IDAHO POWER COMPANY TO DEUTSCHE BANK TRUST COMPANY AMERICAS AND STANLEY BURG,
Exhibit
4(a)(iv)
Executed in
100 Counterparts
of which this is
Counterpart No. ___
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IDAHO
POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
AND
XXXXXXX
XXXX,
As Trustees under its Mortgage
and Deed of Trust dated as of October 1, 1937.
_______________
Thirty-ninth
Supplemental Indenture
providing among other things for Bonds of Pollution Control Series B
Dated as of October 1, 2003
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TABLE OF CONTENTS |
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Page |
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Parties and Recitals |
1 |
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Granting Clause and Property Description |
4 |
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ARTICLE I Description of Bonds of Pollution Control Series B |
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Section 1. General terms and redemption provisions |
7 |
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Section 2. Exchange and transfers of Bonds |
9 |
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Section 3. Form of Bonds |
9 |
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Section 4. Temporary Bonds |
9 |
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Section 5. Legends of Bonds |
9 |
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Section 6. Meetings of bondholders |
9 |
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ARTICLE II Issue of Bonds of Pollution Control Series B |
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Section 7. Issue of Bonds |
10 |
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ARTICLE III Covenants |
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Section 8. Application of Original Indenture |
10 |
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Section 9. Lawful ownership |
11 |
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Section 10. Annual certificate as to defaults |
11 |
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ARTICLE IV The Trustees |
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Acceptance of trust |
11 |
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Recitals deemed made by the Company |
11 |
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ARTICLE V Miscellaneous Provisions |
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Meanings of terms |
12 |
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Ratification and Confirmation |
12 |
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Counterparts |
12 |
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Testimonium |
13 |
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Signatures and seals |
13 |
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Acknowledgments |
15 |
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Affidavits |
18 |
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__________________________________
This table of contents shall not have any bearing
upon the interpretation of this Supplemental Indenture.
SUPPLEMENTAL
INDENTURE, dated as of the first day of October, 2003, made and entered into by
and between IDAHO POWER COMPANY, a corporation of the State of Idaho (successor
by merger to Idaho Power Company, a corporation of the State of Maine,
hereinafter sometimes called the "Maine Company"), whose address is
0000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxx 00000-0000 (hereinafter sometimes called
the "Company"), party of the first part, and DEUTSCHE BANK TRUST
COMPANY AMERICAS, formerly known as Bankers Trust Company, a corporation of the
State of New York, whose post office address is 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter sometimes called the "Corporate Trustee"),
and Xxxxxxx Xxxx (hereinafter sometimes called the "Individual
Trustee"), parties of the second part (the Corporate Trustee and the
Individual Trustee being hereinafter together sometimes called the
"Trustees"), as Trustees under the Mortgage and Deed of Trust dated
as of October 1, 1937 hereinafter referred to; and
WHEREAS, the
Maine Company has heretofore executed and delivered to the Trustees its
Mortgage and Deed of Trust (hereinafter sometimes referred to as the
"Original Indenture"), dated as of October 1, 1937, to secure the
payment both of the principal of and interest and premium, if any, on all Bonds
at any time issued and outstanding thereunder and to declare the terms and
conditions upon which Bonds are to be issued thereunder; and
WHEREAS, the
Maine Company was merged into the Company on June 30, 1989; and
WHEREAS, in
order to evidence the succession of the Company to the Maine Company and the
assumption by the Company of the covenants and conditions of the Maine Company
in the Bonds and in the Original Indenture, as supplemented, contained, and to
enable the Company to have and exercise the powers and rights of the Maine
Company under the Original Indenture, as supplemented, in accordance with the
terms thereof, the Company executed and delivered to the Trustees a
Twenty-eighth Supplemental Indenture, dated as of June 30, 1989 (which
supplemental indenture is hereinafter sometimes called the "Twenty-eighth
Supplemental Indenture"); and
WHEREAS, said
Twenty-eighth Supplemental Indenture was recorded in the records of the County
of Elko, Nevada; the Counties of Baker, Grant, Xxxxxx, Malheur, Union and
Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Xxxxxxx,
Xxxxxx, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark,
Xxxxxx, Gem, Gooding, Idaho, Xxxxxxxxx, Xxxxxx, Lemhi, Lincoln, Minidoka,
Oneida, Owyhee, Payette, Power, Twin Falls, Valley and Washington, Idaho; the
Counties of Lincoln and Sweetwater, Wyoming; and with the Secretary of State of
Montana; and
WHEREAS, in
accordance with the terms of the Original Indenture, the Maine Company or the
Company has executed and delivered to the Trustees the following supplemental
indentures in addition to the Twenty-eighth Supplemental Indenture:
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Designation |
Dated as of |
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First Supplemental Indenture |
July 1, 1939 |
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Second Supplemental Indenture |
November 15, 1943 |
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Third Supplemental Indenture |
February 1, 1947 |
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Fourth Supplemental Indenture |
May 1, 1948 |
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Fifth Supplemental Indenture |
November 1, 1949 |
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Sixth Supplemental Indenture |
October 1, 1951 |
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Seventh Supplemental Indenture |
January 1, 1957 |
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Eighth Supplemental Indenture |
July 15, 1957 |
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Ninth Supplemental Indenture |
November 15, 1957 |
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Tenth Supplemental Indenture |
April 1, 1958 |
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Eleventh Supplemental Indenture |
October 15, 1958 |
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Twelfth Supplemental Indenture |
May 15, 1959 |
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Thirteenth Supplemental Indenture |
November 15, 1960 |
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Fourteenth Supplemental Indenture |
November 1, 1961 |
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Fifteenth Supplemental Indenture |
September 15, 1964 |
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Sixteenth Supplemental Indenture |
April 1, 1966 |
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Seventeenth Supplemental Indenture |
October 1, 1966 |
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Eighteenth Supplemental Indenture |
September 1, 1972 |
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Nineteenth Supplemental Indenture |
January 15, 1974 |
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Twentieth Supplemental Indenture |
August 1, 1974 |
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Twenty-first Supplemental Indenture |
October 15, 1974 |
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Twenty-second Supplemental Indenture |
November 15, 1976 |
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Twenty-third Supplemental Indenture |
August 15, 1978 |
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Twenty-fourth Supplemental Indenture |
September 1, 1979 |
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Twenty-fifth Supplemental Indenture |
November 1, 1981 |
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Twenty-sixth Supplemental Indenture |
May 1, 1982 |
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Twenty-seventh Supplemental Indenture |
May 1, 1986 |
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Twenty-ninth Supplemental Indenture |
January 1, 1990 |
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Thirtieth Supplemental Indenture |
January 1, 1991 |
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Thirty-first Supplemental Indenture |
August 15, 1991 |
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Thirty-second Supplemental Indenture |
March 15, 1992 |
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Thirty-third Supplemental Indenture |
April 1, 1993 |
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Thirty-fourth Supplemental Indenture |
December 1, 1993 |
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Thirty-fifth Supplemental Indenture |
November 1, 2000 |
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Thirty-sixth Supplemental Indenture |
October 1, 2001 |
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Thirty-seventh Supplemental Indenture |
April 1, 2003 |
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Thirty-eighth Supplemental Indenture |
May 15, 2003 |
each of which is supplemental to
the Original Indenture (the Original Indenture and all indentures supplemental
thereto together being hereinafter sometimes referred to as the
"Indenture"); and
WHEREAS, the
Original Indenture and said Supplemental Indentures (except said Fifteenth
Supplemental Indenture) have each been recorded in the records of the County of
Elko, Nevada; the Counties of Baker, Grant, Xxxxxx, Malheur, Union and Wallowa,
Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Xxxxxxx, Xxxxxx, Boise,
Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding,
Idaho, Xxxxxxxxx, Xxxxxx, Lemhi, Xxxxxxx, Minidoka, Oneida, Owyhee, Payette,
Power, Twin Falls, Valley and Washington, Idaho; the Counties of Lincoln and
Sweetwater, Wyoming; and with the Secretary of State of Montana; and
WHEREAS, the
Maine Company or the Company has heretofore issued Bonds, under and in
accordance with the terms of the Indenture in the following series and
aggregate principal amounts:
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Series |
Principal Amount Issued |
Principal Amount Outstanding |
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3-3/4% Series due 1967 |
$18,000,000 |
None |
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3-1/8% Series due 1973 |
18,000,000 |
None |
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2-3/4% Series due 1977 |
5,000,000 |
None |
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3% Series due 1978 |
10,000,000 |
None |
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2-3/4% Series due 1979 |
12,000,000 |
None |
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3-1/4% Series due 1981 |
15,000,000 |
None |
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4-1/2% Series due 1987 |
20,000,000 |
None |
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4-3/4% Series due 1987 |
15,000,000 |
None |
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4% Series due April 1988 |
10,000,000 |
None |
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4-1/2% Series due October 1988 |
15,000,000 |
None |
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5% Series due 1989 |
15,000,000 |
None |
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4-7/8% Series due 1990 |
15,000,000 |
None |
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4-1/2% Series due 1991 |
10,000,000 |
None |
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5-1/4% Series due 1996 |
20,000,000 |
None |
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6-1/8% Series due 1996 |
30,000,000 |
None |
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7-3/4% Series due 2002 |
30,000,000 |
None |
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8-3/8% Series due 2004 |
35,000,000 |
None |
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10% Series due 2004 |
50,000,000 |
None |
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8-1/2% Series due 2006 |
30,000,000 |
None |
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9% Series due 2008 |
60,000,000 |
None |
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10-1/4% Series due 2003 |
62,000,000 |
None |
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First Mortgage Bonds, 1984 Series |
10,100,000 |
None |
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16.10% Series due 1991-1992 |
50,000,000 |
None |
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Pollution Control Series A |
49,800,000 |
49,800,000 |
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8.65% Series due 2000 |
80,000,000 |
None |
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9.50% Series due 2021 |
75,000,000 |
None |
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9.52% Series due 2031 |
25,000,000 |
None |
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8% Series due 2004 |
50,000,000 |
50,000,000 |
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8 3/4% Series due 2027 |
50,000,000 |
None |
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Secured Medium-Term Notes, Series A |
190,000,000 |
None |
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Secured Medium-Term Notes, Series B |
197,000,000 |
140,000,000 |
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Secured Medium-Term Notes, Series C |
200,000,000 |
200,000,000 |
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Secured Medium-Term Notes, Series D |
200,000,000 |
200,000,000 |
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Secured Medium-Term Notes, Series E |
140,000,000 |
140,000,000 |
which bonds are hereinafter
sometimes called bonds of the First through Thirty-fourth Series; and
WHEREAS, the
Company, in accordance with the provisions of the Indenture and pursuant to
appropriate resolutions of its Board of Directors, has duly determined to make,
execute and deliver to the Trustees this Thirty-ninth Supplemental Indenture
for the purposes herein provided, including the issuance of a Thirty-fifth
Series of Bonds under the Indenture, in the aggregate principal amount of up to
Forty-nine Million Eight Hundred Thousand Dollars ($49,800,000), to be
designated as "First Mortgage Bonds, Pollution Control Series B"
(herein sometimes called the "Bonds of Pollution Control Series B");
and
WHEREAS, it
is also now desired, for the purpose of more effectually carrying out the
purposes of the Original Indenture, to confirm specifically the subjection to
the lien thereof and of the Indenture of the certain property acquired by the
Company in addition to the property specifically described in the Original
Indenture and in said First, Second, Third, Fourth, Fifth, Sixth, Seventh,
Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twenty-first, Twenty-second, Twenty-third,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth,
Thirtieth, Thirty-first, Thirty-second, Thirty-third, Thirty-fourth,
Thirty-fifth, Thirty-sixth and Thirty-seventh Supplemental Indentures; and
WHEREAS, all
things necessary to make said Bonds of Pollution Control Series B, when duly
authenticated by the Corporate Trustee and issued by the Company, valid and
legally binding obligations of the Company and to make the Original Indenture,
as heretofore supplemented and as supplemented hereby, a valid and legally
binding instrument for the security thereof, have been performed, and the
execution and delivery of this Thirty-ninth Supplemental Indenture and the
issue of said Bonds as in this Thirty-ninth Supplemental Indenture provided
have been in all respects duly authorized:
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That in
consideration of the premises and of One Dollar to it duly paid by the Trustees
at or before the ensealing and delivery of these presents, the receipt whereof
is hereby acknowledged, and in order to secure the payment both of the
principal of and interest and premium, if any, on all Bonds at any time issued
and outstanding under the Indenture, according to their tenor and effect, and
the performance of all the provisions of the Indenture and of said Xxxxx, the
Company has duly executed and delivered to the Trustees this Thirty-ninth
Supplemental Indenture and has granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over and confirmed and by these
presents does grant, bargain, sell, release, convey, assign, transfer,
mortgage, pledge, set over and confirm unto Xxxxxxx Xxxx and (to the extent of
its legal capacity to hold the same for the purposes hereof) unto Deutsche Bank
Trust Company Americas, as Trustees as aforesaid, and to their successor or
successors in said trust, and to them and their successors, heirs and assigns
forever, all property, whether real, personal or mixed (except any hereinafter
expressly excepted), and wheresoever situated, acquired since the date of said
Original Indenture by and now or hereafter owned by the Company including the
following described properties, rights and interests in property (in addition
to all other properties heretofore subjected to the lien of the Indenture and
not heretofore released from the lien thereof)--that is to say:
PROPERTIES
ACQUIRED OR CONSTRUCTED
GENERATING PLANTS
None
TRANSMISSION LINES &
SYSTEMS
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203 Boulder |
2 Miles 138KV |
Valley County, Idaho |
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466 Wye-Cloverdale (conductor only) |
3.5 Miles 138KV |
Ada County, Idaho |
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708 Kuna-Kuna Jet |
4.5 Miles 138KV |
Ada County, Idaho |
DISTRIBUTION LINES &
SYSTEMS
34, 35, 36, 37 and 38 -
Branches and extensions of the Company's Distribution Lines and Systems
situated in the States of Idaho and Oregon.
SUBSTATIONS
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Kuna Substation |
Ada County, Idaho |
FRANCHISES
None
ALL OTHER LANDS,
IMPROVEMENTS, BUILDINGS AND OTHER SUBSTATIONS
None
All other property, whether
real, personal or mixed (except any hereinafter expressly excepted), and
wheresoever situated, acquired since the date of said Original Indenture by and
now or hereafter owned by the Company.
TOGETHER with
all and singular the tenements, hereditaments and appurtenances belonging or in
any wise appertaining to the aforesaid property or any part thereof, with the
reversion and reversions, remainder and remainders, and (subject to the
provisions of Section 57 of the Original Indenture) the tolls, rents, revenues,
issues, earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
It is not
intended herein or hereby to include in or subject to the lien of the
Indenture, and the granting clauses hereof shall not be deemed to apply to, (1)
any revenues, earnings, rents, issues, income or profits of the mortgaged and
pledged property, or any bills, notes or accounts receivable, contracts or
choses in action, except to the extent permitted by law in case a completed
default specified in Section 65 of the Indenture shall have occurred and be
continuing and either or both of the Trustees, or a receiver or trustee, shall
have entered upon or taken possession of the mortgaged and pledged property, or
(2) in any case, unless specifically subjected to the lien thereof, any bonds,
notes, evidences of indebtedness, shares of stock, or other securities or any
cash (except cash deposited with the Corporate Trustee pursuant to any
provisions of the Indenture) or any goods, wares, merchandise, equipment or
apparatus manufactured or acquired for the purpose of sale or resale in the
usual course of business.
TO HAVE AND
TO HOLD all such properties, real, personal and mixed, granted, bargained,
sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over
or confirmed by the Company as aforesaid, or intended so to be, unto the
Individual Trustee and (to the extent of its legal capacity to hold the same
for the purposes hereof) unto the Corporate Trustee, and their successors,
heirs and assigns forever;
IN TRUST,
NEVERTHELESS, for the same purposes and upon the same terms, trusts and
conditions and subject to and with the same provisions and covenants as are set
forth in the Original Indenture, as amended or modified by said First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth,
Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third,
Thirty-fourth, Thirty-fifth and Thirty-sixth, Thirty-seventh and Thirty-eighth
Supplemental Indentures and this Thirty-ninth Supplemental Indenture.
And it is
hereby covenanted, declared and decreed by and between the parties hereto, for
the benefit of those who shall hold the Bonds and interest coupons, or any of
them, issued and to be issued under the Indenture, as follows:
Description of
Bonds of Pollution Control Series B
SECTION 1. The
Thirty-fifth Series of Bonds to be executed, authenticated and delivered under
and secured by the Indenture shall be Bonds of Pollution Control Series B,
designated as "First Mortgage Bonds, Pollution Control Series B" of
the Company. The Bonds of Pollution
Control Series B shall be executed, authenticated and delivered in accordance
with the provisions of, and shall in all respects be subject to, all of the
terms, conditions and covenants of the Original Indenture, except insofar as
the terms and provisions of the Original Indenture have been or are amended or
modified by said First through Thirty-eighth Supplemental Indentures or by this
Thirty-ninth Supplemental Indenture.
The Bonds of Pollution Control Series B shall mature on December 1,
2024, and shall be issued as registered Bonds without coupons in denominations
of $5,000 and in any multiple thereof, and shall bear interest from October 22,
2003 at such rate or rates (which may be either fixed or variable) borne by the
2003 Pollution Control Revenue Refunding Bonds (as hereinafter defined), which
rate or rates, in no event, shall exceed 12% per annum. The principal of and interest on the Bonds
of Pollution Control Series B shall be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts.
Interest on
Bonds of Pollution Control Series B shall be payable on the same dates (each an
interest payment date) as interest on the 2003 Pollution Control Revenue
Refunding Bonds.
Each Bond of
Pollution Control Series B shall be dated the date of its authentication.
The Bonds of
Pollution Control Series B, in definitive form, shall be, at the option of the
Company, fully engraved or shall be lithographed or printed on steel engraved
borders or shall be partially lithographed or printed and partially engraved on
steel engraved borders or shall be printed on safety paper or shall be
typewritten.
The Company
shall receive a credit against its obligation to make any payment of principal
of or interest on the Bonds of Pollution Control Series B, whether at maturity,
upon redemption, acceleration or otherwise, in an amount equal to, and such
obligation shall be fully or partially, as the case may be, satisfied and
discharged, to the extent of the amount, if any, paid by the Company, or
otherwise satisfied and discharged, in respect of the 2003 Pollution Control
Revenue Refunding Bonds, in accordance with the Loan Agreement, dated October
1, 2003, between the Company and Humboldt County, Nevada (the
"Issuer").
The Corporate
Trustee may conclusively presume that the obligation of the Company to pay the
principal of and interest on the Bonds of the Pollution Control Series B as the
same shall become due and payable shall have been fully satisfied and
discharged unless and until it shall have received a written notice from the
trustee (the "Indenture Trustee") under the Indenture of Trust, dated
as of October 1, 2003, from the Issuer to Union Bank of California, N.A., as
trustee (herein sometimes called the "2003 Humboldt County Indenture"),
securing Humboldt County, Nevada Pollution Control Revenue Refunding Bonds
(Idaho Power Company Project) Series 2003 (herein sometimes called the
"2003 Pollution Control Revenue Refunding Bonds"), signed by its
President, a Vice President, a Senior Trust Officer or a Trust Officer, stating
that the corresponding payment of principal of or interest on the 2003
Pollution Control Revenue Refunding Bonds has become due and payable and has
not been fully paid, and specifying the amount of funds required to make such
payment.
The Company
shall be obligated to redeem the Bonds of Pollution Control Series B at the
time and in the same principal amount as any 2003 Pollution Control Revenue
Refunding Bonds that have been called for redemption or have been otherwise
declared due and payable prior to maturity (including a declaration resulting
from a failure to pay the principal of and interest on 2003 Pollution Control
Revenue Refunding Bonds called for redemption) pursuant to any provision of the
2003 Humboldt County Indenture. The
Bonds of Pollution Control Series B shall be redeemed by the Company within 90
days of receipt of written notice of a call for redemption or such declaration
of maturity from the Indenture Trustee signed by its President, a Vice President,
a Senior Trust Officer or a Trust Officer (the "Redemption Demand"),
at a redemption price equal to 100% of the principal amount thereof plus any
accrued interest thereon; provided, however, to the extent the
Company pays or otherwise satisfies and discharges the principal amount of and
the interest accrued on the Bonds of the 2003 Pollution Control Revenue
Refunding Bonds in accordance with the Loan Agreement, the Company's obligation
to pay the redemption price of such Bonds of Pollution Control Series B shall
be deemed satisfied. Promptly after
receipt of the redemption price, the Indenture Trustee shall surrender the
Bonds of Pollution Control Series B to be redeemed to the Corporate Trustee. Upon the surrender of Bonds of Pollution
Control Series B which are to be redeemed only in part, the Company shall
execute and the Corporate Trustee shall authenticate new Bonds of Pollution
Control Series B in an aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Bonds of Pollution Control
Series B so surrendered. If a
Redemption Demand is rescinded by the Indenture Trustee by written notice to
the Corporate Trustee and the Company prior to the expiration of such 90 day
period, the Redemption Demand shall be
automatically annulled; but no such rescission shall extend to or affect any
subsequent Redemption Demand.
At the time
any 2003 Pollution Control Revenue Refunding Bonds cease to be outstanding
(other than by reason of the payment of principal of or interest on the 2003
Pollution Control Revenue Refunding Bonds by the Insurer (as defined in the
2003 Humboldt County Indenture) and other than those 2003 Pollution Control
Revenue Refunding Bonds in lieu of or in exchange or substitution for which other
2003 Pollution Control Revenue Refunding Bonds shall have been authenticated
and delivered), a corresponding principal amount of Bonds of Pollution Control
Series B bearing interest at the same rate and maturing on the same date as
such 2003 Pollution Control Revenue Refunding Bonds shall be deemed to be no
longer outstanding and the Indenture Trustee shall surrender such bonds in such
amounts to the Corporate Trustee.
To the extent
Substitute Collateral (as defined in the 2003 Humboldt County Indenture) is
delivered to the Indenture Trustee and the other conditions specified in
Section 4.04(f) of the Loan Agreement are satisfied, the Indenture Trustee
shall surrender to the Corporate Trustee a corresponding principal amount of
Bonds of Pollution Control Series B.
On any day on
which the 2003 Pollution Control Revenue Refunding Bonds are subject to
mandatory purchase pursuant to the 2003 Humboldt County Indenture, upon
satisfaction of the conditions set forth in Section 4.04(g) of the Loan
Agreement, the Company may provide for the release of Bonds of Pollution
Control Series B and the Indenture Trustee shall surrender such Bonds of
Pollution Control Series B to the Corporate Trustee.
SECTION 2. At
the option of the registered holder, any Bonds of Pollution Control Series B,
upon surrender thereof for cancellation at the office or agency of the Company
in the Borough of Manhattan, The City of New York, together with a written
instrument of transfer (if so required by the Company or by the Trustees) in form
approved by the Company duly executed by the registered holder or by his duly
authorized attorney, shall be exchangeable for a like aggregate principal
amount of Bonds of Pollution Control Series B of other authorized
denominations.
Bonds of
Pollution Control Series B shall not be transferable except to any successor
trustee under the 2003 Humboldt County Indenture, any such transfer to be made
at the office or agency of the Company in the Borough of Manhattan, The City of
New York.
SECTION 5.
Bonds of Pollution Control Series B may bear such legends as may be
necessary to comply with any law or with any rules or regulations made pursuant
thereto or with the rules or regulations of any stock exchange or to conform to
usage with respect thereto, and shall bear a legend concerning the restriction
on transfer of the Bonds of Pollution Control Series B, as stated in Section 2
hereof, and a legend concerning voting restrictions on the Bonds of Pollution
Control Series B, as stated in Section 6 hereof.
SECTION
6. The holder of the Bonds of Pollution
Control Series B shall attend such meeting or meetings of bondholders under the
Indenture or, at its option, deliver its proxy in connection therewith, as
related to matters with respect to which it is entitled to vote or consent. So long as no Event of Default (as defined
in the 2003 Humboldt County Indenture) shall have occurred and be continuing,
either at any such meeting or meetings, or otherwise when the consent of the
holders of the Bonds issued under the Indenture is sought without a meeting,
the holder of the Bonds of Pollution Control Series B shall vote, or shall
consent with respect thereto, proportionately with the vote or consent of the
holders of all other Bonds of the Company then outstanding under the Indenture,
the holders of which are eligible to vote or consent, as indicated in a
Bondholder's Certificate (as hereinafter defined) delivered to the holder of
the Bonds of Pollution Control Series B; provided, however, that the holder of
the Bonds of Pollution Control Series B shall not vote as such holder in favor
of, or give its consent to, any amendment or modification of the Indenture
which, if it were an amendment or modification of the 2003 Humboldt County
Indenture, would not be described in Section 12.01 of the 2003 Humboldt County
Indenture without (a) the prior consent and approval, obtained in the manner
prescribed in Section 12.02 of the 2003 Humboldt County Indenture, of owners of
the 2003 Pollution Control Revenue Refunding Bonds which would be required
under said Section 12.02 for such an amendment or modification of the 2003
Humboldt County Indenture and (b) the consent of the Insurer (as defined in the
2003 Humboldt County Indenture), unless an Insurer Default (as defined in the
2003 Humboldt County Indenture) shall have occurred and be continuing, in which
event the consent of each Bank (as defined in the 2003 Humboldt County
Indenture) or each Obligor (as defined in the 2003 Humboldt County Indenture)
on an Alternate Liquidity Facility (as defined in the 2003 Humboldt County
Indenture), as the case may be, shall be required.
For purposes
of this Section 6, "Bondholder's Certificate" means a certificate
signed by the temporary chairman, the temporary secretary, the permanent
chairman, the permanent secretary, or an inspector of votes at any meeting or
meetings of bondholders under the Indenture, or by the Corporate Trustee in the
case of consents of such bondholders which are sought without a meeting, which
states what the signer thereof reasonably believes will be the proportionate
votes or consents of the holders of all Bonds (other than the Bonds of
Pollution Control Series B) outstanding under the Indenture and counted for the
purposes of determining whether such bondholders have approved or consented to
the matter put before them.
Issue
of Bonds of Pollution Control Series B.
SECTION 7. The
Bonds of Pollution Control Series B for the aggregate principal amount of
Forty-nine Million Eight Hundred Thousand Dollars ($49,800,000) may be executed
by the Company and delivered to the Corporate Trustee and shall be
authenticated by the Corporate Trustee and delivered to or upon the order or
orders of the Company, evidenced by a writing or writings signed by the Company
by its President or a Vice President and its Treasurer or an Assistant
Treasurer, pursuant to and upon compliance with the provisions of Article V,
Article VI or Article VII of the Indenture.
ARTICLE
III
The
Company hereby covenants, warrants and agrees:
SECTION 8. That all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to the property
hereinabove described and conveyed and to the estate, rights, obligations and
duties of the Company and Trustees and the beneficiaries of the trust with
respect to said property, and to the Trustees and their successors as trustees
of said property, in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the execution of the
Original Indenture and had been specifically and at length described in and
conveyed to the Individual Trustee and (to the extent of its legal capacity to
hold the same for the purposes of the Indenture) the Corporate Trustee by the
Original Indenture as a part of the property therein stated to be conveyed.
SECTION 9. That it
is lawfully seized and possessed of all of the mortgaged and pledged property
described in the granting clauses of the Indenture, which has not heretofore
been released from the lien thereof; that it had or has, at the respective
times of execution and delivery of the Original Indenture, the First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-first (as corrected by the Twenty-second),
Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth,
Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first,
Thirty-second, Thirty-third, Thirty-fourth, Thirty-fifth, Thirty-sixth,
Thirty-seventh and Thirty-eighth Supplemental Indentures, and this Thirty-ninth
Supplemental Indenture, good right and lawful authority to mortgage and pledge
the mortgaged and pledged property described therein, as provided in and by the
Indenture; and that such mortgaged and pledged property is, at the actual date
of the initial issue of the Bonds of Pollution Control Series B, free and clear
of any mortgage, lien, charge or encumbrance thereon or affecting the title thereto
(other than excepted encumbrances) prior to the lien of the Indenture, except
as set forth in the granting clauses of the Indenture.
ARTICLE
IV
The
Trustees.
The Trustees hereby accept the trust hereby declared and
provided and agree to perform the same upon the terms and conditions in the
Original Indenture, as heretofore supplemented and as supplemented by this
Thirty-ninth Supplemental Indenture, and in this Thirty-ninth Supplemental
Indenture set forth, and upon the following terms and conditions:
The
Trustees shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Thirty-ninth Supplemental Indenture or the
due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company only.
ARTICLE V
Miscellaneous
Provisions.
All terms
contained in the Thirty-ninth Supplemental Indenture shall, for all purposes
hereof, have the meanings given to such terms in Article I of the Original
Indenture, as amended by Article IV of the Second Supplemental Indenture.
Except as
hereby expressly amended and supplemented, the Original Indenture heretofore
amended and supplemented is in all respects ratified and confirmed, and all the
terms and provisions thereof shall be and remain in full force and effect.
This
Thirty-ninth Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original;
but such counterparts together constitute but one and the same instrument.
IN WITNESS
WHEREOF, Idaho Power Company, party hereto of the first part, caused its
corporate name to be hereunto affixed and this instrument to be signed and
sealed by its President or a Vice President and its corporate seal to be
attested by its Secretary or an Assistant Secretary for and on its behalf, and
Deutsche Bank Trust Company Americas, one of the parties hereto of the second part,
in token of its acceptance of the trust hereby created has caused its corporate
name to be hereunto affixed and this instrument to be signed and sealed by a
Vice President and its corporate seal to be attested by an Associate and
Xxxxxxx Xxxx, one of the parties hereto of the second part, has for all like
purposes hereunto set his hand and affixed his seal, each on the date
hereinafter acknowledged, as of the day and year first above written.
IDAHO POWER COMPANY
|
By: |
/s/Xxxxxx X. Xxxxxxxx |
Xxxxxx X. Xxxxxxxx
Vice President, Chief Financial Officer
and Treasurer
Attest:
|
/s/ Xxxxxx X. Xxxxxxx |
Xxxxxx X. Xxxxxxx
Secretary
Executed, sealed and delivered by
IDAHO POWER COMPANY
in the presence of:
|
/s/ Xxxxxx Xxxxxx |
|
/s/ Xxxxxx Xxxxxxx |
DEUTSCHE BANK TRUST COMPANY AMERICAS
|
By: |
/s/Xxxxx Xxxxxxx |
Xxxxx Xxxxxxx
Vice President
Attest:
/s/Xxxxxxx
Xxxxxxxx______________
Executed, sealed and delivered by
DEUTSCHE BANK TRUST
COMPANY AMERICAS,
in the presence of:
|
/s/ Xxxxx X. Xxxxx |
|
/s/ Xxxxxxxx Xxxxx |
|
By: /s/ Xxxxxxx Xxxx |
[L.S.] |
Xxxxxxx Xxxx
Executed, sealed and delivered by
XXXXXXX XXXX,
in the presence of:
|
/s/ Xxxxx X. Xxxxx |
|
/s/ Xxxxxxxx Xxxxx |
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the 14th day of October, in the year 2003,
before me personally came XXXXXX X. XXXXXXXX, to me known, who being by me duly
sworn did depose and say that he resides at 0000 X. Xxxxxxx Xxx Xxxxx, Xxxxx,
Xxxxx 00000; that he is the Vice President, Chief Financial Officer and Treasurer
of Idaho Power Company, one of the corporations described in and which executed
the above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his
name thereto by like order; the said XXXXXX X. XXXXXXXX, having personally
appeared and known to me to be the Vice President, Chief Financial Officer and
Treasurer of said corporation that executed the instrument, acknowledged to me
that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed
my name and affixed my official seal the day and year in this certificate first
above written.
|
/s/Xxxx Xxxx |
Xxxx Xxxx
Notary Public, State of Idaho
Commission expires July 17, 2004
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of October, in the year 2003,
before me personally came Xxxxx Xxxxxxx, to me known, who being by me duly
sworn did depose and say that she resides at 000 Xxxx 00xx Xxxxxx, Xxxxxxxx,
Xxx Xxxx; that she is a Vice President of Deutsche Bank Trust Company Americas,
one of the corporations described in and which executed the above instrument;
that she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that she signed her name thereto by like
order; the said Xxxxx Xxxxxxx, having personally appeared and known to me to be
a Vice President of said corporation that executed the instrument, acknowledged
to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed
my name and affixed my official seal the day and year in this certificate first
above written.
|
/s/ Xxxxx X. Xxxxxxxx |
Xxxxx X. Xxxxxxxx
Notary Public, State of New York
Registration #01SA6040727
Qualified in New York County
My Commission Expires April 24, 2006
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of October, in the year 2003,
before me, Xxxxx X. Xxxxxxxx, a Notary Public in and for the State of New York
in the County of New York, personally appeared and came XXXXXXX XXXX, to me
known and known to me to be the person described in and who executed the within
and foregoing instrument and whose name is subscribed thereto and acknowledged
to me that he executed the same.
IN WITNESS
WHEREOF, I have hereunto subscribed my name and affixed my official seal the
day and year in this certificate first above written.
|
/s/ Xxxxx X. Xxxxxxxx |
Xxxxx X. Xxxxxxxx
Notary Public, State of New York
Registration #01SA6040727
Qualified in New York County
My Commission Expires April 24, 2006
STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
XXXXXX X. XXXXXXXX, being first duly sworn,
upon oath, deposes and says: that he is an officer, to wit, the Vice President,
Chief Financial Officer and Treasurer of Idaho Power Company, a corporation, the
mortgagor described in the foregoing indenture or mortgage, and makes this
affidavit on behalf of said Idaho Power Company; that said indenture or
mortgage is made in good faith without any design to hinder, delay or defraud
creditors, to secure the indebtedness mentioned to be thereby secured.
|
/s/ Xxxxxx X. Xxxxxxxx |
Subscribed and sworn to before
me
this 14th day of October, 2003.
|
/s/ Xxxx Xxxx |
Xxxx Xxxx
Notary Public, State of Idaho
Commission expires July 17, 2004
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Xxxxx
Xxxxxxx, being first duly sworn, upon oath, deposes and says: that she is an
officer, to wit, a Vice President of Deutsche Bank Trust Company Americas, a
corporation, one of the mortgagees and trustees named in the foregoing
indenture or mortgage, and makes this affidavit on behalf of said Deutsche Bank
Trust Company Americas; that said indenture or mortgage is made in good faith
without any design to hinder, delay or defraud creditors, to secure the
indebtedness mentioned or provided for therein.
|
/s/ Xxxxx Xxxxxxx |
Xxxxx Xxxxxxx
Vice President
Subscribed and sworn to before
me
this 17th day of October, 2003.
|
/s/ Xxxxx X. Xxxxxxxx |
Xxxxx X. Xxxxxxxx
Notary Public, State of New York
Registration #01SA6040727
Qualified in New York County
My Commission Expires April 24, 2006
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
XXXXXXX XXXX,
being first duly sworn, upon oath, deposes and says: that he is one of the
mortgagees and trustees named in the foregoing indenture or mortgage; that said
indenture or mortgage is made in good faith without any design to hinder, delay
or defraud creditors, to secure the indebtedness mentioned or provided for
therein.
|
/s/ Xxxxxxx Xxxx |
Xxxxxxx Xxxx
Subscribed and sworn to before
me
this [ ] day of October, 2003.
|
/s/ Xxxxx X. Xxxxxxxx |
Xxxxx X. Xxxxxxxx
Notary Public, State of New York
Registration #01SA6040727
Qualified in New York County
My Commission Expires April 24, 2006
