UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 23, 2011
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Exact name of registrants as specified in |
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Commission |
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their charters, address of principal executive |
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IRS Employer |
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File Number |
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offices and registrants’ telephone number |
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Identification Number |
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1-14465 |
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IDACORP, Inc. |
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82-0505802 |
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1-3198 |
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Idaho Power Company |
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82-0130980 |
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1221 W. Idaho Street |
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Boise, ID 83702-5627 |
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(208) 388-2200 |
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State or Other Jurisdiction of Incorporation: Idaho |
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None |
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Former name or former address, if changed since last report. |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 8.01 Other Items.
Amendment to Sales Agency Agreement
On February 23, 2011, IDACORP, Inc. (“IDACORP”) entered into Amendment No. 2 to its Sales Agency Agreement with BNY Mellon Capital Markets, LLC (“BNYMCM”), dated December 5, 2008, relating to the issuance and sale of up to 3,000,000 shares of IDACORP common stock from time to time in at-the-market offerings through BNYMCM as IDACORP’s agent for such offer and sale. Amendment No. 2 to the Sales Agency Agreement was executed in connection with IDACORP’s change in legal counsel for matters pertaining to the Sales Agency Agreement, and amends the form of letter required to be delivered periodically by IDACORP’s legal counsel pursuant to Section 4.07 of the Sales Agency Agreement. The Amendment did not increase the number of shares of common stock available for issuance under the Sales Agency Agreement, which as of the date of this report is approximately 1.2 million shares. A copy of Amendment No. 2 to the Sales Agency Agreement is filed as Exhibit 1.1 hereto.
Amendment to Selling Agency Agreement
On February 23, 2011, Idaho Power Company (“Idaho Power”) entered into a letter amendment to its Selling Agency Agreement with each of BNY Mellon Capital Markets, LLC, J.P. Morgan Securities Inc., KeyBanc Capital Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Mitsubishi UFJ Securities (USA), Inc., RBC Capital Markets Corporation, SunTrust Robinson Humphrey, Inc., U.S. Bancorp Investments, Inc., and Wells Fargo Securities, LLC in connection with the issuance and sale by Idaho Power from time to time of up to $500,000,000 aggregate principal amount of First Mortgage Bonds, Secured Medium-Term Notes, Series I. The letter amendment was executed in connection with Idaho Power’s change in legal counsel for matters pertaining to the Selling Agency Agreement, and amends the form of opinion and letter required to be delivered by Idaho Power’s legal counsel pursuant to Sections 4(j) and 6(b) of the Selling Agency Agreement. A copy of the letter amendment to the Selling Agency Agreement is filed as Exhibit 1.2 hereto.
Idaho Public Utilities Commission Filings
Fixed Cost Adjustment Mechanism
In March 2007, the Idaho Public Utilities Commission (“IPUC”) approved the implementation of a fixed cost adjustment (“FCA”) pilot program for Idaho Power’s residential and small general service customers. The FCA is a rate mechanism designed to remove Idaho Power’s disincentive to invest in energy efficiency programs by separating (or decoupling) the recovery of fixed costs from the variable kilowatt-hour charge and linking it instead to a set amount per customer. The FCA allows Idaho Power to recover the difference between certain fixed costs recovered in rates and the fixed costs authorized for recovery in Idaho Power’s most recent rate case. The pilot program began on January 1, 2007 and ended on December 31, 2009. On April 29, 2010, the IPUC approved a two-year extension of the FCA pilot program, effective retroactively to January 1, 2010.
On March 15, 2011, Idaho Power filed an application with the IPUC requesting authorization to implement FCA rates for electric service from June 1, 2011 through May 31, 2012. Idaho Power’s application requested an aggregate increase of $3.0 million in FCA rates for the residential and small general service customer classes in its Idaho jurisdiction, and requested that the revised FCA rates become effective on June 1, 2011.
Recovery of Cash Contribution to Defined Benefit Pension Plan
In May 2010, the IPUC approved Idaho Power’s request to increase rates to allow recovery of a $5.4 million cash contribution to its defined benefit pension plan for the 2009 plan year, which contribution was required to be made by September 2010. In September 2010, Idaho Power elected to make a $60 million contribution to its defined benefit pension plan, rather than the minimum required funding amount, to bring the defined benefit pension plan to a more funded position, reduce future required contributions, and reduce Pension Benefit Guaranty Corporation premiums. On October 1, 2010, Idaho Power filed an application with the IPUC requesting an order accepting Idaho Power’s 2011 retirement benefits package. Idaho Power’s application did not request recovery through rates of additional pension plan contributions. On January 26, 2011, the IPUC issued an order stating that
Idaho Power is not precluded from filing for recovery of 2010 contributions to the defined benefit pension plan before proceedings relating to the 2011 retirement benefits package have concluded. As of the date of this report, a determination and order from the IPUC on the 2011 retirement benefits package remains pending.
On March 15, 2011, Idaho Power filed an application with the IPUC requesting an increase in the amount included in base rates for recovery of the Idaho-allocated portion of Idaho Power’s cash contributions to its defined benefit pension plan from the current amount of $5.4 million to approximately $17.1 million annually. Idaho Power’s application requested that the revised rates become effective on June 1, 2011.
Power Cost Adjustment Filing
Idaho Power expects to file its annual power cost adjustment (“PCA”) application with the IPUC in April 2011 to implement new PCA rates to be effective from June 1, 2011 through May 31, 2012. The PCA tracks Idaho Power’s actual net power supply costs (primarily fuel and purchased power less off-system sales) and compares these amounts to net power supply costs currently being recovered in retail rates. While circumstances could change, Idaho Power expects that the application will request a reduction in Idaho jurisdictional rates that offsets all or a portion of the increases in rates requested in Idaho Power’s March 15, 2011 FCA and pension contribution recovery applications described above.
Demand-Side Management Program Prudency Application
Idaho Power has implemented and/or manages a wide range of opportunities for its customers to participate in demand-side management programs. On March 15, 2011, Idaho Power filed an application with the IPUC requesting that the IPUC issue an order designating Idaho Power’s Idaho-allocated expenditures of $42.5 million in energy efficiency rider funds in 2010 as prudently incurred expenses.
Forward-Looking Statements
Certain statements contained in this Current Report on Form 8-K, including statements with respect to future business plans, regulatory proceedings, and anticipated regulatory filings and recovery are forward-looking statements within the meaning of federal securities laws and are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. Any statements that express or involve discussions as to expectations, beliefs, plans, objectives, assumptions, or future events or performance, often, but not always, through the use of words or phrases such as “anticipates,” “believes,” “estimates,” and “expects,” 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. Factors that could cause actual results to differ materially from the forward-looking statements include the following: (a) the effect of regulatory decisions by the IPUC, the Oregon Public Utility Commission, and the Federal Energy Regulatory Commission affecting Idaho Power’s ability to recover costs and/or earn a reasonable rate of return, including, but not limited to, the recovery or disallowance of costs that have been deferred, financings, allowed rates of return, electricity pricing and price structures, acquisition and disposal of assets and facilities, and current or prospective wholesale and retail competition; (b) changes in and compliance with state and federal laws, policies, and regulations, including new interpretations and enforcement initiatives by regulatory and oversight bodies, including, but not limited to, the Federal Energy Regulatory Commission and Idaho and Oregon state regulatory commissions; (c) changes in tax laws or new interpretations of tax laws, and the availability, use, and regulatory treatment of any tax credits; (d) litigation and regulatory proceedings, and penalties, settlements, or awards that influence business and profitability; (e) changes in and costs of compliance with laws, regulations, and policies relating to the environment, natural resources, and endangered species and the adoption of laws and regulations addressing the environment; (f) increases in capital expenditures and potential reductions in generation capacity as a result of regulatory conditions that may be imposed on power generating plant license renewals, or the non-renewal of such licenses; (g) global climate change and regional weather variations affecting customer demand and hydroelectric generation; (h) over-appropriation of surface and groundwater in the Snake River Basin and the resulting impact on hydroelectric generation; (i) inability to obtain required permits and approvals, rights-of-way, and siting, and risks related to contracting, construction, and start-up, for infrastructure development projects; (j) delays and cost
increases in connection with the construction or modification of generating facilities and other capital projects; (k) breakdown or failure of equipment, forced outages, availability of electrical transmission capacity, and the availability of water for hydroelectric power generation, natural gas, coal, and diesel for power generation at thermal plants, and wind conditions for wind power generation; (l) changes in costs and availability of materials, fuel, and commodities, and their impact on the ability to meet required loads and on the wholesale energy market in the western United States; (m) disruptions of Idaho Power’s transmission system or interconnected transmission systems; (n) customer growth rates within Idaho Power’s service area; (o) the continuing effects of the weak economy, including decreased demand for electricity and reduced revenue from sales of excess energy during periods of low wholesale market prices; (p) market prices and demand for energy; (q) reductions in credit ratings and the resulting impact on access to capital markets; (r) results of financing efforts, including the ability to obtain financing or refinance existing debt when necessary or on favorable terms; (s) increases in the costs associated with energy commodity and other derivative instruments; (t) general capital market conditions and government regulation that affects the cost of capital, the ability to access the capital markets, and the amount of funding obligations for postretirement benefits; (u) weather and other natural phenomena such as earthquakes, floods, droughts, lightning, wind, and fire and their impact on power demand and infrastructure; and (v) new accounting or Securities and Exchange Commission or New York Stock Exchange requirements, or new interpretations or application of existing requirements. Any such forward-looking statements should be considered in light of these factors and others noted in the companies’ Annual Report on Form 10-K for the year ended December 31, 2010 and other reports on file with the Securities and Exchange Commission. Any forward-looking statement speaks only as of the date on which such statement is made. IDACORP and Idaho Power disclaim 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.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit |
Description |
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1.1 |
Amendment No. 2, dated February 23, 2011, to Sales Agency Agreement, dated December 5, 2008, between IDACORP, Inc. and BNY Mellon Capital Markets, LLC |
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1.2 |
Letter amendment, dated February 23, 2011, to Selling Agency Agreement, dated June 17, 2010, between Idaho Power Company and each of BNY Mellon Capital Markets, LLC, J.P. Morgan Securities Inc., KeyBanc Capital Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Mitsubishi UFJ Securities (USA), Inc., RBC Capital Markets Corporation, SunTrust Robinson Humphrey, Inc., U.S. Bancorp Investments, Inc., and Wells Fargo Securities, LLC |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized.
Dated: March 16, 2011
IDACORP, Inc.
By: /s/ Darrel T. Anderson
Darrel T. Anderson
Executive Vice President –
Administrative Services
and Chief Financial Officer
IDAHO POWER COMPANY
By: /s/ Darrel T. Anderson
Darrel T. Anderson
Executive Vice President –
Administrative Services
and Chief Financial Officer
EXHIBIT INDEX
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Exhibit |
Description |
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1.1 |
Amendment No. 2, dated February 23, 2011, to Sales Agency Agreement, dated December 5, 2008, between IDACORP, Inc. and BNY Mellon Capital Markets, LLC |
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1.2 |
Letter amendment, dated February 23, 2011, to Selling Agency Agreement, dated June 17, 2010, between Idaho Power Company and each of BNY Mellon Capital Markets, LLC, J.P. Morgan Securities Inc., KeyBanc Capital Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Mitsubishi UFJ Securities (USA), Inc., RBC Capital Markets Corporation, SunTrust Robinson Humphrey, Inc., U.S. Bancorp Investments, Inc., and Wells Fargo Securities, LLC |
Exhibit 1.1
Execution Version
Amendment No. 2
to
Sales Agency Agreement
This Amendment No. 2 is made and entered into as of February 23, 2011 (the “Amendment”) between IDACORP, INC., an Idaho corporation (the “Company”), and BNY MELLON CAPITAL MARKETS, LLC, a registered broker-dealer organized under the laws of Delaware (“BNYMCM”), to amend that certain Sales Agency Agreement, dated as of December 5, 2008, as amended by the Amendment No. 1 (the “Amendment No. 1”), dated as of December 3, 2010 (as so amended, the “Agreement”), each between the Company and BNYMCM.
W I T N E S S E T H:
WHEREAS, the counsel for the Company for matters pertaining to the Agreement has been changed from Dewey & LeBoeuf LLP to Perkins Coie LLP;
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the Company and BNYMCM hereby agree as follows (capitalized terms used but not defined herein having the respective meaning ascribed thereto in the Agreement):
Section 2. References to “Exhibit C-2” in Section 4.07 shall be deleted and replaced with “Exhibit D” and an Exhibit D as set forth in Annex I to this Amendment shall be added to the Agreement after Exhibit C-2 thereto.
Section 3. Section 9.03 of the Agreement is hereby revised by deleting the words “Dewey & LeBoeuf LLP, 1301 Avenue of the Americas, New York, NY 10019, Attention: Elizabeth W. Powers, Esq., Facsimile No.: 212-649-9476;” and replacing them with “Perkins Coie LLP, 1201 Third Avenue, Suite 4800, Seattle, Washington 98101, Attention: Andrew Bor and Andrew B. Moore, Facsimile No.: (206) 359-9649;”.
Section 4. The first paragraph of the Amendment No. 1 is hereby revised by deleting the words “under the laws of New York” and replacing them with “under the laws of Delaware.”
Section 5. THIS AMENDMENT SHALL BE GOVERNED BY, INTERPRETED UNDER AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
Section 6. Except as expressly set forth herein, nothing in this Amendment shall be construed to amend, modify or alter any term, condition, right or obligation set forth in the Agreement or in any way affect its enforceability.
Section 7. The Agreement as amended by this Amendment is in full force and effect and is hereby in all respects ratified and confirmed. References in the Agreement to “this Agreement” and to words such as “herein”, “hereinafter”, “hereof”, “hereunder” and any words of similar import shall refer to the Agreement as amended by this Amendment.
Section 8. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile transmission.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.
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IDACORP, INC. |
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By: |
/s/ Steven R. Keen |
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Name: Steven R. Keen |
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Title: Vice President, Finance and |
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Treasurer |
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BNY MELLON CAPITAL MARKETS, |
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LLC |
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By: |
/s/ Daniel C. De Menocal, Jr. |
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Name: Daniel C. de Menocal, Jr. |
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Title: Managing Director |
Amendment No. 2 to
Sales Agency Agreement
Annex I
EXHIBIT D
FORM OF NEGATIVE ASSURANCE LETTER OF PERKINS COIE LLP
[Date]
BNY Mellon Capital Markets, LLC
One Wall Street, 17th Floor
New York, New York 10286
Re: IDACORP, Inc.
Issuance from time to time of up to 3,000,000 Shares of Common Stock
Ladies and Gentlemen:
We are counsel to IDACORP, Inc., an Idaho corporation (the “Company”), and are delivering this opinion to you in connection with the registration statement on Form S-3, File No. 333-155498, filed by the Company on November 20, 2008 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to $598,804,023 in aggregate amount of its (i) common stock, without par value (the “Common Stock”) and (ii) debt securities, which registration statement became effective automatically upon filing pursuant to Rule 462(e) under the Securities Act (such registration statement, as of its most recent Effective Date, including the documents incorporated by reference therein as of such date being hereinafter referred to as the “Registration Statement”). The prospectus, dated November 20, 2008, included in the Registration Statement (the “Base Prospectus”) has been supplemented by a prospectus supplement, dated December 3, 2010(the “Prospectus Supplement”; the Base Prospectus and the Prospectus Supplement, including the documents incorporated by reference therein as of the date hereof, being referred to as the “Prospectus”), relating to the issuance and sale, pursuant to the Sales Agency Agreement, dated December 5, 2008, amended by Amendment No. 1, dated December 3, 2010, and Amendment No. 2, dated February [__], 2011 (as so amended, the “Sales Agency Agreement”), between the Company and BNY Mellon Capital Markets, LLC, from time to time of up to 3,000,000 shares of Common Stock (the “Shares”). This letter is being furnished to you pursuant to Section 4.07 of the Sales Agency Agreement.
Terms not otherwise defined herein shall have the meanings given to them in the Sales Agency Agreement.
We have participated in conferences with certain officers and representatives of the Company, with other counsel for the Company and with representatives of Deloitte & Touche LLP, the independent registered public accounting firm who examined certain of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus. Although we assume no responsibility for the factual accuracy, completeness or fairness of any statements made in the Registration Statement, the Prospectus or the documents
incorporated by reference in the Registration Statement or Prospectus, nothing has come to our attention that has caused us to believe that (i) the Registration Statement, as of its most recent Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Prospectus, as amended or supplemented as of the date and time of delivery of this letter, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. We express no view as to the financial statements and financial schedules and other financial or accounting data contained or incorporated by reference in the Registration Statement or the Prospectus, or as to the report of management’s assessment of the effectiveness of internal control over financial reporting or the auditor’s report on the effectiveness of the Company’s internal control over financial reporting incorporated by reference therein or as to the Statement of Eligibility of the Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended, or as to the statements contained in the Prospectus under the caption “Book-Entry System.”
This letter is being rendered to you and is solely for your benefit in connection with the transactions contemplated by the Sales Agency Agreement. This letter may not be used or relied upon for any other purpose or by any other person or entity, without our express written consent.
Very truly yours,
D-2
Exhibit 1.2
Execution Version
IDAHO POWER COMPANY
First Mortgage Bonds,
Secured Medium-Term Notes, Series I
Due From Nine Months to Thirty Years
From Date of Issue
Selling Agency Agreement
New York, New York
February 23, 2011
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BNY Mellon Capital Markets, LLC 32 Old Slip, 15th Floor New York, NY 10286
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RBC
Capital Markets, LLC Three World Financial Center 200 Vesey Street New York, NY 10281
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J.P. Morgan Securities LLC 383 Madison Avenue New York, NY 10179
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SunTrust Robinson Humphrey, Inc. 3333 Peachtree Road, 11th Floor Atlanta, GA 30326 |
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KeyBanc Capital Markets Inc. 127 Public Square Cleveland, OH 44114-1306
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U.S. Bancorp Investments, Inc. 214 North Tryon Street, 26th Floor EX_NC-WSTC Charlotte, NC 28202
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Merrill Lynch, Pierce, Fenner & Smith Incorporated One Bryant Park New York, NY 10036
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Wells Fargo Securities, LLC 301 S. College Street Charlotte, NC 28288
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Mitsubishi UFJ Securities (USA), Inc. 1633 Broadway, 29th Floor New York, NY 10019 |
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Ladies and Gentlemen:
Reference is made to the Selling Agency Agreement, dated as of June 17, 2010 (the “Selling Agency Agreement”), between Idaho Power Company, an Idaho corporation (the “Company”) and you. Capitalized terms used, but not defined, herein shall have the meanings ascribed to them by the Selling Agency Agreement.
Each of the Company and you hereby agrees that:
(a) From and including the date of this letter agreement, each time the opinions of Dewey & LeBoeuf LLP are required to be furnished to each Agent pursuant to Section 4(j) of the Selling Agency Agreement, such opinions shall instead be delivered by Perkins Coie LLP, counsel for the Company, in substantially the form in Annex A to this letter agreement; and
(b) From and including the date of this letter agreement, each time delivery of opinions of Dewey & LeBoeuf LLP is a condition of a Purchaser’s obligations pursuant to Section 6(b) of the Selling Agency Agreement, such condition may be satisfied by delivery of opinions of Perkins Coie LLP, counsel for the Company, dated as of the Closing Date, in substantially the form in Annex A to this letter agreement.
Each of the Company and you hereby further acknowledges and agrees that due to the merger of Banc of America Securities LLC with and into Merrill Lynch, Pierce, Fenner & Smith Incorporated, both of which are parties to the Selling Agency Agreement, (i) references to “Banc of America Securities LLC” in the Selling Agency Agreement shall be deleted; and (ii) Banc of America Securities LLC’s address for notices set forth in Schedule I to the Selling Agency Agreement shall be deleted.
This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.
Except as expressly set forth herein, nothing in this letter agreement shall be construed to amend, modify or alter any term, condition, right or obligation set forth in the Selling Agency Agreement or in any way affect its enforceability.
The Selling Agency Agreement as amended by this letter agreement is in full force and effect and is hereby in all respects ratified and confirmed. References in the Agreement to “this Agreement” and to words such as “herein”, “hereinafter”, “hereof”, “hereunder” and any words of similar import shall refer to the Selling Agency Agreement as amended by this letter agreement.
This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed copy of this letter agreement by one party to the other may be made by facsimile transmission.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter agreement and your acceptance shall represent a binding agreement between the Company and you.
Very truly yours,
Idaho Power Company
By /s/ Steven R. Keen__________________
Name: Steven R. Keen
Title: Vice President, Finance and
Treasurer
Letter Agreement to
Selling Agency Agreement
Confirmed and accepted as of the
date first above written.
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BNY MELLON CAPITAL MARKETS, LLC
By: /s/ Phil Benedict__________________ Name: Phil Benedict Title: Vice President
J.P. MORGAN SECURITIES LLC
By: /s/ Robert Bottamedi ______________ Name: Robert Bottamedi Title: Vice President
KEYBANC CAPITAL MARKETS INC.
By: /s/ Gary E. Andrews______________ Name: Gary E. Andrews Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Karl F. Schlopy________________ Name: Karl F. Schlopy Title: Managing Director
MITSUBISHI UFJ SECURITIES (USA), INC.
By: /s/ Brian Cogliandro_______________ Name: Brian Cogliandro Title: Managing Director, Head of U.S. Syndicate |
RBC CAPITAL MARKETS, LLC
By: /s/ John Sconzo___________________ Name: John Sconzo Title: Managing Director
SUNTRUST ROBINSON HUMPHREY, INC.
By: /s/ Christopher S. Grumboski _______ Name: Christopher S. Grumboski Title: Director
U.S. BANCORP INVESTMENTS, INC.
By: /s/ Craig Anderson_______________ Name: Craig Anderson Title: Deputy Head Syndicate
WELLS FARGO SECURITIES, LLC
By: /s/ Kristine Thomas_______________ Name: Kristine Thomas Title: Vice President
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Letter Agreement to
Selling Agency Agreement
Annex A
EXHIBIT D-1
[l], 201[l]
The Addressees listed on Exhibit A
[as the purchasers (the “Purchasers”)
named in the Terms Agreement, dated
[l], between Idaho Power Company
and the Purchasers (the “Terms Agreement”)]
Re: $500,000,000 Principal Amount of First Mortgage Bonds, Secured Medium-Term
Notes, Series I, of Idaho Power Company
Ladies and Gentlemen:
With reference to the issuance and sale by Idaho Power Company, an Idaho corporation (the “Company”), pursuant to the Selling Agency Agreement, dated June 17, 2010 (the “Agency Agreement”), between the Company and each of you, of up to $500,000,000 in aggregate principal amount of the Company’s First Mortgage Bonds, Secured Medium-Term Notes, Series I (the “Notes”), to be issued under an Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) (the “Corporate Trustee”) and R.G. Page, as Trustees (Stanley Burg, successor individual trustee) (together, the “Trustees”), as supplemented by all indentures supplemental thereto, including the Forty-sixth Supplemental Indenture, dated as of June 1, 2010, between the Company and the Trustees (the Indenture of Mortgage and Deed of Trust, as so supplemented, being hereinafter called the “Mortgage”), we advise you that we are counsel to the Company and in that capacity have reviewed or participated in the preparation of (1) the Mortgage; (2) the registration statement (File No. 333-166774) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), which became effective on May 25, 2010 (the “Registration Statement”); (3) the prospectus, dated May 25, 2010 (the “Base Prospectus”), as supplemented by a prospectus supplement relating to the Notes, dated June 17, 2010 (the “Prospectus Supplement”) [and Pricing Supplement No. [l], dated [l] (the “Pricing Supplement”)], in each case including the documents incorporated by reference therein (the Base Prospectus, as so supplemented, being hereinafter referred to as the “Prospectus”); (4) the Agency Agreement[;] [and] (5) the Bond Application, dated June 17, 2010, for authentication and delivery of the [Notes][notes] in an aggregate principal amount not to exceed $500,000,000 (the “Bond Application”)[; (6) the final term sheet, dated [l], filed by the Company with the Commission pursuant to Rule 433 under the Securities Act (the “Free Writing Prospectus”) and (7) the Term Agreement]. Terms not otherwise defined herein shall have the meanings given to them in the Agency Agreement [or the Terms Agreement]. This opinion is being furnished to you pursuant to [the Terms Agreement and] Section [4(j)][6(b)(ii)] of the Agency Agreement.
D-1-1
A. Assumptions
We have examined, have relied as to matters of fact upon and have assumed the accuracy of originals or copies certified or otherwise identified to our satisfaction of such records, agreements, documents and other instruments and such representations, statements and certificates or comparable documents of or from public officials and officers and representatives of the Company and of representations of such persons whom we have deemed appropriate, and have made such other investigations, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, and in connection with our review of all such documents, including the documents referred to in clauses (1) through [(5)][(7)] of the preceding paragraph (the “Transaction Documents”), we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies and the authenticity of the originals of such latter documents. We have also assumed the regularity of all corporate procedures, that the Corporate Trustee has the power and authority to authenticate the certificate representing the Notes and that the Mortgage has been duly authorized, executed and delivered by the Trustees.
B. Opinions
Based upon the foregoing, and subject to the qualifications and exclusions and further assumptions stated below, we express the following opinions:
(1) The Mortgage has been duly authorized by all necessary corporate action on the part of the Company, has been duly executed and delivered by the Company, and is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting mortgagees’ and other creditors’ rights, and to general principles of equity (regardless of whether such principles are considered in a proceeding at law or in equity) and has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(2) The Notes[, when issued and paid for as contemplated in the Agency Agreement and the Mortgage, will be] [are] legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefit of the security provided by the Mortgage, subject to bankruptcy, insolvency, reorganization or other laws of
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general applicability relating to or affecting mortgagees’ and other creditors’ rights and to general principles of equity (regardless of whether such principles are considered in a proceeding at law or in equity).
(3) The Agency Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company.
(4) [The Terms Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company.]
(5) Without independent verification of the factual accuracy, completeness or fairness of any statements made in the Registration Statement and the Prospectus, the Registration Statement, as of its most recent effective date, including the documents incorporated therein by reference, and the Prospectus, as of the date [hereof][of the [Prospectus][Pricing] Supplement], appeared on their face to be appropriately responsive, in all material respects, to the requirements of the Securities Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder (except for the financial statements and financial schedules and other financial or accounting data included therein or omitted therefrom and for management’s report on the Company’s internal control over financial reporting and the auditor’s report on the effectiveness of the Company’s internal control over financial reporting included therein and the Statement of Eligibility of the Trustees on Forms T-1 and T-2 under the Trust Indenture Act, as to which we express no opinion); the Registration Statement has been declared effective under the Securities Act; and, to our knowledge, no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Securities Act.
(6) [The issuance and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Mortgage, the Agency Agreement and the Terms Agreement and the consummation of the transactions therein contemplated will not conflict with or result in a breach or violation of any statute of the State of New York or the State of Idaho or any order, rule or regulation of any New York court or governmental agency or body having jurisdiction over the Company or any of its properties that we examined in rendering the opinions expressed herein and that in our experience are typically applicable to agreements similar to the Transaction Documents and transactions similar to the Transaction, it being understood that we express no opinion as to the securities or blue sky laws.]
(7) All regulatory consents and approvals required to be obtained by the Company from any governmental body or bodies in connection with the Company’s issuance and sale of the Notes [to the Purchasers] in the manner set forth in the Agency Agreement [and the Terms Agreement] have been obtained and are in effect[, except that the order of the Idaho Public Utilities Commission grants authority to sell the Notes only through April 18, 2012]; it being understood that we express no opinion as to any consents or approvals required to be obtained, or other actions required to be taken, under the state securities or blue sky laws of any jurisdiction.
(8) The statements set forth in the Base Prospectus under the caption “Description of First Mortgage Bonds[,]”[and] in the Prospectus Supplement under the caption “Description of the Notes[,]” [and in the Pricing Supplement under the caption “[l],”] insofar as they purport to summarize certain provisions of the documents referred to therein, fairly summarize such
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provisions in all material respects; provided, however, that we express no opinion as to the statements made under the caption “Description of First Mortgage Bonds” in the Base Prospectus stated to be made in reliance upon the opinion of Rex Blackburn, Esq., General Counsel of the Company, in his capacity as expert.
C. Exclusions; Qualifications; Further Assumptions
[In connection with our opinions set forth in paragraphs (2) and [(7)] above, we have assumed that at the time of the issuance, sale and delivery of each particular Note that Note will conform to the form of Note examined by us. In connection with our opinion set forth in paragraph (2) above, we have assumed that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or a breach of the Mortgage or any agreement or instrument then binding upon the Company.] In connection with our opinion set forth in paragraph [(5)] above, we have assumed the correctness and completeness of the representations and statements made to us or included in the Registration Statement and the Prospectus by the Company and take no responsibility therefor.
The foregoing opinions are limited to the federal laws of the United States and the laws of the States of New York and Idaho, and we express no opinion as to the laws of any other jurisdiction. We are not passing upon matters relating to title to property, liens, licenses, franchises, water rights or conformity to the laws of the States of Idaho, Montana, Nevada, Oregon or Wyoming, or upon questions of the recording of, or the validity or priority of the lien of, the Mortgage.
This opinion letter is being rendered to you and is solely for the benefit of the [Agents] [Purchasers] in connection with the Transaction. This opinion letter may not be used or relied upon for any other purpose or by any other person or entity, including, without limitation, any person to whom any of the [Agents] [Purchasers] offers or sells any Notes, without our express written consent. Notwithstanding the foregoing sentence, this letter may be relied upon by Rex Blackburn as to matters of New York law to the same extent as if it were addressed to him.
Very truly yours,
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EXHIBIT D-2
[l], 201[l]
The Addressees listed on Exhibit A
[as the purchasers (the “Purchasers”)
named in the Terms Agreement, dated
[l], between Idaho Power Company
and the Purchasers (the “Terms Agreement”)]
Re: $500,000,000 Principal Amount of First Mortgage Bonds, Secured Medium-Term
Notes, Series I, of Idaho Power Company
Ladies and Gentlemen:
With reference to the issuance and sale by Idaho Power Company, an Idaho corporation (the “Company”), pursuant to the Selling Agency Agreement, dated June 17, 2010 (the “Agency Agreement”), between the Company and each of you, of up to $500,000,000 in aggregate principal amount of the Company’s First Mortgage Bonds, Secured Medium-Term Notes, Series I (the “Notes”), to be issued under an Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) and R.G. Page, as Trustees (Stanley Burg, successor individual trustee) (the “Trustees”), as supplemented by all indentures supplemental thereto, including the Forty-sixth Supplemental Indenture, dated as of June 1, 2010, between the Company and the Trustees, we advise you that we are counsel to the Company and in that capacity have reviewed or participated in the preparation of (1) the registration statement (File No. 333-166774) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), which became effective on May 25, 2010 (the “Registration Statement”); (2) the prospectus, dated May 25, 2010 (the “Base Prospectus”), as supplemented by a prospectus supplement relating to the Notes, dated June 17, 2010 (the “Prospectus Supplement”) [and Pricing Supplement No. [l], dated [l] (the “Pricing Supplement”)], in each case including the documents incorporated by reference therein (the Base Prospectus, as so supplemented, being hereinafter referred to as the “Prospectus”)[;] [and] (3) the Agency Agreement[; (4) the final term sheet, dated [l], filed by the Company with the Commission pursuant to Rule 433 under the Securities Act (the “Free Writing Prospectus”) and (5) the Terms Agreement]. Terms not otherwise defined herein shall have the meanings given to them in the Agency Agreement. This letter is being furnished to you pursuant to [the Terms Agreement and] Section [4(j)] [6(b)(ii)] of the Agency Agreement.
We have participated in conferences with certain officers and representatives of the Company, with other counsel for the Company and with representatives of Deloitte & Touche LLP, the independent registered public accounting firm who examined certain of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus. Although we assume no responsibility for the factual accuracy, completeness or fairness of any statements made in the Registration Statement, the Prospectus[, the Pricing Disclosure Package] or the documents incorporated by reference therein (except to the limited extent referred to in paragraph 8 of our opinion to you dated the date hereof), nothing has come
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to our attention that has caused us to believe that (i) the Registration Statement, as of its most recent effective date, including the documents incorporated therein by reference, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) [as of [l] Eastern [Daylight] Time on [l] (which you have informed us is at or prior to the time of the first sale of the Notes), the Base Prospectus, the Prospectus Supplement and the Free Writing Prospectus, taken as a whole, including the documents incorporated by reference therein as of such date (the “Pricing Disclosure Package”)] [and] [the Prospectus, as amended and supplemented as of the date and time of delivery of this letter, including the documents incorporated by reference therein as of the date hereof], contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. We express no view as to the financial statements or financial schedules or other financial or accounting data included in the Registration Statement[,] [or the Prospectus] [or the Pricing Disclosure Package], as to management’s report on the Company’s internal control over financial reporting or the auditor’s report on the effectiveness of the Company’s internal control over financial reporting included therein, as to the statements made under the caption “Description of First Mortgage Bonds” in the Base Prospectus stated to be made in reliance upon the opinion of Rex Blackburn, Esq., General Counsel of the Company, in his capacity as expert, or as to the Statement of Eligibility of the Trustees on Forms T-1 and T-2 under the Trust Indenture Act of 1939, as amended.
This letter is being rendered to you and is solely for the benefit of the [Agents] [Purchasers] in connection with the transactions contemplated by the [Agency] [Terms] Agreement and may not be used or relied upon for any other purpose or by any other person or entity, including, without limitation, any person to whom any of the [Agents] [Purchasers] offers or sells any Notes, without our express written consent.
Very truly yours,
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