Exhibit 10(c)
Guaranty Agreement
between
Idaho Power Company
and
Bank One Trust Company, N.A.,
as Trustee
Relating to $19,885,000 American Falls Reservoir District, Idaho
American Falls Replacement Dam Refunding Bonds, Series 2000
Dated as of April 1, 2000
This Agreement made and entered into as of April 1, 2000, by
and between Idaho Power Company, a corporation duly organized and
existing under the laws of the State of Idaho (the "Company"),
and Bank One Trust Company, N.A., a banking association duly
organized and existing under the laws of the United States of
America (the "Trustee"), as trustee, together with any successor
trustee at the time serving as such, under the Indenture of Trust
dated as of April 1, 2000 (the "Indenture"), between American
Falls Reservoir District, an instrumentality duly organized and
existing under the laws of the State of Idaho (the "Issuer"), and
the Trustee (all terms not defined herein shall have the same
meaning assigned to them in the Indenture.);
W I T N E S S E T H
Whereas, the Issuer intends to issue its American Falls
Replacement Dam Refunding Bonds, Series 2000, to be dated as of
the date of original issuance and delivery thereof, in an
aggregate principal amount of $19,885,000 (the "Bonds") under and
pursuant to the Indenture; and
Whereas, the proceeds to be derived from the issuance of the
Bonds are to be applied to refund the outstanding principal
amount of the Issuer's American Falls Refunding Replacement Dam
Bonds, 1990 Series A which were issued for the purpose of
refunding bonds previously issued by the Issuer to pay part of
the cost of construction of the American Falls Replacement Dam
Program (as such term is defined in the Falling Water Contract,
dated as of March 31, 1976 (the "Falling Water Contract"),
between the Issuer and the Company), in part for the benefit of
the Company; and
Whereas, the Company is desirous that the Issuer issue the
Bonds and apply the proceeds as aforesaid and is willing to enter
into this Agreement in order to enhance the marketability of the
Bonds and thereby achieve interest cost and other savings to the
Company and as an inducement to the purchasers of the Bonds and
all who shall at any time become owners of the Bonds;
Now, Therefore, in consideration of the premises and in
order to enhance the marketability of the Bonds and thereby
achieve interest costs and other savings to the Company and as an
inducement to the purchasers of the Bonds and those who shall at
any time become owners of the Bonds, the Company does hereby,
subject to the terms hereof, covenant and agree with the Trustee
for the owners from time to time of the Bonds as follows:
Article I
Representations and Warranties of the Company
Section 1.1. The Company hereby represents and warrants that:
(a) it is a corporation duly incorporated and in good
standing under the laws of the State of Idaho, is duly
qualified and in good standing as a foreign corporation in
the States of Montana, Nevada, Oregon and Wyoming, is not in
violation of any material provision of its Restated Articles
of Incorporation, as amended, or of its By-laws, as amended,
has the power to enter into this Agreement and has duly
authorized the execution and delivery of this Agreement by
proper corporate action, and neither this Agreement nor the
performance of its obligations hereunder contravene or
constitute a default under any material agreement,
instrument or indenture or any material provision of its
Restated Articles of Incorporation, as amended, or of its By-
laws, as amended, or any other requirement of law;
(b) all approvals of any governmental body or
regulatory body necessary for the Company to execute,
deliver and perform its obligations under this Agreement
have been obtained; and
(c) this Agreement is a legal, valid and binding
obligation of the Company enforceable against it in
accordance with its terms, except to the extent that its
enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors'
rights in general. The enforceability of the Company's
obligation hereunder is subject to general principles of
equity (regardless of whether such enforceability is
considered at a proceeding in equity or at law).
Article II
Guaranty
Section 2.1. The Company hereby irrevocably, absolutely and
unconditionally guarantees to the Trustee, for the benefit of the
owners from time to time of the Bonds (a) the full and prompt
payment of the principal of, and premium, if any, on the Bonds
when and as the same shall become due, whether at the stated
maturity thereof, on a sinking fund payment date, by
acceleration, upon call for redemption (including a redemption
resulting from a "Determination of Taxability" as defined in the
Indenture), or otherwise, (b) the full and prompt payment of all
interest on the Bonds (including, without limitation, any overdue
interest and any post-petition interest) when and as the same
shall become due and (c) the full and prompt payment of the
purchase price of Bonds tendered for purchase by the owners
thereof. All payments by the Company shall be paid in lawful
money of the United States of America. Each and every default in
payment of the principal of, premium, if any, or interest on any
Bond shall give rise to a separate cause of action hereunder and
separate suits may be brought hereunder as each cause of action
arises.
Section 2.2. The Company agrees that if:
The Company shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to the general
bankruptcy act, as amended, or any similar Federal or state
law, or shall be adjudged a bankrupt or become insolvent, or
shall make an assignment for the benefit of its creditors,
or shall admit in writing its inability to pay its debts
generally as they become due, or if a petition or answer
proposing the adjudication of the Company as a bankrupt or
its reorganization under the general bankruptcy act or any
similar Federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied
within sixty (60) days after the filing thereof, or if a
receiver, trustee or liquidator (or similar official) of the
Company or of more than one-third of the property of the
Company shall be appointed in any proceeding or by any
Federal or state officer or agency, and shall not be
discharged within sixty (60) days after such appointment,
the Company will forthwith pay to the Trustee for the benefit of
the owners of the Bonds, without demand or notice and whether or
not there has been any other event of default under the Indenture
or the Bonds, the whole amount of the principal of the Bonds then
outstanding and any unpaid interest thereon, with interest on any
principal in default and, to the extent permitted by law, on any
overdue interest at a rate equal to the interest rate or rates on
the Bonds (as determined from time to time in accordance with the
Indenture). In the event that the Company shall be required to
make any payment to the Trustee pursuant to the foregoing
provisions of this Section, it shall, in addition to such
payment, pay to the Trustee such further amount as shall be
sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred
by the Trustee hereunder.
Section 2.3. The Company hereby assents to all the terms and
conditions of the Bonds and the Indenture and waives (i) demand
for the payment of the Bonds and any claim for interest or
premium and any part thereof; (ii) notice of the occurrence of a
"default" or "event of default" (as such terms are defined in the
Indenture) under the Indenture; (iii) protest of the nonpayment
of the principal of the Bonds and of any claim for interest or
premium and any part of any thereof; (iv) notice of presentation,
demand and protest; (v) notice of acceptance of this Agreement or
of the terms and provisions hereof by the Trustee or by the
owners from time to time of any of the Bonds; and (vi) notice of
any indulgences or extensions granted to the Issuer or the
Company. The liability of the Company hereunder shall in no way
be affected or impaired by any acceptance by the Trustee or any
owner of the Bonds of any direct or indirect security for, or
other guarantees of, any indebtedness, liability or obligation of
the Issuer or of any person to the Trustee or to any owner of the
Bonds or by any failure, delay, neglect or omission by the
Trustee or any owner of the Bonds to realize upon or protect any
such indebtedness, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect
security therefor or by an approval, consent, waiver or other
action taken, or omitted to be taken, by the Trustee or any owner
of the Bonds.
Section 2.4. The Company hereby waives, and agrees that it shall
not exercise, any rights of subrogation to which it may at any
time be entitled by virtue of the performance by the Company of
any of its obligations under this Agreement until such time as
all amounts payable under the Bonds or the Indenture shall have
been duly paid in full.
Article III
Term; Termination
Section 3.1. The obligation of the Company under this Agreement
shall be absolute and unconditional, irrespective of the
validity, regularity or enforceability of, or the impossibility
of performance by any party of its obligations under, the Bonds
or the Indenture or the Spaceholder Contract or the Falling Water
Contract or the Supplemental Falling Water Contract, and shall
not be affected by reason of any action taken under the Indenture
in the exercise of any right or power therein conferred or by
reason of any failure or omission on the part of the owners of
the Bonds or of the Trustee to enforce any rights which they may
have under the Bonds or the Indenture or the Spaceholder Contract
or the Falling Water Contract or the Supplemental Falling Water
Contract, or by reason of any action of the owners of the Bonds
or of the Trustee under the Indenture against the Issuer or the
Company. The liability of the Company under this Agreement shall
constitute a guaranty of payment and not of collectability and
such liability shall remain in full force and effect until the
entire principal of and premium, if any, and interest on the
Bonds shall have been paid or provided for (and said liability
shall immediately be reinstated in the event that any such
amounts shall, for any reason whatsoever, be required to be
returned to the Issuer or to the Company by the recipient
thereof) and shall not be affected, modified, discharged or
impaired by the happening from time to time of any event,
including, without limitation, any of the following, whether or
not with notice to or consent of the Company:
(a) the extension of the time for payment of any
principal of, premium, if any, or interest on any Bond or
under this Agreement of the time for performance of any
other obligation, covenant or agreement under or arising out
of the Indenture or this Agreement or the extension or the
renewal of either;
(b) the modification, amendment, compromise,
settlement, release, wavier or termination (whether material
or otherwise) of any obligation, covenant or agreement of
the Issuer under the Indenture, except as expressly
permitted by and in accordance with the provisions of the
Indenture;
(c) the taking or the omission of any action
(including, without limitation, the failure to give notice
to the Company of the occurrence of an event of default
under the Indenture) permitted under the Indenture or under
this Agreement;
(d) the assignment or mortgaging, or the purported
assignment or mortgaging, of all or any part of the interest
of the Company in the Falling Water Contract;
(e) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of,
or other similar proceedings affecting the Company or the
Issuer or any of the assets of either, or any allegation of
the invalidity or contest of the validity of this Agreement
in any such proceeding;
(f) to the extent permitted by law, the release or
discharge whether by operation of law or otherwise of the
Company from the performance or observance of any
obligation, covenant or agreement under this Agreement;
(g) any failure, omission, delay or lack on the part
of the Issuer or the Trustee to enforce, assert or exercise
any right, power or remedy conferred on the Issuer or the
Trustee in this Agreement or the Indenture, or any other act
or acts on the part of the Issuer, the Trustee or any of the
owners from time to time of the Bonds; or
(h) the default or failure of the Company fully to
perform or observe any obligation, covenant or agreement
under this Agreement.
Section 3.2. Upon the payment or making provision therefor as
provided in the Indenture of the entire principal of and premium,
if any, and interest on the Bonds, this Agreement shall
terminate; provided, however, that the liability of the Company
under this Agreement shall immediately be reinstated in the event
that any such amounts shall, for any reason whatsoever, be
required to be returned to the Issuer or to the Company by the
recipient thereof.
Section 3.3. No set-off, counterclaim, reduction, or diminution
of an obligation, or any defense of any kind or nature which the
Company has or may have against the Issuer or the Trustee shall
be available hereunder to the Company against the Trustee.
Article IV
Remedies
Section 4.1. In the case of an event of a default in the payment
of principal of or premium, if any, on any Bond when and as the
same shall become due, whether at the stated maturity thereof, on
a sinking fund payment date, by acceleration, call for redemption
or otherwise, or in the case of an event of a default in the
payment of any interest on any Bond when and as the same shall
become due, the Trustee may, and if requested so to do by the
owners of not less than 25% in aggregate principal amount of the
Bonds then outstanding and upon indemnification as hereinafter
provided shall, be obligated to proceed hereunder and the
Trustee, in its sole discretion, shall have the right to proceed
first and directly against the Company under this Agreement
without proceeding against or exhausting any other remedies which
it may have and without resorting to any other security held by
the Issuer or the Trustee.
Before taking any action hereunder, the Trustee may require
that a satisfactory indemnity bond be furnished for the
reimbursement of all expenses and to protect against all
liability, except liability which is adjudicated to have resulted
from its negligence or willful default by reason of any action so
taken.
Section 4.2. No remedy herein conferred upon or reserved to the
Trustee is intended to be exclusive of any other available
remedies but each and every such remedy shall be cumulative and
shall be in addition to every remedy given under this Agreement
or the Indenture or now or hereafter existing at law or in
equity.
Article V
Miscellaneous
Section 5.1. The Company shall fully satisfy and discharge all
of the obligations in accordance with the terms of this
Agreement, it being the intention that such obligations shall be
separate and independent covenants from any agreements of the
Company with the Issuer and that such obligations of the Company
hereunder shall continue unaffected unless otherwise expressly
provided in this Agreement.
Section 5.2. The Company, at its own expense, shall do such
further lawful acts and things and execute and deliver such
additional conveyances, assignments, assurances, agreements,
financing statements and instruments as the Trustee may at any
time reasonably request in connection with the administration and
enforcement of this Agreement or any part thereof or in order to
better assign, assure and confirm to the Trustee the rights,
remedies, powers and privileges of the Trustee hereunder or for
maintaining, protecting and preserving the security interest
created by this Agreement or for carrying out the intentions and
facilitating the performance of the terms of this Agreement.
Section 5.3. This Agreement is entered into by the Company for
the benefit of the Trustee and any successor trustee or successor
trustees and their respective successors and assignees under the
Indenture and the owners from time to time of the Bonds
outstanding, all of whom shall be entitled to enforce performance
and observance of this Agreement to the same extent as if they
were parties signatory hereto subject to the conditions contained
in Article IX of the Indenture.
Section 5.4. The Company shall pay all fees, charges and
expenses of the Trustee and any paying agent payable under the
Indenture or this Agreement for which the Trustee or such paying
agent has not otherwise received reimbursement.
Section 5.5. In the event any provision contained in this
Agreement should be breached by the Company and thereafter duly
waived by the Trustee, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. No waiver, amendment, release or
modification of this Agreement shall be established by conduct,
custom or course of dealing, but solely by an instrument in
writing duly executed by the Trustee.
Section 5.6. The Trustee accepts the trust created by this
Agreement upon the terms and conditions set forth in the
Indenture and particularly Article IX thereof, and said
provisions are hereby incorporated herein as though set forth in
full except as any of such provisions may be in conflict with the
express provisions hereof.
Section 5.7. This Agreement shall be amended only upon the
written consent of the owners of not less than sixty percent
(60%) in aggregate principal amount of the Bonds at the time
outstanding as hereinafter provided. If the Trustee should be
requested to enter into any amendment, change or modification of
this Agreement, it shall upon being satisfactorily indemnified
with respect to expenses, cause notice of the proposed execution
of such amendment, change or modification to be mailed by first
class mail to the owners of the Bonds at the addresses shown in
the registration books maintained pursuant to Section 2.06 of the
Indenture and to the Securities Depositories and two or more
Information Services. Such notice shall briefly set forth the
nature of the proposed amendment, change or modification and
shall state that copies thereof are on file at the corporate
trust office of the Trustee for inspection by all Bondowners. If
within sixty days or such longer period as shall be prescribed by
the Company following the mailing of such notice, the owners of
not less than sixty percent (60%) in aggregate principal amount
of the Bonds outstanding at the time of the execution of any such
amendment, change or modification shall have consented to and
approved the execution thereof as herein provided, no owner of
any Bond shall have any right to object to any of the terms and
provisions contained therein or the operation thereof or in any
manner to question the propriety of the execution thereof or to
enjoin or restrain the Trustee or the Company from executing the
same or from taking any action pursuant to the provisions
thereof. Upon the execution of any such amendment, change or
modification as in this Section permitted and provided, this
Agreement shall be and be deemed to be modified and amended in
accordance therewith. Nothing contained herein shall permit or
be construed as permitting any amendment, change or modification
of this Agreement which would (a) reduce the amounts payable by
the Company hereunder, (b) change the time for payments of the
amounts payable by the Company hereunder or (c) change the
absolute and unconditional nature of this Agreement.
Section 5.8. The Company agrees that it will maintain its
corporate existence, will not dissolve or otherwise dispose of
all or substantially all of its assets, and will not consolidate
with or merge into another corporation, or permit one or more
corporations to consolidate with or merge into it; provided,
however, that the Company may, without violating the agreement
contained in this Section 5.8, consolidate with or merge into
another corporation, or permit one or more corporations to
consolidate with or merge into it, or sell or otherwise transfer
to another corporation all or substantially all of its assets as
an entirety, if the resulting, surviving, or transferee
corporation, as the case may be, is an Idaho corporation, or is a
corporation organized and existing under the laws of one of the
States of the United States of America and is qualified to do
business in the State of Idaho, shall be or thereby become a
public utility, shall have a net worth immediately subsequent to
such consolidation, merger, sale or transfer, at least equal to
that of the Company immediately prior to such consolidation,
merger, sale or transfer and shall assume in writing all of the
obligations of the Company herein.
Section 5.9. The Company covenants that it is and will remain
qualified to do business and be subject to service of process in
the State of Idaho so long as any of the Bonds are outstanding.
Section 5.10. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter
hereof, and may be executed in several counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument.
Section 5.11. In the event any one or more phrases, clauses,
sentences, Sections or Articles of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction,
such holding shall not affect the validity or enforceability of
the remaining portions hereof.
Section 5.12. This Agreement may be executed in several
counterparts, each of which shall be an original, and all such
counterparts shall constitute and be one and the same instrument.
Section 5.13. This Agreement shall be governed by and construed
in accordance with the laws of the State of Idaho.
Section 5.14. Any notices, requests or other communications given
or made hereunder or pursuant hereto shall be in writing and
shall be deemed to have been validly given or made when delivered
or mailed, postage prepaid, addressed as follows: if to the
Company , to 1221 West Idaho Street, Boise, Idaho 83702,
Attention: Treasury Controller, and if to the Trustee, Corporate
Trust Department, or addressed to either party at such other
address as such party shall hereafter furnish to the other party
hereto in writing.
Section 5.15. The captions or headings of the Articles and
Subsections herein have been inserted for convenience of
reference only and shall in no way affect the construction or
interpretation of this Agreement.
In Witness Whereof, the Company and the Trustee have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be affixed and attested
by their duly authorized officers, all as of the date first above
written.
Idaho Power Company
By
Its
Bank One Trust Company, N.A.,
as Trustee
By
Its