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HomeMy WebLinkAbout954716IDAHO POWER COMPANY TO DEUTSCHE BANK TRUST COMPANY AMERICAS AND STANLEY BURG, As Trustees under its Mortgage and Deed of Trust dated as of October 1, 1937. Instrument of Further Assurance Dated as of August 3, 2010 {00037880.DOC; 1) NYB 706172.5 Executed in 50 Counterparts of which this is Counterpart No. i RECEIVED 8/5/2010 at 5:14 PM RECEIVING 954716 BOOK: 751 PAGE: 585 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY INSTRUMENT OF FURTHER ASSURANCE 58 INSTRUMENT OF FURTHER ASSURANCE dated as of the 3rd day of August, 2010 made by 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 for the benefit of DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Bankers Trust Company, a corporation of the State of New York whose post office address is 60 Wall Street, New York, New York 10005 (hereinafter sometimes called the "Corporate Trustee and Stanley Burg (hereinafter sometimes called the "Individual Trustee the Corporate Trustee and the Individual Trustee being hereinafter together sometimes called the "Trustees as Trustees under the Mortgage and Deed of Trust dated as of October 1, 1937 hereinafter referred to. WHEREAS, the Maine Company has heretofore executed and delivered to the Trustees its Mortgage and Deed of Trust, dated as of October 1, 1937, recorded as shown on Exhibit A attached hereto, which Exhibit A is incorporated by reference into this Instrument of Further Assurance (such Mortgage and Deed of Trust hereinafter sometimes referred to as the "Original Indenture 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 1989; and WHEREAS, the Maine Company was merged into the Company on June 30, WHEREAS, in order to evidence the succession of the Company to the Maine Company and the assumption by the Company of the covenants and conditions of the Maine Company in the Bonds and in the Original Indenture, as supplemented, contained, and to enable the Company to have and exercise the powers and rights of the Maine Company under the Original Indenture, as supplemented, in accordance with the terms thereof, the Company executed and delivered to the Trustees a Twenty- eighth Supplemental Indenture, dated as of June 30, 1989, recorded as shown on Exhibit A (which supplemental indenture is hereinafter sometimes called the "Twenty- eighth Supplemental Indenture and WHEREAS, said Twen ty- eighth Supplemental Indenture was recorded in the records of the Counties of Elko, Humboldt and Lander, Nevada; the Counties of Baker, Grant, Harney, Malheur, Morrow, 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, all as shown on Exhibit A, and with the Secretary of State of the States of Idaho, Montana, Oregon, Nevada and Wyoming; and WHEREAS, in accordance with the terms of the Original Indenture, the Maine Company or the Company has executed and delivered to the Trustees the following supplemental indentures in addition to the Twenty- eighth Supplemental Indenture: (00037880.DOC; 1) NYB 706172.5 Designation First Supplemental Indenture Second Supplemental Indenture Third Supplemental Indenture Fourth Supplemental Indenture Fifth Supplemental Indenture Sixth Supplemental Indenture Seventh Supplemental Indenture Eighth Supplemental Indenture Ninth Supplemental Indenture Tenth Supplemental Indenture Eleventh Supplemental Indenture Twelfth Supplemental Indenture Thirteenth Supplemental Indenture Fourteenth Supplemental Indenture Fifteenth Supplemental Indenture Sixteenth Supplemental Indenture Seventeenth Supplemental Indenture Eighteenth Supplemental Indenture Nineteenth Supplemental Indenture Twentieth Supplemental Indenture Twenty -first Supplemental Indenture Twenty- second Supplemental Indenture Twenty -third Supplemental Indenture Twenty fourth Supplemental Indenture Twenty -fifth Supplemental Indenture Twenty -sixth Supplemental Indenture Twenty seventh Supplemental Indenture Twenty -ninth Supplemental Indenture Thirtieth Supplemental Indenture Thirty -first Supplemental Indenture Thirty- second Supplemental Indenture Thirty -third Supplemental Indenture Thirty -fourth Supplemental Indenture Thirty -fifth Supplemental Indenture Thirty -sixth Supplemental Indenture Thirty seventh Supplemental Indenture Thirty- eighth Supplemental Indenture Thirty-ninth Supplemental Indenture Fortieth Supplemental Indenture Forty -first Supplemental Indenture Forty- second Supplemental Indenture Forty -third Supplemental Indenture Forty -fourth Supplemental Indenture Forty -fifth Supplemental Indenture Forty -sixth Supplemental Indenture {00037880.DOC; 1} -2- NYB 706172.5 Dated as of July 1, 1939 November 15, 1943 February 1, 1947 May 1, 1948 November 1, 1949 October 1, 1951 January 1, 1957 July 15, 1957 November 15, 1957 April 1, 1958 October 15, 1958 May 15, 1959 November 15, 1960 November 1, 1961 September 15, 1964 April 1, 1966 October 1, 1966 September 1, 1972 January 15, 1974 August 1, 1974 October 15, 1974 November 15, 1976 August 15, 1978 September 1, 1979 November 1, 1981 May 1, 1982 May 1, 1986 January 1, 1990 January 1, 1991 August 15, 1991 March 15, 1992 April 1, 1993 December 1, 1993 November 1, 2000 October 1, 2001 April 1, 2003 May 15, 2003 October 1, 2003 May 1, 2005 October 1, 2006 May 1, 2007 September 1, 2007 April 1, 2008 February 1, 2010 June 1, 2010 c .587 {00037880.DOC; 1} -3- NYB 706172.5 588 each of which is supplemental to the Original Indenture; and WHEREAS, the Original Indenture and said Supplemental Indentures (except said Fifteenth Supplemental Indenture) have each been recorded in the records of the Counties of Elko, Humboldt and Lander, Nevada; the Counties of Baker, Grant, Harney, Malheur, Morrow, 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, all as set forth in Exhibit A hereto, and with the Secretary of State of the States of Idaho, Montana, Oregon, Nevada and Wyoming (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture and WHEREAS, the Original Indenture and certain of said Supplemental Indentures provide, among other things, that the Indenture shall be a lien upon all properties, real, personal and mixed (except any expressly excepted) w hich the Company owned at the time of the execution and delivery by the Company of the Original Indenture or thereafter acquired; and WHEREAS, by Section 42 of the Original Indenture, the Company covenanted that it would execute and deliver such further instruments and do such further acts as may be necessary or proper to carry out more effectually the purposes of the Original Indenture and to make subject to the lien of the Indenture any property thereafter acquired intended to be subject to the lien thereof; and WHEREAS, the properties generally described or referred to in the Indenture include, without limitation, the real properties more specifically described or referred to herein. NOW, THEREFORE, THIS INSTRUMENT WITNESSETH: That in consideration of the premises and of One Dollar to it duly paid by the Trustees at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in order to secure the payment both of the principal of and interest and premium, if any, on all Bonds at any time issued and outstanding under the Indenture, according to their tenor and effect, and the performance of all the provisions of the Indenture and of said Bonds, the Company has duly executed and delivered to the Trustees this Instrument of Further Assurance 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 Stanley Burg and (to the extent of its legal capacity to hold the same for the purposes hereof) unto Deutsche Bank Trust Company Americas, as Trustees as aforesaid, and to their successor or successors in said trust, and to them and their successors, heirs and assigns forever, all property, whether real, personal or mixed (except any hereinafter expressly excepted), and wheresoever situated, owned by the Company as of the date of the Original Indenture or 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- -that is to say: (a) all generating plants, transmission lines and systems, distribution lines and systems, substations and switch racks, franchises, telephone lines, improvements and buildings; (b) all real properties owned in fee, which are specifically described in the instruments listed in and/or referred to by recording information in Exhibit B attached hereto and incorporated herein by reference (which actual instruments listed in and /or referred to in Exhibit B are also incorporated into this Instrument of Further Assurance by reference) to the extent any of the same has not been heretofore released; (c) all equipment and fixtures; and 9 all other property, whether real, personal or mixed (except any hereinafter expressly excepted), and wheresoever situated, owned by the Company as of the date of the Original Indenture or acquired since the date of s aid Original Indenture by and now or hereafter owned by the Company. TOGETHER with all and singular the tenements, hereditaments and appurtenances belonging or in any wise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders, and (subject to the provisions of Section 57 of the Original Indenture) the tolls, rents, revenues, issues, earnings, income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof. It is not intended herein or hereby to include in or subject to the lien of the Indenture, and the granting clauses hereof shall not be deemed to apply to, (1) any revenues, earnings, rents, issues, income or profits of the mortgaged and pledged property, or any bills, notes or accounts receivable, contracts or choses in action, except to the extent permitted by law in case a completed default specified in Section 65 of the Indenture shall have occurred and be continuing and either or both of the Trustees, or a receiver or trustee, shall have entered upon or taken possession of the mortgaged and pledged property, or (2) in any case, unless specifically subjected to the lien thereof, any bonds, notes, evidences of indebtedness, shares of stock, or other securities or any cash (except cash deposited with the Corporate Trustee pursuant to any provisions of the Indenture) or any goods, wares, merchandise, equipment or apparatus manufactured or acquired for the purpose of sale or resale in the usual course of business. TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Individual Trustee and (to the extent of its legal capacity to hold the same for the purposes of the Indenture) unto the Corporate Trustee, and their successors, heirs and assigns forever; IN TRUST, NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisions and covenants as are set forth in the Original Indenture, as amended or modified by said First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, {00037880.DOC; 1} -4- NYB 706172.5 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 and Forty -sixth Supplemental Indentures and this Instrument of Further Assurance. All terms contained in this Instrument of Further Assurance shall, for all purposes hereof, have the meanings given to such terms in Article I of the Original Indenture, as amended by Article IV of the Second Supplemental Indenture. This Instrument of Further Assurance may be executed in any number of originals, such originals together constitute but one and the same instrument. Any such original, as recorded or filed in any county or jurisdiction, may omit (a) such portions of Exhibit A hereto as shall contain data as to the recording or filing of the Indenture in other counties or jurisdictions and (b) such portions of Exhibit B hereto as shall describe or refer to properties located in other counties or jurisdictions. This Instrument of Further Assurance supplements the Indenture. As supplemented by this Instrument of Further Assurance, the Indenture is hereby confirmed, and the Indenture and this Instrument of Further Assurance shall together constitute but one and the same instrument. {00037880.DOC; 1} -5- NYB 706172.5 590 IN WITNESS WHEREOF, Idaho Power Company 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, on the date hereinafter acknowledged, as of the day and year first above written. PA Patrick A. Harrington Secretary Executed, sealed and delivered by IDAHO POWER COMPANY in the presence of: (betnti'dL10.5)/44 S� {00037880.DOC; 1} -6- NYB 706172.5 IDAHO POWER COMPANY Darrel T. Anderson Executive Vice President Administrative Services and Chief Financial Officer STATE 0 IDAHO )ss.: COUNT OF ADA On the 3rd day of August, in the year 2010, before me personally came DARREL T. ANDE SON, to me known, who being by me duly sworn did depose and say that he is the Executive Vice President Administrative Services and Chief Financial Officer of Idaho Power Company, that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that h signed his name thereto by like order; the said DARREL T. ANDERSON, having personall appeared and known to me to be the Executive Vice President Administrative Services d Chief Financial Officer of said corporation that executed the instrument, acknowle ged to me that said corporation executed the same. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official se 1 the day and year in this certificate first above written. No l o .S +me °0o CC 1` 1 1401',4", n °d,.. A UBLIC I N°° O 4 Op ID p, o o {000378 0.DOC; 1 NYB 706172. Christa Bearry Notary Public, State of Idaho Commission expires February 4, 2015 -7- 2 STATE OF IDAHO ss.: COUNTY OF ADA DARREL T. ANDERSON, being first duly sworn, upon oath, deposes and says: that he is an officer, to wit, the Executive Vice President Administrative Services and Chief Financial Officer of Idaho Power Company, a corporation, the mortgagor described in the foregoing instrument of further assurance, and makes this affidavit on behalf of said Idaho Power Company; that said instrument of further assurance is made in good faith without any design to hinder, delay or defraud creditors, to secure the indebtedness mentioned or provided for therein. Subscribed and sworn to before me this 3rd day of August, 2010. A 1. it fte Christa Bearry Notary Public, State of Idaho Commission expires February 4, 2015 {00037880.DOC; 1} -8- NYB 706172.5 Darrel T. Anderson Executive Vice President Administrative Services and Chief Financial Officer 593 LINCOLN COUNTY, WYOMING Supplemental Indenture Date Recorded Book Page Instrument No. Original Mortgage 2/15/72 U -16707 First 2/1 5/72 U -16708 Second 2/15/72 U -16709 Third 2/15/72 U -16710 Fourth 2/15/72 U -16711 Fifth 2/15/72 U -16712 Sixth 2/15/72 U -16713 Seventh 2/15/72 U -16714 Eighth 2/15/72 U -16715 Ninth 2/15/72 U -16716 Tenth 2/15/72 U -16717 Eleventh 2/15/72 U -16718 Twelfth 2/15/72 U -16719 Thirteenth 2/15/72 U -16720 Fourteenth 2/15/72 U -16721 Fifteenth* Sixteenth 2/15/72 U -16722 Seventeenth 2/15/72 U -16723 Eighteenth 11/7/72 102 159 442688 Nineteenth 2/8/74 110 221 453750 Twentieth 9/3/74 114 379 459840 Twenty -first 11/29/74 116 140 461966 Twenty- second 12/29/76 132 419 487221 Twenty -third 9/7/78 149 120 513599 Twenty -fourth 10/2/79 397 Twenty -fifth 1/28/82 339 Twenty -sixth 6/17/82 579262 Twenty- seventh 7/28/86 659212 Twenty- eighth 12/6/89 281 56 Twenty -ninth 3/30/90 715403 Thirtieth 3/11/91 729592 Thirty -first 10/7/91 739346 Thirty- second 5/11/92 310 77 Thirty -third 6/14/93 330 366 Thirty -fourth 4/28/94 782209 Thirty -fifth 1/15/01 870779 Thirty -sixth 1/28/02 878820 Thirty- seventh 9/15/03 893425 Thirty eighth 12/15/03 895900 Thirty -ninth 12/3/03 896191 Fortieth 4/6/06 000372 Forty -first 4/16/07 928435 Forty- second 6/1/07 660 170 929899 Forty -third 10/12/07 675 439 934017 Forty -fourth 4/14/08 938225 Forty -fifth 3/8/10 952409 Forty -sixth 6/28/10 954140 The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not include property additions. Accordingly this Supplemental Indenture was not recorded. C 59 EXHIBIT A {00037816.DOCX; 1 {00037824.DOCX; 1 LINCOLN COUNTY, WYOMING [No fee lands currently listed] 595 EXHIBIT B