Idacorp Inc S-3ASR, filed May 16, 2022
Idacorp Inc (IDA)
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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 2022
Registration Nos. 333- , 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| IDACORP, Inc. | Idaho Power Company | |
| (Exact name of the registrant as specified in its charter) | (Exact name of the registrant as specified in its charter) |
| Idaho | Idaho | |
| (State or other jurisdiction of incorporation or organization) |
(State or other jurisdiction of incorporation or organization) | |
| 82-0505802 | 82-0130980 | |
| (I.R.S. Employer Identification Number) |
(I.R.S. Employer Identification Number) | |
1221 West Idaho Street
Boise, Idaho 83702
(208) 388-2200
(Address, including zip code, and telephone number, including area code, of registrants’ principal executive offices)
Patrick A. Harrington, Esq.
Vice President, General Counsel and Corporate Secretary
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
(208) 388-2200
(Names, addresses, including zip codes, and telephone numbers, including area codes, of agents for service)
With copies to:
Andrew Bor, Esq.
Andrew Moore, Esq.
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101-3099
(206) 359-8000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
IDACORP, Inc.:
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
Idaho Power Company:
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
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EXPLANATORY NOTE
This registration statement contains two separate forms of prospectus, each of which is to be used in connection with offerings of the following securities:
| (1) | The common stock and debt securities of IDACORP, Inc. registered pursuant to this registration statement, and |
| (2) | The first mortgage bonds and debt securities of Idaho Power Company registered pursuant to this registration statement. |
Each offering made under this registration statement will be made pursuant to one of these two prospectuses, with specific terms of the securities offered thereby set forth in an accompanying prospectus supplement or pricing supplement, if applicable.
This combined registration statement is separately filed by IDACORP, Inc. and Idaho Power Company. IDACORP, Inc. is the owner of all outstanding shares of common stock of Idaho Power Company. As to each registrant, this registration statement consists solely of the prospectus of such registrant (including the documents incorporated therein by reference) and the information set forth in Part II of this registration statement that is applicable to such registrant. No registrant makes any representation as to the information relating to the other registrant, except to the extent that such information is included in the registration statement of such registrant.
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PROSPECTUS
COMMON STOCK
DEBT SECURITIES
We may offer from time to time, in one or more series:
| • | our common stock, and |
| • | our debt securities. |
We may offer these securities in any combination in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. Before you invest, you should carefully read this prospectus and any supplements, as well as the information that we incorporate by reference in this prospectus.
We may offer these securities directly or through underwriters, agents or dealers, as described in the “Plan of Distribution.” The supplements to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements.
We list our common stock on the New York Stock Exchange under the symbol “IDA”.
Our principal executive offices are located at 1221 West Idaho Street, Boise, Idaho 83702-5627, and our telephone number is (208) 388-2200.
Investing in our securities involves risks. Please see “Risk Factors” on page 2 of this prospectus as well as the risk factors in our most recent Annual Report on Form 10-K and in any other reports we file pursuant to the Securities Exchange Act of 1934 that we incorporate by reference in this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is May 16, 2022
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This prospectus is part of a registration statement on Form S-3 that IDACORP, Inc. filed with the U.S. Securities and Exchange Commission (the “SEC”) using the “shelf” registration process. Under this shelf registration process, we may from time to time sell the securities described in this prospectus in one or more offerings. This prospectus provides a general description of the securities. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. That prospectus supplement may include or incorporate by reference a detailed and current discussion of risk factors and will discuss special considerations applicable to those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under “Where You Can Find More Information.” If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information contained in that prospectus supplement.
No person is authorized to give any information or to make any representations other than those contained or incorporated by reference in this prospectus, the applicable prospectus supplement, and the applicable pricing supplement, if any, and, if given or made, such information or representations must not be relied upon as having been authorized. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in this prospectus or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus, the applicable prospectus supplement or any applicable pricing supplement, nor any sale made hereunder, shall under any circumstances create any implication that there has been no change in our affairs since the date of this prospectus, or that the information contained or incorporated by reference in this prospectus is correct as of any time subsequent to the date of such information.
The distribution of this prospectus, the applicable prospectus supplement and any applicable pricing supplement and the offering of the securities in certain jurisdictions may be restricted by law. This prospectus does not constitute an offer, or any invitation on our behalf, to subscribe to or purchase any of the securities, and may not be used for or in connection with an offer or solicitation by anyone, in any jurisdiction in which such an offer or solicitation is not authorized or to any person to whom it is unlawful to make such an offer or solicitation.
Unless we indicate otherwise, or the context otherwise requires, references in this prospectus to the “company,” “we,” “us” and “our” or similar terms are to IDACORP, Inc. and its consolidated subsidiaries.
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Investing in our securities involves risks. Before making a decision to invest in our securities, you should carefully consider the risks and uncertainties discussed in “Risk Factors,” “Cautionary Note Regarding Forward-Looking Statements” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, each of which is incorporated by reference into this prospectus. You should also consider the risk factors described in any accompanying prospectus supplement or any documents we incorporate by reference in the future. See “Where You Can Find More Information.”
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act of 1934, as amended (the “Exchange Act”), which are subject to the safe harbor created by the Private Securities Litigation Reform Act of 1995. Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions, future events, or performance, often, but not always, through the use of words or phrases such as “anticipates,” “believes,” “continues,” “could,” “estimates,” “expects,” “guidance,” “intends,” “potential,” “plans,” “predicts,” “projects,” “may result,” “may continue,” or similar expressions, are not statements of historical facts and may be forward-looking. Forward-looking statements are not guarantees of future performance and involve estimates, assumptions, risks, and uncertainties. Actual results, performance, or outcomes may differ materially from the results discussed in the statements. In addition to any assumptions and other factors and matters referred to specifically in connection with such forward-looking statements, factors that could cause actual results or outcomes to differ materially from those contained in forward-looking statements include those factors discussed in our filings with the SEC, including the Form 10-K, the Forms 10-Q and the Forms 8-K incorporated by reference in this prospectus, and we refer you to those reports for further information, as well as the following important factors:
| • | the effect of decisions by the Idaho and Oregon public utilities commissions and the Federal Energy Regulatory Commission that impact Idaho Power’s ability to recover costs and earn a return on investment; |
| • | changes to or the elimination of Idaho Power’s regulatory cost recovery mechanisms; |
| • | the ongoing impacts of COVID-19 and its variants, and government mandates related to COVID-19 vaccines, masking, and testing, on the global and regional economy and on Idaho Power’s employees, customers, contractors, and suppliers, including on loads and revenues, uncollectible accounts, transmission revenues, supply chain availability, attrition of skilled workers, and other aspects of the economy and the companies’ business; |
| • | changes in residential, commercial, and industrial growth and demographic patterns within Idaho Power’s service area, and their associated impacts on loads and load growth, and the availability of regulatory mechanisms that allow for timely cost recovery through customer rates in the event of those changes; |
| • | abnormal or severe weather conditions (including conditions and events associated with climate change), wildfires, droughts, earthquakes, and other natural phenomena and natural disasters, which affect customer sales, hydropower generation levels, repair costs, service interruptions, liability for damage caused by utility property, and the availability and cost of fuel for generation plants or purchased power to serve customers; |
| • | advancement of self-generation, energy storage, energy efficiency, alternative energy sources, and other technologies that may reduce Idaho Power’s sale or delivery of electric power or introduction of operational or cyber-security vulnerabilities to the power grid; |
| • | acts or threats of terrorist incidents, acts of war, social unrest, cyber or physical security attacks, and other malicious acts of individuals or groups seeking to disrupt Idaho Power’s operations or the electric power grid or compromise data, or the disruption or damage to the companies’ business, operations, or reputation resulting from such events; |
| • | the expense and risks associated with capital expenditures for, and the permitting and construction of, utility infrastructure that Idaho Power may be unable to complete or may not be deemed prudent by regulators for cost recovery or a return on investment; |
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| • | demand for power during peak periods could exceed supply, resulting in increased costs for purchasing capacity in the market or acquiring or constructing additional generation resources and battery storage facilities; |
| • | variable hydrological conditions and over-appropriation of surface and groundwater in the Snake River Basin, which may impact the amount of power generated by Idaho Power’s hydropower facilities; |
| • | the ability of Idaho Power to acquire fuel, power, electrical equipment, and transmission capacity on reasonable terms and prices, particularly in the event of unanticipated or abnormally high power demands, price volatility, lack of physical availability, transportation constraints, outages due to maintenance or repairs to generation or transmission facilities, disruptions or delays in the supply chain, or a lack of credit; |
| • | disruptions or outages of Idaho Power’s generation or transmission systems or of any interconnected transmission systems, which can result in liability for Idaho Power, increase power supply costs and repair expenses, and reduce revenues; |
| • | accidents, terrorist acts, electrical contacts, fires (either affecting or caused by Idaho Power facilities or infrastructure), explosions, general system damage or dysfunction, intentional acts of destruction, uncontrolled release of water from hydropower dams, and other unplanned events that may occur while operating and maintaining assets, which can cause unplanned outages; reduce generating output, damage company assets, operations, or reputation; subject Idaho Power to third-party claims for property damage, personal injury, or loss of life; or result in the imposition of fines and penalties for which Idaho Power may have inadequate insurance coverage; |
| • | the increased purchased power costs and operational challenges associated with purchasing and integrating intermittent renewable energy sources into Idaho Power’s resource portfolio; |
| • | Idaho Power’s concentration in one industry and one region and the lack of diversification, and the resulting exposure to regional economic conditions and regional legislation and regulation; |
| • | employee workforce factors, including the operational and financial costs of unionization or the attempt to unionize all or part of the companies’ workforce, the impact of an aging workforce and retirements, the cost and ability to attract and retain skilled workers and third-party vendors, the cost of living and the related impact on recruiting employees, and the ability to adjust the labor cost structure when necessary; |
| • | failure to comply with state and federal laws, regulations, and orders, including interpretations and enforcement initiatives by regulatory and oversight bodies, which may result in penalties and fines and increase the cost of compliance and remediation; |
| • | changes in tax laws or related regulations or interpretations of applicable laws by federal, state, or local taxing jurisdictions, and the availability of tax credits, and the tax rates payable by IDACORP shareholders on common stock dividends; |
| • | adoption of, changes in, and costs of compliance with, laws, regulations, and policies relating to the environment, climate change, natural resources, and threatened and endangered species, and the ability to recover associated increased costs through rates; |
| • | the inability to timely obtain and the cost of obtaining and complying with required governmental permits and approvals, licenses, rights-of-way, and siting for transmission and generation projects and hydropower facilities; |
| • | failure to comply with mandatory reliability and cyber and physical security requirements, which may result in penalties, reputational harm, and operational changes; |
| • | the impacts of economic conditions, including inflation, interest rates, supply costs, population growth or decline in Idaho Power’s service area, changes in customer demand for electricity, revenue from sales of excess power, credit quality of counterparties and suppliers, and the collection of receivables; |
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| • | the ability to obtain debt and equity financing or refinance existing debt when necessary and on favorable terms, which can be affected by factors such as credit ratings, volatility or disruptions in the financial markets, interest rate fluctuations, decisions by the Idaho or Oregon public utility commissions, and the companies’ past or projected financial performance; |
| • | the ability to enter into financial and physical commodity hedges with creditworthy counterparties to manage price and commodity risk for fuel, power, and transmission, and the failure of any such risk management and hedging strategies to work as intended; |
| • | changes in actuarial assumptions, changes in interest rates, increasing health care costs, and the actual and projected return on plan assets for pension and other post-retirement plans, which can affect future pension and other postretirement plan funding obligations, costs, and liabilities and the companies’ cash flows; |
| • | the assumptions underlying the coal mine reclamation obligations at Bridger Coal Company and related funding and bonding requirements, and the remediation costs associated with planned exits from participation in Idaho Power’s co-owned coal plants; |
| • | the ability to continue to pay dividends and achieve target-payout ratios based on financial performance, and in light of credit rating considerations, contractual covenants and restrictions, and regulatory limitations; and |
| • | adoption of or changes in accounting policies and principles, changes in accounting estimates, and new Securities and Exchange Commission or New York Stock Exchange requirements, or new interpretations of existing requirements. |
Any forward-looking statement speaks only as of the date on which such statement is made. New factors emerge from time to time and it is not possible for management to predict all such factors, nor can it assess the impact of any such factor on the business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statement. IDACORP disclaims any obligation to update publicly any forward-looking information, whether in response to new information, future events, or otherwise, except as required by applicable law.
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Overview
We are a holding company incorporated in 1998 under the laws of the state of Idaho. Our principal operating subsidiary is Idaho Power Company. We are subject to the provisions of the Public Utility Holding Company Act of 2005, which provides the Federal Energy Regulatory Commission and state utility regulatory commissions with access to books and records and imposes record retention and reporting requirements on us.
Idaho Power Company was incorporated under the laws of the state of Idaho in 1989 as the successor to a Maine corporation that was organized in 1915 and began operations in 1916. Idaho Power Company is an electric utility engaged in the generation, transmission, distribution, sale and purchase of electric energy and capacity and is regulated by the state regulatory commissions of Idaho and Oregon and by the Federal Energy Regulatory Commission. Idaho Power Company is the parent of Idaho Energy Resources Co., a joint venturer in Bridger Coal Company, which mines and supplies coal to the Jim Bridger generating plant owned in part by Idaho Power Company. Idaho Power Company’s utility operations constitute nearly all of our current business operations.
Idaho Power Company provided electric utility service to approximately 607,000 retail customers in southern Idaho and eastern Oregon as of March 31, 2022. Approximately 509,000 of these customers are residential. Idaho Power’s principal commercial and industrial customers are involved in food processing, electronics and general manufacturing, agriculture, health care, government, and education. Idaho Power Company also provides irrigation customers with electric utility service to operate irrigation pumps during the agricultural growing season. Idaho Power Company holds franchises, typically in the form of right-of-way arrangements, in 72 cities in Idaho and 7 cities in Oregon and holds certificates from the respective public utility regulatory authorities to serve all or a portion of 25 counties in Idaho and 3 counties in Oregon. Idaho Power Company’s service area covers approximately 24,000 square miles with an estimated population of 1.3 million.
Our other notable subsidiaries include IDACORP Financial Services, Inc., an investor in affordable housing and other real estate tax credit investments, and Ida-West Energy Company, an operator of small hydropower generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act of 1978.
For additional information concerning our business and affairs, including our capital requirements and external financing arrangements, and pending legal and regulatory proceedings, including descriptions of those laws and regulations to which we are subject, prospective purchasers should refer to the documents incorporated by reference into this prospectus as described in the section entitled “Where You Can Find More Information.”
Dividends from Subsidiaries
Since we are a holding company, substantially all of our cash flow is provided by dividends paid to us by our subsidiaries, most notably Idaho Power Company. Since Idaho Power Company is a public utility, it is subject to regulation by state utility commissions and other regulatory agencies, which impose limits on investment returns or otherwise impact the amount of dividends that Idaho Power Company may declare and pay, and to a federal statutory limitation on the payment of dividends. In addition, certain agreements entered into by Idaho Power Company set restrictions on the amount of dividends it may declare and pay and restrict the circumstances under which such dividends may be declared and paid. Further, Idaho Power Company’s credit facility requires it to maintain specified leverage ratios of consolidated indebtedness to consolidated total capitalization. The specific restrictions on dividends contained in agreements to which Idaho Power Company is a party, as well as specific regulatory limitations on dividends, are described in our Forms 10-K and 10-Q, which are incorporated by reference into this prospectus.
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This section summarizes the material terms of our common stock. This summary is not complete. We refer you to our articles of incorporation, as amended, and our amended bylaws, each of which is on file with the SEC and which we have incorporated by reference in this prospectus. We also refer you to the laws of the state of Idaho. The prospectus supplement relating to any offering of common stock will describe the number of shares offered and the initial offering price or method of determining the initial offering price of those shares.
As used under this caption, “Description of Common Stock,” references to “we,” “us,” “our” and other similar references mean IDACORP, Inc., excluding, unless otherwise expressly stated or the context otherwise requires, its subsidiaries.
General
Authorized Shares; Listing. Our articles of incorporation, as amended, authorize us to issue 120,000,000 shares of common stock, without par value, and 20,000,000 shares of preferred stock, without par value. Our common stock is listed on the New York Stock Exchange under the trading symbol “IDA”.
Dividend Rights. Subject to the prior rights of the preferred stock, holders of our common stock are entitled to receive any dividends our board of directors may declare on the common stock. The board of directors may declare dividends from any property legally available for this purpose.
Voting Rights. The common stock has one vote per share. The holders of our common stock are entitled to vote on all matters to be voted on by shareholders. The holders of our common stock are not entitled to cumulative voting in the election of directors. Holders of our preferred stock will not have any right to vote except as established by our board of directors or as provided in our articles of incorporation or bylaws or by state law. A majority of the outstanding shares entitled to vote on a particular matter at a meeting constitutes a quorum. Action on a matter is approved if the votes cast favoring the action exceed the votes cast opposing the action, unless our articles of incorporation, the Idaho Business Corporation Act or our bylaws require a greater number of affirmative votes. A plurality of the votes cast determines the election of directors.
Liquidation Rights. Subject to the prior rights of the preferred stock, if we liquidate, dissolve or wind up, whether this is voluntary or not, the holders of our common stock will be entitled to receive any net assets available for distribution to shareholders.
Other Rights. The common stock is not liable to further calls or assessment. The holders of our common stock are not entitled to subscribe for or purchase additional shares of our capital stock. Our common stock is not subject to redemption and does not have any conversion or sinking fund provisions.
Effects on Our Common Stock If We Issue Preferred Stock. Our board of directors has the authority, without further action by shareholders, to issue up to 20,000,000 shares of preferred stock in one or more series. The board of directors has the authority to determine the terms of each series of preferred stock, within the limits of the articles of incorporation and the laws of the state of Idaho. These terms include the number of shares in a series, dividend rights, liquidation preferences, terms of redemption, conversion rights and voting rights. If we issue preferred stock, it may negatively affect the holders of our common stock. These possible negative effects include diluting the voting power of shares of our common stock and affecting the market price of our common stock. In addition, the ability of our board of directors to issue preferred stock without shareholder approval may delay or prevent a change in control of the company.
Transfer Agent and Registrar. EQ Shareowner Services is the transfer agent and registrar for the common stock.
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Provisions of Our Articles of Incorporation and Our Bylaws That Could Delay or Prevent a Change in Control
Although it is not the intention of the board of directors to discourage legitimate offers to enhance shareholder value, the existence of unissued common stock, the ability of the board of directors to issue preferred stock without further shareholder action and other provisions of our articles of incorporation and bylaws may discourage transactions aimed at obtaining control of us.
Number of Directors, Vacancies, Removal of Directors. Our bylaws provide that the board of directors will have at least 9 and at most 15 directors. These restrictions on the size of the board may be changed by amendment of our bylaws, which must be approved by a two-thirds vote of shareholders entitled to vote, or by a majority vote of the board of directors. A majority of the board decides the exact number of directors at a given time. The board fills any new directorships it creates and any vacancies. Also, directors may be removed by the shareholders only for cause and only if at least two-thirds of the shares of our outstanding voting stock approve the removal. These provisions may delay or prevent a shareholder from gaining control of the board.
Meetings of Shareholders
Calling of a Special Meeting. The president, a majority of the board of directors or the chairman of the board may call a special meeting of the shareholders at any time. Holders of at least 20% of the outstanding shares entitled to vote may call a special meeting if such holders sign, date and deliver to our secretary one or more written demands describing the purpose(s) of the proposed meeting, as well as documentation of the shareholders’ ownership percentage and information regarding the shareholders’ proposal. Upon receipt of one or more written demands from such holders, our secretary is responsible for determining whether such demand or demands conform to the requirements of the Idaho Business Corporation Act, our articles of incorporation and our bylaws. After making an affirmative determination, our secretary will prepare, sign and deliver the notices for such meeting. The shareholders may suggest a time and place in their demand(s), but the board of directors will determine the time and place of any such meeting by resolution. These provisions for calling a special meeting may delay or prevent a person from bringing matters before a shareholder meeting.
No Cumulative Voting. Our articles of incorporation do not provide for cumulative voting in the election of directors. This could prevent directors from being elected by a relatively small group of shareholders.
Advance Notice Provisions. Our bylaws require that for a shareholder to nominate a director or bring other business before an annual meeting, the shareholder must give notice and provide other information called for by our bylaws to our secretary not later than the close of business on the 120th day nor earlier than the close of business on the 150th day prior to the first anniversary of the date of the preceding year’s annual meeting. If the date of the annual meeting is more than 30 days before or 60 days after the anniversary date of the preceding year’s annual meeting or if no annual meeting was held in the preceding year, the shareholder must deliver notice no earlier than the close of business on the 150th day prior to the date of such annual meeting and not later than the close of business on the later of the 120th day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than 130 days prior to the date of such annual meeting, the 10th day following the day on which we first publicly announce the date of such meeting. Our bylaws also limit business at a special meeting to the purposes stated in the notice of the special meeting, subject to the introduction of additional business at the discretion of the board of directors. These advance notice provisions may delay a shareholder from bringing matters before a shareholder meeting. The provisions may provide enough time for our board of directors to begin litigation or take other steps to respond to these matters, or to prevent them from being acted upon, if our board of directors finds it necessary or desirable for any reason.
Amendment of Articles of Incorporation. Our articles of incorporation require an 80% vote of shareholders entitled to vote in order to amend the provisions relating to the board of directors and the amendment of our articles of incorporation, unless such amendment is recommended by two-thirds of the continuing directors, as defined.
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Amendment of Bylaws. Amendment of the bylaws relating to the board of directors or advance notice provisions for shareholder meetings requires a two-thirds vote of shareholders entitled to vote or a majority vote of the board of directors.
Provisions of Idaho Law That Could Delay or Prevent a Change in Control
Idaho Control Share Acquisition Law. We are subject to the provisions of the Idaho Control Share Acquisition Law. This law is designed to protect minority shareholders in the event that a person acquires or proposes to acquire shares of voting stock giving it at least 20%, at least 33 1/3%, or more than 50% of the voting power in the election of our directors. Under this law, an acquiring person must deliver to us an information statement that includes, most notably, the acquiring person’s identity, its acquisition plans and its financing. The acquiring person cannot vote the shares it holds that are greater than the applicable percentages unless two-thirds of the outstanding voting stock, excluding shares owned by the acquiring person, approves the exercise of such voting power. If the acquiring person so requests and complies with other requirements, we must hold a special meeting within 55 days of receiving the information statement from the acquiring person for the shareholders to vote. If the acquiring person does not deliver the information statement, or our shareholders do not approve such voting power, we may redeem all of the acquiring person’s shares that exceed the applicable percentage at their fair market value.
Idaho Business Combination Law. We are also subject to the Idaho Business Combination Law. This law prohibits us from engaging in certain business combinations with a person who owns 10% or more of our outstanding voting stock for a three-year period after the person acquires the shares. This prohibition does not apply if our board of directors approved of the business combination or the acquisition of our shares before the person acquired 10% of the shares. After the three-year period, we could engage in a business combination with the person only if two-thirds of our outstanding voting stock, excluding shares owned by the person, approve, or the business combination meets minimum price requirements.
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DESCRIPTION OF DEBT SECURITIES
As used under this caption, “Description of Debt Securities,” references to “we,” “us,” “our” and other similar references mean IDACORP, Inc., excluding, unless otherwise expressly stated or the context otherwise requires, its subsidiaries.
General
We will issue the debt securities offered in this prospectus under our senior debt securities indenture, dated as of February 1, 2001. Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Company, is the trustee under the indenture. We may amend and supplement the indenture and will supplement it by one or more supplemental indentures relating to these debt securities.
This section briefly summarizes the material provisions of the indenture and uses some terms that are not defined in this prospectus but that are defined in the indenture. This summary is not complete and we qualify it by reference to the indenture. The indenture is on file with the SEC, and we have incorporated it by reference in this prospectus. You should read the indenture for a complete understanding of its provisions and for the definition of some terms used in this summary. In this summary, we have included references to section numbers of the indenture so that you can easily locate these provisions.
The debt securities that we may issue under this indenture will be unsecured obligations of IDACORP, Inc. exclusively, and not the obligations of any of our subsidiaries. The indenture does not limit the amount of debt securities that we may issue and it does not restrict the amount or type of other debt that we or our subsidiaries may issue or contain any other provisions that would afford holders of the debt securities protection in the event of a highly leveraged transaction. We may use other indentures or documentation containing provisions different from those included in the indenture under which we are offering these debt securities in connection with future issues of debt securities.
We are a holding company whose primary source of funds is cash received from our subsidiaries in the form of dividends or other intercompany transfers. For a more detailed description of the dividend restrictions applicable to our subsidiaries, see “About IDACORP—Dividends from Subsidiaries” above. If any of our subsidiaries liquidate or reorganize, the claims of the subsidiary’s creditors to the proceeds will be prior to the claims of our creditors, except to the extent we are a creditor of the subsidiaries. As a result of these factors, the debt securities will be effectively subordinated to all existing and future claims of creditors of Idaho Power Company and other subsidiaries, including trade creditors, debt holders, secured creditors, taxing authorities and guarantee holders.
The indenture does not limit the amount of debt securities that we may issue, nor does it limit us or our subsidiaries from issuing any other unsecured debt. The debt securities that we are offering in this prospectus will rank equal in right of payment to our other unsecured indebtedness that is outstanding now or that we may issue in the future, except for any indebtedness that, by its terms, is subordinate to these debt securities. Although our subsidiaries are parties to agreements that limit the amount of additional indebtedness they may incur, they retain the ability to incur substantial additional indebtedness and other liabilities.
We will issue debt securities in series. Each series of debt securities may have different terms and, in some cases, debt securities of the same series may have different terms. We need not issue all debt securities of one series at the same time and, unless otherwise provided, we may reopen a series, without the consent of the holders of the debt securities of that series for issuances of additional debt securities of that series. One or more series of the debt securities may be issued with the same or various maturities at par, above par or at a discount.
Terms of the Debt Securities
Each prospectus supplement will describe the terms of a series of debt securities, including:
| • | the title of the series, |
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| • | any limit on the aggregate principal amount of the series, |
| • | the date or dates on which we will issue the debt securities of that series and on which we will pay the principal amount and any premium, |
| • | the rate or rates at which the debt securities of that series will bear interest, or how we will determine the rate or rates, |
| • | the date or dates from which interest will accrue, |
| • | the dates on which we will pay interest on the debt securities of that series and the regular record dates for the interest payment dates, |
| • | the place or places where we will pay the principal of, premium, if any, and interest, if different from those we describe in this prospectus, |
| • | any redemption terms, including mandatory redemption through a sinking fund or otherwise, redemption at our option and redemption at the option of the holder, |
| • | whether any debt securities of that series will be issued as original discount securities and the amount of the discount, |
| • | any events of default, interest rates payable upon an event of default, or restrictive covenants if other than set forth in this prospectus, |
| • | the denominations in which we will issue the debt securities of that series, if other than denominations of $1,000 and any integral multiple of $1,000, |
| • | the provisions for the satisfaction and discharge of the indenture if different from those we describe in this prospectus, and |
| • | any other terms of the debt securities of the series which are not inconsistent with the provisions of the applicable indenture. |
Form and Exchange
Unless we state otherwise in the prospectus supplement:
| • | we will issue the debt securities in fully registered form, without coupons, in denominations of $1,000 or in any larger amount equally divisible by $1,000, |
| • | a holder of debt securities may exchange debt securities, without charge, for an equal aggregate principal amount of debt securities of the same series, having the same issue date and with identical terms and provisions, and |
| • | a holder of debt securities may transfer debt securities, without charge, other than applicable stamp taxes or other governmental charges. Indenture, Sections 3.2 and 3.6 |
Unless we state otherwise in the prospectus supplement, the transfer of debt securities may be registered and exchanged at the corporate trust office of the trustee in New York, New York, as security registrar. We may change the place and designate one or more additional places for registration of transfer and exchange but we are required to maintain an office or agency in New York, New York for that purpose. Indenture, Section 4.2
We are not required to execute or to provide for the registration of transfer or exchange of any debt security:
| • | during a period of 15 days prior to giving any notice of redemption with respect to that debt security, or |
| • | that has been selected for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. Indenture, Section 3.6 |
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We may issue all or some of the debt securities in book-entry form, which means that global notes, not certificates, will represent the debt securities. If we issue global notes representing any debt securities, then a depository that we select will keep a record of the beneficial interests in the global notes and record any transfers of beneficial interests. The global notes will be registered in the name of the depository and the depository will be considered the sole owner of the debt securities represented by the global notes for all purposes of the indenture. Indenture, Section 3.1
See “Book-Entry System” for a description of additional requirements as to the form and method of exchange of the debt securities. We will describe any additional requirements as to the form and method of exchange of debt securities in the prospectus supplement. Indenture, Sections 2.4 and 3.1
Payment and Paying Agent
Unless we state otherwise in the prospectus supplement, we will pay interest on each debt security to the person in whose name the debt security is registered as of the close of business on the regular record date for that interest payment date. If we have defaulted in the payment of interest on any debt security, we may pay the defaulted interest to the holder of the debt security as of the close of business on a special record date that is not less than 10 days prior to the date we propose to pay the defaulted interest. Notice of the special record date will be given by mail at least 15 days before the special record date. We may also pay defaulted interest in any other lawful manner permitted by requirements of any securities exchange on which the debt security may be listed, if the trustee deems that manner of payment practicable. Indenture, Section 3.8
Unless we state otherwise in the prospectus supplement, we will pay the principal of and premium, if any, and interest at maturity at the corporate trust office of the trustee in New York, New York, as our paying agent. We may change the place of payment. We may appoint one or more additional paying agents and may remove any paying agent, all at our discretion. Indenture, Section 4.2
If we deposit money with the paying agent to pay any amounts due on the debt securities and the holder does not claim the money within two years, the paying agent will return the money to us and we will be responsible for paying the holder. Indenture, Section 12.5
Events of Default
Except to the extent modified or deleted in a supplemental indenture or applicable resolution of the board of directors under which a series of debt securities is issued and described in the applicable prospectus supplement, each of the following will be an Event of Default with respect to each series of debt securities issued under the indentures:
| • | failure to pay the principal of, or premium, if any, on, any debt security of that series when due and payable at maturity and upon redemption, and the time for payment has not been extended or deferred, |
| • | failure to pay interest on any debt security of that series when due and our failure continues for 30 days, and the time for payment has not been extended or deferred, |
| • | failure to make a sinking fund payment when due with respect to debt securities of that series, |
| • | failure to observe or perform any other covenant, warranty or agreement contained in the debt securities of that series or in the indenture, except for a covenant, agreement or warranty included in the indenture solely for the benefit of another series of debt securities, and our failure continues for 60 days after we have received written notice from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, |
| • | events relating to our bankruptcy, insolvency or reorganization, and |
| • | any other event of default with respect to debt securities of that series specified in the applicable prospectus supplement. Indenture, Section 6.1 |
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An event of default with respect to the debt securities of any series does not necessarily constitute an event of default with respect to any other series of debt securities issued under the indenture. Unless we cure the default, the trustee is required to notify you of any default known to it within 90 days after the default has occurred. Except in the case of a payment default, the trustee may withhold notice if it considers such withholding to be in the interest of the holders. Indenture, Sections 6.1 and 6.11
If an event of default with respect to debt securities of any series, other than due to events of bankruptcy, insolvency or reorganization, occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series or, in the case of certain defaults that affect all series then outstanding, the holders of at least 25% in aggregate principal amount of all debt securities outstanding acting as a single class, by notice in writing to us, and to the trustee if given by the holders, may declare the unpaid principal of and accrued interest to the date of acceleration on all the outstanding debt securities of that series to be due and payable immediately. The holders of a majority of the principal amount of the outstanding debt securities of that series or, in the case of certain defaults that affect all series then outstanding, the holders of a majority in aggregate principal amount of all debt securities outstanding acting as a single class, upon the conditions provided in the indenture, including the requirement that we have paid all the principal and interest that has become due on that series other than by reason of acceleration, may rescind an acceleration and its consequences with respect to that series. Indenture, Section 6.1
If an event of default occurs due to bankruptcy, insolvency or reorganization, all unpaid principal of and accrued interest on the outstanding debt securities of all series will become immediately due and payable without any declaration or other act on the part of the trustee or any holder. Indenture, Section 6.1
The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series. Indenture, Section 6.9
Subject to the provisions of the indenture relating to the duties of the trustee, if an event of default shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless the holders have offered to the trustee reasonable indemnity. Indenture, Section 7.2
The indenture provides that we must periodically file statements with the trustee regarding compliance by us with all conditions and covenants contained in the indenture. Indenture, Section 4.6
Redemption
We will describe any terms for the optional or mandatory redemption of a particular series of debt securities in the applicable prospectus supplement. In order to exercise our right to redeem a debt security, we must give the holder notice by mail at least 30 days prior to the date fixed for redemption.
If we want to redeem fewer than all the debt securities of a series, the trustee will choose the particular debt securities to be redeemed by lot or by another method described in the applicable prospectus supplement. Indenture, Article Fourteen
Consolidation, Merger or Sale
The indenture provides that we will not consolidate with, or merge into, or sell all or substantially all of our assets to, any person, unless:
| • | the successor corporation, if we are not the survivor, expressly assumes in writing all of our obligations under the outstanding debt securities and the indenture, |
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| • | immediately before and after giving effect to the transaction, no event of default shall have occurred and be continuing, and |
| • | we deliver to the trustee an officer’s certificate and an opinion of counsel stating that the transaction and the supplemental indenture comply with the indenture. Indenture, Article Eleven |
Modification of Indenture
We may modify the indenture, without notice to or the consent of any holders of debt securities, with respect to certain matters that do not materially adversely affect the holders of any debt securities. Indenture, Section 10.1
In addition, we may modify certain of our rights and obligations and the rights of holders of the debt securities with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities affected by the modification, voting as one class. Indenture, Section 10.2
Without the consent of each holder of any outstanding debt security affected, no amendment or modification may:
| • | change the stated maturity of any debt security, |
| • | reduce the principal amount of or the amount of any premium on, or reduce the rate of interest on, or extend the time for payment or change the method of calculating interest on, any debt security, or extend the time for payment of those amounts, reduce the amount payable on redemption, or reduce the amount of principal of an original issue discount security that would be due and payable upon acceleration of maturity, |
| • | impair the right to institute suit for the enforcement of any payment with respect to any debt security, |
| • | reduce the percentage in principal amount of outstanding debt securities of any series necessary to modify or amend the indenture, or to waive compliance with provisions of the indenture or defaults or events of default and their consequences, or |
| • | subordinate any debt securities to any other of our indebtedness. Indenture, Section 10.2 |
Waiver of Defaults
The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of any series may waive any default or event of default with respect to that series, except if certain defaults relate to all series of outstanding debt securities, the holders of not less than a majority in aggregate principal amount of all outstanding debt securities voting as one class may waive the default. Payment and bankruptcy defaults and defaults with respect to a provision that cannot be modified or amended without the consent of the holder of each debt security affected may not be waived in this manner. Indenture, Section 6.10
Defeasance
Unless we state otherwise in the prospectus supplement relating to the debt securities of a particular series, the indenture provides that we shall be discharged from our obligations under the indenture with respect to any series of debt securities at any time prior to the maturity date or redemption of that series when
| • | we have irrevocably deposited in trust with the trustee: |
| • | sufficient funds to pay the principal of and premium, if any, and interest to the maturity date or redemption of, the debt securities of that series, or |
| • | an amount of direct obligations of, or obligations guaranteed by, the United States government as will be sufficient to pay when due the principal of, and premium, if any, and interest to the maturity date or redemption of, the debt securities of that series, and |
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| • | we have paid all other sums payable with respect to the debt securities of that series. |
Upon the discharge of the indenture with respect to a particular series, the holders of debt securities of that series shall no longer be entitled to the benefits of the indenture, except for purposes of registration of transfer, exchange and replacement of lost, stolen or mutilated debt securities. Indenture, Section 12.1 and 12.3
Concerning the Trustee
We and our affiliates may conduct banking transactions with the trustee or its affiliates in the normal course of business.
Governing Law
The indenture and the debt securities will be governed by and construed under the laws of the state of Idaho, except that the obligations, rights and remedies of the trustee will be determined under the laws of the state of New York.
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We may issue all or some of the debt securities in book-entry form, which means that global notes, not certificates, will represent the securities. If we issue global notes representing any securities, the following provisions will apply to all book-entry securities:
Unless otherwise indicated in the applicable prospectus supplement, the Depository Trust Company, New York, NY, which we refer to as “DTC,” will act as securities depository for the securities. We will issue the securities as fully-registered securities registered in the name of Cede & Co. or such other name as may be requested by an authorized representative of DTC. We will issue one or more fully-registered security certificates for each issue of the securities, in the aggregate principal amount of the issue, and we will deposit the certificates with the trustee to hold as agent for DTC. We and the trustee will treat Cede & Co. as the holder of the securities for all purposes.
DTC has informed us that it is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The DTC rules applicable to its participants are on file with the SEC. More information about DTC can be found at www.dtcc.com and www.dtc.org.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser, the beneficial owner, is in turn to be recorded on the direct and indirect participants’ records. Beneficial owners will not receive written confirmation from DTC of their purchase. Beneficial owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of direct and indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the securities, except in the event that use of the book-entry system for the securities is discontinued.
To facilitate subsequent transfers, all securities deposited by direct participants with DTC are registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The direct and indirect participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants, and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements that may be in effect from time to time.
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Redemption notices will be sent to DTC. If less than all of the securities within an issue are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the securities unless authorized by a direct participant in accordance with DTC’s money market instrument procedures. Under its usual procedures, DTC mails an omnibus proxy to the issuer as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to those direct participants to whose accounts the securities are credited on the record date, identified in a listing attached to the omnibus proxy.
Redemption proceeds and distributions, including principal and interest payments, on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us or our agent on the payable date in accordance with their respective holdings shown on DTC’s records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices as is the case with securities held for the accounts of customers in bearer form or registered in street name. Payment by participants to beneficial owners will be the responsibility of the participants and not of DTC, any agents or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds and distributions to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is our responsibility or the responsibility of our paying agents. Disbursement of such payments to direct participants will be the responsibility of DTC, and disbursement of such payments to the beneficial owners will be the responsibility of direct and indirect participants.
In case of any optional tender for or mandatory purchase of securities, pursuant to their terms, a beneficial owner shall give notice to elect to have its securities purchased or tendered through its participant to the tender/remarketing agent and shall effect delivery of the securities by causing the direct participant to transfer the participant’s interest in the securities, on DTC’s records, to the tender/remarketing agent. The requirement for physical delivery of securities in connection with an optional tender or a mandatory purchase will be deemed satisfied when the ownership rights in the securities are transferred by direct participants on DTC’s records and followed by a book-entry credit of tendered securities to the tender/remarketing agent’s DTC account.
DTC may discontinue providing its services as depository with respect to the securities at any time by giving reasonable notice to us or to our agent. Under such circumstances, in the event that a successor depository is not obtained, security certificates are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository). In that event, security certificates will be printed and delivered to DTC.
Neither we, the trustee, any paying agent, nor the registrar for the securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global security or for maintaining, supervising or reviewing any records relating to these beneficial ownership interests.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof.
The underwriters, dealers or agents of any of the securities may be direct participants of DTC.
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Unless we state otherwise in the prospectus supplement, we will add the net proceeds from the sale of the securities to our general funds. We may use our general funds for any of the following purposes:
| • | to invest in, or make loans to, our subsidiaries, |
| • | to repay indebtedness, or |
| • | to pay for acquisitions. |
The precise amount and timing of the application of such proceeds will depend on our funding requirements, market conditions and the availability and cost of other funds. If we do not use the proceeds immediately, we may temporarily invest them in short-term instruments.
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Methods of Offer and Sale
We may sell the securities offered by this prospectus:
| • | through underwriters or dealers, |
| • | through agents, |
| • | directly to one or more purchasers, or |
| • | through a combination of any of the above methods of sale. |
Through Underwriters or Dealers. If we use underwriters in the sale, the underwriters will buy the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of the sale. The underwriters may sell the securities directly or through underwriting syndicates that managing underwriters represent. Unless we state otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all of the securities if they purchase any of them. If we use a dealer in the sale, we will sell those securities to the dealer as principal. The dealer may then resell the securities to the public at varying prices determined at the time of resale. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Through Agents. We may from time to time designate one or more agents to sell the securities. Unless we state otherwise in the prospectus supplement, any agent will agree to use its best efforts to solicit purchases for the period of its appointment.
Directly. We may sell the securities directly to one or more purchasers. In this case, there will be no underwriters or agents.
General Information
Our common stock is listed on the New York Stock Exchange under the symbol “IDA.” The debt securities may or may not be listed on a national securities exchange. You should read the applicable prospectus supplement for a discussion of this matter.
The prospectus supplement will state:
| • | the names of any underwriters, dealers or agents, and the amounts of securities underwritten, purchased or sold by each of them, |
| • | the terms of the securities offered, |
| • | the purchase price of the securities and the proceeds we will receive from the sale, |
| • | any initial public offering price, |
| • | any discounts or commissions and other items constituting underwriters’ or agents’ compensation, and |
| • | any discounts or concessions allowed or reallowed or paid to dealers. |
We may authorize agents, underwriters or dealers to solicit offers from certain institutions. We may sell the securities to these institutions for delayed delivery at a specified date in the future. At that time, they will pay the public offering price on the terms we describe in the prospectus supplement.
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We may distribute the securities from time to time in one or more transactions at:
| • | a fixed price or prices, which may be changed, |
| • | market prices prevailing at the time of sale, |
| • | prices related to such prevailing market prices, or |
| • | negotiated prices. |
We may also engage in at-the-market offerings of our common stock in an existing trading market. Any at-the-market offering will be through an underwriter or underwriters acting as principal or through an agent or agents for us.
Underwriters, agents, dealers and remarketing firms may be entitled under agreements entered into with us to indemnification by us against civil liabilities, including liabilities under the Securities Act of 1933, or to contribution by us with respect to payments which the underwriters or agents may be required to make in respect thereof. Underwriters, agents, dealers and remarketing firms may be customers of, engage in transactions with, or perform services for us and our subsidiaries and affiliates in the ordinary course of business.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information into this prospectus, which means that we can disclose important information to you by referring you to other documents filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus. We incorporate by reference the following documents that we filed with the SEC (SEC file number 1-14465):
| • | Annual Report on Form 10-K for the year ended December 31, 2021, filed on February 17, 2022, |
| • | Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed on May 5, 2022, and |
| • | Description of our common stock contained in Exhibit 4.10 of our Annual Report on Form 10-K for the year ended December 31, 2020, and any amendment or report filed for the purpose of updating such description. |
We also incorporate by reference all documents we subsequently file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before we terminate the offering. We are not incorporating by reference any documents or portions of documents that are not deemed “filed” with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K.
Any statement contained in a document incorporated or deemed to be incorporated by reference or deemed to be part of the prospectus shall be deemed to be modified or superseded for purposes of the prospectus to the extent that a statement contained in the prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference or deemed to be part of the prospectus modifies or replaces such statement. Any statement so modified or superseded shall not be deemed to constitute part of the prospectus for purposes of the Securities Act.
We will provide to each person, including any beneficial owner, upon request, to whom this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may obtain a copy of this information at no cost, by written or oral request to us at the following address:
Shareowner Services
IDACORP, Inc.
1221 West Idaho Street
Boise, ID 83702
Telephone 208-388-2200
You may also access these documents at our website at http://www.idacorpinc.com.
We take responsibility only for information contained or incorporated by reference in this prospectus, the applicable prospectus supplement, and the applicable pricing supplement, if any. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus is accurate as of the date of this prospectus only. Our business, financial condition and results of operations may have changed since that date.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of that site is http://www.sec.gov. Information about us is also available at our website at http://www.idacorpinc.com. However, the information on our website is not a part of this prospectus.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC relating to the securities covered by this prospectus. This prospectus does not contain all the information included in the registration statement. You may review a copy of the registration statement on the SEC’s internet site referred to above.
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Unless otherwise indicated in the applicable prospectus supplement, Perkins Coie LLP, Seattle, Washington, and Patrick A. Harrington, Vice President, General Counsel and Corporate Secretary of IDACORP, Inc., will pass upon the validity of the securities and other legal matters for us. Unless otherwise indicated in the applicable prospectus supplement, Sullivan & Cromwell LLP, Los Angeles, California, will pass upon the validity of the securities for any underwriter, dealer or agent. Sullivan & Cromwell LLP or other counsel identified in an applicable prospectus supplement may, for matters governed by the laws of the state of Idaho, rely upon the opinion of Perkins Coie LLP and Mr. Harrington or such other counsel identified in the applicable prospectus supplement. Mr. Harrington owns shares of restricted common stock of IDACORP, Inc. acquired under employee benefit plans and participates in various employee benefit plans offered to employees of IDACORP, Inc. and its primary subsidiary, Idaho Power Company.
The financial statements of IDACORP, Inc. incorporated by reference in this prospectus, and the effectiveness of IDACORP, Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are incorporated by reference in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods ended March 31, 2022 and 2021 which is incorporated by reference herein, Deloitte & Touche LLP, an independent registered public accounting firm, have applied limited procedures in accordance with the standards of the Public Company Accounting Oversight Board (United States) for a review of such information. However, as stated in their report included in IDACORP, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 and incorporated by reference herein, they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Deloitte & Touche LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their report on the unaudited interim financial information because that report is not a “report” or a “part” of the registration statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Securities Act of 1933.
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PROSPECTUS
FIRST MORTGAGE BONDS
DEBT SECURITIES
We may offer from time to time, in one or more series:
| • | our first mortgage bonds, and |
| • | our unsecured debt securities |
We may offer these securities in any combination in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. Before you invest, you should carefully read this prospectus and any supplements, as well as the information that we incorporate by reference in this prospectus.
We may offer these securities directly or through underwriters, agents or dealers, as described in the “Plan of Distribution.” The supplements to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements.
Our principal executive offices are located at 1221 West Idaho Street, Boise, Idaho 83702-5627, and our telephone number is (208) 388-2200.
Investing in our securities involves risks. Please see “Risk Factors” on page 2 of this prospectus as well as the risk factors in our most recent Annual Report on Form 10-K and in any other reports we file pursuant to the Securities Exchange Act of 1934 that we incorporate by reference in this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is May 16, 2022
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This prospectus is part of a registration statement on Form S-3 that Idaho Power Company filed with the U.S. Securities and Exchange Commission (the “SEC”) using the “shelf” registration process. Under this shelf registration process, we may from time to time sell the securities described in this prospectus in one or more offerings. This prospectus provides a general description of the securities. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. That prospectus supplement may include or incorporate by reference a detailed and current discussion of risk factors and will discuss special considerations applicable to those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under “Where You Can Find More Information.” If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information contained in that prospectus supplement.
No person is authorized to give any information or to make any representations other than those contained or incorporated by reference in this prospectus, the applicable prospectus supplement, and the applicable pricing supplement, if any, and, if given or made, such information or representations must not be relied upon as having been authorized. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in this prospectus or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus, the applicable prospectus supplement or any applicable pricing supplement, nor any sale made hereunder, shall under any circumstances create any implication that there has been no change in our affairs since the date of this prospectus, or that the information contained or incorporated by reference in this prospectus is correct as of any time subsequent to the date of such information.
The distribution of this prospectus, the applicable prospectus supplement and any applicable pricing supplement and the offering of the securities in certain jurisdictions may be restricted by law. This prospectus does not constitute an offer, or any invitation on our behalf, to subscribe to or purchase any of the securities, and may not be used for or in connection with an offer or solicitation by anyone, in any jurisdiction in which such an offer or solicitation is not authorized or to any person to whom it is unlawful to make such an offer or solicitation.
Unless we indicate otherwise, or the context otherwise requires, references in this prospectus to the “company,” “we,” “us” and “our” or similar terms are to Idaho Power Company and its subsidiary.
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Investing in our securities involves risks. Before making a decision to invest in our securities, you should carefully consider the risks and uncertainties discussed in “Risk Factors,” “Cautionary Note Regarding Forward-Looking Statements” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, each of which is incorporated by reference into this prospectus. You should also consider the risk factors described in any accompanying prospectus supplement or any documents we incorporate by reference in the future. See “Where You Can Find More Information.”
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act of 1934, as amended (the “Exchange Act”), which are subject to the safe harbor created by the Private Securities Litigation Reform Act of 1995. Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions, future events, or performance, often, but not always, through the use of words or phrases such as “anticipates,” “believes,” “continues,” “could,” “estimates,” “expects,” “guidance,” “intends,” “potential,” “plans,” “predicts,” “projects,” “may result,” “may continue,” or similar expressions, are not statements of historical facts and may be forward-looking. Forward-looking statements are not guarantees of future performance and involve estimates, assumptions, risks, and uncertainties. Actual results, performance, or outcomes may differ materially from the results discussed in the statements. In addition to any assumptions and other factors and matters referred to specifically in connection with such forward-looking statements, factors that could cause actual results or outcomes to differ materially from those contained in forward-looking statements include those factors discussed in our filings with the SEC, including the Form 10-K, the Forms 10-Q and the Forms 8-K incorporated by reference in this prospectus, and we refer you to those reports for further information, as well as the following important factors:
| • | the effect of decisions by the Idaho and Oregon public utilities commissions and the Federal Energy Regulatory Commission that impact Idaho Power’s ability to recover costs and earn a return on investment; |
| • | changes to or the elimination of Idaho Power’s regulatory cost recovery mechanisms; |
| • | the ongoing impacts of COVID-19 and its variants, and government mandates related to COVID-19 vaccines, masking, and testing, on the global and regional economy and on Idaho Power’s employees, customers, contractors, and suppliers, including on loads and revenues, uncollectible accounts, transmission revenues, supply chain availability, attrition of skilled workers, and other aspects of the economy and the companies’ business; |
| • | changes in residential, commercial, and industrial growth and demographic patterns within Idaho Power’s service area, and their associated impacts on loads and load growth, and the availability of regulatory mechanisms that allow for timely cost recovery through customer rates in the event of those changes; |
| • | abnormal or severe weather conditions (including conditions and events associated with climate change), wildfires, droughts, earthquakes, and other natural phenomena and natural disasters, which affect customer sales, hydropower generation levels, repair costs, service interruptions, liability for damage caused by utility property, and the availability and cost of fuel for generation plants or purchased power to serve customers; |
| • | advancement of self-generation, energy storage, energy efficiency, alternative energy sources, and other technologies that may reduce Idaho Power’s sale or delivery of electric power or introduction of operational or cyber-security vulnerabilities to the power grid; |
| • | acts or threats of terrorist incidents, acts of war, social unrest, cyber or physical security attacks, and other malicious acts of individuals or groups seeking to disrupt Idaho Power’s operations or the electric power grid or compromise data, or the disruption or damage to the companies’ business, operations, or reputation resulting from such events; |
| • | the expense and risks associated with capital expenditures for, and the permitting and construction of, utility infrastructure that Idaho Power may be unable to complete or may not be deemed prudent by regulators for cost recovery or a return on investment; |
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| • | demand for power during peak periods could exceed supply, resulting in increased costs for purchasing capacity in the market or acquiring or constructing additional generation resources and battery storage facilities; |
| • | variable hydrological conditions and over-appropriation of surface and groundwater in the Snake River Basin, which may impact the amount of power generated by Idaho Power’s hydropower facilities; |
| • | the ability of Idaho Power to acquire fuel, power, electrical equipment, and transmission capacity on reasonable terms and prices, particularly in the event of unanticipated or abnormally high power demands, price volatility, lack of physical availability, transportation constraints, outages due to maintenance or repairs to generation or transmission facilities, disruptions or delays in the supply chain, or a lack of credit; |
| • | disruptions or outages of Idaho Power’s generation or transmission systems or of any interconnected transmission systems, which can result in liability for Idaho Power, increase power supply costs and repair expenses, and reduce revenues; |
| • | accidents, terrorist acts, electrical contacts, fires (either affecting or caused by Idaho Power facilities or infrastructure), explosions, general system damage or dysfunction, intentional acts of destruction, uncontrolled release of water from hydropower dams, and other unplanned events that may occur while operating and maintaining assets, which can cause unplanned outages; reduce generating output, damage company assets, operations, or reputation; subject Idaho Power to third-party claims for property damage, personal injury, or loss of life; or result in the imposition of fines and penalties for which Idaho Power may have inadequate insurance coverage; |
| • | the increased purchased power costs and operational challenges associated with purchasing and integrating intermittent renewable energy sources into Idaho Power’s resource portfolio; |
| • | Idaho Power’s concentration in one industry and one region and the lack of diversification, and the resulting exposure to regional economic conditions and regional legislation and regulation; |
| • | employee workforce factors, including the operational and financial costs of unionization or the attempt to unionize all or part of the companies’ workforce, the impact of an aging workforce and retirements, the cost and ability to attract and retain skilled workers and third-party vendors, the cost of living and the related impact on recruiting employees, and the ability to adjust the labor cost structure when necessary; |
| • | failure to comply with state and federal laws, regulations, and orders, including interpretations and enforcement initiatives by regulatory and oversight bodies, which may result in penalties and fines and increase the cost of compliance and remediation; |
| • | changes in tax laws or related regulations or interpretations of applicable laws by federal, state, or local taxing jurisdictions, and the availability of tax credits, and the tax rates payable by IDACORP shareholders on common stock dividends; |
| • | adoption of, changes in, and costs of compliance with, laws, regulations, and policies relating to the environment, climate change, natural resources, and threatened and endangered species, and the ability to recover associated increased costs through rates; |
| • | the inability to timely obtain and the cost of obtaining and complying with required governmental permits and approvals, licenses, rights-of-way, and siting for transmission and generation projects and hydropower facilities; |
| • | failure to comply with mandatory reliability and cyber and physical security requirements, which may result in penalties, reputational harm, and operational changes; |
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| • | the impacts of economic conditions, including inflation, interest rates, supply costs, population growth or decline in Idaho Power’s service area, changes in customer demand for electricity, revenue from sales of excess power, credit quality of counterparties and suppliers, and the collection of receivables; |
| • | the ability to obtain debt and equity financing or refinance existing debt when necessary and on favorable terms, which can be affected by factors such as credit ratings, volatility or disruptions in the financial markets, interest rate fluctuations, decisions by the Idaho or Oregon public utility commissions, and the companies’ past or projected financial performance; |
| • | the ability to enter into financial and physical commodity hedges with creditworthy counterparties to manage price and commodity risk for fuel, power, and transmission, and the failure of any such risk management and hedging strategies to work as intended; |
| • | changes in actuarial assumptions, changes in interest rates, increasing health care costs, and the actual and projected return on plan assets for pension and other post-retirement plans, which can affect future pension and other postretirement plan funding obligations, costs, and liabilities and the companies’ cash flows; |
| • | the assumptions underlying the coal mine reclamation obligations at Bridger Coal Company and related funding and bonding requirements, and the remediation costs associated with planned exits from participation in Idaho Power’s co-owned coal plants; |
| • | the ability to continue to pay dividends and achieve target-payout ratios based on financial performance, and in light of credit rating considerations, contractual covenants and restrictions, and regulatory limitations; and |
| • | adoption of or changes in accounting policies and principles, changes in accounting estimates, and new Securities and Exchange Commission or New York Stock Exchange requirements, or new interpretations of existing requirements. |
Any forward-looking statement speaks only as of the date on which such statement is made. New factors emerge from time to time and it is not possible for management to predict all such factors, nor can it assess the impact of any such factor on the business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statement. Idaho Power disclaims any obligation to update publicly any forward-looking information, whether in response to new information, future events, or otherwise, except as required by applicable law.
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We are an electric utility incorporated under the laws of the State of Idaho in 1989 as successor to a Maine corporation organized in 1915 and began operations in 1916. In 1998, we reorganized into a holding company structure and became the principal subsidiary of IDACORP, Inc. IDACORP, Inc. owns all of our outstanding common stock.
We are engaged in the generation, transmission, distribution, sale and purchase of electric energy. Our service area covers approximately 24,000 square miles in southern Idaho and eastern Oregon, with an estimated population of one million. We hold franchises in 72 cities in Idaho and seven cities in Oregon and hold certificates from the respective public utility regulatory authorities to serve all or a portion of 25 counties in Idaho and three counties in Oregon. We are the parent of Idaho Energy Resources Co., a joint venturer in Bridger Coal Company, which mines and supplies coal to the Jim Bridger generating plant that we own in part. As of March 31, 2022, we supplied electric energy to over 607,000 retail customers. We own and operate 17 hydroelectric generating plants, three natural gas-fired plants, and one diesel-powered generator, and share ownership in two coal-fired generating plants. We rely heavily on hydroelectric power for our generating needs.
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DESCRIPTION OF FIRST MORTGAGE BONDS
As used under this caption, “Description of First Mortgage Bonds,” references to “we,” “us,” “our” and other similar references mean Idaho Power Company, excluding, unless otherwise expressly stated or the context otherwise requires, its subsidiary.
We will issue the first mortgage bonds offered in this prospectus under our Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937. Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Company, is the trustee. We have amended and supplemented the indenture in the past and will supplement it again by one or more supplemental indentures relating to these first mortgage bonds.
This section briefly summarizes the material provisions of the indenture and supplemental indentures, which we refer to collectively as the indenture in this section, and uses some terms that are not defined in this prospectus but are defined in the indenture. This summary is not complete and we qualify it by reference to the indenture. The indenture is on file with the SEC, and we incorporate it by reference in this prospectus. You should read the indenture for a complete understanding of its provisions and for the definitions of some terms used in this summary. In the summary below, we include references to section numbers of the indenture so that you can easily locate those provisions.
Our issuance of long-term indebtedness, including first mortgage bonds, is subject to the approval of the Idaho Public Utilities Commission (“IPUC”), the Public Utility Commission of Oregon (“OPUC”), and the Wyoming Public Service Commission (“WPSC”). In March 2019, we filed applications with the IPUC, OPUC, and WPSC to renew our debt financing authority. In April 2019, Idaho Power received orders from the IPUC, OPUC, and WPSC authorizing the issuance and sale from time to time of up to $500 million in aggregate principal amount of debt securities and first mortgage bonds, subject to conditions specified in the orders. Authority from the IPUC is through May 31, 2022, subject to extension upon request to the IPUC. The OPUC’s and WPSC’s orders do not impose a time limitation for issuances, but the OPUC order does impose a number of other conditions, including a maximum interest rate limit of 7.0 percent. In April 2022, we filed applications with the IPUC, OPUC, and WPSC to renew our debt financing authority, requesting authorization of the issuance and sale from time to time of up to $1.2 billion in aggregate principal amount of debt securities and first mortgage bonds, subject to conditions specified in the orders. As of the date of this prospectus, these applications remain pending.
Issuance in Series. We issue bonds in series. Each series of bonds may have different terms. We will include all of the following information about a specific series of bonds in the prospectus supplement relating to those bonds:
| • | the designation and series of the bonds, |
| • | the aggregate principal amount of the bonds, |
| • | the offering price of the bonds, |
| • | the date or dates on which the bonds will mature, |
| • | the interest rate or rates for the bonds, or how we will determine the interest rate or rates, |
| • | the dates on which we will pay the interest on the bonds, |
| • | the denominations in which we may issue the bonds, |
| • | the terms pursuant to which we may redeem the bonds, if any, |
| • | whether we will issue all or a portion of the bonds in global form, and |
| • | any other terms or provisions relating to the bonds that are not inconsistent with the provisions of the indenture. |
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Form and Exchange. Unless we state otherwise in the prospectus supplement:
| • | we will issue the bonds in fully registered form without coupons, |
| • | a holder of bonds may exchange bonds, without charge, for an equal aggregate principal amount of bonds of the same series, having the same issue date and with identical terms and provisions, and |
| • | a holder of bonds may transfer bonds, without charge, other than applicable stamp taxes or other governmental charges. |
See “Book-Entry System” for a description of additional requirements as to the form and method of exchange of bonds. We will describe any additional requirements as to the form and method of exchange of bonds in the prospectus supplement.
Interest and Payment. We will pay principal, premium, if any, and interest in U.S. dollars at Deutsche Bank Trust Company Americas in New York City, and, at our option, at our office in Boise, Idaho. Indenture, Section 35
Maintenance Requirements. We will file a certificate with the corporate trustee within 90 days after the close of each calendar year stating that:
| • | we have made the necessary expenditures to maintain our property in good condition as an operating system, or |
| • | we will designate an additional amount that should be spent for this purpose. |
If we designate an additional amount, we must deliver to the corporate trustee, within 30 days, cash equal to that amount less the following deductions:
| • | expenditures made after the close of the year to maintain the property, and |
| • | any allowances for waiver of our right to issue additional bonds under the indenture. Indenture, Section 38 |
We may withdraw this cash for reimbursement for later expenditures on:
| • | property maintenance, repairs, renewals and replacements, |
| • | waiver of our right to issue additional bonds under the indenture, or |
| • | the purchase or redemption of bonds of any series, unless a supplemental indenture provides otherwise for a particular series of bonds. |
We must spend or appropriate 15% of our annual gross operating revenues for maintenance, retirement or amortization of our properties. We may, however, anticipate or make up these expenditures or appropriations within the five years that immediately follow or precede a particular year. Indenture, Section 38; Second Supplemental, Section 15
Improvement or Sinking Fund. There is no sinking or improvement fund requirement. Twenty-seventh Supplemental, Section 14
Security. The indenture secures all bonds issued under the indenture equally and ratably, without preference, priority or distinction. We may issue additional first mortgage bonds in the future, and those first mortgage bonds will also be secured by the indenture. The lien of the indenture constitutes a first mortgage on all the properties that we own, except as discussed below, subject only to liens for taxes and assessments that are not delinquent and minor excepted encumbrances. Certain of our properties are subject to easements, leases, contracts, covenants, workmen’s compensation awards and similar encumbrances and minor defects and clouds common to properties, which do not interfere in any material respect with our operations.
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The indenture does not create a lien on the following excepted property:
| • | revenues or profits, or notes or accounts receivable, contracts or choses in action, except as permitted by law during a completed default, |
| • | securities or cash, except when pledged, or |
| • | merchandise or equipment manufactured or acquired for resale. |
The indenture creates a lien on our interest in property that we subsequently acquire other than excepted property, subject to limitations in the case of consolidation, merger or sale of substantially all our assets. Indenture, Section 87
We have covenanted to execute and deliver instruments that are necessary to carry out the purposes of the indenture and to create a lien on after-acquired property that the indenture covers. Granting Clauses
The indenture does not contain any covenants or other provisions to provide holders of the first mortgage bonds special protection in the event of a highly leveraged transaction.
Issuance of Additional Bonds. The indenture limits the aggregate principal amount of bonds at any one time outstanding to $2.5 billion. We may amend the indenture and increase this amount without consent of the holders of first mortgage bonds. Indenture, Sections 22 and 121; Forty-eighth Supplemental, Article I
The indenture contains some restrictions on increasing the amount of prior lien bonds, which are bonds, obligations or principal indebtedness secured by any mortgage or other lien upon any property additions prior to the lien of the indenture. Indenture, Sections 6 and 46
We may issue additional bonds that rank equally with the bonds in principal amount equal to:
| • | 60% of the cost or fair value, whichever is less, of property additions made after December 31, 1943, less the amount of prior lien bonds thereon, Indenture, Article V, Second Supplemental, Sections 10 and 13 |
| • | the principal amount of first mortgage bonds or prior lien bonds referred to above, retired or then to be retired, Indenture, Articles V and VI or |
| • | the amount of cash that we deposit with the corporate trustee for the purpose, which we may withdraw on the same basis as bonds may be issued. Indenture, Article VII |
We may not issue bonds as provided above, with certain exceptions, unless we meet a net earnings requirement. Generally, the indenture requires that our net earnings must be at least twice the annual interest requirements on all outstanding debt of equal or prior rank, including the bonds that we propose to issue. Under certain circumstances, the net earnings test does not apply, including the issuance of refunding bonds to retire outstanding bonds which mature in less than two years or which are of an equal or higher interest rate, or prior lien bonds.
We calculate net earnings before deduction of:
| • | property retirement expenses, depreciation or depletion, |
| • | interest expense on indebtedness, |
| • | amortization of debt discount and expense, and |
| • | any taxes measured by or dependent on net income. |
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We may include only a limited amount of revenue from property not subject to the lien of the indenture in net earnings. Indenture, Sections 7, 27 and Article VI
Property additions consist of electric or gas property, or property used in connection therewith. Property additions exclude securities, contracts or choses in action, merchandise and equipment for consumption or resale, materials and supplies, property used principally for production or gathering of natural gas, or any power sites and uncompleted works under Idaho state permits. In determining net property additions, we deduct all retired funded property from gross property additions except to the extent of certain credits with respect to released funded property. Indenture, Section 4 The indenture restricts issuance of bonds and taking other credits under the indenture based on property additions subject to prior liens to no more than 15% of all bonds outstanding. However, the prior liens must not exceed 50% of the cost or fair value, whichever is less, of these property additions. Indenture, Section 26
As of March 31, 2022, we could issue under the indenture approximately $2.1 billion of additional first mortgage bonds based on unfunded property additions and retired first mortgage bonds.
Release of Properties. Generally, we may release property from the lien of the indenture by doing the following:
| • | depositing cash with the corporate trustee, |
| • | substituting property additions, or |
| • | waiving our right to issue additional bonds on the basis of retired bond credits, without application of the net earnings test. |
Indenture, Section 59
Actions Without Trustee’s Release or Consent. Unless we are in default in the payment of interest on any outstanding bonds or one or more of the completed defaults described under the caption “Events of Default” below have occurred and are continuing, we may, without the trustee’s release or consent, and without providing a report to the trustee or depositing with it the consideration we receive:
| • | sell or otherwise dispose of any machinery, equipment, tools, implements or other property, which has become old, inadequate, obsolete, worn out, unfit or unadapted for use in our operations, after we replace that property with other property which has at least equal value and is subject to no additional liens, |
| • | cancel or make changes or alterations in or substitutions of any contracts, leases or rights of way grants, or |
| • | surrender or assent to the modification of any right, power, franchise, license, governmental consent or permit under which we may be operating, if, in the opinion of our board of directors, stated in a resolution filed with the corporate trustee, the surrender or modification is desirable in the conduct of our business and does not impair the security of outstanding bonds. |
Indenture, Section 58
Amendment of the Indenture. Generally we may modify or amend the indenture with the consent of the holders of 60% in principal amount of all outstanding first mortgage bonds. However, when an amendment does not affect all series of first mortgage bonds, holders of 60% of the principal amount of all outstanding first mortgage bonds of each series affected must also consent to the amendment.
Unless each bondholder consents, we cannot make the following modifications:
| • | impair the right of any bondholder to receive payment on its bond when due or to sue for any overdue payment, |
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| • | create any lien equal or prior to the lien of the indenture, |
| • | deprive any bondholder of a lien upon the mortgaged and pledged property, or |
| • | reduce the bondholder vote necessary to amend the indenture. |
Indenture, Sections 113, 121; Twenty-third Supplemental, Section 9; Thirty-sixth Supplemental, Section 9
Events of Default. The following are defaults, sometimes called completed defaults, under the indenture:
| • | failure to pay the principal of any bond when due and payable whether at maturity or otherwise, |
| • | failure to pay interest on any bond for 60 days, |
| • | failure to pay principal of or interest on any outstanding prior lien bond beyond the grace period, if any, in the prior lien bond, |
| • | failure to observe a covenant not to, without the trustee’s written approval: |
| • | go into voluntary bankruptcy or insolvency, apply for or consent to the appointment of a receiver or trustee for us or our property in any judicial proceedings or make any general assignment for the benefit of creditors, or |
| • | suffer to be made and remain unvacated for a period of 90 days any order for the appointment of a receiver or trustee for us or our property in any proceeding instituted by a creditor, or any final order appointing such a receiver or trustee in any other proceeding or any order adjudicating us to be bankrupt or insolvent, or |
| • | failure to perform other covenants, agreements or conditions contained in the indenture for 90 days after the trustee gives us notice. |
Indenture, Section 65
Discharge. The indenture will be cancelled and discharged when all indebtedness secured by the indenture is paid, including charges of the trustee.
In addition, first mortgage bonds will be considered paid and not to be outstanding for any purpose under the indenture when we have irrevocably deposited with the trustee
| • | sufficient cash, or |
| • | an amount of direct obligations of, or obligations guaranteed by, the United States government or obligations which are collateralized by obligations of the United States government which, in the opinion of an independent accountant and the opinion of our officers, will provide sufficient funds, without regard to reinvestment thereof, together with any deposited cash to pay when due the principal of, and premium, if any, and interest to the maturity date or redemption date of such first mortgage bonds, provided that in the case of redemption, proper notice shall have been given or appropriate arrangements have been made with the trustee for the giving of notice. |
Indenture, Section 106 and Twenty-seventh Supplemental, Section 10
Miscellaneous. The indenture provides that the trustee, upon request of the holders of a majority in interest of the outstanding first mortgage bonds, if properly indemnified to its satisfaction, must take action to enforce the lien of the indenture. Indenture, Section 92; Sixth Supplemental, Article XXIII
We covenant in the indenture to deliver a certificate to the trustee annually, within 90 days after the close of the fiscal year, to show that we are in compliance with the terms of the indenture and that we have not defaulted under the indenture. Various supplemental indentures
Concerning the Corporate Trustee. We and our affiliates may conduct banking transactions with the trustee in the normal course of business.
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DESCRIPTION OF DEBT SECURITIES
As used under this caption, “Description of Debt Securities,” references to “we,” “us,” “our” and other similar references mean Idaho Power Company, excluding, unless otherwise expressly stated or the context otherwise requires, its subsidiary.
We will issue the debt securities offered in this prospectus under our Debt Securities Indenture, dated as of August 1, 2001. Deutsche Bank Trust Company Americas is the trustee under the indenture. We may amend and supplement the indenture and will supplement it by one or more supplemental indentures relating to these debt securities.
This section briefly summarizes the material provisions of the debt securities indenture and uses some terms that are not defined in this prospectus but are defined in the indenture. This summary is not complete and we qualify it by reference to the indenture. The indenture is on file with the SEC, and we incorporate it by reference in this prospectus. You should read the indenture for a complete understanding of its provisions and for the definition of some terms used in this summary. In the summary below, we include references to section numbers of the indenture so that you can easily locate these provisions.
As noted above, in April 2019, Idaho Power received orders from the IPUC, OPUC, and WPSC authorizing the issuance and sale from time to time of up to $500 million in aggregate principal amount of debt securities and first mortgage bonds, subject to conditions specified in the orders. Authority from the IPUC is through May 31, 2022, subject to extension upon request to the IPUC. The OPUC’s and WPSC’s orders do not impose a time limitation for issuances, but the OPUC order does impose a number of other conditions, including a maximum interest rate limit of 7.0 percent. In April 2022, we filed applications with the IPUC, OPUC, and WPSC to renew our debt financing authority, requesting authorization of the issuance and sale from time to time of up to $1.2 billion in aggregate principal amount of debt securities and first mortgage bonds, subject to conditions specified in the orders. As of the date of this prospectus, these applications remain pending.
Other Indebtedness. The indenture does not limit the amount of debt securities that we may issue; it does not restrict the amount or type of other debt that we may issue or contain any other provisions that would afford holders of the debt securities protection in the event of a highly leveraged transaction. We may use other indentures or documentation containing provisions different from those included in the indenture under which we are offering these debt securities in connection with future issues of debt securities. We may also offer our first mortgage bonds, which are secured indebtedness and which are described above under the caption “Description of First Mortgage Bonds.” As of March 31, 2022, there was approximately $2.1 billion in aggregate principal amount of our first mortgage bonds outstanding.
Security, Ranking and Subordination. The debt securities that we may issue under this indenture will be unsecured. The debt securities that we are offering in this prospectus will rank equal in right of payment to our other unsecured indebtedness that is outstanding now or that we may issue in the future, except for any indebtedness that, by its terms, is subordinate to these debt securities.
Issuance in Series. We will issue debt securities in series. Each series of debt securities may have different terms and, in some cases, debt securities of the same series may have different terms. The prospectus supplement relating to a particular series of debt securities will contain the following information about those debt securities:
| • | the title of the series, |
| • | any limit on the aggregate principal amount of the series, |
| • | the date or dates on which we will issue the debt securities of that series and on which we will pay the principal amount and any premium, |
| • | the rate or rates at which the debt securities of that series will bear interest, or how we will determine the rate or rates, |
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| • | the date or dates from which interest will accrue, |
| • | the dates on which we will pay interest on the debt securities of that series and the regular record dates for the interest payment dates, |
| • | the place or places where we will pay the principal of, premium, if any, and interest, if different from those we describe in this prospectus, |
| • | any redemption terms, including mandatory redemption through a sinking fund or otherwise, redemption at our option and redemption at the option of the holder, |
| • | the denominations in which we will issue the debt securities of that series, if other than denominations of $1,000 and any integral multiple of $1,000, |
| • | the provisions for the satisfaction and discharge of the indenture if different from those we describe in this prospectus, and |
| • | any other terms of the debt securities of the series. |
Form and Exchange. Unless we state otherwise in the prospectus supplement:
| • | we will issue the debt securities in fully registered form without coupons, |
| • | a holder of debt securities may exchange debt securities, without charge, for an equal aggregate principal amount of debt securities of the same series, having the same issue date and with identical terms and provisions, and |
| • | a holder of debt securities may transfer debt securities, without charge, other than applicable stamp taxes or other governmental charges. |
Indenture, Sections 3.1, 3.2 and 3.6
Unless we state otherwise in the prospectus supplement, the transfer of debt securities may be registered and exchanged at the corporate trust office of the trustee, in New York, New York, as security registrar. We may change the place for registration of transfer and exchange. We may designate one or more additional places for registration and exchange, all at our discretion.
We are not required to execute or to provide for the registration of transfer or exchange of any debt security
| • | during a period of 15 days prior to giving any notice of redemption with respect to that debt security, or |
| • | that has been selected for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. |
Indenture, Sections 3.6 and 4.2
See “Book-Entry System” for a description of additional requirements as to the form and method of exchange of debt securities. We will describe any additional requirements as to the form and method of exchange of debt securities in the prospectus supplement. Indenture, Section 3.1
Payment of Interest. Unless we state otherwise in the prospectus supplement, we will pay interest on each debt security to the person in whose name the debt security is registered as of the close of business on the regular record date for that interest payment date. If we have defaulted in the payment of interest on any debt security, we may pay the defaulted interest to the holder of the debt security as of the close of business on a special record date that is not less than 10 days prior to the date we propose to pay the defaulted interest. Notice of the special record date will be given by mail at least 15 days before the special record date. We may also pay defaulted interest in any other lawful manner permitted by requirements of any securities exchange on which the debt security may be listed, if the trustee deems that manner of payment practicable. Indenture, Section 3.8
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Unless we state otherwise in the prospectus supplement, we will pay the principal of and premium, if any, and interest at maturity at the corporate trust office of the trustee, in New York, New York, as our paying agent. We may change the place of payment. We may appoint one or more additional paying agents and may remove any paying agent, all at our discretion. Indenture, Section 4.2
Redemption. We will describe any terms for the optional or mandatory redemption of a particular series of debt securities in the prospectus supplement. Unless we state in the prospectus supplement that the debt securities of that series are redeemable at the option of a holder, debt securities will be redeemable only at our option. In order to exercise our right to redeem any debt security, we must give the holder notice by mail at least 30 days prior to the date fixed for redemption. If we want to redeem fewer than all the debt securities of a series, the trustee will choose the particular debt securities to be redeemed by a method of random selection, substantially pro rata, that the trustee believes is fair and appropriate and which complies with the requirements of the principal national securities exchange, if any, on which the debt securities of that series are listed. If the debt securities to be redeemed have different terms and different maturities, we may select the particular debt securities to be redeemed.
Unless we state otherwise in the prospectus supplement, if we are redeeming the debt securities at our option, the redemption will be conditional upon the paying agent or agents receiving from us, on or prior to the date fixed for redemption, enough money to redeem all of the debt securities called for redemption, including accrued interest, if any. If sufficient money has not been received, the notice will not be effective and we will not be required to redeem the debt securities. Indenture, Section 14.2
Consolidation, Merger or Sale. The indenture provides that we will not consolidate with, merge with or into any other person, whether or not we are the survivor, or sell, assign, transfer or lease all or substantially all of our properties and assets as an entirety or substantially as an entirety to any person or group of affiliated persons, in one transaction or a series of related transactions, unless:
| • | the successor person, if we are not the survivor, is a person organized under the laws of the United States or any state thereof or the District of Columbia and expressly assumes in writing, by a supplemental indenture, all of our obligations under the outstanding debt securities and the indenture, |
| • | immediately before and after giving effect to the transaction or series of transactions, no event of default, and no default, shall have occurred and be continuing, and |
| • | we deliver to the trustee an officer’s certificate and an opinion of counsel stating that the transaction and the supplemental indenture comply with the indenture. |
Indenture, Article Eleven
Events of Default. The following are events of default with respect to any series of debt securities:
| • | failure to pay the principal of, or premium, if any, on, any debt security of that series when due and payable at maturity, and upon redemption, and the time for payment has not been extended or deferred, but excluding any failure by us to deposit money in connection with any redemption that is at our option, |
| • | failure to pay interest on any debt security of that series when due and our failure continues for 30 days, and the time for payment has not been extended or deferred, |
| • | failure to make a sinking fund payment when due with respect to debt securities of that series, |
| • | failure to observe or perform any other covenant, warranty or agreement contained in the debt securities of that series or in the indenture, other than a covenant, agreement or warranty included in the indenture that is specifically dealt with in another event of default, and our failure continues for 60 days after the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have given us written notice, |
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| • | a court enters a decree or order for relief that remains unstayed and in effect for 60 consecutive days in respect of us in an involuntary case under any applicable bankruptcy, insolvency or similar law: |
| • | appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for us or for any substantial part of our property, or |
| • | ordering the winding up or liquidation of our affairs, |
| • | we commence a voluntary case under any applicable bankruptcy, insolvency or similar law, |
| • | we consent to the entry of an order for relief in an involuntary case under any applicable bankruptcy, insolvency or similar law, |
| • | we consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for us or for any substantial part of our property, |
| • | we make any general assignment for the benefit of creditors, and |
| • | any other event of default with respect to debt securities of that series specified in the applicable prospectus supplement. |
Indenture, Section 6.1
An event of default with respect to the debt securities of any series does not necessarily constitute an event of default with respect to any other series of debt securities issued under the indenture. Unless we cure the default, the trustee is required to give notice of any default known to it within 90 days after the default has occurred; the term “default” includes any event which after notice or passage of time or both would be an event of default. Except in the case of a default in payment, the trustee is protected in withholding notice if and so long as the board of directors, the executive committee or a trust committee of directors or responsible officers of the trustee in good faith determine that the withholding of notice is in the interest of the holders. Indenture, Section 6.11
If an event of default with respect to debt securities of any series, other than due to events of bankruptcy, insolvency or reorganization, occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice in writing to us, and to the trustee if given by the holders, may declare the unpaid principal of and accrued interest to the date of acceleration on all the outstanding debt securities of that series to be due and payable immediately. The holders of a majority of the principal amount of the outstanding debt securities of that series, upon the conditions provided in the indenture, may rescind an acceleration and its consequences with respect to that series.
If an event of default occurs due to bankruptcy, insolvency or reorganization, all unpaid principal of and accrued interest on the outstanding debt securities of all series will become immediately due and payable without any declaration or other act on the part of the trustee or any holder. Indenture, Section 6.1
The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, subject to the right of the trustee to decline to follow instructions that would be unlawful, expose the trustee to personal liability or be unduly prejudicial to the interests of holders who do not join in the direction. Indenture, Section 6.9
Subject to the provisions of the indenture relating to the duties of the trustee, if an event of default shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless the holders have offered to the trustee reasonable indemnity. Indenture, Section 7.2
The indenture provides that we must periodically file statements with the trustee regarding compliance by us with all conditions and covenants contained in the indenture. Indenture, Section 4.6
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Modification of Indenture. We may modify the indenture, without notice to or the consent of any holders of debt securities, with respect to certain matters, including:
| • | to add one or more covenants or other provisions for the benefit of holders of debt securities of one or more series or to surrender any of our rights or powers, and |
| • | to cure any ambiguity, defect or inconsistency or to correct or supplement any provision which may be inconsistent with any other provision of the indenture. |
Indenture, Section 10.1
In addition, we may modify certain of our rights and obligations and the rights of holders of the debt securities with the consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities affected by the modification. Indenture, Section 10.2
No amendment or modification may, without the consent of each holder of any outstanding debt security affected:
| • | change the stated maturity of any debt security, |
| • | reduce the principal amount of, or the rate of interest on, or the amount of any premium on, or any amount payable on redemption of, or extend the time for payment or change the method of calculating interest on, any debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon acceleration of maturity, |
| • | impair the right to institute suit for the enforcement of any payment with respect to any debt security, |
| • | reduce the percentage in principal amount of outstanding debt securities of any series necessary to modify or amend the indenture, or to waive compliance with certain provisions of the indenture or defaults or events of default and their consequences, or |
| • | subordinate any debt securities to any other of our indebtedness. |
Indenture, Section 10.2
Waiver. The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of any series may waive any default or event of default with respect to that series, except payment and bankruptcy defaults. Indenture, Section 6.10
Defeasance. Unless we state otherwise in the prospectus supplement relating to the debt securities of a particular series, the indenture provides that we shall be discharged from our obligations under the indenture with respect to any series of debt securities at any time prior to the maturity date or redemption of that series when we meet certain requirements specified in the indenture, including
| • | when we have irrevocably deposited in trust with the trustee: |
| • | sufficient funds to pay the principal of and premium, if any, and interest to the maturity date or redemption on, the debt securities of that series, or |
| • | an amount of direct obligations of, or obligations guaranteed by, the United States government as will be sufficient, without consideration of any reinvestment of any accrued income on those obligations, to pay when due the principal of and premium, if any, and interest to the maturity date or redemption on, the debt securities of that series, and |
| • | when we have paid all other sums payable with respect to the debt securities of that series. |
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Upon the discharge of the indenture with respect to a particular series, the holders of debt securities of that series shall no longer be entitled to the benefits of the indenture, except for purposes of registration of transfer, exchange and replacement of lost, stolen or mutilated debt securities. Indenture, Sections 12.1 and 12.2
Concerning the Trustee. We and our affiliates may conduct banking transactions with the trustee or its affiliates in the normal course of business.
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We may issue all or some of the first mortgage bonds and debt securities in book-entry form, which means that global notes, not certificates, will represent the securities. If we issue global notes representing any securities, the following provisions will apply to all book-entry securities:
Unless otherwise indicated in the applicable prospectus supplement, the Depository Trust Company, New York, NY, which we refer to as “DTC,” will act as securities depository for the securities. We will issue the securities as fully-registered securities registered in the name of Cede & Co., DTC’s partnership nominee, or such other name as may be requested by an authorized representative of DTC. We will issue one or more fully-registered security certificates for each issue of the securities, in the aggregate principal amount of the issue, and we will deposit the certificates with the corporate trustee to hold as agent for DTC. We and the trustee will treat Cede & Co. as the holder of the securities for all purposes.
DTC has informed us that it is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The DTC rules applicable to its participants are on file with the SEC. More information about DTC can be found at www.dtcc.com and www.dtc.org.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser, the beneficial owner, is in turn to be recorded on the direct and indirect participants’ records. Beneficial owners will not receive written confirmation from DTC of their purchase. Beneficial owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of direct and indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the securities, except in the event that use of the book-entry system for the securities is discontinued.
To facilitate subsequent transfers, all securities deposited with DTC are registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The direct and indirect participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants, and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements that may be in effect from time to time.
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Redemption notices will be sent to DTC. If less than all of the securities within an issue are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the issue to be redeemed.
Neither DTC nor Cede & Co., nor any other DTC nominee, will consent or vote with respect to the securities unless authorized by a direct participant in accordance with DTC’s money market instrument procedures. Under its usual procedures, DTC mails an omnibus proxy to the issuer as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to those direct participants to whose accounts the securities are credited on the record date, identified in a listing attached to the omnibus proxy.
Redemption proceeds and distributions, including principal and interest payments, on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us or the trustee on the payable date in accordance with their respective holdings shown on DTC’s records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in street name. Payment by participants to beneficial owners will be the responsibility of the participants and not of DTC, the trustee or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds and distributions to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility or the responsibility of the trustee. Disbursement of such payments to direct participants will be the responsibility of DTC, and disbursement of such payments to the beneficial owners will be the responsibility of direct and indirect participants.
In case of any optional tender for or mandatory purchase of securities, pursuant to their terms, a beneficial owner shall give notice to elect to have its securities purchased or tendered through its participant to the tender/remarketing agent and shall effect delivery of the securities by causing the direct participant to transfer the participant’s interest in the securities, on DTC’s records, to the tender/remarketing agent. The requirement for physical delivery of securities in connection with an optional tender or a mandatory purchase will be deemed satisfied when the ownership rights in the securities are transferred by direct participants on DTC’s records and followed by a book-entry credit of tendered securities to the tender/remarketing agent’s DTC account.
DTC may discontinue providing its services as depository with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depository is not obtained, security certificates are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry-only transfers through DTC, or a successor securities depository. In that event, security certificates will be printed and delivered to DTC.
Neither we, the trustee, any paying agent, nor the registrar for the securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global security or for maintaining, supervising or reviewing any records relating to these beneficial ownership interests.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof.
The underwriters, dealers or agents of any of the securities may be direct participants of DTC.
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Unless we state otherwise in the prospectus supplement, we will add the net proceeds from the sale of the securities to our general funds. We may use our general funds for any of the following purposes:
| • | to acquire property, |
| • | to construct, complete, extend or improve our electric facilities, |
| • | to improve or maintain our service, |
| • | to redeem, pay at maturity or purchase outstanding first mortgage bonds and debt securities, and |
| • | to repay short-term borrowings. |
The precise amount and timing of the application of such proceeds will depend on our funding requirements, market conditions and the availability and cost of other funds. If we do not use the proceeds immediately, we may temporarily invest them in short-term instruments.
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Methods of Offer and Sale
We may sell the securities offered by this prospectus:
| • | through underwriters or dealers, |
| • | through agents, |
| • | directly to one or more purchasers, or |
| • | through a combination of any of the above methods of sale. |
Through Underwriters or Dealers. If we use underwriters in the sale, the underwriters will buy the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of the sale. The underwriters may sell the securities directly or through underwriting syndicates that managing underwriters represent. Unless we state otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all of the securities if they purchase any of them.
If we use a dealer in the sale, we will sell those securities to the dealer as principal. The dealer may then resell the securities to the public at varying prices determined at the time of resale.
Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Through Agents. We may from time to time designate one or more agents to sell the securities. Unless we state otherwise in the prospectus supplement, any agent will agree to use its best efforts to solicit purchases for the period of its appointment.
Directly. We may sell the securities directly to one or more purchasers. In this case, there will be no underwriters or agents.
General Information
The prospectus supplement will state:
| • | the names of any underwriters, dealers or agents, and the amounts of securities underwritten, purchased or sold by each of them, |
| • | the terms of the securities offered, |
| • | the purchase price of the securities and the proceeds we will receive from the sale, |
| • | any initial public offering price, |
| • | any discounts or commissions and other items constituting underwriters’ or agents’ compensation, and |
| • | any discounts or concessions allowed or reallowed or paid to dealers. |
We may authorize agents, underwriters or dealers to solicit offers from certain institutions. We may sell the securities to these institutions for delayed delivery at a specified date in the future. At that time, they will pay the public offering price on the terms we describe in the prospectus supplement.
Underwriters, agents, dealers and remarketing firms may be entitled under agreements entered into with us to indemnification by us against civil liabilities, including liabilities under the Securities Act of 1933, or to contribution by us with respect to payments which the underwriters or agents may be required to make in respect thereof. Underwriters, agents, dealers and remarketing firms may be customers of, engage in transactions with, or perform services for us and our affiliates in the ordinary course of business.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information into this prospectus, which means that we can disclose important information to you by referring you to other documents filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus. We incorporate by reference the following documents that we filed with the SEC (SEC file number 1-3198):
| • | Annual Report on Form 10-K for the year ended December 31, 2021, filed on February 17, 2022, |
| • | Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed on May 5, 2022, and |
We also incorporate by reference all documents we subsequently file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before we terminate the offering. We are not incorporating by reference any documents or portions of documents that are not deemed “filed” with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K.
Some of these reports, however, are filed on a combined basis with our parent, IDACORP, Inc. Information contained in these reports relating to IDACORP, Inc. is filed by that company on its own behalf and not by us.
Any statement contained in a document incorporated or deemed to be incorporated by reference or deemed to be part of the prospectus shall be deemed to be modified or superseded for purposes of the prospectus to the extent that a statement contained in the prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference or deemed to be part of the prospectus modifies or replaces such statement. Any statement so modified or superseded shall not be deemed to constitute part of the prospectus for purposes of the Securities Act.
We will provide to each person, including any beneficial owner, upon request, to whom this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may obtain a copy of this information at no cost, by written or oral request to us at the following address:
Shareowner Services
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Telephone 208-388-2200
You may also access these documents at our website at http://www.idacorpinc.com.
We take responsibility only for information contained or incorporated by reference in this prospectus, the applicable prospectus supplement, and the applicable pricing supplement, if any. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus is accurate as of the date of this prospectus only. Our business, financial condition and results of operations may have changed since that date.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with the SEC. The SEC maintains an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of that site is http://www.sec.gov. Information about us is also available at our website at http://www.idahopower.com. However, the information on our website is not a part of this prospectus.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC relating to the securities covered by this prospectus. This prospectus does not contain all the information included in the registration statement. You may review a copy of the registration statement on the SEC’s internet site referred to above.
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Unless otherwise indicated in the applicable prospectus supplement, Perkins Coie LLP, Seattle, Washington, and Patrick A. Harrington, Vice President, General Counsel and Corporate Secretary of IDACORP, Inc., will pass upon the validity of the securities and other legal matters for us. Unless otherwise indicated in the applicable prospectus supplement, Sullivan & Cromwell LLP, Los Angeles, California, will pass upon the validity of the securities for any underwriter, dealer or agent. Sullivan & Cromwell LLP or other counsel identified in an applicable prospectus supplement may, for matters governed by the laws of the state of Idaho, rely upon the opinion of Perkins Coie LLP and Mr. Harrington or such other counsel identified in the applicable prospectus supplement. Mr. Harrington owns shares of restricted common stock of IDACORP, Inc. acquired under employee benefit plans and participates in various employee benefit plans offered to employees of IDACORP, Inc. and its primary subsidiary, Idaho Power Company.
The financial statements of Idaho Power Company incorporated by reference in this prospectus, and the effectiveness of Idaho Power Company’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are incorporated by reference in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods ended March 31, 2022 and 2021 which is incorporated by reference herein, Deloitte & Touche LLP, an independent registered public accounting firm, have applied limited procedures in accordance with the standards of the Public Company Accounting Oversight Board (United States) for a review of such information. However, as stated in their report included in Idaho Power Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 and incorporated by reference herein, they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Deloitte & Touche LLP are not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their report on the unaudited interim financial information because that report is not a “report” or a “part” of the registration statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Securities Act of 1933.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with the offering described in this Registration Statement:
| Registration fee |
$ | † | ||
| Accountants’ fees* |
* | |||
| Printing and engraving fees* |
* | |||
| Legal fees* |
* | |||
| Indenture recording fees* |
* | |||
| Trustee’s fees* |
* | |||
| Rating agency fees* |
* | |||
| Regulatory agency fees* |
* | |||
| Blue Sky fees and expenses* |
* | |||
| Other* |
* | |||
|
|
|
|||
| Total* |
$ | * | ||
|
|
|
| † | Pursuant to Rule 415(a)(6) under the Securities Act, an aggregate of $110,518 of filing fees previously paid in connection with unsold securities of IDACORP, Inc. registered pursuant to registration statement nos. 333-231555, 333-211475, 333-188768, 333-178023, 333-155498, 333-64737, and 333-83434 will continue to be applied to such unsold securities. Any remaining filings fees are being deferred pursuant to Rule 456(b) and will be calculated in connection with the offering of securities under this registration statement pursuant to Rule 457(r). |
| * | These expenses are calculated based on the securities offered and the number of issuances and, accordingly, cannot be estimated at this time. They will be provided as applicable by amendment or in a filing with the SEC pursuant to the Exchange Act, and incorporated herein by reference, or reflected in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers.
Sections 30-1-850 et seq. of the Idaho Business Corporation Act provide for indemnification of each registrant’s directors and officers in a variety of circumstances, which may include liabilities under the Securities Act of 1933, as amended.
Article VIII of IDACORP, Inc.’s Articles of Incorporation, as amended, and Article 12 of Idaho Power Company’s Restated Articles of Incorporation, as amended, each provides that the applicable registrant shall indemnify its directors and officers against liability and expenses and shall advance expenses to its directors and officers in connection with any proceeding to the fullest extent permitted by the Idaho Business Corporation Act as now in effect or as it may be amended or substituted from time to time. Article VI of IDACORP, Inc.’s Amended Bylaws and Article 6 of Idaho Power Company’s Amended Bylaws provide that each registrant shall have the power to purchase and maintain insurance on behalf of any director, officer, employee or agent against liability and expenses in connection with any proceeding, to the extent permitted under applicable law. Article VI of IDACORP, Inc.’s Amended Bylaws and Article 6 Idaho Power Company’s Amended Bylaws each further provides that the applicable registrant may enter into indemnification agreements with any director, officer, employee or agent to the extent permitted under any applicable law.
Pursuant to underwriting agreements filed or to be filed as exhibits to the registration statement relating to underwritten offerings of securities, the underwriters may agree to indemnify each of either registrants’ officers and directors and each person, if any, who controls such registrant within the meaning of the Securities Act of
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1933, against certain liabilities, including liabilities under said Act and to provide contribution in circumstances where indemnification is unavailable. Agency agreements may contain similar agreements.
Each registrant has liability insurance protecting its respective directors and officers against liability by reason of their being or having been directors or officers. The premium, payable solely by each registrant, is not separately allocable to the sale of the securities registered hereby. In addition, each registrant has entered into indemnification agreements with its directors and officers to provide for indemnification to the maximum extent permitted by law. See “Item 17. Undertakings” for a description of the Securities and Exchange Commission’s position regarding such indemnification provisions.
Item 16. Exhibits.
| Incorporated by Reference | ||||||||||||||||||||||
| Exhibit No. |
Exhibit Description | Form | File No. | Exhibit No. |
Date | Included Herewith |
||||||||||||||||
| 1.1 | Underwriting or selling agency agreement for IDACORP, Inc. common stock | † | ||||||||||||||||||||
| 1.2 | Underwriting or selling agency agreement for IDACORP, Inc. debt securities | † | ||||||||||||||||||||
| 1.3 | Underwriting or selling agency agreement for Idaho Power Company first mortgage bonds | † | ||||||||||||||||||||
| 1.4 | Underwriting or selling agency agreement for Idaho Power Company debt securities | † | ||||||||||||||||||||
| 2 | Agreement and Plan of Exchange between IDACORP, Inc. and Idaho Power Company, dated as of February 2, 1998 | S-4 | 333-48031 | A | 3/16/1998 | |||||||||||||||||
| 4.1 | Agreement and Plan of Merger dated March 10, 1989, between Idaho Power Company, a Maine Corporation, and Idaho Power Migrating Corporation (P) | |
S-3 Post- Effective Amend. No. 2 |
33-00440 | 2(a)(iii) | 6/30/1989 | ||||||||||||||||
| 4.2 | Restated Articles of Incorporation of Idaho Power Company as filed with the Secretary of State of Idaho on June 30, 1989 (P) | |
S-3 Post- Effective Amend. No. 2 |
33-00440 | 4(a)(xiii) | 6/30/1989 | ||||||||||||||||
| 4.3 | Statement of Resolution Establishing Terms of Flexible Auction Series A, Serial Preferred Stock, Without Par Value (cumulative stated value of $100,000 per share) of Idaho Power Company, as filed with the Secretary of State of Idaho on November 5, 1991 (P) | S-3 | 33-65720 | 4(a)(ii) | 7/7/1993 | |||||||||||||||||
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| Incorporated by Reference | ||||||||||||||||||||||
| Exhibit No. |
Exhibit Description | Form | File No. | Exhibit No. |
Date | Included Herewith |
||||||||||||||||
| 4.13 | Articles of Amendment to Articles of Incorporation of IDACORP, Inc. creating A Series Preferred Stock, without par value, as filed with the Secretary of State of Idaho on September 17, 1998 | |
S-3 Post- Effective Amend. No. 1 |
333-00139-99 | 3(b) | 9/22/1998 | ||||||||||||||||
| 4.14 | Articles of Amendment to Articles of Incorporation of IDACORP, Inc., as amended, as filed with the Secretary of State of Idaho on May 18, 2012 | 8-K | 1-14465 | 3.13 | 5/21/2012 | |||||||||||||||||
| 4.15 | Amended and Restated Bylaws of IDACORP, Inc., amended on October 29, 2014 and presently in effect | 10-Q | 1-14465 | 3.15 | 10/30/2014 | |||||||||||||||||
| 4.16 | Mortgage and Deed of Trust, dated as of October 1, 1937, between Idaho Power Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) and R. G. Page, as Trustees (P) | 2-3413 | B-2 | |||||||||||||||||||
| 4.17 | Idaho Power Company Supplemental Indentures to Mortgage and Deed of Trust: (P) | |||||||||||||||||||||
| File number 1-MD, as Exhibit B-2-a, First, July 1, 1939 (P) | ||||||||||||||||||||||
| File number 2-5395, as Exhibit 7-a-3, Second, November 15, 1943 (P) | ||||||||||||||||||||||
| File number 2-7237, as Exhibit 7-a-4, Third, February 1, 1947 (P) | ||||||||||||||||||||||
| File number 2-7502, as Exhibit 7-a-5, Fourth, May 1, 1948 (P) | ||||||||||||||||||||||
| File number 2-8398, as Exhibit 7-a-6, Fifth, November 1, 1949 (P) | ||||||||||||||||||||||
| File number 2-8973, as Exhibit 7-a-7, Sixth, October 1, 1951 (P) | ||||||||||||||||||||||
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| Incorporated by Reference | ||||||||||||||||||||||
| Exhibit No. |
Exhibit Description | Form | File No. | Exhibit No. |
Date | Included Herewith |
||||||||||||||||
| File number 2-12941, as Exhibit 2-C-8, Seventh, January 1, 1957 (P) | ||||||||||||||||||||||
| File number 2-13688, as Exhibit 4-J, Eighth, July 15, 1957 (P) | ||||||||||||||||||||||
| File number 2-13689, as Exhibit 4-K, Ninth, November 15, 1957 (P) | ||||||||||||||||||||||
| File number 2-14245, as Exhibit 4-L, Tenth, April 1, 1958 (P) | ||||||||||||||||||||||
| File number 2-14366, as Exhibit 2-L, Eleventh, October 15, 1958 (P) | ||||||||||||||||||||||
| File number 2-14935, as Exhibit 4-N, Twelfth, May 15, 1959 (P) | ||||||||||||||||||||||
| File number 2-18976, as Exhibit 4-O, Thirteenth, November 15, 1960 (P) | ||||||||||||||||||||||
| File number 2-18977, as Exhibit 4-Q, Fourteenth, November 1, 1961 (P) | ||||||||||||||||||||||
| File number 2-22988, as Exhibit 4-B-16, Fifteenth, September 15, 1964 (P) | ||||||||||||||||||||||
| File number 2-24578, as Exhibit 4-B-17, Sixteenth, April 1, 1966 (P) | ||||||||||||||||||||||
| File number 2-25479, as Exhibit 4-B-18, Seventeenth, October 1, 1966 (P) | ||||||||||||||||||||||
| File number 2-45260, as Exhibit 2(c), Eighteenth, September 1, 1972 (P) | ||||||||||||||||||||||
| File number 2-49854, as Exhibit 2(c), Nineteenth, January 15, 1974 (P) | ||||||||||||||||||||||
| File number 2-51722, as Exhibit 2(c)(i), Twentieth, August 1, 1974 (P) | ||||||||||||||||||||||
| File number 2-51722, as Exhibit 2(c)(ii), Twenty-first, October 15, 1974 (P) | ||||||||||||||||||||||
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| Incorporated by Reference | ||||||||||||||||||||||
| Exhibit No. |
Exhibit Description | Form | File No. | Exhibit No. |
Date | Included Herewith |
||||||||||||||||
| File number 2-57374, as Exhibit 2(c), Twenty-second, November 15, 1976 (P) | ||||||||||||||||||||||
| File number 2-62035, as Exhibit 2(c), Twenty-third, August 15, 1978 (P) | ||||||||||||||||||||||
| File number 33-34222, as Exhibit 4(d)(iii), Twenty-fourth, September 1, 1979 (P) | ||||||||||||||||||||||
| File number 33-34222, as Exhibit 4(d)(iv), Twenty-fifth, November 1, 1981 (P) | ||||||||||||||||||||||
| File number 33-34222, as Exhibit 4(d)(v), Twenty-sixth, May 1, 1982 (P) | ||||||||||||||||||||||
| File number 33-34222, as Exhibit 4(d)(vi), Twenty-seventh, May 1, 1986 (P) | ||||||||||||||||||||||
| File number 33-00440, as Exhibit 4(c)(iv), Twenty-eighth, June 30, 1989 (P) | ||||||||||||||||||||||
| File number 33-34222, as Exhibit 4(d)(vii), Twenty-ninth, January 1, 1990 (P) | ||||||||||||||||||||||
| File number 33-65720, as Exhibit 4(d)(iii), Thirtieth, January 1, 1991 (P) | ||||||||||||||||||||||
| File number 33-65720, as Exhibit 4(d)(iv), Thirty-first, August 15, 1991 (P) | ||||||||||||||||||||||
| File number 33-65720, as Exhibit 4(d)(v), Thirty-second, March 15, 1992 (P) | ||||||||||||||||||||||
| File number 33-65720, as Exhibit 4(d)(vi), Thirty-third, April 1, 1993 (P) | ||||||||||||||||||||||
| File number 1-3198, Form 8-K, filed on 12/20/93, as Exhibit 4, Thirty-fourth, December 1, 1993 (P) | ||||||||||||||||||||||
| File number 1-3198, Form 8-K, filed on 11/21/00, as Exhibit 4, Thirty-fifth, November 1, 2000 | ||||||||||||||||||||||
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| † | To be filed in a current report on Form 8-K or by amendment, as contemplated by Item 601(b)(1) of Regulation S-K under the Securities Act. |
| (P) | Paper Exhibits |
Item 17. Undertakings.
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b), if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or, as to a registration statement on Form S-3, is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
Each of the undersigned registrants undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of such undersigned registrant or used or referred to by the undersigned registrant;
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(iii) The portion of any other free writing prospectus relating to the offering containing material information about such undersigned registrant or its securities provided by or on behalf of such undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by such undersigned registrant to the purchaser.
(b) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of such registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the applicable registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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Each person whose signature appears below hereby constitutes and appoints Lisa A. Grow, Brian R. Buckham, Kenneth W. Petersen and Patrick A. Harrington as his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all supplements and amendments (including post-effective amendments and registration statements filed pursuant to Rule 462(b) of the Securities Act) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, shall do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Boise, State of Idaho, on the 16th day of May, 2022.
| IDACORP, INC. | ||
| By: | /s/ LISA A. GROW | |
| Lisa A. Grow | ||
| President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ RICHARD J. DAHL |
Chairman of the Board |
May 16, 2022 | ||
| Richard J. Dahl | ||||
| /s/ LISA A. GROW |
President and Chief Executive Officer and Director |
May 16, 2022 | ||
| Lisa A. Grow | ||||
| /s/ BRIAN R. BUCKHAM |
Senior Vice President, Chief Financial Officer |
May 16, 2022 | ||
| Brian R. Buckham | ||||
| /s/ KENNETH W. PETERSEN |
Vice President, Controller, and Chief Accounting Officer and Treasurer |
May 16, 2022 | ||
| Kenneth W. Petersen | ||||
| /s/ DARREL T. ANDERSON |
Director |
May 16, 2022 | ||
| Darrel T. Anderson | ||||
| /s/ ODETTE C. BOLANO |
Director |
May 16, 2022 | ||
| Odette C. Bolano | ||||
| /s/ THOMAS E. CARLILE |
Director |
May 16, 2022 | ||
| Thomas E. Carlile | ||||
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| Signature | Title | Date | ||
| /s/ ANNETTE G. ELG |
Director |
May 16, 2022 | ||
| Annette G. Elg | ||||
| /s/ RONALD W. JIBSON |
Director |
May 16, 2022 | ||
| Ronald W. Jibson | ||||
| /s/ JUDITH A. JOHANSEN |
Director |
May 16, 2022 | ||
| Judith A. Johansen | ||||
| /s/ DENNIS L. JOHNSON |
Director |
May 16, 2022 | ||
| Dennis L. Johnson | ||||
| /s/ JEFF C. KINNEEVEAUK |
Director |
May 16, 2022 | ||
| Jeff C. Kinneeveauk | ||||
| /s/ RICHARD J. NAVARRO |
Director |
May 16, 2022 | ||
| Richard J. Navarro | ||||
| /s/ MARK T. PETERS |
Director |
May 16, 2022 | ||
| Dr. Mark T. Peters | ||||
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Each person whose signature appears below hereby constitutes and appoints Lisa A. Grow, Brian R. Buckham, Kenneth W. Petersen and Patrick A. Harrington as his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all supplements and amendments (including post-effective amendments and registration statements filed pursuant to Rule 462(b) of the Securities Act) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, shall do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Boise, State of Idaho, on the 16th day of May, 2022.
| IDAHO POWER COMPANY | ||
| By: | /s/ LISA A. GROW | |
| Lisa A. Grow | ||
| President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ RICHARD J. DAHL |
Chairman of the Board |
May 16, 2022 | ||
| Richard J. Dahl | ||||
| /s/ LISA A. GROW |
President and Chief Executive Officer and Director |
May 16, 2022 | ||
| Lisa A. Grow | ||||
| /s/ BRIAN R. BUCKHAM |
Senior Vice President, Chief Financial Officer |
May 16, 2022 | ||
| Brian R. Buckham | ||||
| /s/ KENNETH W. PETERSEN |
Vice President, Controller, and Chief Accounting Officer and Treasurer |
May 16, 2022 | ||
| Kenneth W. Petersen | ||||
| /s/ DARREL T. ANDERSON |
Director |
May 16, 2022 | ||
| Darrel T. Anderson | ||||
| /s/ ODETTE C. BOLANO |
Director |
May 16, 2022 | ||
| Odette C. Bolano | ||||
| /s/ THOMAS E. CARLILE |
Director |
May 16, 2022 | ||
| Thomas E. Carlile | ||||
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| Signature | Title | Date | ||
| /s/ ANNETTE G. ELG |
Director |
May 16, 2022 | ||
| Annette G. Elg | ||||
| /s/ RONALD W. JIBSON |
Director |
May 16, 2022 | ||
| Ronald W. Jibson | ||||
| /s/ JUDITH A. JOHANSEN |
Director |
May 16, 2022 | ||
| Judith A. Johansen | ||||
| /s/ DENNIS L. JOHNSON |
Director |
May 16, 2022 | ||
| Dennis L. Johnson | ||||
| /s/ JEFF C. KINNEEVEAUK |
Director |
May 16, 2022 | ||
| Jeff C. Kinneeveauk | ||||
| /s/ RICHARD J. NAVARRO |
Director |
May 16, 2022 | ||
| Richard J. Navarro | ||||
| /s/ MARK T. PETERS |
Director |
May 16, 2022 | ||
| Dr. Mark T. Peters | ||||
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Exhibit 4.18
IDAHO POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
As Trustee under its Mortgage and Deed of Trust
dated as of October 1, 1937.
Supplemental Indenture
providing among other things for Bonds of Series
Dated as of , 202
Table of Contents
| Page | ||||
| Parties and Recitals |
||||
| Granting Clause and Property Description |
||||
| ARTICLE I Description of Bonds of Series | ||||
| Section 1. General terms and redemption provisions |
7 | |||
| Section 2. Exchange and transfers of Bonds |
9 | |||
| Section 3. Form of Bonds |
10 | |||
| Section 4. Temporary Bonds |
10 | |||
| ARTICLE II Issue of Bonds of Series | ||||
| Section 5. Issue of Bonds |
10 | |||
| ARTICLE III Covenants | ||||
| Section 6. Application of Original Indenture |
10 | |||
| Section 7. Lawful ownership |
10 | |||
| Section 8. Annual certificate as to defaults |
10 | |||
| ARTICLE IV The Trustee | ||||
| Acceptance of trust |
11 | |||
| Recitals deemed made by the Company |
11 | |||
| ARTICLE V Miscellaneous Provisions | ||||
| Meanings of terms |
11 | |||
| Severability |
11 | |||
| Binding obligation |
11 | |||
| Incorporation of rights of Trustee |
11 | |||
| Successors and assigns |
11 | |||
| Delivery of information and documents |
11 | |||
| Ratification and confirmation |
11 | |||
| Counterparts |
11 | |||
| Signatures and seals |
12 | |||
| Acknowledgments |
13 | |||
| Affidavits |
14 | |||
| (1) | This table of contents shall not have any bearing upon the interpretation of this Supplemental Indenture. |
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SUPPLEMENTAL INDENTURE, dated as of the day of , 202 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 1221 West Idaho Street, Boise, Idaho 83702-5627 (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 1 Columbus Circle, 17th Floor, Mail Stup: NYC01-1710, New York, New York 10019, party of the second part (hereinafter sometimes called the “Trustee”), as Trustee under the Mortgage and Deed of Trust dated as of October 1, 1937 hereinafter referred to.
WHEREAS, the Maine Company has heretofore executed and delivered to the Trustee 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 Trustee 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, Harney, Malheur, Union and Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, 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 the States of Idaho, Montana, Oregon, Nevada and Wyoming; and
WHEREAS, pursuant to a written request of the Company under Section 103 of the Original Indenture, Stanley Burg, successor Individual Trustee (as defined in the Original Indenture) to R.G. Page under the Original Indenture, was removed as Individual Trustee under the Original Indenture, effective as of May 18, 2016 and (i) his right, title or interest in and to the trust estate and (ii) all the right, title, and powers of the Trustees (as defined in the Original Indenture) under the Original Indenture devolved upon the Trustee and its successors alone; and
WHEREAS, in accordance with the terms of the Original Indenture the Maine Company or the Company has executed and delivered to the Trustee the following supplemental indentures in addition to the Twenty-eighth Supplemental Indenture:
| Designation |
Dated as of | |
| First Supplemental Indenture | July 1, 1939 | |
| Second Supplemental Indenture | November 15, 1943 | |
| Third Supplemental Indenture | February 1, 1947 | |
| Fourth Supplemental Indenture | May 1, 1948 | |
| Fifth Supplemental Indenture | November 1, 1949 | |
| Sixth Supplemental Indenture | October 1, 1951 | |
| Seventh Supplemental Indenture | January 1, 1957 | |
| Eighth Supplemental Indenture | July 15, 1957 | |
| Ninth Supplemental Indenture | November 15, 1957 | |
| Tenth Supplemental Indenture | April 1, 1958 | |
| Eleventh Supplemental Indenture | October 15, 1958 | |
| Twelfth Supplemental Indenture | May 15, 1959 | |
| Thirteenth Supplemental Indenture | November 15, 1960 | |
| Fourteenth Supplemental Indenture | November 1, 1961 |
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| Designation |
Dated as of | |
| Fifteenth Supplemental Indenture | September 15, 1964 | |
| Sixteenth Supplemental Indenture | April 1, 1966 | |
| Seventeenth Supplemental Indenture | October 1, 1966 | |
| Eighteenth Supplemental Indenture | September 1, 1972 | |
| Nineteenth Supplemental Indenture | January 15, 1974 | |
| Twentieth Supplemental Indenture | August 1, 1974 | |
| Twenty-first Supplemental Indenture | October 15, 1974 | |
| Twenty-second Supplemental Indenture | November 15, 1976 | |
| Twenty-third Supplemental Indenture | August 15, 1978 | |
| Twenty-fourth Supplemental Indenture | September 1, 1979 | |
| Twenty-fifth Supplemental Indenture | November 1, 1981 | |
| Twenty-sixth Supplemental Indenture | May 1, 1982 | |
| Twenty-seventh Supplemental Indenture | May 1, 1986 | |
| Twenty-ninth Supplemental Indenture | January 1, 1990 | |
| Thirtieth Supplemental Indenture | January 1, 1991 | |
| Thirty-first Supplemental Indenture | August 15, 1991 | |
| Thirty-second Supplemental Indenture | March 15, 1992 | |
| Thirty-third Supplemental Indenture | April 1, 1993 | |
| Thirty-fourth Supplemental Indenture | December 1, 1993 | |
| Thirty-fifth Supplemental Indenture | November 1, 2000 | |
| Thirty-sixth Supplemental Indenture | October 1, 2001 | |
| Thirty-seventh Supplemental Indenture | April 1, 2003 | |
| Thirty-eighth Supplemental Indenture | May 15, 2003 | |
| Thirty-ninth Supplemental Indenture | October 1, 2003 | |
| Fortieth Supplemental Indenture | May 1, 2005 | |
| Forty-first Supplemental Indenture | October 1, 2006 | |
| Forty-second Supplemental Indenture | May 1, 2007 | |
| Forty-third Supplemental Indenture | September 1, 2007 | |
| Forty-fourth Supplemental Indenture | April 1, 2008 | |
| Forty-fifth Supplemental Indenture | February 1, 2010 | |
| Forty-sixth Supplemental Indenture | June 1, 2010 | |
| Forty-seventh Supplemental Indenture | July 1, 2013 | |
| Forty-eighth Supplemental Indenture | September 1, 2016 | |
| Forty-ninth Supplemental Indenture(2) | June 5, 2020 |
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 Beaverhead, Montana; the Counties of Elko, Humboldt and Lander, Nevada; the Counties of Baker, Grant, Harney, Malheur, Union and Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, Lake, Lemhi, Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and Washington, Idaho; the County of Walla Walla, Washington; the Counties of Lincoln and Sweetwater, Wyoming; and with the Secretary of State of the States of Idaho, Montana, Oregon, Nevada, Washington and Wyoming; 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:
| (2) | Here will be inserted additional, executed supplemental indentures. |
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| Series |
Principal Amount Issued |
Principal Amount Outstanding |
||||||
| 3-3/4% Series due 1967 |
$ | 18,000,000 | None | |||||
| 3-1/8% Series due 1973 |
18,000,000 | None | ||||||
| 2-3/4% Series due 1977 |
5,000,000 | None | ||||||
| 3% Series due 1978 |
10,000,000 | None | ||||||
| 2-3/4% Series due 1979 |
12,000,000 | None | ||||||
| 3-1/4% Series due 1981 |
15,000,000 | None | ||||||
| 4-1/2% Series due 1987 |
20,000,000 | None | ||||||
| 4-3/4% Series due 1987 |
15,000,000 | None | ||||||
| 4% Series due April 1988 |
10,000,000 | None | ||||||
| 4-1/2% Series due October 1988 |
15,000,000 | None | ||||||
| 5% Series due 1989 |
15,000,000 | None | ||||||
| 4-7/8% Series due 1990 |
15,000,000 | None | ||||||
| 4-1/2% Series due 1991 |
10,000,000 | None | ||||||
| 5-1/4% Series due 1996 |
20,000,000 | None | ||||||
| 6-1/8% Series due 1996 |
30,000,000 | None | ||||||
| 7-3/4% Series due 2002 |
30,000,000 | None | ||||||
| 8-3/8% Series due 2004 |
35,000,000 | None | ||||||
| 10% Series due 2004 |
50,000,000 | None | ||||||
| 8-1/2% Series due 2006 |
30,000,000 | None | ||||||
| 9% Series due 2008 |
60,000,000 | None | ||||||
| 10-1/4% Series due 2003 |
62,000,000 | None | ||||||
| First Mortgage Bonds, 1984 Series |
10,100,000 | None | ||||||
| 16.10% Series due 1991-1992 |
50,000,000 | None | ||||||
| Pollution Control Series A |
49,800,000 | None | ||||||
| 8.65% Series due 2000 |
80,000,000 | None | ||||||
| 9.50% Series due 2021 |
75,000,000 | None | ||||||
| 9.52% Series due 2031 |
25,000,000 | None | ||||||
| 8% Series due 2004 |
50,000,000 | None | ||||||
| 8 3/4% Series due 2027 |
50,000,000 | None | ||||||
| Secured Medium-Term Notes, Series A |
190,000,000 | None | ||||||
| Secured Medium-Term Notes, Series B |
197,000,000 | None | ||||||
| Secured Medium-Term Notes, Series C |
200,000,000 | None | ||||||
| Secured Medium-Term Notes, Series D |
200,000,000 | 100,000,000 | ||||||
| Secured Medium-Term Notes, Series E |
245,000,000 | 245,000,000 | ||||||
| Pollution Control Series B |
49,800,000 | 49,800,000 | ||||||
| Secured Medium-Term Notes, Series F |
200,000,000 | 200,000,000 | ||||||
| Pollution Control Series C |
116,300,000 | 116,300,000 | ||||||
| Secured Medium-Term Notes, Series G |
100,000,000 | 100,000,000 | ||||||
| Secured Medium-Term Notes, Series H |
130,000,000 | None | ||||||
| Secured Medium-Term Notes, Series I |
500,000,000 | 500,000,000 | ||||||
| Secured Medium-Term Notes, Series J |
370,000,000 | 370,000,000 | ||||||
| Secured Medium-Term Notes, Series K |
450,000,000 | 450,000,000 | ||||||
| Secured Medium-Term Notes, Series L |
80,000,000 | 80,000,000 | (3) | |||||
which bonds are hereinafter sometimes called bonds of the First through 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 Trustee this Supplemental Indenture for the purposes herein provided, including the issuance of a Series of Bonds under the Indenture, in the aggregate principal amount of up to Billion Dollars ($ ), to be designated as “First Mortgage Bonds, % Series due “ [“First Mortgage Bonds, Secured Medium-Term Notes, Series ”](4) (herein sometimes called the “Bonds of Series”); and
| (3) | Here will be inserted additional outstanding series of bonds. |
| (4) | Bracketed language will be inserted in lieu of words “First Mortgage Bonds, % Series due ” in any supplemental indenture relating to the issuance of First Mortgage Bonds which are designated “Secured Medium-Term Notes, Series ”. |
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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, Thirty-sixth, Thirty-seventh, Thirty-ninth, Fortieth, Forty-first, Forty-fourth, Forty-fifth, Forty-sixth, Forty-seventh, Forty-eighth and Forty-ninth (5) Supplemental Indentures; and
WHEREAS, all things necessary to make said Bonds of Series, when duly authenticated by the 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 Supplemental Indenture and the issue of said Bonds as in this 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 Trustee 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 Bonds, the Company has duly executed and delivered to the Trustee this 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 Deutsche Bank Trust Company Americas, as Trustee as aforesaid, and to its successor or successors in said trust, and to it and its successors, 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:(6)
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 the Trustee, 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,
| (5) | Here will be inserted additional, executed supplemental indentures. |
| (6) | Here will be inserted property descriptions. |
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notes, evidences of indebtedness, shares of stock, or other securities or any cash (except cash deposited with the 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 Trustee (to the extent of its legal capacity to hold the same for the purposes hereof), and its 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, Thirty-sixth, Thirty-seventh, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second, Forty-third, Forty-fourth, Forty-fifth, Forty-sixth, Forty-seventh, Forty-eighth and Forty-ninth Supplemental Indentures and this (7) 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:
ARTICLE I
Description of Bonds of Series.
SECTION 1. The Series of Bonds to be executed, authenticated and delivered under and secured by the Indenture shall be Bonds of Series, designated as “First Mortgage Bonds, % Series due ” of the Company. The Bonds of Series 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 Supplemental Indentures or by this Supplemental Indenture. Bonds of Series shall mature on , and shall be issued as registered Bonds without coupons in denominations of $1,000 and in any multiple thereof, and shall bear interest, payable on and of each year, at the rate of % per annum until the principal shall have become due and payable, and, if default shall be made in the payment of said principal when due and payable, at the rate of % per annum thereafter until the Company’s obligation with respect to payment of said principal shall have been discharged as provided in the Indenture; provided, however, that if Bonds of Series shall have been declared due and payable prior to their stated maturity and such declaration shall have been annulled as provided in the Indenture, the principal of such Bonds shall not be deemed to have been so declared due and payable. The principal of and interest and premium, if any, on the Bonds of Series shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, and, at the option of the Company, interest on each said Bond may also be payable at the office of the Company in Boise, Idaho, 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. The interest on the Bonds of Series, whether in temporary or definitive form, shall be payable without presentation of such Bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof.
Except as provided in the next succeeding sentence of this Section 1, each Bond of Series shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the or , as the case may be, next preceding the date thereof to which interest has been paid, unless the date thereof is a or to which interest has been paid, in which case such interest shall be payable from such date or unless such date is prior to , in which case interest shall be payable from . Each Bond of Series authenticated between the
| (7) | Here will be inserted additional, executed supplemental indentures. |
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record date for any interest payment date and such interest payment date shall be dated the date of its authentication, but interest shall be payable from such interest payment date; provided, however, that if the Company shall default in the payment of the interest due on such interest payment date, any Bond of Series so authenticated shall bear interest from the or , as the case may be, next preceding the date of such Bond, to which interest has been paid.
Interest on any Bond of Series shall be paid to the registered holder of such Bond of Series, or, notwithstanding the cancellation thereof, the Bond of Series in exchange or substitution for which such Bond shall have been issued, at the close of business on the applicable record date; provided, however, that if the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any Bond of Series, such defaulted interest shall be paid to the registered holder of such Bond (or any Bond or Bonds of Series issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name such Bond (or any Bond or Bonds of Series issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of Bonds of Series not less than ten (10) days preceding such subsequent record date. The term “record date” as used in this Section 1 shall mean, with respect to any semi-annual interest payment date, the close of business on or , as the case may be, next preceding such interest payment date or, in the case of defaulted interest, the close of business on any subsequent record date established as provided above.
The Bonds of Series, 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.
(8)[SECTION 1. The Series of Bonds to be executed, authenticated and delivered under and secured by the Indenture shall be Secured Medium-Term Notes, Series , designated as “First Mortgage Bonds, Secured Medium-Term Notes, Series ” of the Company. The Bonds of Series 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 Supplemental Indentures or by this Supplemental Indenture. Bonds of Series shall be issued from time to time in an aggregate principal amount not to exceed $ , and shall be issued as registered Bonds without coupons in the denominations of $1,000 or in any multiple thereof; each Bond of Series shall mature on such date not less than nor more than from date of issue, shall bear interest at such rate or rates (which may be either fixed or variable) and have such other terms and provisions not inconsistent with the Indenture as the Board of Directors or the Executive Committee of the Board of Directors, which shall constitute the Executive Committee of the Company (the “Executive Committee”), may determine in accordance with a resolution filed with the Trustee and a written order referring to this Supplemental Indenture; the principal of and interest on each said Bond to be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York and, at the option of the Company, interest on each said Bond may also be payable at the office of the Company in Boise, Idaho, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. Interest on Bonds of Series which bear interest at a fixed rate shall be payable semiannually on and of each year, unless otherwise determined by the Board of Directors or the Executive Committee and set forth in a resolution filed with the Trustee referring to this Supplemental Indenture and at maturity (each an interest payment date). Interest on Bonds of Series which bear interest at a variable rate shall be payable on the dates (each an interest payment date) determined by the Board of Directors or the Executive Committee and set forth in a resolution filed with the Trustee referring to this Supplemental Indenture.
Notwithstanding the foregoing, so long as there is no existing default in the payment of interest on the Bonds of Series, all Bonds of Series authenticated by the Trustee after the Record Date hereinafter specified for any interest payment date, and prior to such interest payment date (unless the date of first authentication of Bonds of such designated interest rate and maturity is after such Record Date), shall be dated the
| (8) | These provisions will be inserted in lieu of Section 1 above in any supplemental indenture relating to the issuance of First Mortgage Bonds which are designated “Secured Medium-Term Notes, Series ”. |
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date of authentication, but shall bear interest from such interest payment date, and the person in whose name any Bond of Series is registered at the close of business on any Record Date with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date, notwithstanding the cancellation of such Bond of Series, upon any transfer or exchange thereof subsequent to the Record Date and on or prior to such interest payment date. If the date of first authentication of the Bonds of Series of a designated interest rate and maturity is after such Record Date and prior to the corresponding interest payment date, such Bonds shall bear interest from the Original Interest Accrual Date but payment of interest shall commence on the second interest payment date succeeding the Original Interest Accrual Date. “Record Date” for Bonds of Series which bear interest at a fixed rate shall mean for interest payable and for interest payable , for Bonds of Series which bear interest at a fixed rate that is payable on other dates, shall mean the last day of the calendar month preceding such interest payment date if such interest payment date is the fifteenth day of a calendar month and shall mean the fifteenth day of the calendar month preceding such interest payment date if such interest payment date is the first day of a calendar month, unless, in each case, otherwise determined by the Board of Directors or the Executive Committee and set forth in a resolution filed with the Trustee referring to this Supplemental Indenture, and for Bonds of Series which bear interest at a variable rate, shall mean the date 15 calendar days prior to any interest payment date, unless otherwise determined by the Board of Directors or the Executive Committee and set forth in a resolution filed with the Trustee referring to this Supplemental Indenture; provided that, interest payable on the maturity date will be payable to the person to whom the principal thereof shall be payable. “Original Interest Accrual Date” with respect to Bonds of Series of a designated interest rate and maturity shall mean the date of first authentication of Bonds of such designated interest rate and maturity unless a written order filed with the Trustee on or before such date shall specify another date from which interest shall accrue, in which case “Original Interest Accrual Date” shall mean such other date specified in the written order for Bonds of such designated interest rate and maturity.
The Bonds of Series, 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 borders or shall be printed on safety paper or shall be typewritten.]
The holders of the Bonds of Series consent that the Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of Bonds of Series entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who are holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
[Here will be inserted redemption provisions.]
SECTION 2. At the option of the registered holder, any Bonds of Series, 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 Trustee) in form approved by the Company duly executed by the registered holder or by the registered holder’s duly authorized attorney, shall be exchangeable for a like aggregate principal amount and maturity of Bonds of Series of other authorized denominations. Bonds of Series 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.
Bonds of Series shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York.
Notwithstanding the foregoing provisions of this Section 2, the Company shall not be required to make any transfers or exchanges of Bonds of Series for a period of fifteen (15) days next preceding any mailing of notice of redemption, and the Company shall not be required to make transfers or exchanges of the principal amount of any Bonds of Series so called or selected for redemption.
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SECTION 3. The Bonds of Series shall be substantially of the tenor and purport recited in the Original Indenture, and the form thereof shall be as established by resolution of the Board of Directors or the Executive Committee, which resolution may provide that any provisions of such form of Bond may appear on the reverse of such form.
SECTION 4. Until Bonds of Series in definitive form are ready for delivery, the Company may execute, and upon its request in writing, the Trustee shall authenticate and deliver, in lieu thereof, Bonds of Series in temporary form, as provided in Section 15 of the Original Indenture.
ARTICLE II
Issue of Bonds of Series.
SECTION 5. The Bonds of Series for the aggregate principal amount of up to Billion Dollars ($ ) may be executed by the Company and delivered to the Trustee and shall be authenticated by the 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
Covenants.
The Company hereby covenants, warrants and agrees:
SECTION 6. 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 Trustee and the beneficiaries of the trust with respect to said property, and to the Trustee and its successors as trustee 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 Trustee (to the extent of its legal capacity to hold the same for the purposes of the Indenture) by the Original Indenture as a part of the property therein stated to be conveyed.
SECTION 7. 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, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second, Forty-third, Forty-fourth, Forty-fifth, Forty-sixth, Forty-seventh, Forty-eighth and Forty-ninth Supplemental Indentures and this (9) 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 Series, 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.
SECTION 8. That it will deliver to the Trustee annually, within ninety (90) days after the close of each fiscal year, commencing with the fiscal year 202 , a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under the Indenture. For purposes of this Section 8, such compliance shall be determined without regard to any period of grace or requirement of notice provided under the Indenture.
| (9) | Here will be inserted additional, executed supplemental indentures. |
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ARTICLE IV
The Trustee.
The Trustee hereby accepts the trust hereby declared and provided and agrees to perform the same upon the terms and conditions in the Original Indenture, as heretofore supplemented and as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this 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.
Capitalized terms used and not otherwise defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Company represents and warrants to the Trustee that this Supplemental Indenture has been duly and validly executed and delivered by the Company and constitutes the Company’s legal, valid and binding obligation, enforceable against the Company in accordance with its terms.
The Trustee shall be entitled to all of the same rights, protections, immunities and indemnities set forth in the Indenture as if specifically set forth herein.
This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties hereto agrees to provide to the Trustee upon its reasonable request from time to time identifying information and documentation as may be reasonably available to it in order to enable the Trustee to comply with such laws, rules, regulations and executive orders.
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 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.
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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, party 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 by a Vice President and attested by an Associate, on the date hereinafter acknowledged, as of the day and year first above written.
| IDAHO POWER COMPANY | ||||
| By |
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| Attest: | ||||
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| Executed, sealed and delivered by | ||||
| IDAHO POWER COMPANY | ||||
| in the presence of: | ||||
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| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||||
| not in its individual capacity, | ||||
| but solely as Trustee | ||||
| By |
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| Attest: | ||||
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| Executed, sealed and delivered by | ||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, |
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| in the presence of: | ||||
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| STATE OF IDAHO | ) | |
| ) ss.: | ||
| COUNTY OF ADA | ) |
On the day of , in the year 202 , before me personally came , to me known, who being by me duly sworn did depose and say that he is the of Idaho Power Company, 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 , having personally appeared and known to me to be the 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.
|
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| Notary Public, State of Idaho |
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| STATE OF NEW YORK | ) | |
| ) ss.: | ||
| COUNTY OF NEW YORK | ) |
On the day of , in the year 202 , before me personally came , to me known, who being by me duly sworn did depose and say that he or she is an of Deutsche Bank Trust Company Americas, one of the corporations described in and which executed the above instrument; that he or she knows the seal of said corporation; and that he or she signed his or her name thereto by order of the Board of Directors of said corporation, and that he or she signed his or her name thereto by like order; the said , having personally appeared and known to me to be an 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.
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| Notary Public, State of New York |
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Table of Contents
| STATE OF IDAHO | ) | |
| ) ss.: | ||
| COUNTY OF ADA | ) |
, being first duly sworn, upon oath, deposes and says: that he is an officer, to wit, the 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 or provided for therein.
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| Subscribed and sworn to before me this day of , 202 . |
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| Notary Public, State of Idaho | ||
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Table of Contents
| STATE OF NEW YORK | ) | |
| ) ss.: | ||
| COUNTY OF NEW YORK | ) |
, being first duly sworn, upon oath, deposes and says: that he or she is an officer, to wit, an 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.
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| Subscribed and sworn to before me this day of , 202 . |
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| Notary Public, State of New York | ||
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Exhibit 4.25
IDACORP, INC.
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Trustee
SUPPLEMENTAL INDENTURE
Dated as of
TO
INDENTURE
Dated as of February 1, 2001
SENIOR DEBT SECURITIES
SUPPLEMENTAL INDENTURE dated as of made and entered into by and between IDACORP, INC., a corporation of the State of Idaho (hereinafter, subject to Article XI of the Indenture, called the “Issuer” or the “Company”), having its principal office at 1221 West Idaho Street, Boise, Idaho 83702-5627, and DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Bankers Trust Company, a banking corporation organized and existing under the laws of the State of New York, as Trustee (hereinafter, subject to Article VII of the Indenture, called the “Trustee”), having its principal office at 1 Columbus Circle, 17th Floor, Mail Stop: NYC01-1710, New York, New York 10019, as Trustee under the Indenture for Senior Debt Securities dated as of February 1, 2001 executed and delivered by IDACORP, Inc.
WHEREAS the Indenture dated as of February 1, 2001 (herein with all indentures supplemental thereto called the “Indenture”) provides for the issuance of notes, debentures or other evidences of its indebtedness in one or more series (hereinafter called the “Securities”), unlimited in aggregate principal amount;
WHEREAS the Indenture provides in Article III thereof that, prior to the issuance of Securities of any series, the form of such Securities and the terms applicable to such series shall be established in, or pursuant to, the authority granted in a resolution of the Board of Directors (delivered to the Trustee in the form of a Board Resolution) or established in one or more indentures supplemental thereto;
WHEREAS the Issuer desires by this Supplemental Indenture, among other things, to establish the form of the Securities of a series, to be titled “ Notes, Series ” of the Issuer, and to establish the terms applicable to such series, pursuant to Sections 3.1 and 10.1(e) of the Indenture;
WHEREAS the execution and delivery of this Supplemental Indenture by the parties hereto are in all respects authorized by the provisions of the Indenture; and
WHEREAS all things necessary have been done to make this Supplemental Indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and agreed, as follows:
ARTICLE I.
Notes, Series
SECTION 1. The title of the series of the Securities established by this Supplemental Indenture shall be “ Notes, Series , due ” of the Issuer (hereinafter called the “Series Notes”). The Series Notes shall be substantially in the form set forth in Exhibit A hereto (which is hereby incorporated herein and made a part hereof), subject to changes in the form thereof made by the Issuer and acceptable to the Trustee.
SECTION 2. The Series Notes shall be issued from time to time in an aggregate principal amount not to exceed $ .
SECTION 3. The Series Notes may be issued in whole or in part as one or more Global Securities and The Depository Trust Company, or a nominee thereof, shall be the Depository for such Global Security or Global Securities, except in each case as otherwise provided in an Issuer Order with respect to any Series Notes. The Depository for such Global Security or Global Securities representing Series Notes may surrender one or more Global Securities representing Series Notes in exchange in whole or in part for individual Series Notes on such terms as are acceptable to the Issuer and such Depository and otherwise subject to the terms of Section 2.4 of the Indenture.
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SECTION 4. The Issuer hereby appoints, or confirms the appointment of, Deutsche Bank Trust Company Americas as the initial Trustee, Securities Registrar and Paying Agent, subject to the provisions of the Indenture with respect to resignation, removal and succession, and subject, further, to the right of the Issuer to appoint additional agents (including Paying Agents). An Authenticating Agent may be appointed for the Series Notes under the circumstances set forth in, and subject to the provisions of, the Indenture.
SECTION 5. The terms of the Series Notes shall be as set forth in Exhibit A hereto, and shall include the payment and other terms reflected on the respective Series Notes as actually executed, authenticated and delivered under the Indenture. Notwithstanding the foregoing, specific terms of particular Series Notes (any redemption, sinking fund or other repayment terms that differ from the provisions of Article XIV or XV of the Indenture and any terms for satisfaction and discharge of the Indenture that differ from the provisions of Article XII of the Indenture) may be determined in accordance with or pursuant to the Issuer Order with respect thereto, as referred to in Section 3.3 of the Indenture.
ARTICLE II.
Miscellaneous Provisions
SECTION 1. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee shall not be responsible for and makes no representation as to the validity, execution by any party other than the Trustee or sufficiency of this Supplemental Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 2. The titles of the several Articles of this Supplemental Indenture shall not be deemed to be any part hereof.
SECTION 3. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 4. Capitalized terms used and not otherwise defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.
SECTION 5. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 6. This Supplemental Indenture and any Securities issued hereunder shall be governed by and construed in accordance with the laws of the State of Idaho, except that the obligations, rights and remedies of the Trustee hereunder shall be determined under the laws of the State of New York.
SECTION 7. The Issuer represents and warrants to the Trustee that this Supplemental Indenture has been duly and validly executed and delivered by the Issuer and constitutes the Issuer’s legal, valid and binding obligation, enforceable against the Issuer in accordance with its terms.
SECTION 8. The Trustee shall be entitled to all of the same rights, protections, immunities and indemnities set forth in the Indenture as if specifically set forth herein.
SECTION 9. This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 10. In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Trustee is required to obtain, verify and record certain information relating to individuals and
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entities which maintain a business relationship with the Trustee. Accordingly, each of the parties hereto agrees to provide to the Trustee upon its reasonable request from time to time identifying information and documentation as may be reasonably available to it in order to enable the Trustee to comply with such laws, rules, regulations and executive orders.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed.
| IDACORP, INC. | ||
| By |
| |
| Name: | ||
| Title: | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, not in its individual capacity, but solely as Trustee | ||
| By |
| |
| Name: | ||
| Title: | ||
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| STATE OF IDAHO |
) | |
| ) ss.: | ||
| COUNTY OF ADA |
) |
At Boise, ID, on this day of 20 , before me, a Notary Public in and for the County of Ada and State of Idaho, personally appeared , the , of IDACORP, Inc., to me personally known, who executed the foregoing instrument on behalf of said corporation, and acknowledged the same to be his free act and deed in his said capacity and the free act and deed of IDACORP, Inc.
| Notary Public | ||||||||
| My Commission |
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| Expires: | ||||||||
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EXHIBIT A
FORM OF NOTE
Registered
No.
CUSIP
[LEGENDS, IF ANY]
IDACORP, Inc.
Note, Series
[ % Fixed Rate Note]
| Original Issue Date: | Principal Amount: | |
| Interest Accrual Date: | Issue Price: | |
| Interest Payment Dates: | ||
| Maturity Date: | ||
| Redemption Date(s): | Redemption Price(s): | |
| Repayment Date(s): | Repayment Price(s): |
IDACORP, Inc., an Idaho corporation (the “Company”, which term includes any successor issuer under the Indenture hereinafter referred to), for value received hereby promises to pay to or registered assigns, the principal sum of Dollars ($ ) on the “Maturity Date”, as set forth above, and to pay interest hereon as described herein.
The principal of (and premium, if any) and interest on this Note are payable by the Company in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, IDACORP, Inc. has caused this instrument to be signed in its corporate name by the signatures or facsimile signatures of its President or a Vice President, and its Treasurer or an Assistant Treasurer, and its corporate seal or a facsimile hereof to be hereon impressed, engraved or imprinted and attested by such signature or facsimile signature of its Secretary or an Assistant Secretary.
IDACORP, Inc.
Note, Series
1. This Note is one of a duly authorized issue of debt securities (hereinafter called the “Securities”) of the Company of the series hereinafter specified, all such Securities issued and to be issued under an Indenture dated as of February 1, 2001 between the Company and Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Company, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as amended and supplemented by the First Supplemental Indenture dated as
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of February 1, 2001 and the Supplemental Indenture dated as of (herein called, the “Indenture”), to which Indenture reference is hereby made for a statement of rights and limitations of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series designated as Note, Series , [due ] (the “Series Notes”) limited to $ in aggregate principal amount. The Series Notes may be issued at various times with different maturity dates and different principal repayment provisions, may bear interest at different rates, and may otherwise vary, all as provided in the Indenture.
2. A. The record date (the “Regular Record Date”) with respect to any Interest Payment Date (as defined below) shall be the close of business on [the last day of the calendar month] [the fifteenth day of the calendar month] preceding such Interest Payment Date, whether or not such date shall be a Business Day (unless otherwise set forth herein). Interest that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name this Note is registered at the close of business on the Regular Record Date immediately preceding such Interest Payment Date; provided, however, that the first payment of interest on any Note with an Original Issue Date between a Regular Record Date and the succeeding Interest Payment Date will be made on the Interest Payment Date following the immediately succeeding Regular Record Date to the registered owner on such immediately succeeding Regular Record Date; and provided, further, that interest payable at Maturity will be payable to the person to whom principal shall be payable. “Maturity” means the date on which the principal amount hereof becomes due and payable, whether at Stated Maturity or earlier by declaration of acceleration, call for redemption or otherwise. Notwithstanding the foregoing, any interest that is payable but not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the registered owner hereof on such Regular Record Date, and may be paid to the person in whose name this Note is registered at the close of business on a subsequent record date established by notice given by mail, by or on behalf of the Company to such Holder not less than fifteen days preceding such subsequent record date, such record date to be not less than ten days preceding the date for payment of such defaulted interest, or may be paid as more fully provided in the Indenture. “Business Day” means any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or required by law or regulation to be closed in The City of New York.
B. The Company promises to pay interest on the principal amount from its Original Issue Date at the rate per annum stated on the face hereof until the principal amount hereof is paid or made available for payment. Unless otherwise provided herein, the Company will pay interest semi-annually each and (each an “Interest Payment Date”), commencing (except as set forth above in the case of a Note with an Original Issue Date between a Regular Record Date and an Interest Payment Date) with the Interest Payment Date immediately following the Original Issue Date and at Maturity. If any Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall be postponed to the next day that is a Business Day, and no interest shall accrue by reason of such delayed payment. Each payment of interest in respect of an Interest Payment Date shall include interest accrued to but excluding such Interest Payment Date. Interest on Fixed Rate Series Notes shall be computed on the basis of a 360-day year of twelve 30-day months (unless otherwise specified herein).
3. Payments of interest (other than interest payable at Maturity) will be made by mailing a check to the Holder at the address of the Holder appearing on the Securities Register of the Company on the applicable Regular Record Date, unless otherwise determined by the Company. The principal amount hereof and any premium and the interest payable at Maturity will be paid at Maturity against presentation of this Note at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, or as otherwise provided in the Indenture.
4. If specified above, this Note may be redeemed, as a whole or from time to time in part, at the option of the Company, on not less than 30 days’ prior notice given as provided in the Indenture, on any Redemption Date(s) and at the related Redemption Price(s) (expressed as a percentage of the principal amount
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hereof) set forth on the face hereof, together with interest accrued and unpaid hereon to such Redemption Date. If no such Redemption Date is set forth on the face hereof, this Note may not be so redeemed prior to the Maturity Date specified on the face hereof. If fewer than all the Outstanding Series Notes of like tenor and terms are to be redeemed, the particular Series Notes to be redeemed shall be selected by the Trustee not more than 60 days prior to the Redemption Date from the Outstanding Series Notes of like tenor or terms not previously called for redemption. Such selection shall be of principal amounts in increments of $1,000. Subject to the immediately preceding sentence, such selection shall be made by lot. The notice of such redemption shall specify which Series Notes are to be redeemed. In the event of redemption of this Note in part only, a new Note or Notes of this series of like tenor or terms for the unredeemed portion hereof will be issued to the Holder hereof upon the cancellation hereof.
5. If specified above, this Note will be subject to repayment at the option of the Holder hereof on the Repayment Date(s) and at the related Repayment Price(s) (expressed as a percentage of the principal amount hereof) indicated on the face hereof. If no such Repayment Date is set forth on the face hereof, this Note may not be so repaid prior to the Maturity Date specified on the face hereof. On each Repayment Date, if any, this Note shall be repayable in whole or in part at the option of the Holder hereof at the applicable Repayment Price set forth on the face hereof, together with interest accrued and unpaid hereon to such Repayment Date. In order for this Note to be repaid in whole or in part at the option of the Holder hereof, the Paying Agent must receive not less than 30 but not more than 45 days prior to the Repayment Date (i) the Note with the form entitled “Option to Elect Repayment” below duly completed or (ii) a facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the certificate number of the Note or a description of the Note’s tenor or terms, the principal amount of the Note to be repaid, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Note to be repaid with the form entitled “Option to Elect Repayment” on the reverse of the Note duly completed will be received by such Paying Agent no later than five Business Days after the date of such facsimile transmission or letter and such Note and form duly completed are received by such Paying Agent by such fifth Business Day. Exercise of such repayment option shall be irrevocable. Such option may be exercised by the Holder for less than the entire principal amount provided that the principal amount remaining outstanding after repayment is an authorized denomination.
6. If an Event of Default with respect to the Series Notes shall occur and be continuing, the principal of all of the Series Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
7. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of all series to be affected thereby (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive past defaults or certain Events of Default under the Indenture, with certain exceptions as therein provided, and their consequences with respect to such series, prior to the acceleration with respect to the Securities of such series. In the case of any such waiver, the Holder of this Note shall be restored to his former position and rights hereunder, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any related Event of Default shall be deemed to have been cured, and not to have occurred for every purpose of the Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
8. No reference herein to the Indenture and no provision of this Note or of the Indenture shall affect or impair the obligation of the Company, which is unconditional and absolute, to pay the principal of and premium, if any, and interest on this Note at the places, at the times, at the rates, in the amounts and in the coin or currency as prescribed herein and in the Indenture.
9. Series Notes will be issued in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
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10. As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in The City of New York. Every Note presented for registration of transfer shall (if so required by the Company or the Securities Registrar) be duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed, by the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Series Notes of like tenor and terms of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
The Company shall not be required (i) to issue, register the transfer of or exchange Series Notes to be redeemed for a period of fifteen days preceding the date of the mailing of the notice of redemption or (ii) to register the transfer of or to exchange any such Note or portion thereof selected for redemption, except the unredeemed portion of any such Note being redeemed in part.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name a Note is registered as the owner hereof for all purposes whether or not such Note be overdue and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
11. Unless otherwise defined herein, all terms used in this Note which are defined in the Indenture shall have the meaning assigned to them in the Indenture.
12. This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of Idaho.
| IDACORP, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| By: |
| |
| Name: | ||
| Title: | ||
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Trustee’s Certificate of Authentication
Dated:
This is one of the Securities of the series designated herein referred to in the within- mentioned Indenture.
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert social security or other identifying number
Please print or typewrite name and address of assignee
the within Note, of IDACORP, Inc. and does hereby irrevocably constitute and appoint attorney to transfer the said Note on the books of the within-mentioned Company, with full power of substitution in the premises.
| Dated: |
|
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| Notice: The signature on this assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatsoever. |
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OPTION TO ELECT REPAYMENT*
The undersigned hereby irrevocably requests and instructs the Company to repay the within Note (or portion hereof specified below) pursuant to its terms at a price equal to the applicable Repayment Price thereof together with interest to the Repayment Date, to the undersigned at
Please print or typewrite name and address of the undersigned
If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof that the Holder elects to have repaid and specify the denomination or denominations (which shall be in authorized denominations) of the Series Notes to be issued to the Holder for the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid):.
| Date: |
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| Signature |
* Note: This option is not available to a holder unless this Note contains an express provision granting to the holder hereof an option to elect repayment.
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Exhibit 4.27
IDAHO POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Trustee
SUPPLEMENTAL INDENTURE
Dated as of
TO
INDENTURE
Dated as of August 1, 2001
DEBT SECURITIES
SUPPLEMENTAL INDENTURE dated as of made and entered into by and between IDAHO POWER COMPANY, a corporation of the State of Idaho (hereinafter, subject to Article XI of the Indenture, called the “Issuer” or the “Company”), having its principal office at 1221 West Idaho Street, Boise, Idaho 83702-5627, and DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust Company), a banking corporation organized and existing under the laws of the State of New York, as Trustee (hereinafter, subject to Article VII of the Indenture, called the “Trustee”), having its principal office at 1 Columbus Circle, 17th Floor, Mail Stop: NYC01-1710, New York, New York 10019, as Trustee under the Indenture for Debt Securities dated as of August 1, 2001 executed and delivered by Idaho Power Company.
WHEREAS the Indenture dated as of August 1, 2001 (herein with all indentures supplemental thereto called the “Indenture”), provides for the issuance of notes, debentures or other evidences of its indebtedness in one or more series (hereinafter called the “Securities”), unlimited in aggregate principal amount;
WHEREAS the Indenture provides in Article III thereof that, prior to the issuance of Securities of any series, the form of such Securities and the terms applicable to such series shall be established in, or pursuant to, the authority granted in a resolution of the Board of Directors (delivered to the Trustee in the form of a Board Resolution) or established in one or more indentures supplemental thereto;
WHEREAS the Issuer desires by this Supplemental Indenture, among other things, to establish the form of the Securities of a series of the Issuer, and to establish the terms applicable to such series, pursuant to Sections 3.1 and 10.1(e) of the Indenture;
WHEREAS the execution and delivery of this Supplemental Indenture by the parties hereto are in all respects authorized by the provisions of the Indenture; and
WHEREAS all things necessary have been done to make this Supplemental Indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and agreed, as follows:
ARTICLE I.
Notes, Series
SECTION 1. The title of the series of the Securities established by this Supplemental Indenture shall be “ Notes, Series , due ” of the Issuer (hereinafter called the “Series Notes”). The Series Notes shall bear interest (computed on the basis of a 360-day year of twelve 30-day months) until the principal amount thereof has been duly paid or provided for in full, at a rate per annum equal to % and at the same rate per annum on any overdue principal or (to the extent legally enforceable) on any overdue installment of interest (the “Overdue Rate”).
SECTION 2. The Series Notes shall be limited in aggregate principal amount to $ , and shall be issued substantially in the form set forth in Exhibit A hereto (which is hereby incorporated herein and made a part hereof), subject to changes in the form thereof made by the Issuer and acceptable to the Trustee. The Series Notes shall mature on .
Interest shall be payable [quarterly] in arrears on the day of , , and (each, an “Interest Payment Date”) and at Maturity. If any Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall be postponed to the next day that is a Business Day. If Maturity would otherwise be a day that is not a Business Day, the payment of principal and interest due at Maturity shall be made on the next day that is a Business Day and no interest shall accrue as a result of such delayed payment.
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Each payment of interest with respect of an Interest Payment Date or at Maturity shall include interest accrued to but excluding such Interest Payment Date or Maturity, as the case may be (an “Interest Period”).
Interest on any Series Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name such Series Note is registered at the close of business on the day of the month next preceding such Interest Payment Date (the “Regular Record Date”). In the case of any Series Note issued between a Regular Record Date and the initial Interest Payment Date, interest for the period beginning on the date of issue and ending on the initial Interest Payment Date shall be paid to the person to whom such Series Note shall have been originally issued. Notwithstanding the foregoing, any interest that is payable but not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the registered owner of such Series Note on such Regular Record Date, and may be paid to the person in whose name such Series Note is registered at the close of business on the Special Record Date established by the Issuer pursuant to Section 3.8 of the Indenture or as otherwise provided in Section 3.8 of the Indenture.
Payments of interest on any Series Note (other than interest payable at Maturity) will be made by mailing a check to the Holder at the address of the Holder appearing on the Securities Register on the applicable record date, unless otherwise agreed to by the Issuer. The principal amount thereof and any premium and the interest payable at Maturity will be paid at Maturity against presentation of a Series Note at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, or as otherwise provided in the Indenture.
[The Series Notes are not redeemable prior to Maturity and the provisions of Article XIV of the Indenture are inapplicable.]
[The Series Notes are not entitled to any sinking fund and the provisions of Article XV of the Indenture are inapplicable thereto.]
The Series Notes are subject to the provisions of Article XII of the Indenture, which provide for the satisfaction and discharge of the Indenture under the circumstances and on the conditions set forth therein.
SECTION 3. The Series Notes may be issued in whole or in part as one or more Global Securities and The Depository Trust Company, or a nominee thereof, shall be the Depository for such Global Security or Global Securities, except in each case as otherwise provided in a Company Order with respect to any Series Notes. The Depository for such Global Security or Global Securities representing Series Notes may surrender one or more Global Securities representing Series Notes in exchange in whole or in part for individual Series Notes on such terms as are acceptable to the Issuer and such Depository and otherwise subject to the terms of Section 2.4 of the Indenture.
SECTION 4. The Issuer hereby appoints, or confirms the appointment of, Deutsche Bank Trust Company Americas as the initial Trustee, Securities Registrar and Paying Agent, subject to the provisions of the Indenture with respect to resignation, removal and succession, and subject, further, to the right of the Issuer to appoint additional agents (including Paying Agents). An Authenticating Agent may be appointed for the Series Notes under the circumstances set forth in, and subject to the provisions of, the Indenture.
ARTICLE II.
Miscellaneous Provisions
SECTION 1. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee shall not be responsible for and makes no representation as to the validity, execution by any party other than the Trustee or sufficiency of this supplemental indenture. The Indenture, as supplemented by this supplemental indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 2. The titles of the several Articles of this Supplemental Indenture shall not be deemed to be any part hereof.
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SECTION 3. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 4. Capitalized terms used and not otherwise defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.
SECTION 5. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 6. This Supplemental Indenture and any Securities issued hereunder shall be governed by and construed in accordance with the laws of the State of Idaho, except that the obligations, rights and remedies of the Trustee hereunder shall be determined under the laws of the State of New York.
SECTION 7. The Issuer represents and warrants to the Trustee that this Supplemental Indenture has been duly and validly executed and delivered by the Issuer and constitutes the Issuer’s legal, valid and binding obligation, enforceable against the Issuer in accordance with its terms.
SECTION 8. The Trustee shall be entitled to all of the same rights, protections, immunities and indemnities set forth in the Indenture as if specifically set forth herein.
SECTION 9. This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 10. In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties hereto agrees to provide to the Trustee upon its reasonable request from time to time identifying information and documentation as may be reasonably available to it in order to enable the Trustee to comply with such laws, rules, regulations and executive orders.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed.
| IDAHO POWER COMPANY | ||
| By |
| |
| Name: | ||
| Title: | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS not in its individual capacity, but solely as Trustee | ||
| By |
| |
| Name: | ||
| Title: | ||
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Exhibit 5.1
[Perkins Coie LLP Letterhead]
May 16, 2022
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
| Re: | Registration Statement on Form S-3 Filed by IDACORP, Inc. |
Ladies and Gentlemen:
We have acted as counsel to IDACORP, Inc., an Idaho corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder (the “Rules”), of a registration statement on Form S-3 (the “Registration Statement”) for the registration of the sale from time to time of one or more series of the following securities by the Company (collectively, the “Securities”):
(a) shares of the Company’s common stock, without par value (“Common Stock”), and
(b) debt securities of the Company (“Debt Securities”).
The Debt Securities will be issued in one or more series pursuant to the Indenture for Senior Debt Securities dated as of February 1, 2001, as supplemented by all indentures supplemental thereto (the “Debt Securities Indenture”), between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the “Trustee”), which is included as an exhibit to the Registration Statement.
In our capacity as counsel to the Company, we have examined such documents, records and instruments as we have deemed necessary for the purposes of this opinion. As to matters of fact material to the opinions expressed herein, we have relied on (a) information in public authority documents (and all opinions based on public authority documents are as of the date of such public authority documents and not as of the date of this opinion letter), and (b) information provided in certificates of officers of the Company. We have not independently verified the facts so relied on.
In such examination, we have assumed the following without investigation: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.
Based upon the foregoing examination and in reliance thereon, and subject to (a) the assumptions stated and in reliance on statements of fact contained in the documents that we have examined and (b) completion of all corporate action required to be taken by the Company to duly authorize each proposed issuance of Securities, we are of the opinion that:
| 1. | With respect to Common Stock, when the shares of Common Stock have been issued and delivered in accordance with the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, such shares of Common Stock will be validly issued, fully paid and non-assessable. |
| 2. | With respect to Debt Securities, when (a) the terms of the Debt Securities have been established in accordance with the Debt Securities Indenture, (b) the Debt Securities Indenture and the supplement thereto, if any, have been qualified under the Trust Indenture Act of 1939, as amended, (c) the applicable supplement to the Debt Securities Indenture, if any, has been duly authorized and validly executed and delivered by the Company and the trustee thereunder and (d) the Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Debt Securities Indenture, the applicable supplement thereto, if any, and the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Debt Securities will constitute legal, valid and binding obligations of the Company. |
The foregoing opinions are subject to the following exclusions and qualifications:
| (a) | Our opinions are as of the date hereof, and we have no responsibility to update this opinion for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, and we disavow any undertaking to advise you of any changes in law. |
| (b) | We express no opinion as to enforceability of any right or obligation to the extent such right or obligation is subject to and limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, fraudulent transfer or other laws affecting or relating to the rights of creditors generally; (ii) rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether arising prior to or after the date hereof or considered in a proceeding in equity or at law; or (iii) the effect of federal and state securities laws and principles of public policy on the rights of indemnity and contribution. |
| (c) | We express no opinion concerning any laws other than the laws in their current forms of the States of Idaho and New York and the federal securities laws of the United States of America, and we express no opinion with respect to the laws of any other jurisdiction and expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any other jurisdiction may have on the opinions set forth herein. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and any amendments thereto, including any and all post-effective amendments, and to the reference to our firm in the prospectus and any prospectus supplements relating thereto under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or related Rules.
Very truly yours,
/s/ PERKINS COIE LLP
PERKINS COIE LLP
2
Exhibit 5.2
[Perkins Coie LLP Letterhead]
May 16, 2022
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702-5627
| Re: | Registration Statement on Form S-3 Filed by Idaho Power Company |
Ladies and Gentlemen:
We have acted as counsel to Idaho Power Company, an Idaho corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder (the “Rules”), of a registration statement on Form S-3 (the “Registration Statement”) for the registration of the sale from time to time of one or more series of the following securities by the Company (collectively, the “Securities”):
| (a) | first mortgage bonds of the Company (the “First Mortgage Bonds”), and |
| (b) | unsecured debt securities of the Company (the “Debentures”). |
The First Mortgage Bonds will be issued in one or more series pursuant to the Mortgage and Deed of Trust dated as of October 1, 1937, as supplemented by all indentures supplemental thereto (the “First Mortgage Bond Indenture”), between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) as the Corporate Trustee, which is included as an exhibit to the Registration Statement.
The Debentures will be issued in one or more series pursuant to an Indenture for Debt Securities dated as of August 1, 2001 (the “Debenture Indenture”) between the Company and Deutsche Bank Trust Company Americas, as trustee, which is included as an exhibit to the Registration Statement. The First Mortgage Bond Indenture and the Debenture Indenture are each referred to in this opinion as an “Indenture.”
In our capacity as counsel to the Company, we have examined such documents, records and instruments as we have deemed necessary for the purposes of this opinion. As to matters of fact material to the opinions expressed herein, we have relied on (a) information in public authority documents (and all opinions based on public authority documents are as of the date of such public authority documents and not as of the date of this opinion letter), and (b) information provided in certificates of officers of the Company. We have not independently verified the facts so relied on.
In such examination, we have assumed the following without investigation: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.
Based upon the foregoing examination and in reliance thereon, and subject to (a) the assumptions stated and in reliance on statements of fact contained in the documents that we have examined and (b) completion of all corporate action required to be taken by the Company to duly authorize each proposed issuance of Securities, we are of the opinion that, when (i) the terms of the Securities have been established in accordance with the applicable Indenture and the applicable supplement thereto, if any, (ii) the applicable Indenture and the applicable supplement thereto, if any, have been qualified under the Trust Indenture Act of 1939, as amended, (iii) the applicable supplement, if any, to the applicable Indenture has been duly authorized and validly executed and delivered by the Company and the trustee thereunder and (iv) the Securities have been executed, issued, delivered and authenticated in accordance with the terms of the applicable Indenture, the applicable supplement thereto, if any, and the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Securities will constitute legal, valid and binding obligations of the Company.
The foregoing opinions are subject to the following exclusions and qualifications:
| (a) | Our opinions are as of the date hereof, and we have no responsibility to update this opinion for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, and we disavow any undertaking to advise you of any changes in law. |
| (b) | We express no opinion as to enforceability of any right or obligation to the extent such right or obligation is subject to and limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, fraudulent transfer or other laws affecting or relating to the rights of creditors generally; (ii) rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether arising prior to or after the date hereof or considered in a proceeding in equity or at law; or (iii) the effect of federal and state securities laws and principles of public policy on the rights of indemnity and contribution. |
| (c) | We express no opinion concerning any laws other than the laws in their current forms of the States of Idaho and New York and the federal securities laws of the United States of America, and we express no opinion with respect to the laws of any other jurisdiction and expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any other jurisdiction may have on the opinions set forth herein. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and any amendments thereto, including any and all post-effective amendments, and to the reference to our firm in the prospectus and any prospectus supplements relating thereto under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or related Rules.
Very truly yours,
/s/ PERKINS COIE LLP
PERKINS COIE LLP
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Exhibit 15.1
May 13, 2022
The Board of Directors and Shareholders of
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702
We are aware that our report dated May 5, 2022, on our review of interim financial information of IDACORP, Inc. appearing in IDACORP, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, is incorporated by reference in this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Boise, Idaho
Exhibit 15.2
May 13, 2022
The Board of Directors and Shareholder of Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
We are aware that our report dated May 5, 2022, on our review of interim financial information of Idaho Power Company appearing in Idaho Power Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, is incorporated by reference in this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Boise, Idaho
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 17, 2022, relating to the financial statements of IDACORP, Inc., and the effectiveness of IDACORP, Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of IDACORP, Inc. for the year ended December 31, 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
Boise, Idaho
May 13, 2022
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 17, 2022, relating to the financial statements of Idaho Power Company, and the effectiveness of Idaho Power Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Idaho Power Company for the year ended December 31, 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
Boise, Idaho
May 13, 2022
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-4941247 | |
| (Jurisdiction of Incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification no.) | |
| 1 COLUMBUS CIRCLE NEW YORK, NEW YORK | 10019 | |
| (Address of principal executive offices) | (Zip Code) | |
Deutsche Bank Trust Company Americas
Attention: Mirko Mieth
Legal Department
1 Columbus Circle, 19th Floor
New York, New York 10019
(212) 250-1663
(Name, address and telephone number of agent for service)
Idaho Power Company
(Exact name of obligor as specified in its charter)
| Idaho | 82-0130980 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 1221 WEST IDAHO STREET BOISE, IDAHO | 83702 | |
| (Address of principal executive offices) | (Zip code) | |
FIRST MORTGAGE BONDS
(Title of the Indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee.
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Federal Reserve Bank (2nd District) |
New York, NY | |
| Federal Deposit Insurance Corporation |
Washington, D.C. | |
| New York State Banking Department |
Albany, NY |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
N/A
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
| Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998;Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 2 - | Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333- 201810. | |
| Exhibit 4 - | A copy of existing By-Laws of Deutsche Bank Trust Company Americas, dated April 29, 2021 (see attached). | |
| Exhibit 5 - | Not applicable. | |
| Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8 - | Not Applicable. | |
| Exhibit 9 - | Not Applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 26th day of April, 2022.
DEUTSCHE BANK TRUST COMPANY AMERICAS
| /s/ Jacqueline Bartnick | ||
| By: | Name: Jacqueline Bartnick | |
| Title: Director |
Exhibit 4
AMENDED AND RESTATED BY-LAWS
OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the stockholders of Deutsche Bank Trust Company Americas (the “Company”) shall be held in the City of New York within the State of New York within the first four months of the Company’s fiscal year, on such date and at such time and place as the board of directors of the Company (“Board of Directors” or “Board”) may designate in the call or in a waiver of notice thereof, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders of the Company may be called by the Board of Directors or by the President, and shall be called by the President or by the Secretary upon the written request of the holders of record of at least twenty-five percent (25%) of the shares of stock of the Company issued and outstanding and entitled to vote, at such times. If for a period of thirteen months after the last annual meeting, there is a failure to elect a sufficient number of directors to conduct the business of the Company, the Board of Directors shall call a special meeting for the election of directors within two weeks after the expiration of such period; otherwise, holders of record of ten percent (10%) of the shares of stock of the Company entitled to vote in an election of directors may, in writing, demand the call of a special meeting at the office of the Company for the election of directors, specifying the date and month thereof, but not less than two nor more than three months from the date of such call. At any such special meeting called on demand of stockholders, the stockholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business.
Section 1.03. Notice of Meetings. Notice of the time, place and purpose of every meeting of stockholders shall be delivered personally or mailed not less than 10 nor more than 50 days before the date of such meeting (or any other action) to each stockholder of record entitled to vote, at his post office address appearing upon the records of the Company or at such other address as shall be furnished in writing by him to the Secretary of the Company for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all stockholders entitled to vote are present in person or by proxy, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 1.04. Quorum. The holders of record of at least a majority of the shares of the stock of the Company issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, by the Company’s Organization Certificate or by these By-Laws, constitute a quorum at all meetings of the stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time until a quorum shall have been obtained.
Section 1.05. Organization of Meetings. Meetings of the stockholders shall be presided over by the Chairman of the Board or, if he is not present, by the President or, if he is not present, by a chairman to be chosen at the meeting. The Secretary of the Company, or in his absence an Assistant Secretary, shall act as secretary of the meeting, if present.
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Section 1.06. Voting. At each meeting of stockholders, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his name on the records of the Company. Elections of directors shall be determined by a plurality of the votes cast thereat and, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, all other action shall be determined by a majority of the votes cast at such meeting.
At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the stockholders present in person or by proxy entitled to vote at such election.
Section 1.07. Action by Consent. Except as may otherwise be provided in the Company’s Organization Certificate, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by all the holders of record of shares of the stock of the Company, issued and outstanding and entitled to vote thereon, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 2.01. Chairman of the Board. Following the election of the Board of Directors at each annual meeting, the elected Board shall appoint one of its members as Chairman. The Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and he shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors.
Section 2.02. Lead Independent Director. Following the election of the Board of Directors at each annual meeting, the elected Board may appoint one of its independent members as its Lead Independent Director. When the Chairman of the Board is not present at a meeting of the Board of Directors, the Lead Independent Director, if there be one, shall preside.
Section 2.03. Director Emeritus. The Board of Directors may from time to time elect one or more Directors Emeritus. Each Director Emeritus shall be elected for a term expiring on the date of the regular meeting of the Board of Directors following the next annual meeting. No Director Emeritus shall be considered a “director” for purposes of these By-Laws or for any other purpose.
Section 2.04. Powers, Number, Quorum, Term, Vacancies, Removal. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Company and do all such lawful acts and things as are not by statute or by the Company’s Organization Certificate or by these By-Laws required to be exercised or done by the stockholders.
The number of directors may be changed by a resolution passed by a majority of the members of the Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote, but at all times the Board of Directors must consist of not less than seven nor more than thirty directors. No more than one-third of the directors shall be active officers or employees of the Company. At least one-half of the directors must be citizens of the United States at the time of their election and during their continuance in office.
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Except as otherwise required by law, rule or regulation, or by the Company’s Organization Certificate, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors, or such committee, as applicable. Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone or video, or other similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Whether or not a quorum shall be present at any meeting of the Board of Directors or a committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time; notice of the adjourned meeting shall be given to the directors who were not present at the time of the adjournment, but if the time and place of the adjourned meeting are announced, no additional notice shall be required to be given to the directors present at the time of adjournment.
Directors shall hold office until the next annual election and until their successors shall have been elected and shall have qualified. Director vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
Any one or more of the directors of the Company may be removed either with or without cause at any time by a vote of the holders of record of at least a majority of the shares of stock of the Company, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the stockholders as provided in these By-Laws.
Section 2.05. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or without the State of New York, as may from time to time be fixed by resolution of the Board, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under applicable law, and special meetings may be held at any time upon the call of two directors, the Chairman of the Board or the President, by oral, telegraphic or written notice duly served on or sent or mailed to each director not less than two days before such meeting. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 2.06. Compensation. The Board of Directors may determine, from time to time, the amount of compensation, which shall be paid to its members. The Board of Directors shall also have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board, or of any committee of the Board. The Board of Directors shall also have power, in its discretion, to provide for and pay to directors rendering services to the Company not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board from time to time.
ARTICLE III
COMMITTEES
Section 3.01. Executive Committee. There shall be an Executive Committee of the Board who shall be appointed annually by resolution adopted by the majority of the entire Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his
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absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Executive Committee as the Executive Committee from time to time may designate shall preside at such meetings.
Section 3.02. Audit and Fiduciary Committee. There shall be an Audit and Fiduciary Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of independent directors, as may from time to time be fixed by the Audit and Fiduciary Committee charter adopted by the Board of Directors.
Section 3.03. Other Committees. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.
Section 3.04. Limitations. No committee shall have the authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders’ authorization under New York Banking Law; (ii) the filling of vacancies in the Board of Directors or in any such committee; (iii) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (iv) the amendment or repeal of these By-Laws, or the adoption of new by-laws; (v) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable; or (vi) the taking of action which is expressly required by any provision of New York Banking Law to be taken at a meeting of the Board of Directors or by a specified proportion of the directors.
ARTICLE IV
OFFICERS
Section 4.01. Titles and Election. The officers of the Company, who shall be chosen by the Board of Directors within twenty-five days after each annual meeting of stockholders, shall be a President, Chief Executive Officer, Chief Risk Officer, Chief Financial Officer, Treasurer, Secretary, and a General Auditor. The Board of Directors from time to time may elect one or more Managing Directors, Directors, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person, except the offices of President and Secretary.
Section 4.02. Terms of Office. Each officer shall hold office for the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified.
Section 4.03. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.
Section 4.04. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.05. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.
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Section 4.06. President. The President shall have general authority to exercise all the powers necessary for the President of the Company. In the absence of the Chairman and the Lead Independent Director, the President shall preside at all meetings of the Board of Directors and of the stockholders. The President shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the president of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.07. Chief Executive Officer. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall exercise the powers and perform the duties usual to the chief executive officer and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Company; he shall appoint and discharge employees and agents of the Company (other than officers elected by the Board of Directors); he shall see that all orders and resolutions of the Board of Directors are carried into effect; he shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the chief executive officer of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.08. Chief Risk Officer. The Chief Risk Officer shall have the responsibility for the risk management and monitoring of the Company. The Chief Risk Officer shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to his office and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.09. Chief Financial Officer. The Chief Financial Officer shall have the responsibility for reporting to the Board of Directors on the financial condition of the Company, preparing and submitting all financial reports required by applicable law, and preparing annual financial statements of the Company and coordinating with qualified third party auditors to ensure such financial statements are audited in accordance with applicable law.
Section 4.10. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys, and other valuable effects in the name and to the credit of the Company, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the directors whenever they may require it an account of all his transactions as Treasurer and of the financial condition of the Company.
Section 4.11. Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of proceedings in records or books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and shall perform such other duties and have such other powers as may be incident to the office of the secretary of a corporation and as from time to time may otherwise be prescribed by the Board of Directors. The Secretary shall have and be the custodian of the stock records and all other books, records and papers of the Company (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.
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Section 4.12. General Auditor. The General Auditor shall be responsible, through the Audit and Fiduciary Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit and Fiduciary Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit and Fiduciary Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit and Fiduciary Committee may request.
Section 4.13. Managing Directors, Directors and Vice Presidents. If chosen, the Managing Directors, Directors and Vice Presidents, in the order of their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. Such Managing Directors, Directors and Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and they shall perform such other duties and have such other powers as may be incident to their respective offices and as from time to time may be prescribed by the Board of Directors or the President.
Section 4.14. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Company, or for any other reason that the Board may deem sufficient, the Board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 5.01. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made or threatened to be made a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, his or her testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which such person reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, and had no reasonable cause to believe that such person’s conduct was unlawful.
Section 5.02. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person, his or her testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise,
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against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, except that no indemnification under this Section 5.02 shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Section 5.03. Authorization of Indemnification. Any indemnification under this Article V (unless ordered by a court) shall be made by the Company only if authorized in the specific case (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be; or (ii) if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be, has been met by such director or officer; or (y) by the stockholders upon a finding that the director or officer has met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be. A person who has been successful on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Sections 5.01 or 5.02, shall be entitled to indemnification as authorized in such section.
Section 5.04. Good Faith Defined. For purposes of any determination under Section 5.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The provisions of this Section 5.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be.
Section 5.05. Serving an Employee Benefit Plan on behalf of the Company. For the purpose of this Article V, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.
Section 5.06. Indemnification upon Application to a Court. Notwithstanding the failure of the Company to provide indemnification and despite any contrary resolution of the Board or stockholders under Section 5.03, or in the event that no determination has been made within ninety
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days after receipt of the Company of a written claim therefor, upon application to a court by a director or officer, indemnification shall be awarded by a court to the extent authorized in Section 5.01 or Section 5.02. Such application shall be upon notice to the Company. Neither a contrary determination in the specific case under Section 5.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.
Section 5.07. Expenses Payable in Advance. Subject to the other provisions of this Article V, and subject to applicable law, expenses incurred in defending a civil or criminal action or proceeding may be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount (i) if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V, (ii) where indemnification is granted, to the extent expenses so advanced by the Company or allowed by a court exceed the indemnification to which such person is entitled and (iii) upon such other terms and conditions, if any, as the Company deems appropriate. Any such advancement of expenses shall be made in the sole and absolute discretion of the Company only as authorized in the specific case upon a determination made, with respect to a person who is a director or officer at the time of such determination, (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding, or (ii) if a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel or (y) by the stockholders and, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Company. Without limiting the foregoing, the Company reserves the right in its sole and absolute discretion to revoke at any time any approval previously granted in respect of any such request for the advancement of expenses or to, in its sole and absolute discretion, impose limits or conditions in respect of any such approval.
Section 5.08. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses granted pursuant to, or provided by, this Article V shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled whether contained in the Company’s Organization Certificate, these By-Laws or, when authorized by the Organization Certificate or these By-Laws, (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this Article V shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law.
Section 5.09. Insurance. Subject to the other provisions of this Article V, the Company may purchase and maintain insurance (in a single contract or supplement thereto, but not in a retrospective rated contract): (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article V, (ii) to indemnify directors and officers in instances in which they may be indemnified by the Company under the provisions of this Article V and applicable law, and (iii) to indemnify directors and officers in instances in which they may not otherwise be indemnified by the Company under the provisions of this Article V, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York Superintendent of Financial Services, for a retention amount and for co-insurance. Notwithstanding the foregoing, any such insurance shall be subject to the provisions of, and the Company shall comply with the requirements set forth in, Section 7023 of the New York State Banking Law.
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Section 5.10. Limitations on Indemnification and Insurance. All indemnification and insurance provisions contained in this Article V are subject to any limitations and prohibitions under applicable law, including but not limited to Section 7022 (with respect to indemnification, advancement or allowance) and Section 7023 (with respect to insurance) of the New York State Banking Law and the Federal Deposit Insurance Act (with respect to administrative proceedings or civil actions initiated by any federal banking agency). Notwithstanding anything contained in this Article V to the contrary, no indemnification, advancement or allowance shall be made (i) to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (ii) in any circumstance where it appears (a) that the indemnification would be inconsistent with a provision of the Company’s Organization Certificate, these By-Laws, a resolution of the Board or of the stockholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) if there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.
Notwithstanding anything contained in this Article V to the contrary, but subject to any requirements of applicable law, (i) except for proceedings to enforce rights to indemnification (which shall be governed by Section 5.06), the Company shall not be obligated to indemnify any director or officer (or his testators intestate) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company, (ii) with respect to indemnification or advancement of expenses relating to attorneys’ fees under this Article V, counsel for the present or former director or officer must be reasonably acceptable to the Company (and the Company may, in its sole and absolute discretion, establish a panel of approved law firms for such purpose, out of which the present or former director or officer could be required to select an approved law firm to represent him), (iii) indemnification in respect of amounts paid in settlement shall be subject to the prior consent of the Company (not to be unreasonably withheld), (iv) any and all obligations of the Corporation under this Article V shall be subject to applicable law, (v) in no event shall any payments pursuant to this Article V be made if duplicative of any indemnification or advancement of expenses or other reimbursement available to the applicable director or officer (other than for coverage maintained by such person in his individual capacity), and (vi) no indemnification or advancement of expenses shall be provided under these By-Laws to any person in respect of any expenses, judgments, fines or amounts paid in settlement to the extent incurred by such person in his capacity or position with another entity (including, without limitation, an entity that is a stockholder of the Company or any of the branches or affiliates of such stockholder), except as expressly provided in these By-Laws in respect of such person’s capacity and position as a director or officer of the Company or such person is a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Section 5.11. Indemnification of Other Persons. The Company may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses (whether pursuant to an adoption of a policy or otherwise) to employees and agents of the Company (whether similar to those conferred in this Article V upon directors and officers of the Company or on other terms and conditions authorized from time to time by the Board of Directors), as well as to employees of direct and indirect subsidiaries of the Company and to other persons (or categories of persons) approved from time to time by the Board of Directors.
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Section 5.12. Repeal. Any repeal or modification of this Article V shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Company existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
ARTICLE VI
CAPITAL STOCK
Section 6.01. Certificates. The interest of each stockholder of the Company shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board or the President or a Managing Director or a Director or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Company or a facsimile thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Company or its employee, or registered by a registrar other than the Company or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Company, whether because of death, resignation, retirement, disqualification, removal or otherwise, before such certificate or certificates shall have been delivered by the Company, such certificate or certificates may nevertheless be adopted by the Company and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Company.
Section 6.02. Transfer. The shares of stock of the Company shall be transferred only upon the books of the Company by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Company or its agents may reasonably require.
Section 6.03. Record Dates. The Board of Directors may fix in advance a date, not less than 10 nor more than 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.
Section 6.04. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of the same tenor and for the same number of shares in lieu thereof. The Board may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate or the legal representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary and to give the Company a bond in such reasonable sum as it directs to indemnify the Company.
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ARTICLE VII
CHECKS, NOTES, ETC.
Section 7.01. Checks, Notes, Etc. All checks and drafts on the Company’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, may be signed by the President or any Managing Director or any Director or any Vice President and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Fiscal Year. The fiscal year of the Company shall be from January 1 to December 31, unless changed by the Board of Directors.
Section 8.02. Books. There shall be kept at such office of the Company as the Board of Directors shall determine, within or without the State of New York, correct books and records of account of all its business and transactions, minutes of the proceedings of its stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the stockholders, the number of shares held by them, respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.
Section 8.03. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Company, other than stock of the Company, shall be voted, in person or by proxy, by the President or any Managing Director or any Director or any Vice President of the Company on behalf of the Company.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. The vote of the holders of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote shall be necessary at any meeting of stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire Board, provided that any by-law adopted by the Board may be amended or repealed by the stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board of Directors or the stockholders or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Company issued and outstanding and entitled to vote are present at such meeting.
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Exhibit 7
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
| Board of Governors of the Federal Reserve System | OMB Number 7100-0036 | |||
| Federal Deposit Insurance Corporation | OMB Number 3064-0052 | |||
| Office of the Comptroller of the Currency | OMB Number 1557-0081 | |||
| Approval expires December 31, 2024 | ||||
| Page 1 of 87 |
Federal Financial Institutions Examination Council
|
|
Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 |
Report at the close of business December 31, 2021
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State nonmember banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and savings associations.
20211231
(RCON 9999)
This report form is to be filed by banks with domestic offices only and total consolidated assets of less than $100 billion, except those banks that file the FFIEC 051, and those banks that are advanced approaches institutions for regulatory capital purposes that are required to file the FFIEC 031.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three directors for state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of Condition and Income (including the supporting
schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct.
|
Director (Trustee) | ||
|
|
| |
| Signature of Chief Financial Officer (or Equivalent) | Director (Trustee) | |
| 01/28/2022 |
| |
| Date of Signature | Director (Trustee) | |
|
| ||
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
| (a) | Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for data collection (https://cdr.ffiec.gov/cdr/), or |
| (b) | Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. |
For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at cdr.help@cdr.ffiec.gov.
| FDIC Certificate Number |
623 | |||||
| (RSSD 9050 | ) |
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms, but should show at least the caption of each Call Report item and the reported amount.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| Legal Title of Bank (RSSD 9017) | ||
| New York | ||
| City (RSSD 9130) |
||
| NY |
10019 | |
| State Abbreviation (RSSD 9200) | Zip Code (RSSD 9220) | |
| Legal Entity Identifier (LEI) |
||
| 8EWQ2UQKS07AKK8ANH81 | ||
| (Report only if your institution already has an LEI.) (RCON 9224) | ||
The estimated average burden associated with this information collection is 55.53 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
12/2021
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
FFIEC 041
Page 2 of 87
Consolidated Reports of Condition and Income for a Bank
with Domestic Offices Only
|
Table of Contents |
||||
| Signature Page |
1 | |||
| Contact Information |
3, 4 | |||
| Report of Income |
||||
| Schedule RI—Income Statement |
|
RI-1, 2, 3, 4 |
| |
| Schedule RI-A—Changes in Bank Equity Capital |
RI-5 | |||
| Schedule RI-B—Charge-offs and Recoveries on Loans and Leases and Changes in Allowances for Credit Losses |
||||
| Part I. Charge-offs and Recoveries on Loans and Leases |
RI-6, 7 | |||
| Part II. Changes in Allowances for Credit Losses |
RI-8 | |||
| Schedule RI-C—Disaggregated Data on the Allowance for Loan and Lease Losses (to be completed only by selected banks) |
||||
| Part I. Disaggregated Data on the Allowance for Loan and Lease Losses |
RI-9 | |||
| Part II. Disaggregated Data on the Allowances for Credit Losses |
RI-10 | |||
| Schedule RI-E—Explanations |
RI-11, 12 | |||
| Report of Condition |
||||
| Schedule RC—Balance Sheet |
RC-1, 2 | |||
| Schedule RC-A—Cash and Balances Due from Depository Institutions (to be completed only by selected banks) |
RC-3 | |||
| Schedule RC-B—Securities |
|
RC-3, 4, 5, 6, 7 |
| |
| Schedule RC-C—Loans and Lease Financing Receivables: |
||||
| Part I. Loans and Leases |
|
RC-8, 9, 10, 11, 12, 13 |
| |
| Part II. Loans to Small Businesses and Small Farms |
RC-14,15 | |||
| Schedule RC-D—Trading Assets and Liabilities (to be completed only by selected banks) |
RC-16 | |||
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Schedule RC-E—Deposit Liabilities |
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RC-17, 18, 19 |
| |
| Schedule RC-F—Other Assets |
RC-20 | |||
| Schedule RC-G—Other Liabilities |
RC-20 | |||
| Schedule RC-K—Quarterly Averages |
|
RC-21, 22 |
| |
| Schedule RC-L—Derivatives and Off-Balance-Sheet Items |
|
RC-23, 24, 25, 26 |
| |
| Schedule RC-M—Memoranda |
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RC-27, 28, 29, 30 |
| |
| Schedule RC-N—Past Due and Nonaccrual Loans, Leases, and Other Assets |
|
RC-31, |
| |
| Schedule RC-O—Other Data for Deposit Insurance Assessments |
|
RC-36, |
| |
| Schedule RC-P—1–4 Family Residential Mortgage Banking Activities (to be completed only by selected banks) |
RC-42 | |||
| Schedule RC-Q—Assets and Liabilities Measured at Fair Value on a Recurring Basis (to be completed only by selected banks) |
|
RC-43, |
| |
| Schedule RC-R—Regulatory Capital: |
||||
| Part I. Regulatory Capital Components and Ratios |
|
RC-46, 47, 48, 49 |
| |
| Part II. Risk-Weighted Assets |
|
RC-50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 |
| |
| Schedule RC-S—Servicing, Securitization, and Asset Sale Activities |
|
RC-64, |
| |
| Schedule RC-T—Fiduciary and Related Services |
|
RC-66, 67, 68, 69 |
| |
| Schedule RC-V—Variable Interest Entities |
RC-70 | |||
| Optional Narrative Statement Concerning the Amounts Reported in the Consolidated Reports of Condition and Income |
RC-71 | |||
| For information or assistance, national banks, state nonmember banks, and savings associations should contact the FDIC’s Data Collection and Analysis Section, 550 17th Street, NW, Washington, DC 20429, toll free on (800) 688-FDIC(3342), Monday through Friday between 8:00 a.m. and 5:00 p.m., Eastern Time. State member banks should contact their Federal Reserve District Bank. | ||||
| 06/2012 |
| DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 New York, NY 10019 |
||
| FFIEC 041 Page 17 of 87 RC-1 |
Consolidated Report of Condition for Insured Banks
and Savings Associations for December 31, 2021
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
| Dollar Amounts in Thousands | RCON | Amount | ||||||||||||
| Assets | ||||||||||||||
| 1. | Cash and balances due from depository institutions (from Schedule RC-A) | |||||||||||||
| a. Noninterest-bearing balances and currency and coin (1) |
0081 | 15,000 | 1.a. | |||||||||||
| b. Interest-bearing balances (2) |
0071 | 27,628,000 | 1.b. | |||||||||||
| 2. | Securities: | |||||||||||||
|
a. Held-to-maturity securities (from Schedule RC-B, column A) (3) |
JJ34 | 0 | 2.a. | |||||||||||
| b. Available-for-sale debt securities (from Schedule RC-B, column D) |
1773 | 772,000 | 2.b. | |||||||||||
| c. Equity securities with readily determinable fair values not held for trading (4) |
JA22 | 6,000 | 2.c. | |||||||||||
| 3. | Federal funds sold and securities purchased under agreements to resell: | |||||||||||||
| a. Federal funds sold |
B987 | 0 | 3.a. | |||||||||||
| b. Securities purchased under agreements to resell (5, 6) |
B989 | 5,917,000 | 3.b. | |||||||||||
| 4. | Loans and lease financing receivables (from Schedule RC-C): | |||||||||||||
| a. Loans and leases held for sale |
5369 | 0 | 4.a. | |||||||||||
| b. Loans and leases held for investment |
B528 | 12,417,000 | 4.b. | |||||||||||
| c. LESS: Allowance for loan and lease losses |
3123 | 13,000 | 4.c. | |||||||||||
| d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7) |
B529 | 12,404,000 | 4.d. | |||||||||||
| 5. | Trading assets (from Schedule RC-D) | 3545 | 0 | 5. | ||||||||||
| 6. | Premises and fixed assets (including capitalized leases) | 2145 | 0 | 6. | ||||||||||
| 7. | Other real estate owned (from Schedule RC-M) | 2150 | 2,000 | 7. | ||||||||||
| 8. | Investments in unconsolidated subsidiaries and associated companies | 2130 | 0 | 8. | ||||||||||
| 9. | Direct and indirect investments in real estate ventures | 3656 | 0 | 9. | ||||||||||
| 10. | Intangible assets (from Schedule RC-M) | 2143 | 17,000 | 10. | ||||||||||
| 11. | Other assets (from Schedule RC-F) (6) | 2160 | 1,995,000 | 11. | ||||||||||
| 12. | Total assets (sum of items 1 through 11) | 2170 | 48,756,000 | 12. | ||||||||||
| Liabilities | ||||||||||||||
| 13. | Deposits: | |||||||||||||
| a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) |
2200 | 37,450,000 | 13.a. | |||||||||||
| (1) Noninterest-bearing (8) |
6631 | 17,321,000 | 13.a.(1) | |||||||||||
| (2) Interest-bearing |
6636 | 20,129,000 | 13.a.(2) | |||||||||||
| b. Not applicable |
||||||||||||||
| 14. | Federal funds purchased and securities sold under agreements to repurchase: | |||||||||||||
| a. Federal funds purchased (9) |
B993 | 0 | 14.a. | |||||||||||
| b. Securities sold under agreements to repurchase (10) |
B995 | 0 | 14.b. | |||||||||||
| 15. | Trading liabilities (from Schedule RC-D) | 3548 | 0 | 15. | ||||||||||
| 16. | Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) | 3190 | 87,000 | 16. | ||||||||||
| 17. | and 18. Not applicable | |||||||||||||
| 19. | Subordinated notes and debentures (11) | 3200 | 0 | 19. | ||||||||||
| 1. | Includes cash items in process of collection and unposted debits. |
| 2. | Includes time certificates of deposit not held for trading. |
| 3. | Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. |
| 4. | Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities. |
| 5. | Includes all securities resale agreements, regardless of maturity. |
| 6. | Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. |
| 7. | Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. |
| 8. | Includes noninterest-bearing demand, time, and savings deposits. |
| 9. | Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” |
| 10. | Includes all securities repurchase agreements, regardless of maturity. |
| 11. | Includes limited-life preferred stock and related surplus. |
12/2021
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
| FFIEC 041 Page 18 of 87 RC-2 |
Schedule RC—Continued
|
Dollar Amounts in Thousands
|
RCON
|
Amount
|
||||||||||||
| Liabilities—continued |
||||||||||||||
| 20. |
Other liabilities (from Schedule RC-G) |
|
2930 |
|
|
1,885,000 |
|
|
20. |
| ||||
| 21. |
Total liabilities (sum of items 13 through 20) |
|
2948 |
|
|
39,422,000 |
|
|
21. |
| ||||
| 22. |
Not applicable |
|||||||||||||
| Equity Capital |
||||||||||||||
| Bank Equity Capital |
||||||||||||||
| 23. |
Perpetual preferred stock and related surplus |
|
3838 |
|
|
0 |
|
|
23. |
| ||||
| 24. |
Common stock |
|
3230 |
|
|
2,127,000 |
|
|
24. |
| ||||
| 25. |
Surplus (exclude all surplus related to preferred stock) |
|
3839 |
|
|
941,000 |
|
|
25. |
| ||||
| 26. |
a. Retained earnings |
|
3632 |
|
|
6,274,000 |
|
|
26.a. |
| ||||
| b. Accumulated other comprehensive income (1) |
|
B530 |
|
|
(8,000) |
|
|
26.b. |
| |||||
| c. Other equity capital components (2) |
|
A130 |
|
|
0 |
|
|
26.c. |
| |||||
| 27. |
a. Total bank equity capital (sum of items 23 through 26.c) |
|
3210 |
|
|
9,334,000 |
|
|
27.a. |
| ||||
| b. Noncontrolling (minority) interests in consolidated subsidiaries |
|
3000 |
|
|
0 |
|
|
27.b. |
| |||||
| 28. |
Total equity capital (sum of items 27.a and 27.b) |
|
G105 |
|
|
9,334,000 |
|
|
28. |
| ||||
| 29. |
Total liabilities and equity capital (sum of items 21 and 28) |
|
3300 |
|
|
48,756,000 |
|
|
29. |
| ||||
|
Memoranda To be reported with the March Report of Condition. |
||||||||||||||
| 1. |
Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2020 | |||||||||||||
| RCON | Number | |||||||||||||
| 6724 | NA | M.1. | ||||||||||||
| 1a = | An integrated audit of the reporting institution’s financial statements and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants (AICPA) or Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution |
| 1b = | An audit of the reporting institution’s financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution |
| 2a = | An integrated audit of the reporting institution’s parent holding company’s consolidated financial statements and its internal control over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 2b = | An audit of the reporting institution’s parent holding company’s consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 3 = | This number is not to be used |
| 4 = | Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) |
| 5 = | Directors’ examination of the bank performed by other external auditors (may be required by state-chartering authority) |
| 6 = | Review of the bank’s financial statements by external auditors |
| 7 = | Compilation of the bank’s financial statements by external auditors |
| 8 = | Other audit procedures (excluding tax preparation work) |
| 9 = | No external audit work |
| To be reported with the March Report of Condition. |
|
RCON |
|
|
Date |
|
|
|
| |||||
| 2. Bank’s fiscal year-end date (report the date in MMDD format) |
|
8678 |
|
|
NA |
|
|
M.2. |
| |||||
| 1. | Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. |
| 2. | Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
06/2012
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-4941247 | |
| (Jurisdiction of Incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification no.) | |
| 1 COLUMBUS CIRCLE NEW YORK, NEW YORK | 10019 | |
| (Address of principal executive offices) | (Zip Code) | |
Deutsche Bank Trust Company Americas
Attention: Mirko Mieth
Legal Department
1 Columbus Circle, 19th Floor
New York, New York 10019
(212) 250-1663
(Name, address and telephone number of agent for service)
Idaho Power Company
(Exact name of obligor as specified in its charter)
| Idaho | 82-0130980 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 1221 WEST IDAHO STREET BOISE, IDAHO | 83702 | |
| (Address of principal executive offices) | (Zip code) | |
DEBT SECURITIES
(Title of the Indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee.
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Federal Reserve Bank (2nd District) |
New York, NY | |
| Federal Deposit Insurance Corporation |
Washington, D.C. | |
| New York State Banking Department |
Albany, NY |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
N/A
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
| Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998;Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 2 - | Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333- 201810. | |
| Exhibit 4 - | A copy of existing By-Laws of Deutsche Bank Trust Company Americas, dated April 29, 2021 (see attached). | |
| Exhibit 5 - | Not applicable. | |
| Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8 - | Not Applicable. | |
| Exhibit 9 - | Not Applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 26th day of April, 2022.
DEUTSCHE BANK TRUST COMPANY AMERICAS
| /s/ Jacqueline Bartnick | ||
| By: | Name: Jacqueline Bartnick | |
| Title: Director |
Exhibit 4
AMENDED AND RESTATED BY-LAWS
OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the stockholders of Deutsche Bank Trust Company Americas (the “Company”) shall be held in the City of New York within the State of New York within the first four months of the Company’s fiscal year, on such date and at such time and place as the board of directors of the Company (“Board of Directors” or “Board”) may designate in the call or in a waiver of notice thereof, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders of the Company may be called by the Board of Directors or by the President, and shall be called by the President or by the Secretary upon the written request of the holders of record of at least twenty-five percent (25%) of the shares of stock of the Company issued and outstanding and entitled to vote, at such times. If for a period of thirteen months after the last annual meeting, there is a failure to elect a sufficient number of directors to conduct the business of the Company, the Board of Directors shall call a special meeting for the election of directors within two weeks after the expiration of such period; otherwise, holders of record of ten percent (10%) of the shares of stock of the Company entitled to vote in an election of directors may, in writing, demand the call of a special meeting at the office of the Company for the election of directors, specifying the date and month thereof, but not less than two nor more than three months from the date of such call. At any such special meeting called on demand of stockholders, the stockholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business.
Section 1.03. Notice of Meetings. Notice of the time, place and purpose of every meeting of stockholders shall be delivered personally or mailed not less than 10 nor more than 50 days before the date of such meeting (or any other action) to each stockholder of record entitled to vote, at his post office address appearing upon the records of the Company or at such other address as shall be furnished in writing by him to the Secretary of the Company for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all stockholders entitled to vote are present in person or by proxy, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 1.04. Quorum. The holders of record of at least a majority of the shares of the stock of the Company issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, by the Company’s Organization Certificate or by these By-Laws, constitute a quorum at all meetings of the stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time until a quorum shall have been obtained.
Section 1.05. Organization of Meetings. Meetings of the stockholders shall be presided over by the Chairman of the Board or, if he is not present, by the President or, if he is not present, by a chairman to be chosen at the meeting. The Secretary of the Company, or in his absence an Assistant Secretary, shall act as secretary of the meeting, if present.
- 1 -
Section 1.06. Voting. At each meeting of stockholders, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his name on the records of the Company. Elections of directors shall be determined by a plurality of the votes cast thereat and, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, all other action shall be determined by a majority of the votes cast at such meeting.
At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the stockholders present in person or by proxy entitled to vote at such election.
Section 1.07. Action by Consent. Except as may otherwise be provided in the Company’s Organization Certificate, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by all the holders of record of shares of the stock of the Company, issued and outstanding and entitled to vote thereon, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 2.01. Chairman of the Board. Following the election of the Board of Directors at each annual meeting, the elected Board shall appoint one of its members as Chairman. The Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and he shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors.
Section 2.02. Lead Independent Director. Following the election of the Board of Directors at each annual meeting, the elected Board may appoint one of its independent members as its Lead Independent Director. When the Chairman of the Board is not present at a meeting of the Board of Directors, the Lead Independent Director, if there be one, shall preside.
Section 2.03. Director Emeritus. The Board of Directors may from time to time elect one or more Directors Emeritus. Each Director Emeritus shall be elected for a term expiring on the date of the regular meeting of the Board of Directors following the next annual meeting. No Director Emeritus shall be considered a “director” for purposes of these By-Laws or for any other purpose.
Section 2.04. Powers, Number, Quorum, Term, Vacancies, Removal. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Company and do all such lawful acts and things as are not by statute or by the Company’s Organization Certificate or by these By-Laws required to be exercised or done by the stockholders.
The number of directors may be changed by a resolution passed by a majority of the members of the Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote, but at all times the Board of Directors must consist of not less than seven nor more than thirty directors. No more than one-third of the directors shall be active officers or employees of the Company. At least one-half of the directors must be citizens of the United States at the time of their election and during their continuance in office.
- 2 -
Except as otherwise required by law, rule or regulation, or by the Company’s Organization Certificate, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors, or such committee, as applicable. Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone or video, or other similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Whether or not a quorum shall be present at any meeting of the Board of Directors or a committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time; notice of the adjourned meeting shall be given to the directors who were not present at the time of the adjournment, but if the time and place of the adjourned meeting are announced, no additional notice shall be required to be given to the directors present at the time of adjournment.
Directors shall hold office until the next annual election and until their successors shall have been elected and shall have qualified. Director vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
Any one or more of the directors of the Company may be removed either with or without cause at any time by a vote of the holders of record of at least a majority of the shares of stock of the Company, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the stockholders as provided in these By-Laws.
Section 2.05. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or without the State of New York, as may from time to time be fixed by resolution of the Board, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under applicable law, and special meetings may be held at any time upon the call of two directors, the Chairman of the Board or the President, by oral, telegraphic or written notice duly served on or sent or mailed to each director not less than two days before such meeting. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 2.06. Compensation. The Board of Directors may determine, from time to time, the amount of compensation, which shall be paid to its members. The Board of Directors shall also have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board, or of any committee of the Board. The Board of Directors shall also have power, in its discretion, to provide for and pay to directors rendering services to the Company not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board from time to time.
ARTICLE III
COMMITTEES
Section 3.01. Executive Committee. There shall be an Executive Committee of the Board who shall be appointed annually by resolution adopted by the majority of the entire Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his
- 3 -
absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Executive Committee as the Executive Committee from time to time may designate shall preside at such meetings.
Section 3.02. Audit and Fiduciary Committee. There shall be an Audit and Fiduciary Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of independent directors, as may from time to time be fixed by the Audit and Fiduciary Committee charter adopted by the Board of Directors.
Section 3.03. Other Committees. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.
Section 3.04. Limitations. No committee shall have the authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders’ authorization under New York Banking Law; (ii) the filling of vacancies in the Board of Directors or in any such committee; (iii) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (iv) the amendment or repeal of these By-Laws, or the adoption of new by-laws; (v) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable; or (vi) the taking of action which is expressly required by any provision of New York Banking Law to be taken at a meeting of the Board of Directors or by a specified proportion of the directors.
ARTICLE IV
OFFICERS
Section 4.01. Titles and Election. The officers of the Company, who shall be chosen by the Board of Directors within twenty-five days after each annual meeting of stockholders, shall be a President, Chief Executive Officer, Chief Risk Officer, Chief Financial Officer, Treasurer, Secretary, and a General Auditor. The Board of Directors from time to time may elect one or more Managing Directors, Directors, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person, except the offices of President and Secretary.
Section 4.02. Terms of Office. Each officer shall hold office for the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified.
Section 4.03. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.
Section 4.04. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.05. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.
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Section 4.06. President. The President shall have general authority to exercise all the powers necessary for the President of the Company. In the absence of the Chairman and the Lead Independent Director, the President shall preside at all meetings of the Board of Directors and of the stockholders. The President shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the president of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.07. Chief Executive Officer. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall exercise the powers and perform the duties usual to the chief executive officer and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Company; he shall appoint and discharge employees and agents of the Company (other than officers elected by the Board of Directors); he shall see that all orders and resolutions of the Board of Directors are carried into effect; he shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the chief executive officer of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.08. Chief Risk Officer. The Chief Risk Officer shall have the responsibility for the risk management and monitoring of the Company. The Chief Risk Officer shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to his office and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.09. Chief Financial Officer. The Chief Financial Officer shall have the responsibility for reporting to the Board of Directors on the financial condition of the Company, preparing and submitting all financial reports required by applicable law, and preparing annual financial statements of the Company and coordinating with qualified third party auditors to ensure such financial statements are audited in accordance with applicable law.
Section 4.10. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys, and other valuable effects in the name and to the credit of the Company, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the directors whenever they may require it an account of all his transactions as Treasurer and of the financial condition of the Company.
Section 4.11. Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of proceedings in records or books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and shall perform such other duties and have such other powers as may be incident to the office of the secretary of a corporation and as from time to time may otherwise be prescribed by the Board of Directors. The Secretary shall have and be the custodian of the stock records and all other books, records and papers of the Company (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.
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Section 4.12. General Auditor. The General Auditor shall be responsible, through the Audit and Fiduciary Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit and Fiduciary Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit and Fiduciary Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit and Fiduciary Committee may request.
Section 4.13. Managing Directors, Directors and Vice Presidents. If chosen, the Managing Directors, Directors and Vice Presidents, in the order of their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. Such Managing Directors, Directors and Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and they shall perform such other duties and have such other powers as may be incident to their respective offices and as from time to time may be prescribed by the Board of Directors or the President.
Section 4.14. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Company, or for any other reason that the Board may deem sufficient, the Board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 5.01. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made or threatened to be made a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, his or her testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which such person reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, and had no reasonable cause to believe that such person’s conduct was unlawful.
Section 5.02. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person, his or her testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise,
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against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, except that no indemnification under this Section 5.02 shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Section 5.03. Authorization of Indemnification. Any indemnification under this Article V (unless ordered by a court) shall be made by the Company only if authorized in the specific case (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be; or (ii) if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be, has been met by such director or officer; or (y) by the stockholders upon a finding that the director or officer has met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be. A person who has been successful on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Sections 5.01 or 5.02, shall be entitled to indemnification as authorized in such section.
Section 5.04. Good Faith Defined. For purposes of any determination under Section 5.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The provisions of this Section 5.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be.
Section 5.05. Serving an Employee Benefit Plan on behalf of the Company. For the purpose of this Article V, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.
Section 5.06. Indemnification upon Application to a Court. Notwithstanding the failure of the Company to provide indemnification and despite any contrary resolution of the Board or stockholders under Section 5.03, or in the event that no determination has been made within ninety
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days after receipt of the Company of a written claim therefor, upon application to a court by a director or officer, indemnification shall be awarded by a court to the extent authorized in Section 5.01 or Section 5.02. Such application shall be upon notice to the Company. Neither a contrary determination in the specific case under Section 5.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.
Section 5.07. Expenses Payable in Advance. Subject to the other provisions of this Article V, and subject to applicable law, expenses incurred in defending a civil or criminal action or proceeding may be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount (i) if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V, (ii) where indemnification is granted, to the extent expenses so advanced by the Company or allowed by a court exceed the indemnification to which such person is entitled and (iii) upon such other terms and conditions, if any, as the Company deems appropriate. Any such advancement of expenses shall be made in the sole and absolute discretion of the Company only as authorized in the specific case upon a determination made, with respect to a person who is a director or officer at the time of such determination, (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding, or (ii) if a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel or (y) by the stockholders and, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Company. Without limiting the foregoing, the Company reserves the right in its sole and absolute discretion to revoke at any time any approval previously granted in respect of any such request for the advancement of expenses or to, in its sole and absolute discretion, impose limits or conditions in respect of any such approval.
Section 5.08. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses granted pursuant to, or provided by, this Article V shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled whether contained in the Company’s Organization Certificate, these By-Laws or, when authorized by the Organization Certificate or these By-Laws, (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this Article V shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law.
Section 5.09. Insurance. Subject to the other provisions of this Article V, the Company may purchase and maintain insurance (in a single contract or supplement thereto, but not in a retrospective rated contract): (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article V, (ii) to indemnify directors and officers in instances in which they may be indemnified by the Company under the provisions of this Article V and applicable law, and (iii) to indemnify directors and officers in instances in which they may not otherwise be indemnified by the Company under the provisions of this Article V, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York Superintendent of Financial Services, for a retention amount and for co-insurance. Notwithstanding the foregoing, any such insurance shall be subject to the provisions of, and the Company shall comply with the requirements set forth in, Section 7023 of the New York State Banking Law.
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Section 5.10. Limitations on Indemnification and Insurance. All indemnification and insurance provisions contained in this Article V are subject to any limitations and prohibitions under applicable law, including but not limited to Section 7022 (with respect to indemnification, advancement or allowance) and Section 7023 (with respect to insurance) of the New York State Banking Law and the Federal Deposit Insurance Act (with respect to administrative proceedings or civil actions initiated by any federal banking agency). Notwithstanding anything contained in this Article V to the contrary, no indemnification, advancement or allowance shall be made (i) to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (ii) in any circumstance where it appears (a) that the indemnification would be inconsistent with a provision of the Company’s Organization Certificate, these By-Laws, a resolution of the Board or of the stockholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) if there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.
Notwithstanding anything contained in this Article V to the contrary, but subject to any requirements of applicable law, (i) except for proceedings to enforce rights to indemnification (which shall be governed by Section 5.06), the Company shall not be obligated to indemnify any director or officer (or his testators intestate) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company, (ii) with respect to indemnification or advancement of expenses relating to attorneys’ fees under this Article V, counsel for the present or former director or officer must be reasonably acceptable to the Company (and the Company may, in its sole and absolute discretion, establish a panel of approved law firms for such purpose, out of which the present or former director or officer could be required to select an approved law firm to represent him), (iii) indemnification in respect of amounts paid in settlement shall be subject to the prior consent of the Company (not to be unreasonably withheld), (iv) any and all obligations of the Corporation under this Article V shall be subject to applicable law, (v) in no event shall any payments pursuant to this Article V be made if duplicative of any indemnification or advancement of expenses or other reimbursement available to the applicable director or officer (other than for coverage maintained by such person in his individual capacity), and (vi) no indemnification or advancement of expenses shall be provided under these By-Laws to any person in respect of any expenses, judgments, fines or amounts paid in settlement to the extent incurred by such person in his capacity or position with another entity (including, without limitation, an entity that is a stockholder of the Company or any of the branches or affiliates of such stockholder), except as expressly provided in these By-Laws in respect of such person’s capacity and position as a director or officer of the Company or such person is a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Section 5.11. Indemnification of Other Persons. The Company may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses (whether pursuant to an adoption of a policy or otherwise) to employees and agents of the Company (whether similar to those conferred in this Article V upon directors and officers of the Company or on other terms and conditions authorized from time to time by the Board of Directors), as well as to employees of direct and indirect subsidiaries of the Company and to other persons (or categories of persons) approved from time to time by the Board of Directors.
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Section 5.12. Repeal. Any repeal or modification of this Article V shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Company existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
ARTICLE VI
CAPITAL STOCK
Section 6.01. Certificates. The interest of each stockholder of the Company shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board or the President or a Managing Director or a Director or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Company or a facsimile thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Company or its employee, or registered by a registrar other than the Company or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Company, whether because of death, resignation, retirement, disqualification, removal or otherwise, before such certificate or certificates shall have been delivered by the Company, such certificate or certificates may nevertheless be adopted by the Company and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Company.
Section 6.02. Transfer. The shares of stock of the Company shall be transferred only upon the books of the Company by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Company or its agents may reasonably require.
Section 6.03. Record Dates. The Board of Directors may fix in advance a date, not less than 10 nor more than 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.
Section 6.04. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of the same tenor and for the same number of shares in lieu thereof. The Board may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate or the legal representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary and to give the Company a bond in such reasonable sum as it directs to indemnify the Company.
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ARTICLE VII
CHECKS, NOTES, ETC.
Section 7.01. Checks, Notes, Etc. All checks and drafts on the Company’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, may be signed by the President or any Managing Director or any Director or any Vice President and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Fiscal Year. The fiscal year of the Company shall be from January 1 to December 31, unless changed by the Board of Directors.
Section 8.02. Books. There shall be kept at such office of the Company as the Board of Directors shall determine, within or without the State of New York, correct books and records of account of all its business and transactions, minutes of the proceedings of its stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the stockholders, the number of shares held by them, respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.
Section 8.03. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Company, other than stock of the Company, shall be voted, in person or by proxy, by the President or any Managing Director or any Director or any Vice President of the Company on behalf of the Company.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. The vote of the holders of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote shall be necessary at any meeting of stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire Board, provided that any by-law adopted by the Board may be amended or repealed by the stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board of Directors or the stockholders or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Company issued and outstanding and entitled to vote are present at such meeting.
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Exhibit 7
| DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 | ||||
| New York, NY 10019 | ||||
| Board of Governors of the Federal Reserve System | OMB Number 7100-0036 | |||
| Federal Deposit Insurance Corporation | OMB Number 3064-0052 | |||
| Office of the Comptroller of the Currency | OMB Number 1557-0081 | |||
| Approval expires December 31, 2024 | ||||
| Page 1 of 87 | ||||
Federal Financial Institutions Examination Council
|
Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 |
Report at the close of business December 31, 2021
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State nonmember banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and savings associations.
20211231
(RCON 9999)
This report form is to be filed by banks with domestic offices only and total consolidated assets of less than $100 billion, except those banks that file the FFIEC 051, and those banks that are advanced approaches institutions for regulatory capital purposes that are required to file the FFIEC 031.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three directors for state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of Condition and Income (including the supporting
schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct.
|
Director (Trustee) | ||
|
Signature of Chief Financial Officer (or Equivalent) |
Director (Trustee) | |
| 01/28/2022 |
| |
| Date of Signature
|
Director (Trustee) | |
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
| (a) | Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for data collection (https://cdr.ffiec.gov/cdr/), or |
| (b) | Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. |
For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at cdr.help@cdr.ffiec.gov.
| FDIC Certificate Number | 623 | |||||
| (RSSD 9050) |
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms, but should show at least the caption of each Call Report item and the reported amount.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| Legal Title of Bank (RSSD 9017) | ||
| New York | ||
| City (RSSD 9130) |
||
| NY |
10019 | |
| State Abbreviation (RSSD 9200) | Zip Code (RSSD 9220) | |
| Legal Entity Identifier (LEI)
|
||
| 8EWQ2UQKS07AKK8ANH81 | ||
| (Report only if your institution already has an LEI.) (RCON 9224) | ||
The estimated average burden associated with this information collection is 55.53 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
12/2021
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
FFIEC 041
Page 2 of 87
Consolidated Reports of Condition and Income for a Bank
with Domestic Offices Only
|
Table of Contents |
||||
| Signature Page |
1 | |||
| Contact Information |
3, 4 | |||
| Report of Income |
||||
| Schedule RI—Income Statement |
|
RI-1, 2, 3, 4 |
| |
| Schedule RI-A—Changes in Bank Equity Capital |
RI-5 | |||
| Schedule RI-B—Charge-offs and Recoveries on Loans and Leases and Changes in Allowances for Credit Losses |
||||
| Part I. Charge-offs and Recoveries on Loans and Leases |
RI-6, 7 | |||
| Part II. Changes in Allowances for Credit Losses |
RI-8 | |||
| Schedule RI-C—Disaggregated Data on the Allowance for Loan and Lease Losses (to be completed only by selected banks) |
||||
| Part I. Disaggregated Data on the Allowance for Loan and Lease Losses |
RI-9 | |||
| Part II. Disaggregated Data on the Allowances for Credit Losses |
RI-10 | |||
| Schedule RI-E—Explanations |
RI-11, 12 | |||
| Report of Condition |
||||
| Schedule RC—Balance Sheet |
RC-1, 2 | |||
| Schedule RC-A—Cash and Balances Due from Depository Institutions (to be completed only by selected banks) |
RC-3 | |||
| Schedule RC-B—Securities |
|
RC-3, 4, 5, 6, 7 |
| |
| Schedule RC-C—Loans and Lease Financing Receivables: |
||||
| Part I. Loans and Leases |
|
RC-8, 9, 10, 11, 12, 13 |
| |
| Part II. Loans to Small Businesses and Small Farms |
RC-14,15 | |||
| Schedule RC-D—Trading Assets and Liabilities (to be completed only by selected banks) |
RC-16 | |||
|
Schedule RC-E—Deposit Liabilities |
|
RC-17, |
| |
| Schedule RC-F—Other Assets |
RC-20 | |||
| Schedule RC-G—Other Liabilities |
RC-20 | |||
| Schedule RC-K—Quarterly Averages |
|
RC-21, 22 |
| |
| Schedule RC-L—Derivatives and Off-Balance-Sheet Items |
|
RC-23, 24, 25, 26 |
| |
| Schedule RC-M—Memoranda |
|
RC-27, 28, 29, 30 |
| |
| Schedule RC-N—Past Due and Nonaccrual Loans, Leases, and Other Assets |
|
RC-31, |
| |
| Schedule RC-O—Other Data for Deposit Insurance Assessments |
|
RC-36, |
| |
| Schedule RC-P—1–4 Family Residential Mortgage Banking Activities (to be completed only by selected banks) |
RC-42 | |||
| Schedule RC-Q—Assets and Liabilities Measured at Fair Value on a Recurring Basis (to be completed only by selected banks) |
|
RC-43, |
| |
| Schedule RC-R—Regulatory Capital: |
||||
| Part I. Regulatory Capital Components and Ratios |
|
RC-46, 47, 48, 49 |
| |
| Part II. Risk-Weighted Assets |
|
RC-50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 |
| |
| Schedule RC-S—Servicing, Securitization, and Asset Sale Activities |
|
RC-64, |
| |
| Schedule RC-T—Fiduciary and Related Services |
|
RC-66, 67, 68, 69 |
| |
| Schedule RC-V—Variable Interest Entities |
RC-70 | |||
| Optional Narrative Statement Concerning the Amounts Reported in the Consolidated Reports of Condition and Income |
RC-71 | |||
| For information or assistance, national banks, state nonmember banks, and savings associations should contact the FDIC’s Data Collection and Analysis Section, 550 17th Street, NW, Washington, DC 20429, toll free on (800) 688-FDIC(3342), Monday through Friday between 8:00 a.m. and 5:00 p.m., Eastern Time. State member banks should contact their Federal Reserve District Bank. | ||||
| 06/2012 |
| DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 New York, NY 10019 |
||
| FFIEC 041 Page 17 of 87 RC-1 |
Consolidated Report of Condition for Insured Banks
and Savings Associations for December 31, 2021
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
| Dollar Amounts in Thousands | RCON | Amount | ||||||||||||
| Assets | ||||||||||||||
| 1. | Cash and balances due from depository institutions (from Schedule RC-A) | |||||||||||||
| a. Noninterest-bearing balances and currency and coin (1) |
0081 | 15,000 | 1.a. | |||||||||||
| b. Interest-bearing balances (2) |
0071 | 27,628,000 | 1.b. | |||||||||||
| 2. | Securities: | |||||||||||||
|
a. Held-to-maturity securities (from Schedule RC-B, column A) (3) |
JJ34 | 0 | 2.a. | |||||||||||
| b. Available-for-sale debt securities (from Schedule RC-B, column D) |
1773 | 772,000 | 2.b. | |||||||||||
| c. Equity securities with readily determinable fair values not held for trading (4) |
JA22 | 6,000 | 2.c. | |||||||||||
| 3. | Federal funds sold and securities purchased under agreements to resell: | |||||||||||||
| a. Federal funds sold |
B987 | 0 | 3.a. | |||||||||||
| b. Securities purchased under agreements to resell (5, 6) |
B989 | 5,917,000 | 3.b. | |||||||||||
| 4. | Loans and lease financing receivables (from Schedule RC-C): | |||||||||||||
| a. Loans and leases held for sale |
5369 | 0 | 4.a. | |||||||||||
| b. Loans and leases held for investment |
B528 | 12,417,000 | 4.b. | |||||||||||
| c. LESS: Allowance for loan and lease losses |
3123 | 13,000 | 4.c. | |||||||||||
| d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7) |
B529 | 12,404,000 | 4.d. | |||||||||||
| 5. | Trading assets (from Schedule RC-D) | 3545 | 0 | 5. | ||||||||||
| 6. | Premises and fixed assets (including capitalized leases) | 2145 | 0 | 6. | ||||||||||
| 7. | Other real estate owned (from Schedule RC-M) | 2150 | 2,000 | 7. | ||||||||||
| 8. | Investments in unconsolidated subsidiaries and associated companies | 2130 | 0 | 8. | ||||||||||
| 9. | Direct and indirect investments in real estate ventures | 3656 | 0 | 9. | ||||||||||
| 10. | Intangible assets (from Schedule RC-M) | 2143 | 17,000 | 10. | ||||||||||
| 11. | Other assets (from Schedule RC-F) (6) | 2160 | 1,995,000 | 11. | ||||||||||
| 12. | Total assets (sum of items 1 through 11) | 2170 | 48,756,000 | 12. | ||||||||||
| Liabilities | ||||||||||||||
| 13. | Deposits: | |||||||||||||
| a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) |
2200 | 37,450,000 | 13.a. | |||||||||||
| (1) Noninterest-bearing (8) |
6631 | 17,321,000 | 13.a.(1) | |||||||||||
| (2) Interest-bearing |
6636 | 20,129,000 | 13.a.(2) | |||||||||||
| b. Not applicable |
||||||||||||||
| 14. | Federal funds purchased and securities sold under agreements to repurchase: | |||||||||||||
| a. Federal funds purchased (9) |
B993 | 0 | 14.a. | |||||||||||
| b. Securities sold under agreements to repurchase (10) |
B995 | 0 | 14.b. | |||||||||||
| 15. | Trading liabilities (from Schedule RC-D) | 3548 | 0 | 15. | ||||||||||
| 16. | Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) | 3190 | 87,000 | 16. | ||||||||||
| 17. | and 18. Not applicable | |||||||||||||
| 19. | Subordinated notes and debentures (11) | 3200 | 0 | 19. | ||||||||||
| 1. | Includes cash items in process of collection and unposted debits. |
| 2. | Includes time certificates of deposit not held for trading. |
| 3. | Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. |
| 4. | Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities. |
| 5. | Includes all securities resale agreements, regardless of maturity. |
| 6. | Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. |
| 7. | Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. |
| 8. | Includes noninterest-bearing demand, time, and savings deposits. |
| 9. | Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” |
| 10. | Includes all securities repurchase agreements, regardless of maturity. |
| 11. | Includes limited-life preferred stock and related surplus. |
12/2021
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
| FFIEC 041 Page 18 of 87 RC-2 |
Schedule RC—Continued
|
Dollar Amounts in Thousands
|
RCON
|
Amount
|
||||||||||||
| Liabilities—continued |
||||||||||||||
| 20. |
Other liabilities (from Schedule RC-G) |
|
2930 |
|
|
1,885,000 |
|
|
20. |
| ||||
| 21. |
Total liabilities (sum of items 13 through 20) |
|
2948 |
|
|
39,422,000 |
|
|
21. |
| ||||
| 22. |
Not applicable |
|||||||||||||
| Equity Capital |
||||||||||||||
| Bank Equity Capital |
||||||||||||||
| 23. |
Perpetual preferred stock and related surplus |
|
3838 |
|
|
0 |
|
|
23. |
| ||||
| 24. |
Common stock |
|
3230 |
|
|
2,127,000 |
|
|
24. |
| ||||
| 25. |
Surplus (exclude all surplus related to preferred stock) |
|
3839 |
|
|
941,000 |
|
|
25. |
| ||||
| 26. |
a. Retained earnings |
|
3632 |
|
|
6,274,000 |
|
|
26.a. |
| ||||
| b. Accumulated other comprehensive income (1) |
|
B530 |
|
|
(8,000) |
|
|
26.b. |
| |||||
| c. Other equity capital components (2) |
|
A130 |
|
|
0 |
|
|
26.c. |
| |||||
| 27. |
a. Total bank equity capital (sum of items 23 through 26.c) |
|
3210 |
|
|
9,334,000 |
|
|
27.a. |
| ||||
| b. Noncontrolling (minority) interests in consolidated subsidiaries |
|
3000 |
|
|
0 |
|
|
27.b. |
| |||||
| 28. |
Total equity capital (sum of items 27.a and 27.b) |
|
G105 |
|
|
9,334,000 |
|
|
28. |
| ||||
| 29. |
Total liabilities and equity capital (sum of items 21 and 28) |
|
3300 |
|
|
48,756,000 |
|
|
29. |
| ||||
|
Memoranda To be reported with the March Report of Condition. |
||||||||||||||
| 1. |
Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2020 | |||||||||||||
| RCON | Number | |||||||||||||
| 6724 | NA | M.1. | ||||||||||||
| 1a = | An integrated audit of the reporting institution’s financial statements and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants (AICPA) or Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution |
| 1b = | An audit of the reporting institution’s financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution |
| 2a = | An integrated audit of the reporting institution’s parent holding company’s consolidated financial statements and its internal control over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 2b = | An audit of the reporting institution’s parent holding company’s consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 3 = | This number is not to be used |
| 4 = | Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) |
| 5 = | Directors’ examination of the bank performed by other external auditors (may be required by state-chartering authority) |
| 6 = | Review of the bank’s financial statements by external auditors |
| 7 = | Compilation of the bank’s financial statements by external auditors |
| 8 = | Other audit procedures (excluding tax preparation work) |
| 9 = | No external audit work |
| To be reported with the March Report of Condition. |
|
RCON |
|
|
Date |
|
|
|
| |||||
| 2. Bank’s fiscal year-end date (report the date in MMDD format) |
|
8678 |
|
|
NA |
|
|
M.2. |
| |||||
| 1. | Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. |
| 2. | Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
06/2012
Exhibit 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-4941247 | |
| (Jurisdiction of Incorporation or | (I.R.S. Employer | |
| organization if not a U.S. national bank) | Identification no.) |
| 1 COLUMBUS CIRCLE NEW YORK, NEW YORK | 10019 | |
| (Address of principal executive offices) | (Zip Code) |
Deutsche Bank Trust Company Americas
Attention: Mirko Mieth
Legal Department
1 Columbus Circle, 19th Floor
New York, New York 10019
(212) 250-1663
(Name, address and telephone number of agent for service)
IDACORP, Inc
(Exact name of obligor as specified in its charter)
| Idaho | 82-0505802 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
| 1221 WEST IDAHO STREET BOISE, IDAHO | 83702 | |
| (Address of principal executive offices) | (Zip code) |
SENIOR DEBT SECURITIES
(Title of the Indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee.
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Federal Reserve Bank (2nd District) |
New York, NY | |
| Federal Deposit Insurance Corporation |
Washington, D.C. | |
| New York State Banking Department |
Albany, NY |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
N/A
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
| Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998;Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 2 - | Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 4 - | A copy of existing By-Laws of Deutsche Bank Trust Company Americas, dated April 29, 2021 (see attached). | |
| Exhibit 5 - | Not applicable. | |
| Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8 - | Not Applicable. | |
| Exhibit 9 - | Not Applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 26th day of April, 2022.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| /s/ Jacqueline Bartnick | ||
| By: |
Name: Jacqueline Bartnick | |
| Title: Director | ||
Exhibit 4
AMENDED AND RESTATED BY-LAWS
OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the stockholders of Deutsche Bank Trust Company Americas (the “Company”) shall be held in the City of New York within the State of New York within the first four months of the Company’s fiscal year, on such date and at such time and place as the board of directors of the Company (“Board of Directors” or “Board”) may designate in the call or in a waiver of notice thereof, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders of the Company may be called by the Board of Directors or by the President, and shall be called by the President or by the Secretary upon the written request of the holders of record of at least twenty-five percent (25%) of the shares of stock of the Company issued and outstanding and entitled to vote, at such times. If for a period of thirteen months after the last annual meeting, there is a failure to elect a sufficient number of directors to conduct the business of the Company, the Board of Directors shall call a special meeting for the election of directors within two weeks after the expiration of such period; otherwise, holders of record of ten percent (10%) of the shares of stock of the Company entitled to vote in an election of directors may, in writing, demand the call of a special meeting at the office of the Company for the election of directors, specifying the date and month thereof, but not less than two nor more than three months from the date of such call. At any such special meeting called on demand of stockholders, the stockholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business.
Section 1.03. Notice of Meetings. Notice of the time, place and purpose of every meeting of stockholders shall be delivered personally or mailed not less than 10 nor more than 50 days before the date of such meeting (or any other action) to each stockholder of record entitled to vote, at his post office address appearing upon the records of the Company or at such other address as shall be furnished in writing by him to the Secretary of the Company for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all stockholders entitled to vote are present in person or by proxy, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 1.04. Quorum. The holders of record of at least a majority of the shares of the stock of the Company issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, by the Company’s Organization Certificate or by these By-Laws, constitute a quorum at all meetings of the stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time until a quorum shall have been obtained.
Section 1.05. Organization of Meetings. Meetings of the stockholders shall be presided over by the Chairman of the Board or, if he is not present, by the President or, if he is not present, by a chairman to be chosen at the meeting. The Secretary of the Company, or in his absence an Assistant Secretary, shall act as secretary of the meeting, if present.
- 1 -
Section 1.06. Voting. At each meeting of stockholders, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his name on the records of the Company. Elections of directors shall be determined by a plurality of the votes cast thereat and, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, all other action shall be determined by a majority of the votes cast at such meeting.
At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the stockholders present in person or by proxy entitled to vote at such election.
Section 1.07. Action by Consent. Except as may otherwise be provided in the Company’s Organization Certificate, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by all the holders of record of shares of the stock of the Company, issued and outstanding and entitled to vote thereon, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 2.01. Chairman of the Board. Following the election of the Board of Directors at each annual meeting, the elected Board shall appoint one of its members as Chairman. The Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and he shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors.
Section 2.02. Lead Independent Director. Following the election of the Board of Directors at each annual meeting, the elected Board may appoint one of its independent members as its Lead Independent Director. When the Chairman of the Board is not present at a meeting of the Board of Directors, the Lead Independent Director, if there be one, shall preside.
Section 2.03. Director Emeritus. The Board of Directors may from time to time elect one or more Directors Emeritus. Each Director Emeritus shall be elected for a term expiring on the date of the regular meeting of the Board of Directors following the next annual meeting. No Director Emeritus shall be considered a “director” for purposes of these By-Laws or for any other purpose.
Section 2.04. Powers, Number, Quorum, Term, Vacancies, Removal. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Company and do all such lawful acts and things as are not by statute or by the Company’s Organization Certificate or by these By-Laws required to be exercised or done by the stockholders.
The number of directors may be changed by a resolution passed by a majority of the members of the Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote, but at all times the Board of Directors must consist of not less than seven nor more than thirty directors. No more than one-third of the directors shall be active officers or employees of the Company. At least one-half of the directors must be citizens of the United States at the time of their election and during their continuance in office.
- 2 -
Except as otherwise required by law, rule or regulation, or by the Company’s Organization Certificate, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors, or such committee, as applicable. Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone or video, or other similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Whether or not a quorum shall be present at any meeting of the Board of Directors or a committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time; notice of the adjourned meeting shall be given to the directors who were not present at the time of the adjournment, but if the time and place of the adjourned meeting are announced, no additional notice shall be required to be given to the directors present at the time of adjournment.
Directors shall hold office until the next annual election and until their successors shall have been elected and shall have qualified. Director vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
Any one or more of the directors of the Company may be removed either with or without cause at any time by a vote of the holders of record of at least a majority of the shares of stock of the Company, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the stockholders as provided in these By-Laws.
Section 2.05. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or without the State of New York, as may from time to time be fixed by resolution of the Board, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under applicable law, and special meetings may be held at any time upon the call of two directors, the Chairman of the Board or the President, by oral, telegraphic or written notice duly served on or sent or mailed to each director not less than two days before such meeting. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 2.06. Compensation. The Board of Directors may determine, from time to time, the amount of compensation, which shall be paid to its members. The Board of Directors shall also have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board, or of any committee of the Board. The Board of Directors shall also have power, in its discretion, to provide for and pay to directors rendering services to the Company not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board from time to time.
ARTICLE III
COMMITTEES
Section 3.01. Executive Committee. There shall be an Executive Committee of the Board who shall be appointed annually by resolution adopted by the majority of the entire Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his
- 3 -
absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Executive Committee as the Executive Committee from time to time may designate shall preside at such meetings.
Section 3.02. Audit and Fiduciary Committee. There shall be an Audit and Fiduciary Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of independent directors, as may from time to time be fixed by the Audit and Fiduciary Committee charter adopted by the Board of Directors.
Section 3.03. Other Committees. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.
Section 3.04. Limitations. No committee shall have the authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders’ authorization under New York Banking Law; (ii) the filling of vacancies in the Board of Directors or in any such committee; (iii) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (iv) the amendment or repeal of these By-Laws, or the adoption of new by-laws; (v) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable; or (vi) the taking of action which is expressly required by any provision of New York Banking Law to be taken at a meeting of the Board of Directors or by a specified proportion of the directors.
ARTICLE IV
OFFICERS
Section 4.01. Titles and Election. The officers of the Company, who shall be chosen by the Board of Directors within twenty-five days after each annual meeting of stockholders, shall be a President, Chief Executive Officer, Chief Risk Officer, Chief Financial Officer, Treasurer, Secretary, and a General Auditor. The Board of Directors from time to time may elect one or more Managing Directors, Directors, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person, except the offices of President and Secretary.
Section 4.02. Terms of Office. Each officer shall hold office for the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified.
Section 4.03. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.
Section 4.04. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.05. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.
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Section 4.06. President. The President shall have general authority to exercise all the powers necessary for the President of the Company. In the absence of the Chairman and the Lead Independent Director, the President shall preside at all meetings of the Board of Directors and of the stockholders. The President shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the president of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.07. Chief Executive Officer. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall exercise the powers and perform the duties usual to the chief executive officer and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Company; he shall appoint and discharge employees and agents of the Company (other than officers elected by the Board of Directors); he shall see that all orders and resolutions of the Board of Directors are carried into effect; he shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the chief executive officer of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.08. Chief Risk Officer. The Chief Risk Officer shall have the responsibility for the risk management and monitoring of the Company. The Chief Risk Officer shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to his office and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.09. Chief Financial Officer. The Chief Financial Officer shall have the responsibility for reporting to the Board of Directors on the financial condition of the Company, preparing and submitting all financial reports required by applicable law, and preparing annual financial statements of the Company and coordinating with qualified third party auditors to ensure such financial statements are audited in accordance with applicable law.
Section 4.10. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys, and other valuable effects in the name and to the credit of the Company, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the directors whenever they may require it an account of all his transactions as Treasurer and of the financial condition of the Company.
Section 4.11. Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of proceedings in records or books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and shall perform such other duties and have such other powers as may be incident to the office of the secretary of a corporation and as from time to time may otherwise be prescribed by the Board of Directors. The Secretary shall have and be the custodian of the stock records and all other books, records and papers of the Company (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.
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Section 4.12. General Auditor. The General Auditor shall be responsible, through the Audit and Fiduciary Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit and Fiduciary Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit and Fiduciary Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit and Fiduciary Committee may request.
Section 4.13. Managing Directors, Directors and Vice Presidents. If chosen, the Managing Directors, Directors and Vice Presidents, in the order of their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. Such Managing Directors, Directors and Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and they shall perform such other duties and have such other powers as may be incident to their respective offices and as from time to time may be prescribed by the Board of Directors or the President.
Section 4.14. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Company, or for any other reason that the Board may deem sufficient, the Board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 5.01. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made or threatened to be made a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, his or her testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which such person reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, and had no reasonable cause to believe that such person’s conduct was unlawful.
Section 5.02. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person, his or her testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise,
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against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, except that no indemnification under this Section 5.02 shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Section 5.03. Authorization of Indemnification. Any indemnification under this Article V (unless ordered by a court) shall be made by the Company only if authorized in the specific case (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be; or (ii) if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be, has been met by such director or officer; or (y) by the stockholders upon a finding that the director or officer has met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be. A person who has been successful on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Sections 5.01 or 5.02, shall be entitled to indemnification as authorized in such section.
Section 5.04. Good Faith Defined. For purposes of any determination under Section 5.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The provisions of this Section 5.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be.
Section 5.05. Serving an Employee Benefit Plan on behalf of the Company. For the purpose of this Article V, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.
Section 5.06. Indemnification upon Application to a Court. Notwithstanding the failure of the Company to provide indemnification and despite any contrary resolution of the Board or stockholders under Section 5.03, or in the event that no determination has been made within ninety
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days after receipt of the Company of a written claim therefor, upon application to a court by a director or officer, indemnification shall be awarded by a court to the extent authorized in Section 5.01 or Section 5.02. Such application shall be upon notice to the Company. Neither a contrary determination in the specific case under Section 5.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.
Section 5.07. Expenses Payable in Advance. Subject to the other provisions of this Article V, and subject to applicable law, expenses incurred in defending a civil or criminal action or proceeding may be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount (i) if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V, (ii) where indemnification is granted, to the extent expenses so advanced by the Company or allowed by a court exceed the indemnification to which such person is entitled and (iii) upon such other terms and conditions, if any, as the Company deems appropriate. Any such advancement of expenses shall be made in the sole and absolute discretion of the Company only as authorized in the specific case upon a determination made, with respect to a person who is a director or officer at the time of such determination, (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding, or (ii) if a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel or (y) by the stockholders and, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Company. Without limiting the foregoing, the Company reserves the right in its sole and absolute discretion to revoke at any time any approval previously granted in respect of any such request for the advancement of expenses or to, in its sole and absolute discretion, impose limits or conditions in respect of any such approval.
Section 5.08. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses granted pursuant to, or provided by, this Article V shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled whether contained in the Company’s Organization Certificate, these By-Laws or, when authorized by the Organization Certificate or these By-Laws, (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this Article V shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law.
Section 5.09. Insurance. Subject to the other provisions of this Article V, the Company may purchase and maintain insurance (in a single contract or supplement thereto, but not in a retrospective rated contract): (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article V, (ii) to indemnify directors and officers in instances in which they may be indemnified by the Company under the provisions of this Article V and applicable law, and (iii) to indemnify directors and officers in instances in which they may not otherwise be indemnified by the Company under the provisions of this Article V, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York Superintendent of Financial Services, for a retention amount and for co-insurance. Notwithstanding the foregoing, any such insurance shall be subject to the provisions of, and the Company shall comply with the requirements set forth in, Section 7023 of the New York State Banking Law.
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Section 5.10. Limitations on Indemnification and Insurance. All indemnification and insurance provisions contained in this Article V are subject to any limitations and prohibitions under applicable law, including but not limited to Section 7022 (with respect to indemnification, advancement or allowance) and Section 7023 (with respect to insurance) of the New York State Banking Law and the Federal Deposit Insurance Act (with respect to administrative proceedings or civil actions initiated by any federal banking agency). Notwithstanding anything contained in this Article V to the contrary, no indemnification, advancement or allowance shall be made (i) to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (ii) in any circumstance where it appears (a) that the indemnification would be inconsistent with a provision of the Company’s Organization Certificate, these By-Laws, a resolution of the Board or of the stockholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) if there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.
Notwithstanding anything contained in this Article V to the contrary, but subject to any requirements of applicable law, (i) except for proceedings to enforce rights to indemnification (which shall be governed by Section 5.06), the Company shall not be obligated to indemnify any director or officer (or his testators intestate) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company, (ii) with respect to indemnification or advancement of expenses relating to attorneys’ fees under this Article V, counsel for the present or former director or officer must be reasonably acceptable to the Company (and the Company may, in its sole and absolute discretion, establish a panel of approved law firms for such purpose, out of which the present or former director or officer could be required to select an approved law firm to represent him), (iii) indemnification in respect of amounts paid in settlement shall be subject to the prior consent of the Company (not to be unreasonably withheld), (iv) any and all obligations of the Corporation under this Article V shall be subject to applicable law, (v) in no event shall any payments pursuant to this Article V be made if duplicative of any indemnification or advancement of expenses or other reimbursement available to the applicable director or officer (other than for coverage maintained by such person in his individual capacity), and (vi) no indemnification or advancement of expenses shall be provided under these By-Laws to any person in respect of any expenses, judgments, fines or amounts paid in settlement to the extent incurred by such person in his capacity or position with another entity (including, without limitation, an entity that is a stockholder of the Company or any of the branches or affiliates of such stockholder), except as expressly provided in these By-Laws in respect of such person’s capacity and position as a director or officer of the Company or such person is a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Section 5.11. Indemnification of Other Persons. The Company may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses (whether pursuant to an adoption of a policy or otherwise) to employees and agents of the Company (whether similar to those conferred in this Article V upon directors and officers of the Company or on other terms and conditions authorized from time to time by the Board of Directors), as well as to employees of direct and indirect subsidiaries of the Company and to other persons (or categories of persons) approved from time to time by the Board of Directors.
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Section 5.12. Repeal. Any repeal or modification of this Article V shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Company existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
ARTICLE VI
CAPITAL STOCK
Section 6.01. Certificates. The interest of each stockholder of the Company shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board or the President or a Managing Director or a Director or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Company or a facsimile thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Company or its employee, or registered by a registrar other than the Company or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Company, whether because of death, resignation, retirement, disqualification, removal or otherwise, before such certificate or certificates shall have been delivered by the Company, such certificate or certificates may nevertheless be adopted by the Company and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Company.
Section 6.02. Transfer. The shares of stock of the Company shall be transferred only upon the books of the Company by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Company or its agents may reasonably require.
Section 6.03. Record Dates. The Board of Directors may fix in advance a date, not less than 10 nor more than 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.
Section 6.04. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of the same tenor and for the same number of shares in lieu thereof. The Board may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate or the legal representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary and to give the Company a bond in such reasonable sum as it directs to indemnify the Company.
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ARTICLE VII
CHECKS, NOTES, ETC.
Section 7.01. Checks, Notes, Etc. All checks and drafts on the Company’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, may be signed by the President or any Managing Director or any Director or any Vice President and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Fiscal Year. The fiscal year of the Company shall be from January 1 to December 31, unless changed by the Board of Directors.
Section 8.02. Books. There shall be kept at such office of the Company as the Board of Directors shall determine, within or without the State of New York, correct books and records of account of all its business and transactions, minutes of the proceedings of its stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the stockholders, the number of shares held by them, respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.
Section 8.03. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Company, other than stock of the Company, shall be voted, in person or by proxy, by the President or any Managing Director or any Director or any Vice President of the Company on behalf of the Company.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. The vote of the holders of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote shall be necessary at any meeting of stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire Board, provided that any by-law adopted by the Board may be amended or repealed by the stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board of Directors or the stockholders or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Company issued and outstanding and entitled to vote are present at such meeting.
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Exhibit 7
| DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 | ||||
| New York, NY 10019 | ||||
| Board of Governors of the Federal Reserve System | OMB Number 7100-0036 | |||
| Federal Deposit Insurance Corporation | OMB Number 3064-0052 | |||
| Office of the Comptroller of the Currency | OMB Number 1557-0081 | |||
| Approval expires December 31, 2024 | ||||
| Page 1 of 87 | ||||
Federal Financial Institutions Examination Council
|
|
Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 |
Report at the close of business December 31, 2021
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State nonmember banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and savings associations.
20211231
(RCON 9999)
This report form is to be filed by banks with domestic offices only and total consolidated assets of less than $100 billion, except those banks that file the FFIEC 051, and those banks that are advanced approaches institutions for regulatory capital purposes that are required to file the FFIEC 031.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three directors for state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of Condition and Income (including the supporting
schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct.
|
Director (Trustee) | ||
|
Signature of Chief Financial Officer (or Equivalent) |
Director (Trustee) | |
| 01/28/2022 |
| |
| Date of Signature
|
Director (Trustee) | |
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
| (a) | Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for data collection (https://cdr.ffiec.gov/cdr/), or |
| (b) | Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. |
For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at cdr.help@cdr.ffiec.gov.
| FDIC Certificate Number | 623 | |||||
| (RSSD 9050) |
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms, but should show at least the caption of each Call Report item and the reported amount.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| Legal Title of Bank (RSSD 9017) | ||
| New York | ||
| City (RSSD 9130) |
||
| NY |
10019 | |
| State Abbreviation (RSSD 9200) | Zip Code (RSSD 9220) | |
| Legal Entity Identifier (LEI)
|
||
| 8EWQ2UQKS07AKK8ANH81 | ||
| (Report only if your institution already has an LEI.) (RCON 9224) | ||
The estimated average burden associated with this information collection is 55.53 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
12/2021
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
FFIEC 041
Page 2 of 87
Consolidated Reports of Condition and Income for a Bank
with Domestic Offices Only
|
Table of Contents |
||||
| Signature Page |
1 | |||
| Contact Information |
3, 4 | |||
| Report of Income |
||||
| Schedule RI—Income Statement |
|
RI-1, 2, 3, 4 |
| |
| Schedule RI-A—Changes in Bank Equity Capital |
RI-5 | |||
| Schedule RI-B—Charge-offs and Recoveries on Loans and Leases and Changes in Allowances for Credit Losses |
||||
| Part I. Charge-offs and Recoveries on Loans and Leases |
RI-6, 7 | |||
| Part II. Changes in Allowances for Credit Losses |
RI-8 | |||
| Schedule RI-C—Disaggregated Data on the Allowance for Loan and Lease Losses (to be completed only by selected banks) |
||||
| Part I. Disaggregated Data on the Allowance for Loan and Lease Losses |
RI-9 | |||
| Part II. Disaggregated Data on the Allowances for Credit Losses |
RI-10 | |||
| Schedule RI-E—Explanations |
RI-11, 12 | |||
| Report of Condition |
||||
| Schedule RC—Balance Sheet |
RC-1, 2 | |||
| Schedule RC-A—Cash and Balances Due from Depository Institutions (to be completed only by selected banks) |
RC-3 | |||
| Schedule RC-B—Securities |
|
RC-3, 4, 5, 6, 7 |
| |
| Schedule RC-C—Loans and Lease Financing Receivables: |
||||
| Part I. Loans and Leases |
|
RC-8, 9, 10, 11, 12, 13 |
| |
| Part II. Loans to Small Businesses and Small Farms |
RC-14,15 | |||
| Schedule RC-D—Trading Assets and Liabilities (to be completed only by selected banks) |
RC-16 | |||
|
Schedule RC-E—Deposit Liabilities |
|
RC-17, |
| |
| Schedule RC-F—Other Assets |
RC-20 | |||
| Schedule RC-G—Other Liabilities |
RC-20 | |||
| Schedule RC-K—Quarterly Averages |
|
RC-21, 22 |
| |
| Schedule RC-L—Derivatives and Off-Balance-Sheet Items |
|
RC-23, 24, 25, 26 |
| |
| Schedule RC-M—Memoranda |
|
RC-27, 28, 29, 30 |
| |
| Schedule RC-N—Past Due and Nonaccrual Loans, Leases, and Other Assets |
|
RC-31, |
| |
| Schedule RC-O—Other Data for Deposit Insurance Assessments |
|
RC-36, |
| |
| Schedule RC-P—1–4 Family Residential Mortgage Banking Activities (to be completed only by selected banks) |
RC-42 | |||
| Schedule RC-Q—Assets and Liabilities Measured at Fair Value on a Recurring Basis (to be completed only by selected banks) |
|
RC-43, |
| |
| Schedule RC-R—Regulatory Capital: |
||||
| Part I. Regulatory Capital Components and Ratios |
|
RC-46, 47, 48, 49 |
| |
| Part II. Risk-Weighted Assets |
|
RC-50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 |
| |
| Schedule RC-S—Servicing, Securitization, and Asset Sale Activities |
|
RC-64, |
| |
| Schedule RC-T—Fiduciary and Related Services |
|
RC-66, 67, 68, 69 |
| |
| Schedule RC-V—Variable Interest Entities |
RC-70 | |||
| Optional Narrative Statement Concerning the Amounts Reported in the Consolidated Reports of Condition and Income |
RC-71 | |||
| For information or assistance, national banks, state nonmember banks, and savings associations should contact the FDIC’s Data Collection and Analysis Section, 550 17th Street, NW, Washington, DC 20429, toll free on (800) 688-FDIC(3342), Monday through Friday between 8:00 a.m. and 5:00 p.m., Eastern Time. State member banks should contact their Federal Reserve District Bank. | ||||
| 06/2012 |
| DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 New York, NY 10019 |
||
| FFIEC 041 Page 17 of 87 RC-1 |
Consolidated Report of Condition for Insured Banks
and Savings Associations for December 31, 2021
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
| Dollar Amounts in Thousands | RCON | Amount | ||||||||||||
| Assets | ||||||||||||||
| 1. | Cash and balances due from depository institutions (from Schedule RC-A) | |||||||||||||
| a. Noninterest-bearing balances and currency and coin (1) |
0081 | 15,000 | 1.a. | |||||||||||
| b. Interest-bearing balances (2) |
0071 | 27,628,000 | 1.b. | |||||||||||
| 2. | Securities: | |||||||||||||
|
a. Held-to-maturity securities (from Schedule RC-B, column A) (3) |
JJ34 | 0 | 2.a. | |||||||||||
| b. Available-for-sale debt securities (from Schedule RC-B, column D) |
1773 | 772,000 | 2.b. | |||||||||||
| c. Equity securities with readily determinable fair values not held for trading (4) |
JA22 | 6,000 | 2.c. | |||||||||||
| 3. | Federal funds sold and securities purchased under agreements to resell: | |||||||||||||
| a. Federal funds sold |
B987 | 0 | 3.a. | |||||||||||
| b. Securities purchased under agreements to resell (5, 6) |
B989 | 5,917,000 | 3.b. | |||||||||||
| 4. | Loans and lease financing receivables (from Schedule RC-C): | |||||||||||||
| a. Loans and leases held for sale |
5369 | 0 | 4.a. | |||||||||||
| b. Loans and leases held for investment |
B528 | 12,417,000 | 4.b. | |||||||||||
| c. LESS: Allowance for loan and lease losses |
3123 | 13,000 | 4.c. | |||||||||||
| d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7) |
B529 | 12,404,000 | 4.d. | |||||||||||
| 5. | Trading assets (from Schedule RC-D) | 3545 | 0 | 5. | ||||||||||
| 6. | Premises and fixed assets (including capitalized leases) | 2145 | 0 | 6. | ||||||||||
| 7. | Other real estate owned (from Schedule RC-M) | 2150 | 2,000 | 7. | ||||||||||
| 8. | Investments in unconsolidated subsidiaries and associated companies | 2130 | 0 | 8. | ||||||||||
| 9. | Direct and indirect investments in real estate ventures | 3656 | 0 | 9. | ||||||||||
| 10. | Intangible assets (from Schedule RC-M) | 2143 | 17,000 | 10. | ||||||||||
| 11. | Other assets (from Schedule RC-F) (6) | 2160 | 1,995,000 | 11. | ||||||||||
| 12. | Total assets (sum of items 1 through 11) | 2170 | 48,756,000 | 12. | ||||||||||
| Liabilities | ||||||||||||||
| 13. | Deposits: | |||||||||||||
| a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) |
2200 | 37,450,000 | 13.a. | |||||||||||
| (1) Noninterest-bearing (8) |
6631 | 17,321,000 | 13.a.(1) | |||||||||||
| (2) Interest-bearing |
6636 | 20,129,000 | 13.a.(2) | |||||||||||
| b. Not applicable |
||||||||||||||
| 14. | Federal funds purchased and securities sold under agreements to repurchase: | |||||||||||||
| a. Federal funds purchased (9) |
B993 | 0 | 14.a. | |||||||||||
| b. Securities sold under agreements to repurchase (10) |
B995 | 0 | 14.b. | |||||||||||
| 15. | Trading liabilities (from Schedule RC-D) | 3548 | 0 | 15. | ||||||||||
| 16. | Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) | 3190 | 87,000 | 16. | ||||||||||
| 17. | and 18. Not applicable | |||||||||||||
| 19. | Subordinated notes and debentures (11) | 3200 | 0 | 19. | ||||||||||
| 1. | Includes cash items in process of collection and unposted debits. |
| 2. | Includes time certificates of deposit not held for trading. |
| 3. | Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. |
| 4. | Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities. |
| 5. | Includes all securities resale agreements, regardless of maturity. |
| 6. | Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. |
| 7. | Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. |
| 8. | Includes noninterest-bearing demand, time, and savings deposits. |
| 9. | Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” |
| 10. | Includes all securities repurchase agreements, regardless of maturity. |
| 11. | Includes limited-life preferred stock and related surplus. |
12/2021
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
| FFIEC 041 Page 18 of 87 RC-2 |
Schedule RC—Continued
|
Dollar Amounts in Thousands
|
RCON
|
Amount
|
||||||||||||
| Liabilities—continued |
||||||||||||||
| 20. |
Other liabilities (from Schedule RC-G) |
|
2930 |
|
|
1,885,000 |
|
|
20. |
| ||||
| 21. |
Total liabilities (sum of items 13 through 20) |
|
2948 |
|
|
39,422,000 |
|
|
21. |
| ||||
| 22. |
Not applicable |
|||||||||||||
| Equity Capital |
||||||||||||||
| Bank Equity Capital |
||||||||||||||
| 23. |
Perpetual preferred stock and related surplus |
|
3838 |
|
|
0 |
|
|
23. |
| ||||
| 24. |
Common stock |
|
3230 |
|
|
2,127,000 |
|
|
24. |
| ||||
| 25. |
Surplus (exclude all surplus related to preferred stock) |
|
3839 |
|
|
941,000 |
|
|
25. |
| ||||
| 26. |
a. Retained earnings |
|
3632 |
|
|
6,274,000 |
|
|
26.a. |
| ||||
| b. Accumulated other comprehensive income (1) |
|
B530 |
|
|
(8,000) |
|
|
26.b. |
| |||||
| c. Other equity capital components (2) |
|
A130 |
|
|
0 |
|
|
26.c. |
| |||||
| 27. |
a. Total bank equity capital (sum of items 23 through 26.c) |
|
3210 |
|
|
9,334,000 |
|
|
27.a. |
| ||||
| b. Noncontrolling (minority) interests in consolidated subsidiaries |
|
3000 |
|
|
0 |
|
|
27.b. |
| |||||
| 28. |
Total equity capital (sum of items 27.a and 27.b) |
|
G105 |
|
|
9,334,000 |
|
|
28. |
| ||||
| 29. |
Total liabilities and equity capital (sum of items 21 and 28) |
|
3300 |
|
|
48,756,000 |
|
|
29. |
| ||||
|
Memoranda To be reported with the March Report of Condition. |
||||||||||||||
| 1. |
Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2020 | |||||||||||||
| RCON | Number | |||||||||||||
| 6724 | NA | M.1. | ||||||||||||
| 1a = | An integrated audit of the reporting institution’s financial statements and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants (AICPA) or Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution |
| 1b = | An audit of the reporting institution’s financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution |
| 2a = | An integrated audit of the reporting institution’s parent holding company’s consolidated financial statements and its internal control over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 2b = | An audit of the reporting institution’s parent holding company’s consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 3 = | This number is not to be used |
| 4 = | Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) |
| 5 = | Directors’ examination of the bank performed by other external auditors (may be required by state-chartering authority) |
| 6 = | Review of the bank’s financial statements by external auditors |
| 7 = | Compilation of the bank’s financial statements by external auditors |
| 8 = | Other audit procedures (excluding tax preparation work) |
| 9 = | No external audit work |
| To be reported with the March Report of Condition. |
|
RCON |
|
|
Date |
|
|
|
| |||||
| 2. Bank’s fiscal year-end date (report the date in MMDD format) |
|
8678 |
|
|
NA |
|
|
M.2. |
| |||||
| 1. | Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. |
| 2. | Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
06/2012