the Notes dated as of May 1, 2005 (the
"Supplemental Indenture"). The Indenture of Mortgage and Deed of Trust as it has
been and may be supplemented as of any specified date is hereinafter referred to
as the "Indenture". Unless otherwise specifically provided for and set forth in
a Pricing Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form and will have
the interest rates, maturities and, if applicable, other terms set forth in such
Pricing Supplement. The Notes will be issued, and the terms thereof established,
in accordance with the Indenture and the Medium-Term Notes Administrative
Procedures attached hereto as Exhibit A, as they may be amended from time to
time (the "Procedures") (unless a Terms Agreement (as defined in Section 2(b))
modifies or otherwise supersedes such Procedures with respect to Notes issued
pursuant to such Terms Agreement). The Procedures may be amended only by written
agreement of the Company and you after notice to the Trustee. For the purposes
of this Agreement, the term "Agent" shall refer to any of you acting solely in
the capacity as agent for the Company pursuant to Section 2(a) and not as
principal (collectively, the "Agents"), the term "Purchaser" shall refer to one
of you acting solely as principal pursuant to Section 2(b) and not as agent, and
the term "you" shall refer to you collectively whether at any time any of you is
acting in both such capacities or in either such capacity. In acting under this
Agreement, in whatever capacity, each of you is acting individually and not
jointly.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (j) 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 Form S-3
(File No. 333-122153), including a prospectus for the registration under the Act
of $245,000,000 aggregate principal amount of its first mortgage bonds and debt
securities (the "Securities"), including the Notes,
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which registration statement was declared effective by the Commission on January
27, 2005. Such registration statement, including incorporated documents,
exhibits and financial statements, as amended as of the Execution Time, and the
prospectus forming a part thereof , as supplemented by a prospectus supplement
(the "Prospectus Supplement") relating to the Notes that the Company has filed
or will file with the Commission pursuant to the applicable paragraph of Rule
424(b) under the Act, is hereinafter called the "Registration Statement." The
Registration Statement 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. In
connection with the sale of the 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 relating to the Notes is filed with the Commission, as of the
Applicable Time set forth in any 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)
on the Effective Date the Registration Statement did not, as of the Execution
Time the Prospectus does not, and as of the Applicable Time the Pricing
Disclosure Package will 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, and in the case of the Prospectus and the
Pricing Disclosure Package, in the light of the circumstances under which they
were made, not misleading; (iv) on the date of the Prospectus Supplement and the
date of any Terms Agreement (as defined in Section 2(b)) and on any Closing
Date, the Prospectus, as supplemented as of any such date, will 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, in
the light of the circumstances under which they were made, not misleading; and
(v) as of the Execution Time and 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, to the Company's knowledge, threatened any
proceeding for such purpose; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration Statement
which shall constitute the Statements of Eligibility of the Trustees (Forms T-1
and T-2), or amendments thereto, under the Trust Indenture Act or (B) the
information contained in or omitted from the Registration Statement, the
Prospectus or the Pricing Disclosure Package in reliance upon and in conformity
with information, if any, furnished in writing to the Company by any of you
specifically for inclusion therein.
(c) Other than the Base Prospectus, the Prospectus, any documents
listed in Annex I to any Terms Agreement, or any document not constituting a
prospectus under Section 2(a)(10)(a) of the Act or Rule 134 under the Act, the
Company (including its agents and representatives, other than you) has not made,
used, prepared, authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to, any "written communication" (as defined
in Rule 405 under the Act) that constitutes an offer to
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sell or solicitation of an offer to buy the Notes, unless such written
communication is approved in writing in advance by you, or by such of you as may
be applicable. To the extent any such written communication constitutes an
"issuer free writing prospectus" (as defined in Rule 433 under the Act and
referred to herein as an "Issuer Free Writing Prospectus"), such Issuer Free
Writing Prospectus will comply in all material respects with the requirements of
Rule 433(c) under the Act and, if the filing thereof is required pursuant to
Rule 433, such filing will be made in the manner and within the time period
required by Rule 433(d) under the Act. The Company will retain copies of each
such Issuer Free Writing Prospectus in accordance with Rule 433 under the Act if
retention is required pursuant to Rule 433.
(d) 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.
(e) 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 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 are subject,
nor will such action result in any violation of the provisions of the Restated
Articles of Incorporation, as amended or Bylaws 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, qualification of or registration with any such
court or governmental agency or body is required for the issue and sale of the
Notes or the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except such orders as have been issued by the
Idaho Public Utilities Commission (which grants authority to sell the Notes
through November 19, 2008), the Public Utility Commission of Oregon and the
Public Service Commission of Wyoming and are in full force and effect, and such
as have been, or will have been prior to any Closing Date, obtained under the
Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the sale and distribution of the Notes by the
Agents.
(f) The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act). The
Company's internal control over financial reporting was effective as of December
31, 2006 and the Company is not aware of any material weaknesses in its internal
control over financial reporting.
(g) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, there has been no change in the
Company's internal control over financial reporting which has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting.
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(h) The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) of the Exchange Act) that were effective as of
March 31, 2007.
(i) On the Effective Date and as of the Execution Time, the Company is
not, and has not been an "ineligible issuer," as defined in Rule 405 under the
Act.
(j) The terms that follow, when used in this Agreement, shall have the
meanings indicated. The term "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. "Base Prospectus" shall mean the form of base prospectus
relating to the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Base Prospectus as supplemented by
the Prospectus Supplement and any applicable Pricing Supplement. With respect to
any issue of Notes, (A) the "Applicable Time" will be (i) with respect to Notes
sold to a Purchaser, such time as is specified in the applicable Terms Agreement
as the Applicable Time, or, if the Terms Agreement does not specify the
Applicable Time, the Applicable Time shall mean the time of the first sale
(including, without limitation, a contract of sale) by the Company to a
Purchaser of such Notes, or (ii) with respect to Notes sold by an Agent, the
Applicable Time shall mean each time of sale (including, without limitation, a
contract of sale) of such Notes, and (B) the "Pricing Disclosure Package" shall
mean the Prospectus as amended or supplemented immediately prior to the
Applicable Time taken together with any Final Term Sheet, any Issuer Free
Writing Prospectus and any other free writing prospectus that the Company and
such Agent shall expressly agree in writing to include as part of the Pricing
Disclosure Package with respect to such issue of Notes. Any reference herein to
the Registration Statement, the Base 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 Base 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 Base 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 Base
Prospectus, the Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference; provided, however, that any
supplement to the Prospectus filed with the Commission pursuant to Rule 424
under the Act with respect to an offering of First Mortgage Bonds other than the
Notes shall not be deemed to be a supplement to, or a part of, the Prospectus.
(k) As of the Execution Time, since the date of the most recent
audited financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change or any development that
could reasonably be expected to result in a 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.
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2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions
set forth herein and to the reservation by the Company of the right to sell
Securities directly on its own behalf, the Company hereby authorizes each of the
Agents to act as its agent to solicit offers for the purchase of all or part of
the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, when requested by the Company to use its reasonable best efforts,
to solicit offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and in the
Procedures. Each Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such Agent shall not,
except as otherwise provided in this Agreement, be obligated to disclose the
identity of any purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that if approved by
the Company any Agent may purchase Notes as principal pursuant to Section 2(b).
Each of you agrees that in carrying out the transactions contemplated
by the Agreement, it will observe and comply with all securities or blue sky
laws, regulations, rules and ordinances in any jurisdiction in which the Notes
may be offered, sold or delivered applicable to it as Agent hereunder. Each
Agent agrees not to cause any advertisement of the Notes to be published in any
newspaper or periodical or posted in any public place and not to publicly issue
any circular relating to the Notes other than the Prospectus, except in any case
with the prior express consent of the Company.
Each Agent represents and agrees that, unless it obtains the prior
consent of the Company, it has not made and will not make any offer relating to
the Notes (other than by means of a Final Term Sheet) that would constitute a
"free writing prospectus," as defined in Rule 405 under the Act, required to be
filed with the Commission.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised them that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, for such Agent's
services in acting as an agent and not for a purchase by such Agent as
principal, at the Closing Date with respect to each sale of Notes by the Company
as a result of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal amount of
the Notes sold by the Company. Such commission shall be payable as specified in
the Procedures.
The Company may from time to time offer Securities or Notes for sale
otherwise than through an Agent and from time to time may appoint additional
agents to sell the Notes;
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provided, however, that so long as this Agreement shall be in effect, the
C1ompany shall not solicit or accept offers to purchase Notes through any agent
other than an Agent, except that the Company may accept offers to purchase Notes
through an agent other than an Agent if the Company gives the Agents reasonable
prior notice of such acceptance and any such agent enters into an agreement with
the Company on terms that are substantially similar to those contained in or
incorporated in this Agreement.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result of
such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any of you determine that the Company shall sell Notes directly to
any of you as principal, each such sale of Notes shall be made in accordance
with the terms of this Agreement and a supplemental agreement relating to such
sale. Each such supplemental agreement is herein referred to as a "Terms
Agreement". Each Terms Agreement shall describe the Notes to be purchased by the
Purchaser pursuant thereto and shall specify the aggregate principal amount of
such Notes, the price to be paid to the Company for such Notes, the maturity
date of such Notes, the rate at which interest will be paid on such Notes, the
dates on which interest will be paid on such Notes and the record date with
respect to each such payment of interest, the Applicable Time with respect to
such Notes, the Closing Date, 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 registered public accounting firm 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 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
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commission payable pursuant hereto. Any resale at a discount may not exceed the
amount set forth in the Pricing Supplement relating to such Notes.
3. Offering and Sale of Notes. Each Agent and 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 to each of you through your counsel a copy for your review prior
to filing and given each of you a reasonable opportunity to comment on any such
proposed amendment or supplement. Subject to the foregoing sentence, the Company
shall cause each supplement to the Prospectus to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act within the
time period prescribed and shall provide evidence satisfactory to you of such
filing.
To the extent required under the Act, the Company also agrees to
prepare, prior to the termination of the offering of the Notes, with respect to
any Notes to be sold pursuant to this Agreement, an Issuer Free Writing
Prospectus that is a Final Term Sheet in the form set forth in Annex II to the
applicable Terms Agreement (the "Final Term Sheet"), and to file such Final Term
Sheet pursuant to Rule 433(d) under the Act within the time required by such
rule.
The Company will promptly advise each of you (i) when the Prospectus,
any supplement thereto, and any Issuer Free Writing Prospectus, has been filed
with the Commission pursuant to Rule 424(b) or Rule 433(d) under the Act, (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) has 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 following the relevant Applicable Time, when a
prospectus relating to the Notes is required to be delivered under the Act, any
event occurs as a result of which (i) the Prospectus, the Final Term Sheet or
any Issuer Free Writing Prospectus as then amended or 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
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under which they were made, not misleading; (ii) it is necessary to amend or
supplement the Registration Statement, the Prospectus, the Final Term Sheet or
any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder or (iii) the information contained in an Issuer
Free Writing Prospectus conflicts with information contained in the Registration
Statement or the Prospectus that has not been superseded or modified, the
Company will promptly (x) notify each of you to suspend solicitation of offers
to purchase Notes (and, if so notified by the Company, each of you shall
forthwith suspend such solicitation and cease using the Prospectus as then
supplemented), (y) prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement to the
Registration Statement, the Prospectus, the Issuer Free Writing Prospectus and
the Final Term Sheet, which will correct such statement or omission or effect
such compliance and (z) supply any supplemented Prospectus, Final Term Sheet or
Issuer Free Writing Prospectus to each of you in such quantities as you may
reasonably request. If such amendment or supplement is satisfactory in all
respects to you, you will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to the Registration
Statement, if such an amendment is required, resume your obligation to solicit
offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and, to the extent such documents are not
available pursuant to the EDGAR filing system, will furnish to each of you
copies of such documents.
(d) As soon as practicable, the Company will make generally available
to its security holders and to each of you an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without
charge, as many copies of the Registration Statement (including exhibits
thereto), and, so long as delivery of a prospectus may be required by the Act,
the Prospectus and each additional prospectus supplement, Pricing Supplement,
the Final Term Sheet, any Issuer Free Writing Prospectus, and each amendment or
supplement to the Indenture entered into subsequent to the date hereof, as you
may reasonably request.
(f) The Company will use its best efforts to arrange for the
qualification of the Notes for sale under the laws of such jurisdictions as any
of you may reasonably designate, and 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, the
Final Term Sheet,
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any Issuer Free Writing Prospectus, this Agreement, any Terms Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements of your counsel
incurred in compliance with Section 4(f) (such fees not to exceed $10,000), the
fees and disbursements of the Trustee and the fees of any agency that rates the
Notes, (ii) reimburse each of you as requested for all out-of-pocket expenses
(including pre-approved advertising expenses), if any, incurred by you in
connection with the implementation of this program and (iii) pay the reasonable
fees and expenses of your counsel incurred in connection with the implementation
of this program.
(h) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties contained
in this Agreement are true and correct at the time of such acceptance, as though
made at and as of such time, and a covenant that such representations and
warranties will be true and correct at the Closing Date relating to such
acceptance, as though made at and as of such time (it being understood that for
purposes of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement, the Prospectus as amended
or supplemented at each such time and any Issuer Free Writing Prospectus
relating to the Notes). 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 the Company files with the Commission an Annual Report
on Form 10-K or a Quarterly Report on Form 10-Q or a material amendment or
supplement thereto and each time that the Company requests you to solicit offers
to purchase the Notes, the Company shall deliver or cause to be delivered
promptly to you a certificate of the Company, in form reasonably satisfactory to
you, signed by the Chief Executive Officer or the President or the principal
financial or accounting officer of the Company, dated the date of delivery of
such certificate, of the same tenor as the certificate referred to in Section
5(d) but modified to relate to the Registration Statement and the Prospectus as
amended or supplemented at the time of delivery of such certificate.
(j) Each time the Company files with the Commission an Annual Report
on Form 10-K or a Quarterly Report on Form 10-Q or a material amendment or
supplement thereto and each time that the Company requests you to solicit offers
to purchase the Notes, the Company shall furnish or cause to be furnished
promptly to you a written opinion of counsel for the Company, in form reasonably
satisfactory to you, dated the date of delivery of such opinion, 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 or supplemented at the time
of delivery of such opinion 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
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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 the Company files with the Commission an Annual Report
on Form 10-K or a Quarterly Report on Form 10-Q or a material amendment or
supplement thereto and each time that the Company requests you to solicit offers
to purchase the Notes, the Company shall cause its independent registered public
accounting firm to promptly furnish to you a letter, dated five business days
after the date of the effectiveness of such amendment or the date of filing of
such supplement, in form reasonably 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 registered public accounting firm 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 first mortgage bonds 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 Agents notification of its decision to suspend any sale of Notes
hereunder, then during the period of any such suspension or suspensions the
Company shall be relieved of its obligation to provide to the Agents the
certificate, opinions and letter required pursuant to Sections 4(i), 4(j) and
4(k) hereof. However, whenever such a suspension is lifted, the Company will be
required to deliver to the Agents, prior to the resumption of any sale of Notes
hereunder, the most recent certificate, opinions and letter that would have been
required except for the suspension.
(n) During the term of this Agreement, the Company shall furnish to
each Agent (i) to the extent such documents are not available pursuant to the
EDGAR filing system, 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, (ii) copies of all
announcements made to the general financial community and (iii) 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).
11
(o) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, subsequent to the agreement to
purchase such Note, any change, condition or development specified in any of
Sections 8(b)(iii), (iv) or (v) shall have occurred (with the judgment of the
Agent that 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 that presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment permitted to be exercised under this
Section 4(o)).
5. Conditions to the Obligations of the Agents. The obligations of
each Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus relating to the Notes is filed with the Commission
and as of each Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) under the Act, the Prospectus, and any
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b) under the Act; 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.
The Company shall have also complied with the requirements of Rule 433
under the Act applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission where required, legending and record keeping.
(b) The Company shall have furnished to each Agent the opinions of
LeBoeuf, Lamb, Greene & MacRae LLP, counsel to the Company and Thomas R. Saldin,
Esq., General Counsel for the Company, dated the Execution Time substantially in
the forms of Exhibits D-1 and D-2 hereto and Exhibit E hereto, respectively.
(c) Each Agent shall have received from Sullivan & Cromwell LLP,
counsel for the Agents, such opinion or opinions, dated the Execution Time, with
respect to the incorporation of the Company, the validity of the Indenture and
the Notes, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Agents may reasonably
require, and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters. In rendering their opinions, Sullivan & Cromwell LLP may rely upon the
opinion described above of Thomas R. Saldin, Esq., General Counsel for the
Company, as to all matters of Idaho, Montana, Nevada, Oregon and Wyoming law.
(d) The Company shall have furnished to each Agent a certificate of
the Company, signed by the Chief Executive Officer or the President or the
principal financial or accounting officer of the Company, dated the Execution
Time, to the effect that:
12
(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 Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent audited financial
statements included in or incorporated by reference in the Prospectus,
there has been no material adverse change or any development that
could reasonably be expected to result in a 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 LLP shall have furnished
to each Agent a letter or letters (which may refer to letters previously
delivered to the Agents), dated as of the Execution Time to the effect set forth
in Exhibit C hereto.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents and certificates as the Agents
may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be cancelled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of LeBoeuf, Lamb, Greene & MacRae LLP, counsel for the
Company, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations of a
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(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.
13
(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 LLP, and Thomas R. Saldin, 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 LLP, 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 LLP, independent
registered public accounting firm for the Company, dated as of the Closing Date,
to the effect referred to in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the
Purchaser such further information, certificates and documents as the Purchaser
may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be cancelled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancellation shall be given to the Company
in writing or by telephone or telegraph confirmed in writing.
7. Indemnification. (a) The Company will indemnify and hold harmless
each of you against any losses, claims, damages or liabilities, joint or
several, to which you may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus, any amendment
or supplement thereto or any Issuer Free Writing Prospectus, 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 each of you for any legal or other expenses
reasonably incurred by you in connection with investigating or defending against
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with information furnished in writing to the Company by you or on
your behalf for inclusion therein or arising out of, or based upon, statements
in or omissions from Exhibits 25.1 and 25.3 to the Registration Statement which
shall constitute the Statements of Eligibility of the Trustees on Forms T-1 and
T-2, or amendments thereto, under the Indenture; and provided, further, that the
foregoing indemnity agreement contained in this Section 7(a), with respect to
any preliminary prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, any amendment or supplement thereto or
any Issuer Free Writing Prospectus, shall
14
not inure to the benefit of any of you from whom the person asserting any such
losses, claims, damages or liabilities purchased Notes, or any person
controlling you, where (i) prior to the Applicable Time, the Company shall have
notified you that any preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Issuer Free Writing Prospectus contains an untrue
statement of material fact or omits to state therein a material fact necessary
in order to make the statements therein not misleading, (ii) such untrue
statement or omission of a material fact was corrected in a further amendment or
supplement to the preliminary prospectus, preliminary prospectus supplement,
Registration Statement, Prospectus, any amendment or supplement thereto or,
where permitted by law, an Issuer Free Writing Prospectus, and such corrected
preliminary prospectus, preliminary prospectus supplement, Registration
Statement, Prospectus, any amendment or supplement thereto or Issuer Free
Writing Prospectus was provided to you prior to the Applicable Time, (iii) such
corrected preliminary prospectus, preliminary prospectus supplement,
Registration Statement, Prospectus, any amendment or supplement thereto or
Issuer Free Writing Prospectus (excluding any document incorporated by reference
therein) was not conveyed to such person at or prior to the contract for sale of
the Notes to such person and (iv) such loss, claim, damage or liability would
not have occurred had the corrected preliminary prospectus, preliminary
prospectus supplement, Registration Statement, Prospectus, any amendment or
supplement thereto or Issuer Free Writing Prospectus (excluding any document
incorporated by reference therein) been conveyed to such person as provided for
in clause (iii) above. This indemnity agreement shall be in addition to any
liability that 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, that
controls any of you within the meaning of the Act.
(b) Each of you severally and not jointly shall 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, any amendment
or supplement thereto or any Issuer Free Writing Prospectus, 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 any preliminary prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, any amendment or supplement thereto or
any Issuer Free Writing Prospectus 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 that you may otherwise have.
15
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, that 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 that 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 each of you on the
other from the offering of the Notes to which such loss, claim, damage or
liability (or actions in respect thereof) relates and also the relative fault of
the Company on the one hand and each of you on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each of you on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by you. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or any of you on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each of you agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), you
shall not be required to
16
contribute any amount in excess of the amount by which the total price at which
the Notes sold by or through you to the public exceeds the amount of any damages
which you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of you in this subsection
(d) to contribute are several in proportion to the respective purchases made by
or through you to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
8. Termination. (a) This Agreement will continue in effect until
terminated as provided in this Section 8. This Agreement may be terminated
either by the Company as to any Agent or by any of you insofar as this Agreement
relates to any Agent, by giving written notice of such termination to such Agent
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the fifth paragraph of Section 2(a), Section 4(g), Section 7 and Section 9.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by written notice given to the Company
prior to delivery of any payment for any Note to be purchased thereunder, if
subsequent to the agreement to purchase such Note and prior to such payment time
(i) there shall have occurred any change in or affecting the business or
properties of the Company and its subsidiaries taken as a whole the effect of
which is, in the judgment of the Purchaser, so material and adverse as to make
it impracticable or inadvisable to enforce contracts for the sale of such Note,
(ii) there shall have been any decrease in the rating of any of the Company's
first mortgage bonds by Moody's Investors Service or Standard & Poor's Ratings
Services 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, (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 general moratorium on commercial
banking activities shall have been declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States shall have occurred, (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 is such as to make it, in the judgment of the Purchaser,
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Prospectus or
(vi) there shall have occurred any adverse change in national or international
financial, political or economic conditions the effect of which is such as to
make it, in the judgment of the Purchaser, impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes on the terms and
in the manner contemplated in the Prospectus.
9. No Fiduciary Duty. The Company acknowledges and agrees with respect
to the purchase and sale of Notes pursuant to Section 2(b) of this Agreement
that (i) such purchase and sale is an arm's-length commercial transaction
between the Company, on the one hand, and any of you, on the other, (ii) in
connection therewith and with the process leading to such transaction each of
you is acting solely as principal and not as agent or fiduciary of the
17
Company, (iii) you have not assumed an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether you have advised or are
currently advising the Company on other matters) or any other obligation to the
Company except the obligations expressly set forth in this Agreement and (iv)
the Company has consulted its own legal and financial advisors to the extent it
deemed appropriate. The Company acknowledges and agrees that with respect to the
purchase and sale of Notes pursuant to Section 2(b) of this Agreement, it will
not claim that you have rendered advisory services of any nature or respect, or
owe a fiduciary or similar duty to the Company, in connection with such purchase
and sale or the process leading thereto.
10. 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.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telegraphed and confirmed to such of you, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 1221 W. Idaho Street, Boise, Idaho
83702-5627, attention of the Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors and the controlling
persons referred to in Section 7 hereof and no other person will have any right
or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
14. 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.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
IDAHO POWER COMPANY
By: /s/ Darrel T. Anderson
---------------------------------------
Darrel T. Anderson
Senior Vice President -
Administrative Services and
Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
BANC OF AMERICA SECURITIES LLC KEYBANC CAPITAL MARKETS INC.
By: /s/ Peter J. Carbone By: /s/ Gary E. Andrews
------------------------------------------- --------------------------------------------
Name: Peter J. Carbone Name: Gary E. Andrews
Title: Vice President Title: Director
J.P. MORGAN SECURITIES INC. WEDBUSH MORGAN SECURITIES INC.
By: /s/ Robert Bottamedi By: /s/ Michael Gardner
------------------------------------------- --------------------------------------------
Name: Robert Bottamedi Name: Michael Gardner
Title: Vice President Title: Executive Vice President
WACHOVIA CAPITAL MARKETS, LLC WELLS FARGO SECURITIES, LLC
By: /s/ Jacob Horstman By: /s/ Andrew McCarthy
------------------------------------------- --------------------------------------------
Name: Jacob Horstman Name: Andrew McCarthy
Title: Director Title: Managing Director
RBC CAPITAL MARKETS CORPORATION
By: /s/ John Younger
-------------------------------------------
Name: John Younger
Title: Managing Director
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
Term Commission Rate
---- ---------------
9 months to less than 12 months 0.125%
12 months to less than 18 months 0.150%
18 months to less than 2 years 0.200%
2 years to less than 3 years 0.250%
3 years to less than 4 years 0.350%
4 years to less than 5 years 0.450%
5 years to less than 6 years 0.500%
6 years to less than 7 years 0.550%
7 years to less than 10 years 0.600%
10 years to less than 15 years 0.625%
15 years to less than 20 years 0.675%
20 years or more 0.750%
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on the basis
of the commission schedule set forth above.
Address for Notice to Agents:
- -----------------------------
Notices to (1) Banc of America Securities LLC shall
be directed to it at Banc of America
Securities LLC, 40 West 57th Street,
NY1-040-27-03, New York, NY 10019
Attention of High Grade Transaction Management/Legal
Fax: 646-313-4823
Notices to (2) J.P. Morgan Securities Inc. shall be directed
to it at 270 Park Avenue, New York, NY 10017
Attention of Investment Grade Syndicate Desk
Tel: 212-834-4533
Fax: 212-834-6081
Notices to (3) KeyBanc Capital Markets shall be
directed to it at 127 Public Square,
Cleveland, OH 44114
Attention of Andrew T. Redinger
Tel: 216-689-4085
Fax: 216-689-4653
Notices to (4) RBC Capital Markets Corporation shall
be directed to it at One Liberty Plaza, 165
Broadway, 2nd Floor, New York, NY 10006
Attention of Joseph Moore
Tel: (212) 858-7201
Fax: (212) 428-3018
Notices to (5) Wachovia Capital Markets, LLC shall
be directed to it at 301 South College,
Charlotte, NC 28288
Attention of Jim Williams
Tel: (704) 383-8766
Fax: (704) 383-9519
Notices to (6) Wedbush Morgan Securities Inc. shall be directed
to it at 1000 Wilshire Boulevard,
Los Angeles, CA 90017
Attention of Jonathan Leus
Tel: (213) 688-8050
Fax: (213) 688-6790
Notices to (7) Wells Fargo Securities, LLC shall be
directed to it at 608 Second Avenue South,
Suite 900, MAC N9303-097, Minneapolis, MN
55479
Attention of Joseph W. Glenn
Tel: 612-667-3774
Fax: 612-667-4744
2
EXHIBIT A
IDAHO POWER COMPANY
First Mortgage Bonds,
---------------------
Secured Medium-Term Notes, Series F, Administrative Procedures
--------------------------------------------------------------
Book-Entry Form
The First Mortgage Bonds, Secured Medium-Term Notes, Series F, Due
from Nine Months to Thirty Years from Date of Issue (the "Notes") of Idaho Power
Company (the "Company") are to be offered on a continuing basis. Banc of America
Securities LLC, J.P. Morgan Securities Inc., KeyBanc Capital Markets Inc., RBC
Capital Markets Corporation, Wedbush Morgan Securities Inc., Wachovia Capital
Markets, LLC and Wells Fargo Securities, LLC, as agents (each an "Agent"), have
agreed to use their reasonable best efforts to solicit purchases of Notes issued
in fully registered form. The Agents will not be obligated to purchase Notes for
their own account. The Notes are being sold pursuant to a Selling Agency
Agreement between the Company and the agents named therein (including the
Agents) dated the date hereof (the "Agency Agreement"). The Notes have been
registered with the Securities and Exchange Commission (the "Commission"). The
Notes will be issued under the Company's Indenture of Mortgage and Deed of
Trust, dated as of October 1, 1937, between the Company and Deutsche Bank Trust
Company Americas, formerly known as Bankers Trust Company (the "Trustee") and
R.G. Page (Stanley Burg, successor individual trustee), as trustees, as
supplemented, pursuant to the Fortieth Supplemental Indenture dated as of May 1,
2005 (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by an
Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by a Global Security (as defined
hereinafter) delivered to 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 Agents and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Finance Department. The Company will
advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth below, as adjusted in accordance with
changes in DTC's operating requirements. Unless otherwise defined herein, terms
defined in the Indenture and the Notes shall be used herein as
therein defined. Only fixed rate Notes may be issued. To the extent the
procedures set forth below conflict with the provisions of the Notes, the
Indenture, DTC's operating requirements or the Agency Agreement, the relevant
provisions of the Notes, the Indenture, DTC's operating requirements and the
Agency Agreement shall control.
Administrative Procedures for
-----------------------------
Book-Entry Notes
----------------
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, 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 November
21, 2000, a Bring-Down Letter of Representations from the Company and Deutsche
Bank to DTC dated as of May 6, 2005 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 $200,000,000
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 Numbers: The Company has arranged with the CUSIP Service
- ---------------------- Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers and relates to
Global Securities representing Book-Entry Notes and
book-entry medium-term notes issued by the Company
with other series designations. 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.
A-2
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 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 Participants) 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 (30) days
after such written notice is delivered and at least
thirty (30) 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
A-3
such exchange date, the 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 thirty
(30) 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 February 15
and August 15.
Interest Payment Dates. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Book-Entry Notes will be made
semiannually on March 1 and September 1 of each year
and at Maturity; provided, however, that if an
Interest Payment Date for a Book-Entry Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date; provided
further, that in the case of a Book-Entry
A-4
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 each
and Interest: 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 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.
A-5
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 wire
transfer to Deutsche Bank, to the following account:
Deutsche Bank Trust Company Americas
Trust & Securities Services
ABA #: 021001033
Account Number: 01419647
Reference: Idaho Power First Mortgage Bonds.
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.
Procedures upon Company Notice to Trustee Regarding Exercise of
Company's Exercise Optional Redemption. At least 35 days prior to the
of Optional Redemption: 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
A-6
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 The Company and the Agents will discuss from time to
Setting and Posting: 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 Agents. If the Company
decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are
to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each
Rejection of Orders: Agent will advise the Company promptly by telephone
- ------------------- of all orders to purchase Book-Entry Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed by the Company
and the Agents, the Company has the sole right to
accept orders to purchase Book-Entry Notes and may
reject any such orders in whole or in part.
Preparation of Pricing If any order to purchase a Book-Entry Note is
Supplement: 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 copies if requested) to the Agent which
presented the order (the "Presenting Agent"). The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of such
Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix Pricing
Supplements to Prospectuses prior to their use.
Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
A-7
Suspension of The Company reserves the right, in its sole
Solicitation; discretion, to instruct the Agents to suspend at any
Amendment or Supplement: time, for any period of time or permanently, the
- ----------------------- solicitation of orders to purchase Book-Entry Notes.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents and 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), any Issuer Free Writing Prospectus or
the Prospectus, it will promptly advise the Agents
and furnish the Agents with the proposed amendment
or supplement and with such certificates and
opinions as are required, all to the extent required
by and in accordance with the terms of the Agency
Agreement. Subject to the provisions of the Agency
Agreement, the Company may file with the Commission
any such supplement or amendment to the Prospectus
or to any Issuer Free Writing Prospectus relating to
the Notes. The Company will provide the Agents and
Deutsche Bank with copies of any such supplement or
amendment, and confirm to the Agents that such
supplement or amendment has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b) or Rule 433(d) under the Act.
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Book-Entry Notes being offered, it
- -------------- will promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The Agents
will telephone the Company with recommendations as
to the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of orders.
Until such time only "indications of interest" may
be recorded.
Delivery of Prospectus: A copy of the Prospectus (including the Prospectus
- ---------------------- Supplement) and a Pricing Supplement relating to a
Book-Entry Note must accompany or precede the
earliest of any written offer of such Book-Entry
Note, confirmation of the purchase of such
Book-Entry Note and payment for such Book-Entry Note
by its purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by the Agents
between the
A-8
time an order for a Book-Entry Note is placed and
the time written confirmation thereof is sent by the
Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus
and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement" above, the Presenting Agent will deliver
a Prospectus and Pricing Supplement as herein
described with respect to each Book-Entry Note sold
by it. The Company will make such delivery if such
Book-Entry Note is sold directly by the Company to a
purchaser (other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
- ------------ solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
- ---------- funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled
on the third Business Day following the date of sale
of such Book-Entry Note pursuant to the timetable
for settlement set forth below unless the Company
and the purchaser agree to settlement on another
day, which shall be no earlier than the next
Business Day following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
- --------------------- Note sold by the Company through any Agent, as
agent, shall be as follows:
A. The Presenting Agent will advise the Company by
telephone (confirmed in writing) of the following
settlement information:
1. Exact name of the purchaser.
2. Principal amount.
3. Issue Date.
4. Original Interest Accrual Date.
5. Settlement date.
6. Interest rate.
7. Interest Payment Dates, if other than
March 1 and September 1.
A-9
8. Regular Record Dates, if other than
February 15 and August 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 such
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 $200,000,000
(except for Book-Entry Notes represented by
Global Securities authenticated and delivered in
exchange for or in lieu of Global Securities
pursuant to the Indenture).
C. Deutsche Bank will enter a pending deposit
message through DTC's Participant Terminal System
providing the following settlement information to
DTC (which shall route such information to
Standard & Poor's Corporation) and the Presenting
Agent:
1. The information set forth in Settlement
Procedure "A".
2. The 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.
A-10
3. The 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).
5. The participant account numbers maintained
by DTC on behalf of the Presenting Agent
and Deutsche Bank.
D. To the extent the Company has not already done
so, the Company will deliver to the Trustee a
Global Security in a form that has been approved
by the Company, the Agents and the Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as instructed
by DTC, if not already set forth thereon, and
authenticate the Global Security representing
such Book-Entry Note.
F. DTC will credit such Book-Entry Note to
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
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
A-11
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", wire transfer to the
Company funds available for immediate use in the
amount transferred to Deutsche Bank in accordance
with Settlement Procedure "G". Payments made
pursuant to this Settlement Procedure "J" will be
made to an account maintained by the Company at
Wells Fargo Bank (RTN: 121000248, Account Number:
4000033514).
K. The Presenting Agent will confirm the purchase
of such Book-Entry Note to the purchaser either
by transmitting to the Participants with respect
to such Book-Entry Note a confirmation order or
orders through DTC's institutional delivery
system or by mailing a written confirmation to
such purchaser.
Settlement For orders of Book-Entry Notes solicited by any
Procedures Timetable: 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 Time
---------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A",
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the sale date
and no later than 2:00 P.M. on the Business Day
before the 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.
A-12
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 cancelled 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.
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
A-13
Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries in
its records.
Deutsche Bank Not Nothing herein shall be deemed to require Deutsche
to Risk Funds: Bank to risk or expend its own funds in connection
- ----------------- with any payment to the Company, DTC, the Agents or
the purchaser, it being understood by all parties
that payment made by Deutsche Bank to the Company,
DTC, the Agents or the purchaser shall be made only
to the extent that funds are provided to Deutsche
Bank for such purpose.
Authenticity The Company will cause Deutsche Bank to furnish the
of Signatures: Agents 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 Agents 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 Agents 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.
Periodic Statements Periodically, Deutsche Bank will send to the Company
from Deutsche Bank: 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-14
EXHIBIT B
Idaho Power Company
First Mortgage Bonds,
Secured Medium Term Notes, Series F
Due from Nine Months
to Thirty Years from Date of Issue
TERMS AGREEMENT
Idaho Power Company
1221 W. Idaho St.
Boise, Idaho 83702-5627
Attention:
Subject in all respects to the terms and conditions of the Amended and
Restated Selling Agency Agreement (the "Agreement") dated June 19, 2007, between
[Agents], and you, the undersigned agrees to purchase the following Notes of
Idaho Power Company:
[Add additional terms as may be needed to identify Notes.]
Aggregate Principal Amount: $
Issue Date:
Original Interest Accrual Date:
Interest Rate:
Maturity Date:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued
interest from __________, 20__]
Settlement Date:
Price to Public:
Applicable 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:
Pricing Disclosure Package: See Annex I and Annex II
Period during which additional
Notes may not be sold pursuant to
Section 4(1) of the Agreement:
Syndicate Provisions:
(Set forth any provisions relating to
underwriters' default and step-up of
amounts to be purchased.)
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
[Purchaser]
By:
-------------------------------------
Accepted:
Idaho Power Company
By:
---------------------------------
Title:
B-2
ANNEX I
Documents included in the Pricing Disclosure Package
----------------------------------------------------
1. Prospectus, dated January 27, 2005, for $300,000,000 Idaho Power Company
First Mortgage Bonds and Debt Securities.
2. Prospectus Supplement dated May 9, 2005, for $200,000,000 Principal Amount
of First Mortgage Bonds, Secured Medium-Term Notes, Series F, of Idaho
Power Company.
3. Final Term Sheet in the form attached to this Terms Agreement as Annex II.
4. [List any free writing prospectus, other than the Final Term Sheet, that
the Company and the Purchasers have expressly agreed upon.]
B-3
ANNEX II
Final Term Sheet
[Form to be attached]
B-4
EXHIBIT C
Pursuant to Section 5(e) of the Selling Agency Agreement, the
accountants shall furnish a letter to the Agents to the effect that:
(i) They are an independent certified public accounting firm 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. 100,
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 Agents;
(iii) 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 4% preferred stock) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net assets or other
items specified by the Agents, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur, for declarations of dividends, or which are described in
such letter; and
(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 or net income or other items specified by the
Agents, or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the Agents,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur, for declarations of dividends,
or which are described in such letter; and
(iv) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Agents which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the Agents
or in documents incorporated by reference in the Prospectus specified by the
Agents, and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement, except as described in such letter.
All references to the Prospectus in this Exhibit C 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-1
__________, 20__
To the Agents referred to in the
Amended and Restated
Selling Agency Agreement
Relating to:
$200,000,000 Principal Amount of
First Mortgage Bonds, Secured Medium-
Term Notes, Series F, of Idaho Power Company
Ladies and Gentlemen:
With reference to the issuance and sale by Idaho Power Company, an
Idaho corporation (the "Company"), pursuant to the Amended and Restated Selling
Agency Agreement, dated June 19, 2007 (the "Agency Agreement"), between the
Company and each of you of up to $200,000,000 aggregate principal amount of
First Mortgage Bonds, Secured Medium-Term Notes, Series F (the "Notes"), to be
issued under an Indenture of Mortgage and Deed of Trust, dated as of October 1,
1937, between the Company and Deutsche Bank Trust Company Americas (formerly
known as Bankers Trust Company) and R.G. Page, as Trustees (Stanley Burg,
successor individual trustee) (the "Trustees"), as supplemented by all
indentures supplemental thereto, including the Fortieth Supplemental Indenture,
dated as of May 1, 2005 (said Indenture of Mortgage and Deed of Trust, as so
supplemented, being hereinafter called the "Mortgage"), we advise you that we
are counsel to the Company and in that capacity have reviewed or participated in
the preparation of (1) the Mortgage; (2) the registration statement (File No.
333-122153) filed with the Securities and Exchange Commission under the Act,
which became effective on January 27, 2005; such Registration Statement as
amended to the Effective Date, including the documents incorporated by reference
therein as of such dates pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), being hereinafter referred to as the "Registration Statement"); (3)
the prospectus, dated January 27, 2005 (the "Base Prospectus"), as supplemented
by a prospectus supplement relating to the Notes, dated May 9, 2005 (the
"Prospectus Supplement") (the Base Prospectus, as supplemented by the Prospectus
Supplement, including the documents incorporated by reference therein, being
hereinafter referred to as the "Prospectus"); (4) the Agency Agreement and (5)
the Bond Application, dated May 9, 2005 for authentication and delivery of the
Notes in an aggregate principal amount not to exceed $200,000,000 (the "Bond
Application"). Terms not otherwise defined herein shall have the meanings given
to them in the Agency Agreement.
We have also examined, have relied as to matters of fact upon, and
have assumed the accuracy of, originals or copies certified or otherwise
identified to our satisfaction, of such records, agreements, documents, and
other instruments and such representations, statements and certificates or
comparable documents of or from public officials and officers and
representatives of the Company and of representatives of all persons whom we
have deemed appropriate and have made such other investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures, the
legal capacity of all natural persons and the conformity to authentic original
documents of any copies submitted to us for our examination.
Based upon and subject to the foregoing, and subject to the further
qualifications and limitations stated herein, we are of the opinion that:
(1) The Mortgage has been duly authorized, executed and delivered by
the Company, is a legal, valid and binding instrument enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization or other laws
of general applicability relating to or affecting mortgagees' and other
creditors' rights, and to general principles of equity (whether considered in a
proceeding at law or in equity) and has been qualified under the Trust Indenture
Act of 1939, as amended.
(2) The Notes, when issued and paid for as contemplated in the Agency
Agreement, will be legal, valid and binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefit of the
security provided by the Mortgage, subject to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or affecting
mortgagees' and other creditors' rights and to general principles of equity
(whether considered in a proceeding at law or in equity).
(3) The Agency Agreement has been duly authorized, executed and
delivered by the Company.
(4) As of the Effective Date the Registration Statement, including the
Incorporated Documents, and, as of the date of the Prospectus Supplement, the
Prospectus, appeared on their face to comply 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 our knowledge, no proceedings for a stop order with respect thereto are
pending or threatened under Section 8(d) of the Act.
(5) All regulatory consents and approvals required to be obtained by
the Company from any governmental body or bodies in connection with the
Company's issuance and sale of the Notes in the manner set forth in the Agency
Agreement have been obtained and are in effect, except that the order of the
Idaho Public Utilities Commission grants authority to sell the Notes only
through November 19, 2008; 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 Prospectus, 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 Prospectus by the Company and take no
responsibility therefor. 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 Thomas R. Saldin, Esq.,
D-1-2
General Counsel for the Company. We are not passing upon matters relating to the
incorporation of the Company, title to property, liens, licenses, franchises,
water rights or conformity to the laws of the States of Idaho, Montana, Nevada,
Oregon or Wyoming, or upon questions of the recording of, or the validity or
priority of the lien of, the Mortgage.
This letter is furnished by us as New York counsel to the Company in
connection with the transactions contemplated by the Agency Agreement, is solely
for the benefit of the Agents and may not be delivered to or relied upon in any
manner by any other person or entity, including, without limitation, any person
purchasing Notes from any of the Agents, or for any other purpose, without our
express written consent.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae LLP
D-1-3
EXHIBIT D-2
__________, 20__
To the Agents referred to in the
Amended and Restated
Selling Agency Agreement
Relating to:
$200,000,000 Principal Amount of
First Mortgage Bonds, Secured Medium-
Term Notes, Series F, of Idaho Power Company
Ladies and Gentlemen:
With reference to the issuance and sale by Idaho Power Company, an
Idaho corporation (the "Company"), pursuant to the Amended and Restated Selling
Agency Agreement, dated June 19, 2007 (the "Agency Agreement"), between the
Company and each of you of up to $200,000,000 aggregate principal amount of
First Mortgage Bonds, Secured Medium-Term Notes, Series F (the "Notes"), to be
issued under an Indenture of Mortgage and Deed of Trust, dated as of October 1,
1937, between the Company and Deutsche Bank Trust Company Americas (formerly
known as Bankers Trust Company) and R.G. Page, as Trustees (Stanley Burg,
successor individual trustee) (the "Trustees"), as supplemented by all
indentures supplemental thereto, including the Fortieth Supplemental Indenture,
dated as of May 1, 2005 (said Indenture of Mortgage and Deed of Trust, as so
supplemented, being hereinafter called the "Mortgage"), we advise you that we
are counsel to the Company and in that capacity have reviewed or participated in
the preparation of (1) the Mortgage; (2) the registration statement (File No.
333-122153) filed with the Securities and Exchange Commission under the Act,
which became effective on January 27, 2005; such Registration Statement as
amended to the Effective Date, including the documents incorporated by reference
therein as of such dates pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), being hereinafter referred to as the "Registration Statement"); (3)
the prospectus, dated January 27, 2005 (the "Base Prospectus"), as supplemented
by a prospectus supplement relating to the Notes, dated May 9, 2005 (the
"Prospectus Supplement") (the Base Prospectus, as supplemented by the Prospectus
Supplement, including the documents incorporated by reference therein, being
hereinafter referred to as the "Prospectus"); (4) the Agency Agreement and (5)
the Bond Application, dated May 9, 2005 for authentication and delivery of the
Notes in an aggregate principal amount not to exceed $200,000,000 (the "Bond
Application"). Terms not otherwise defined herein shall have the meanings given
to them in the Agency Agreement.
In the course of the preparation by the Company of the Registration
Statement and the Prospectus, we had conferences with certain of its officers
and representatives, with other counsel for the Company and with Deloitte &
Touche LLP, the independent registered public accounting firm who examined
certain of the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus. The purpose of our professional
engagement was not to establish or confirm factual matters set forth in the
Registration Statement or the Prospectus, and we have not undertaken any
obligation to verify independently
any of the factual matters set forth therein. Moreover, many of the
determinations required to be made in the preparation thereof involve matters of
a non-legal nature. In the course of our examination of the Registration
Statement and the Prospectus and the documents listed on Annex I to the Terms
Agreement (those listed documents and the Prospectus, collectively, the "Pricing
Disclosure Package") and our discussions in the above-mentioned conferences,
nothing has come to our attention that has caused us to believe that, at the
Effective Date, the Registration Statement, including the Incorporated
Documents, contained any untrue statements 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, as of the Applicable Time (as defined
in the Agency Agreement), the Pricing Disclosure Package 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 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 amended or supplemented as of the date hereof,
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 express no view as to the financial
statements or other financial or accounting data contained or incorporated by
reference in, or omitted from, the Registration Statement, the Prospectus or the
Pricing Disclosure Package.
This letter is furnished by us as New York counsel to the Company in
connection with the transactions contemplated by the Agency Agreement, is solely
for the benefit of the Agents and may not be delivered to or relied upon in any
manner by any other person or entity, including, without limitation, any person
purchasing Notes from any of the Agents, or for any other purpose, without our
express written consent.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae LLP
D-2-2
EXHIBIT E
_________, 20__
To the Agents referred to in the
Amended and Restated
Selling Agency Agreement
Relating to:
$200,000,000 Principal Amount of
First Mortgage Bonds, Secured Medium-
Term Notes, Series F, of Idaho Power Company
Ladies and Gentlemen:
In connection with the issuance and sale pursuant to the Amended and
Restated Selling Agency Agreement, dated June 19, 2007 (the "Agency Agreement"),
between Idaho Power Company, an Idaho corporation (the "Company"), and each of
you of up to $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, Secured Medium-Term Notes, Series F (the "Notes"), to be issued
under an Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937,
between the Company and Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company) and R.G. Page, as Trustees (Stanley Burg, successor
individual trustee) (the "Trustees"), as supplemented by all indentures
supplemental thereto, including the Fortieth Supplemental Indenture, dated as of
May 1, 2005 between the Company and the Trustees (collectively, the "Mortgage"),
I am the Company's General Counsel, and I am familiar with its legal status and
that of its property. I am also familiar with (a) the registration statement
(File No. 333-122153) filed with the Securities and Exchange Commission under
the Act, which became effective on January 27, 2005; such Registration Statement
as amended to the Effective Date, including the documents incorporated by
reference therein as of such dates pursuant to Item 12 of Form S-3 (the
"Incorporated Documents"), being hereinafter referred to as the "Registration
Statement"), (b) the prospectus, dated January 27, 2005 (the "Base Prospectus"),
as supplemented by a prospectus supplement relating to the Notes, dated May 9,
2005 (the "Prospectus Supplement") (the Base Prospectus, as supplemented by the
Prospectus Supplement, including the documents incorporated by reference
therein, being hereinafter referred to as the "Prospectus"), (c) the Agency
Agreement and (d) the Bond Application, dated May 9, 2005 for authentication and
delivery of the Notes in an aggregate principal amount not to exceed
$200,000,000 (the "Bond Application"). 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 purposes 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 entitled to the benefit of the
security provided by the Mortgage, subject to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or affecting
mortgagees' and other creditors' rights and to general principles of equity
(whether considered in a proceeding at law or in equity); and the Notes and the
Mortgage conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(5) The Mortgage has been duly authorized, executed and delivered by
the Company and constitutes a valid lien to the extent that it purports to be
one upon the property described therein as being subject to the lien thereof
(except any which has been duly released from the lien thereof) and is a legal,
valid and binding instrument, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting mortgagees' and other creditors' rights and to general
principles of equity (whether considered in a proceeding at law or in equity);
said Mortgage has been duly recorded and filed in such manner and in such places
as are required by law in order to establish, preserve and protect the lien of
said Mortgage;
(6) The issue and sale of the Notes in an aggregate principal amount
not to exceed the amount set forth in the Bond Application and the compliance by
the Company with all of the provisions of the Notes, the Mortgage and the Agency
Agreement with respect to the Notes and the consummation of the transactions
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions 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 Restated Articles of
Incorporation, as amended or Bylaws, as amended, of the Company or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties;
(7) The description of the Company's property in the Mortgage is
adequate to constitute the Mortgage a lien thereon. The Company has good and
marketable fee title to all real property upon which the Mortgage purports to
create a lien, except water rights, leases, licenses, franchises, easements and
other interests in real property of a similar nature, as to which it has good
and valid title, in each case free and clear of all liens, charges and
encumbrances other than excepted encumbrances as defined in the Mortgage and the
lien of the Mortgage,
E-2
subject to minor defects and clouds common to property of the size and character
of that of the Company. Such minor defects and clouds are in my opinion not
important and do not materially interfere with the operations of the Company or
materially detract from the value of its property;
(8) The Company has such valid franchises, permits, licenses,
easements and consents, free from burdensome restrictions, as are required by
law for the operation of the Company's system and as are required for the
adequate conduct of its business in the territory which it serves;
(9) As of the Effective Date, the Registration Statement, including
the Incorporated Documents, and, as of the date of the Prospectus Supplement,
the Prospectus, appeared on their face to comply 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 my knowledge, no proceedings for a stop order
with respect thereto are pending or threatened under Section 8(d) of the Act;
and
(10) All regulatory consents and approvals required to be obtained by
the Company from any governmental body or bodies in connection with the
Company's issuance and sale of the Notes in the manner set forth in the Agency
Agreement have been obtained and are in effect, except that the order of the
Idaho Public Utilities Commission grants authority to sell the Notes only
through November 19, 2008; 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, at the Effective Date, the
Registration Statement, including the Incorporated Documents, contained any
untrue statements 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, as of the Applicable Time (as defined in the Agency
Agreement), the Prospectus and the documents listed on Annex I to the Terms
Agreement (collectively, the "Pricing Disclosure Package") 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 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 amended or supplemented as
of the date hereof, 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. I express no view as
to the financial statements or other financial or accounting data contained or
incorporated by reference in, or omitted from, the Registration Statement, the
Prospectus or the Pricing Disclosure Package.
Very truly yours,
Thomas R. Saldin
E-3