EXHIBIT 10(N)
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$150,000,000
CREDIT AGREEMENT
dated as of
November 30, 2001
among
SIERRA PACIFIC POWER COMPANY,
UNION BANK OF CALIFORNIA, N.A.,
as Sole Bookrunner and Administrative Agent,
▇▇▇▇▇ FARGO BANK, N.A.,
as Syndication Agent,
and
BANK ONE, NA,
BNP PARIBAS and
MELLON BANK, N.A.,
as Co-Documentation Agents,
and
the LENDERS party hereto from time to time
Co-Arranged By
UNION BANK OF CALIFORNIA, N.A. and
▇▇▇▇▇ FARGO BANK, N.A.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION.........................................................1
SECTION 1.01 Defined Terms.............................................................1
SECTION 1.02 Classification of Loans and Borrowings...................................16
SECTION 1.03 Terms Generally..........................................................16
SECTION 1.04 Accounting Terms; GAAP...................................................16
ARTICLE II THE CREDITS......................................................................16
SECTION 2.01 The Commitments..........................................................16
SECTION 2.02 Loans and Borrowings.....................................................17
SECTION 2.03 Requests for Revolving Borrowings........................................17
SECTION 2.04 Funding of Borrowings....................................................18
SECTION 2.05 Interest Elections.......................................................19
SECTION 2.06 Termination, Reduction and Extension of Commitments......................20
SECTION 2.07 Repayment of Loans; Evidence of Debt.....................................23
SECTION 2.08 Prepayment of Loans......................................................24
SECTION 2.09 Fees.....................................................................24
SECTION 2.10 Interest.................................................................25
SECTION 2.11 Alternate Rate of Interest...............................................25
SECTION 2.12 Increased Costs..........................................................26
SECTION 2.13 Break Funding Payments...................................................26
SECTION 2.14 Taxes....................................................................27
SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Set-offs..............28
SECTION 2.16 Mitigation Obligations; Replacement of Lenders...........................30
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................................30
SECTION 3.01 Corporate Status.........................................................30
SECTION 3.02 Corporate Power and Authorization........................................31
SECTION 3.03 Execution and Binding Effect.............................................31
SECTION 3.04 Governmental Approvals and Filings.......................................31
SECTION 3.05 Absence of Conflicts.....................................................31
SECTION 3.06 Audited Financial Statements.............................................32
SECTION 3.07 Interim Financial Statements.............................................32
SECTION 3.08 Absence of Undisclosed Liabilities.......................................33
SECTION 3.09 Absence of Material Adverse Change.......................................33
SECTION 3.10 Accurate and Complete Disclosure.........................................33
SECTION 3.11 Margin Regulations.......................................................33
SECTION 3.12 Litigation...............................................................33
SECTION 3.13 Absence of Events of Default.............................................34
SECTION 3.14 Absence of Other Conflicts...............................................34
SECTION 3.15 Insurance................................................................34
SECTION 3.16 Title to Property; No Liens..............................................34
SECTION 3.17 Taxes....................................................................35
SECTION 3.18 Borrower Not An Investment Company.......................................35
TABLE OF CONTENTS
(Continued)
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SECTION 3.19 Environmental Matters....................................................35
SECTION 3.20 ERISA....................................................................36
SECTION 3.21 Pari Passu Status........................................................37
SECTION 3.22 Indebtedness.............................................................37
SECTION 3.23 Collateral Bonds.........................................................37
ARTICLE IV CONDITIONS.......................................................................37
SECTION 4.01 Effective Date...........................................................37
SECTION 4.02 Conditions to All Loans..................................................41
ARTICLE V AFFIRMATIVE COVENANTS............................................................41
SECTION 5.01 Basic Reporting Requirements.............................................41
SECTION 5.02 Insurance................................................................44
SECTION 5.03 Payment of Taxes and Other Potential Charges and Priority Claims.........45
SECTION 5.04 Preservation of Corporate Status and Franchises..........................45
SECTION 5.05 Governmental Approvals and Filings.......................................45
SECTION 5.06 Maintenance of Properties................................................46
SECTION 5.07 Avoidance of Other Conflicts.............................................46
SECTION 5.08 Financial Accounting Practices...........................................46
SECTION 5.09 Use of Proceeds..........................................................46
SECTION 5.10 End of Fiscal Periods....................................................47
ARTICLE VI NEGATIVE COVENANTS...............................................................47
SECTION 6.01 Financial Covenants......................................................47
SECTION 6.02 Liens....................................................................47
SECTION 6.03 Mergers..................................................................48
SECTION 6.04 Dispositions of Properties...............................................49
SECTION 6.05 Investments and Acquisitions.............................................50
SECTION 6.06 Dividends and Stock Repurchases..........................................50
SECTION 6.07 Transactions with Affiliates.............................................50
SECTION 6.08 Change of Business.......................................................50
SECTION 6.09 Equal and Ratable Lien; Grant of Security Interest in Certain Events.....51
SECTION 6.10 Restrictive Agreements...................................................51
ARTICLE VII DEFAULTS.........................................................................52
SECTION 7.01 Events of Default........................................................52
SECTION 7.02 Consequences of an Event of Default......................................54
ARTICLE VIII THE AGENTS.......................................................................55
SECTION 8.01 Appointment..............................................................55
SECTION 8.02 General Nature of Administrative Agent's Duties..........................55
SECTION 8.03 Exercise of Powers.......................................................56
SECTION 8.04 General Exculpatory Provisions...........................................56
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TABLE OF CONTENTS
(Continued)
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SECTION 8.05 Administration by the Administrative Agent...............................57
SECTION 8.06 Lenders Not Relying on Administrative Agent or Other Lenders.............58
SECTION 8.07 Indemnification..........................................................58
SECTION 8.08 Administrative Agent in its Individual Capacity..........................59
SECTION 8.09 Holders of Notes.........................................................59
SECTION 8.10 Successor Administrative Agent...........................................59
SECTION 8.11 Additional Administrative Agents.........................................60
SECTION 8.12 Calculations.............................................................60
SECTION 8.13 Syndication Agent........................................................61
SECTION 8.14 Sole Bookrunner..........................................................61
SECTION 8.15 Co-Documentation Agents..................................................61
ARTICLE IX MISCELLANEOUS....................................................................61
SECTION 9.01 Amendments and Waivers...................................................61
SECTION 9.02 No Implied Waiver; Cumulative Remedies...................................62
SECTION 9.03 Notices..................................................................63
SECTION 9.04 Expenses; Taxes; Indemnity...............................................63
SECTION 9.05 Severability.............................................................64
SECTION 9.06 Prior Understandings.....................................................65
SECTION 9.07 Duration; Survival.......................................................65
SECTION 9.08 Counterparts.............................................................65
SECTION 9.09 Limitation on Payments...................................................65
SECTION 9.10 Set-Off..................................................................65
SECTION 9.11 Sharing of Collections...................................................66
SECTION 9.12 Successors and Assigns; Participations; Assignments......................66
SECTION 9.13 Governing Law; Submission to Jurisdiction Waiver of Jury Trial;
Limitation of Liability..................................................69
SCHEDULES
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Schedule I COMMITMENTS
Schedule II JURISDICTIONS
Schedule III LITIGATION
Schedule IV LIENS
Schedule V ENVIRONMENTAL CLAIMS
Schedule VI EXISTING INDEBTEDNESS
EXHIBITS
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Exhibit A FORM OF ASSIGNMENT AND ACCEPTANCE
Exhibit B FORM OF BORROWING REQUEST
Exhibit C FORM OF PROMISSORY NOTE
Exhibit D FORM OF QUARTERLY COMPLIANCE CERTIFICATE
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CREDIT AGREEMENT, dated as of November 30, 2001, among
SIERRA PACIFIC POWER COMPANY, a Nevada corporation, UNION BANK OF CALIFORNIA,
N.A., as Sole Bookrunner and Administrative Agent, ▇▇▇▇▇ FARGO BANK, N.A., as
Syndication Agent, BANK ONE, NA, BNP PARIBAS and MELLON BANK, N.A., as
Co-Documentation Agents, the LENDERS party hereto from time to time, and UNION
BANK OF CALIFORNIA, N.A. and ▇▇▇▇▇ FARGO BANK, N.A., as Co-Lead Arrangers.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower (as defined below) has requested, and
the Lenders (as defined below) have agreed to make available, the credit
facilities described below upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.01 Defined Terms.
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As used in this Agreement, the following terms have the
following meanings:
"ABR", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acceptable Rate Case" means the issuance of a final,
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nonappealable order of the Public Utilities Commission of Nevada with respect to
the Borrower's application to clear its deferred energy accounts, which
application is scheduled to be filed on or before February 1, 2002, provided
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that such order (i) finds that the Borrower's electricity rates that went into
effect on March 1, 2001 pursuant to the Comprehensive Energy Plan are just and
reasonable and reflect prudent business practices and (ii) authorizes the
Borrower to recover 100% of its deferred fuel and power costs accrued through
the date of such application.
"Acquisition" means any transaction, or any series of related
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transactions, consummated after the Effective Date, by which the Borrower and/or
any of its Subsidiaries directly or indirectly (a) acquires any ongoing business
or all or substantially all of the assets of any Person engaged in any ongoing
business, whether through purchase of assets, merger or otherwise, (b) acquires
control of securities of a Person engaged in an ongoing business representing
more than 50% of the ordinary voting power for the election of directors or
other governing position if the business affairs of such Person are managed by a
board of directors or other governing body or (c) acquires control of more than
50% of the ownership interest in any partnership, joint venture, limited
liability company, business trust or other Person engaged in an ongoing business
that is not managed by a board of directors or other governing body.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
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Revolving Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to (a) the LIBO Rate
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Union Bank of California,
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N.A., in its capacity as administrative agent for the Lenders hereunder and any
successor appointed pursuant to Section 8.10.
"Affiliate" means any Person that directly or indirectly
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Controls, or is under common Control with, or is Controlled by, another Person,
provided that, in any event, any Person that owns directly or indirectly
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securities having 20% or more of the voting power for the election of directors
or other governing body of a corporation or 20% or more of the partnership or
other ownership interests of any other Person (other than as a limited partner
of such other Person) will be deemed to Control such corporation or other
Person.
"Agents" means, collectively, the Administrative Agent, the
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Co-Lead Arrangers, the Sole Bookrunner, the Syndication Agent and the
Co-Documentation Agents.
"Alternate Base Rate" means, for any day, a rate per annum
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equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender as
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of any date of determination, the percentage of the total Commitments as of such
date represented by such Lender's Commitment as of such date. If the Commitments
have terminated or expired, the Applicable Percentages shall be determined, as
of any date of determination, based upon the percentage of the total Loans
outstanding as of such date represented by such Lender's Loans outstanding as of
such date.
"Applicable Rate" means, for any day, with respect to the
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facility fees payable hereunder or with respect to any Eurodollar Revolving Loan
or ABR Loan, as the case may be, the applicable rate per annum set forth
opposite the caption "Facility Fee", "Eurodollar Spread" or "ABR Spread", as the
case may be, in the applicable pricing table set forth below, based on the
ratings by S&P and ▇▇▇▇▇'▇ applicable on such day to the Index Debt of Borrower:
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A. Prior to the Occurrence of an Acceptable Rate Case:
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Category 1 Category 2 Category 3 Category 4 Category 5
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A- or higher BBB+ or higher BBB or higher BBB- or higher BB+ or lower
by S&P and A3 by S&P and Baa1 by S&P and Baa2 by S&P and Baa3 by S&P or Ba1
or higher by or higher by or higher by or higher by or lower by
▇▇▇▇▇'▇ ▇▇▇▇▇'▇ ▇▇▇▇▇'▇ ▇▇▇▇▇'▇ ▇▇▇▇▇'▇
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Facility Fee 0.10% 0.125% 0.15% 0.20% 0.30%
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Eurodollar Spread 0.65% 0.875% 0.975% 1.05% 1.25%
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ABR Spread 0% 0% 0% 0.05% 0.25%
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Notwithstanding the foregoing, in the event that, and at all times during which,
the aggregate principal amount of the Loans outstanding hereunder exceeds 50% of
the total Commitments, (i) each of the foregoing Eurodollar Spreads shall be
increased by (A) in the case of Category 1, 0.10% per annum, (B) in the case of
each of Category 2, Category 3 and Category 4, 0.125% per annum, and (C) in the
case of Category 5, 0.25% per annum, and (ii) the foregoing ABR Spreads shall be
increased by (A) in the case of Category 3, 0.10% per annum, (B) in the case of
Category 4, 0.125% per annum, and (C) in the case of Category 5, 0.25% per
annum.
B. Upon and After the Occurrence of an Acceptable Rate Case:
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Category 1 Category 2 Category 3 Category 4 Category 5
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A- or higher BBB+ or higher BBB or higher BBB- or higher BB+ or lower
by S&P and A3 by S&P and Baa1 by S&P and Baa2 by S&P and Baa3 by S&P or Ba1
or higher by or higher by or higher by or higher by or lower by
▇▇▇▇▇'▇ ▇▇▇▇▇'▇ ▇▇▇▇▇'▇ ▇▇▇▇▇'▇ ▇▇▇▇▇'▇
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Facility Fee 0.10% 0.125% 0.15% 0.20% 0.30%
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Eurodollar Spread 0.525% 0.75% 0.85% 0.925% 1.125%
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ABR Spread 0% 0% 0% 0% 0.125%
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Notwithstanding the foregoing, in the event that, and at all times during which,
the aggregate principal amount of the Loans outstanding hereunder exceeds 50% of
the total Commitments, (i) each of the foregoing Eurodollar Spreads shall be
increased by (A) in the case of Category 1, 0.10% per annum, (B) in the case of
each of Category 2, Category 3 and Category 4, 0.125% per annum, and (C) in the
case of Category 5, 0.25% per annum, and (ii) the foregoing ABR Spreads shall be
increased by (A) in the case of Category 4, 0.05% per annum, and (B) in the case
of Category 5, 0.25% per annum.
For purposes of the foregoing pricing tables, (1) if either ▇▇▇▇▇'▇ or S&P shall
not have in effect a rating for the Index Debt of Borrower (other than by reason
of the circumstances referred
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to in the last sentence of this definition), then such rating agency shall be
deemed to have established a rating in Category 5, (2) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the Index
Debt of Borrower shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of two
Business Days after it is first announced by the applicable rating agency, (3)
if more than one Category is applicable at any one time, the Applicable Rate
shall be based on the applicable Category having the lowest number (i.e.,
Category 1 is lower than Category 2), and (4) upon the occurrence of an
Acceptable Rate Case and at all times thereafter, the pricing table set forth
above under the caption "Upon and After the Occurrence of an Acceptable Rate
Case" shall be effective. Each change in the Applicable Rate (including any
change based on the occurrence of an Acceptable Rate Case) shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition
to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance
-------------------------
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.12), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
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Effective Date to but excluding the Revolving Termination Date.
"Bankruptcy Code" means Title 11 of the United States Code
---------------
entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto.
"Board" means the Board of Governors of the Federal
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Reserve System of the United States of America.
"Borrower" means Sierra Pacific Power Company, a Nevada
--------
corporation.
"Borrowing" means Loans of the same Type, made, converted or
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continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
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Borrowing made in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
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other day on which commercial banks in Los Angeles, California are authorized or
required by Law to remain closed; provided that, when used in connection with a
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Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
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"Capital Lease Obligations" of any Person means all
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obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board), and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"Change in Control" means (a) the failure of Sierra Pacific
-----------------
Resources to own, legally and beneficially, 100% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Borrower; (b) the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of shares representing more than 20%
of the aggregate ordinary voting power represented by the issued and outstanding
capital stock of Sierra Pacific Resources; or (c) for any period of 12
consecutive calendar months, a majority of the Board of Directors of Sierra
Pacific Resources shall no longer be composed of individuals (i) who were
members of said Board on the first day of such period, (ii) whose election or
nomination to said Board was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of said Board or (iii) whose election or nomination to said Board was
approved by individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of said Board.
"Change in Law" means (a) the adoption of any Law after the
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date of this Agreement, (b) any change in any Law or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender (or, for purposes of Section 2.12(b),
by any lending office of such Lender or by such Lender's Parent, if any) with
any request, guideline or directive (whether or not having the force of Law) of
any Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
-----
refers to such Loan, or the Loans comprising such Borrowing, as Revolving Loans.
"Code" means the Internal Revenue Code of 1986 and the
----
regulations promulgated and rulings issued thereunder. Section references to the
Code are to the Code, as in effect at the date of this Agreement and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.
"Co-Documentation Agents" means Bank One, NA, BNP Paribas and
-----------------------
Mellon Bank, N.A.
"Co-Lead Arrangers" means Union Bank of California, N.A.
-----------------
and ▇▇▇▇▇ Fargo Bank, N.A.
"Commitment" means, with respect to each Lender, the
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commitment of such Lender to make Revolving Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment
-5-
may be (a) terminated or reduced from time to time pursuant to Section 2.06 or
7.02 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.12. The initial amount of each Lender's
Commitment is set forth on Schedule I or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The aggregate amount of the Lenders' Commitments shall in no event exceed
$150,000,000.
"Consolidated EBITDA" means, for any period, Consolidated Net
-------------------
Income for such period, plus, to the extent deducted in computing such
Consolidated Net Income, (a) the sum of (i) all Federal, state, local and
foreign taxes (whether paid or deferred) of the Borrower and its Subsidiaries
during such period, (ii) Consolidated Interest Expense during such period, and
(iii) depreciation, depletion, amortization of intangibles and other non-cash
charges or non-cash losses of the Borrower and its Subsidiaries during such
period, and minus, to the extent added in computing such Consolidated Net
Income, (b) the sum of (i) any interest income of the Borrower and its
Subsidiaries during such period and (ii) any non-cash income or non-cash gains
of the Borrower and its Subsidiaries during such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, for any period,
------------------------------------
the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense" means, for any period, the
-----------------------------
gross interest expense of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including (a) the
amortization of debt discounts, (b) the amortization of all fees (including fees
with respect to Hedging Agreements) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense in accordance with GAAP
and (c) the portion of any payments or accruals with respect to Capital Lease
Obligations of the Borrower and its Subsidiaries that are allocable to interest
expense in accordance with GAAP. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net payments made or
received by the Borrower or any of its Subsidiaries with respect to Hedging
Agreements.
"Consolidated Net Income" means, for any period, the net
-----------------------
income or loss of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
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excluded (a) the income of any Person in which any other Person (other than the
Borrower or any of its Wholly-Owned Subsidiaries or any director holding
qualifying shares in accordance with applicable law) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or any of its Wholly-Owned Subsidiaries by such Person
during such period, (b) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or consolidated
with the Borrower or any of its Subsidiaries or the date such Person's assets
are acquired by the Borrower or any of its Subsidiaries, (c) the income of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary and (d) any after-tax gains or losses attributable
to sales of assets out of the ordinary course of business.
-6-
"Control" of a Person (including, with its correlative
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meanings, "Controlled by" and "under common Control with") means possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise) of such Person.
"Default" means any event, act or condition which upon notice,
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lapse of time or both would, unless cured or waived, become an Event of Default.
"Default Interest" has the meaning assigned to such term in
----------------
Section 2.10(c).
"Dollars" or "$" refers to freely transferable lawful money of
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the United States of America.
"Effective Date" means the date on which the conditions
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specified in Section 4.01 are satisfied (or waived in accordance with Section
9.01).
"Environmental Claims" means any and all administrative,
--------------------
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
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including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" means any Federal, state, foreign or
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local statute, Law, rule, regulation, ordinance, code, guideline, written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, employee health and safety or Hazardous Materials, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C.[sec] 9601 et seq.; the Resource Conservation and
-- ----
Recovery Act of 1976, 42 U.S.C.[sec] 6901 et seq.; the Federal Water Pollution
-- ----
Control Act, 33 U.S.C.[sec] 1251 et seq.; the Toxic Substances Control Act, 15
-- ----
U.S.C.[sec] 2601 et seq.; the Clean Air Act, 42 U.S.C.[sec] 7401 et seq.; the
-- ---- -- ----
Safe Drinking Water Act, 42 U.S.C.[sec] 3803 et seq.; the Oil Pollution Act of
-- ----
1990, 33 U.S.C.[sec] 2701 et seq.; the Emergency Planning and the Community
-- ----
Right-to-Know Act of 1986, 42 U.S.C.[sec] 11001 et seq.; the Hazardous Material
-- ----
Transportation Act, 49 U.S.C.[sec] 1801 et seq.; and the Occupational Safety and
-- ----
Health Act, 29 U.S.C.[sec] 651 et seq.; and any state and local or foreign
-- ----
counterparts or equivalents, in each case as amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of
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1974 and the regulations promulgated and rulings issued thereunder. Section
references to ERISA are to ERISA, as in effect at the date of this Agreement,
and to any subsequent provisions of ERISA, amendatory thereof, supplemental
thereto or substituted therefor.
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"ERISA Affiliate" means any corporation or trade or business
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that is a member of any group of organizations described in Section 414(b) or
(c) of the Code of which the Borrower is a member.
"Eurodollar", when used in reference to any Loan or Borrowing,
----------
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
----------------
Section 7.01.
"Excluded Taxes" means, with respect to the Administrative
--------------
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the Laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.16(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.14(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.14(a).
"Existing Credit Agreements" means (a) the Credit Agreement,
--------------------------
dated as of August 1, 2001, among the Borrower, Mellon Bank, N.A., as
Administrative Agent and Arranger, BNP Paribas, First Union National Bank and
▇▇▇▇▇ Fargo Bank, N.A., as Syndication Agents, and the lenders party thereto
from time to time and (b) the Credit Agreement, dated as of June 24, 1999, among
the Borrower, Mellon Bank, N.A., as Administrative Agent and Arranger, First
Union National Bank and ▇▇▇▇▇ Fargo Bank, N.A., as Syndication Agents, and the
lenders party thereto from time to time, in each case as amended through the
date hereof.
"Existing Indebtedness" has the meaning assigned to such term
---------------------
in Section 3.22.
"Extension Request" has the meaning assigned to such term in
-----------------
Section 2.06(e).
"Extension Request Notice" has the meaning assigned to such
------------------------
term in Section 2.06(e).
"Extension Request Period" has the meaning assigned to such
------------------------
term in Section 2.06(e).
"Federal Funds Effective Rate" means, for any day, the
----------------------------
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if
-8-
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" has the meaning assigned to such term in Section
----------
2.09(b).
"First Mortgage Bonds" means obligations issued from time to
--------------------
time under, and secured by, the First Mortgage Indenture.
"First Mortgage Indenture" means the Indenture of Mortgage,
------------------------
dated as of December 1, 1940, from the Borrower to State Street Bank and Trust
Company (successor to The New England Trust Company), as trustee, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (successor to ▇▇▇ ▇. ▇▇▇▇▇▇), as co-Trustee, as modified, amended or
supplemented at any time or from time to time by supplemental indentures.
"Foreign Lender" means any Lender that is organized under the
--------------
Laws of a jurisdiction other than the United States of America, each State
thereof and the District of Columbia.
"Foreign Pension Plan" means any plan, fund (including,
--------------------
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the Borrower
or any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
"GAAP" means generally accepted accounting principles in the
----
United States of America applied in a consistent manner.
"General and Refunding Mortgage Bonds" means obligations
------------------------------------
issued from time to time under, and secured by, the General and Refunding
Mortgage Indenture.
"General and Refunding Mortgage Indenture" means the General
----------------------------------------
and Refunding Mortgage Indenture, dated as of May 1, 2001, between the Borrower
and The Bank of New York, as trustee, as the same may be amended, modified or
supplemented from time to time.
"Governmental Action" means any authorization, approval,
-------------------
order, decree, ruling or other action by, or notice to or filing with, any
Governmental Authority.
"Governmental Authority" means the government of the United
----------------------
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, bureau, instrumentality,
regulatory body, court, tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Hazardous Materials" means (a) any petroleum or petroleum
-------------------
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation,
-9-
transformers or other equipment that contain dielectric fluid containing levels
of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or
substances defined as or included in the definition of "hazardous substances,"
"hazardous waste," "hazardous materials," "extremely hazardous substances,"
"restricted hazardous waste," "toxic substances," "toxic pollutants,"
"contaminants," or "pollutants," or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or
substance, the Release of which is prohibited, limited or regulated by any
Governmental Authority.
"Hedging Agreements" means interest rate swap, cap or collar
------------------
agreements, interest rate future or option contracts, and other similar
agreements designed to protect against fluctuations in interest rates.
"Indebtedness" of any Person means, (a) obligations created,
------------
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business; (c) Indebtedness of others secured
by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for the account of such Person; (e)
Capital Lease Obligations of such Person; and (f) any guarantee or other
arrangement by which such Person guarantees or is otherwise liable for the
Indebtedness of others; provided, however, that "Indebtedness" shall not include
--------
Secured Nonrecourse Obligations.
"Indemnified Parties" means each Agent, the Lenders, their
-------------------
respective Affiliates, and the directors, officers, employees, attorneys and
agents of each of the foregoing.
"Indemnified Taxes" means all Taxes other than Excluded Taxes.
-----------------
"Index Debt of Borrower" means the senior, unsecured,
----------------------
long-term indebtedness for borrowed money of the Borrower that is not guaranteed
by any other Person or subject to any credit enhancement.
"Interest Election Request" means a request by the Borrower to
-------------------------
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR
---------------------
Loan, each Quarterly Date, and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration after the first day of
such Interest Period.
"Interest Period" means, with respect to any Eurodollar
---------------
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect;
-10-
provided, that (a) if any Interest Period would end on a day other than a
--------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (b) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and, thereafter, shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Investment" means, when used in connection with any Person,
----------
any investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of a
loan, advance creating a debt, capital contribution, guaranty or other debt or
equity participation or interest in any other Person, including any partnership
---------
and joint venture interests of such Person but excluding any Wholly-Owned
---------
Subsidiary of such Person. The amount of any Investment shall be the amount
actually invested (minus any return of capital with respect to such Investment
-----
which has actually been received in cash or has been converted into cash),
without adjustment for subsequent increases or decreases in the value of such
Investment.
"Law" shall mean any law (including common law), constitution,
---
statute, treaty, convention, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Governmental Authority.
"Lenders" means the Persons listed on Schedule I and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
---------
for any Interest Period, the average of the offered rates for Dollar deposits
for the applicable Interest Period which appear on the Telerate Page 3750,
British Bankers Association Interest Settlement Rates, with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York, New York time) on the date which is two
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any Property, any mortgage,
----
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"Loan Documents" means this Agreement, each Borrowing Request,
--------------
each Interest Election Request, each Note, the Fee Letter and any documents or
instruments executed and delivered by the Borrower in connection with the
issuance of General and Refunding Mortgage Bonds pursuant to Section 6.09(b).
"Loans" means Revolving Loans.
-----
-11-
"Material Adverse Effect" means (a) a material adverse effect
-----------------------
on (i) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations hereunder,
(iii) the validity or enforceability of this Agreement, (iv) the rights and
remedies of the Lenders and the Administrative Agent hereunder or (v) the timely
payment of the principal of or interest on the Loans or other amounts payable in
connection therewith and (b) a material adverse change in the facts and
information regarding the Borrower and its Subsidiaries submitted in writing to
the Administrative Agent and/or the Lenders by the Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
-------
successors and assigns; provided that if such corporation (or its successors and
--------
assigns) shall for any reason no longer perform the functions of a securities
rating agency, "Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency approved for purposes hereof by the Required
Lenders and the Borrower.
"Multiemployer Plan" means a multiemployer plan defined as
------------------
such in Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Note" has the meaning assigned to such term in Section
----
2.07(f).
"NPC" means Nevada Power Company, a Nevada corporation.
---
"Obligations" means all Indebtedness, obligations and
-----------
liabilities of the Borrower to any Lender or any Agent from time to time arising
under or in connection with or related to or evidenced by or secured by this
Agreement or any other Loan Document, and all extensions, renewals or
refinancings thereof, whether such Indebtedness, obligations or liabilities are
direct or indirect, otherwise secured or unsecured, joint or several, absolute
or contingent, due or to become due, whether for payment or performance, now
existing or hereafter arising. Without limitation of the foregoing, such
Indebtedness, obligations and liabilities shall include the principal amount of
all Loans, all interest, fees, indemnities or expenses under or in connection
with this Agreement or any other Loan Document, and all extensions, renewals and
refinancings thereof, whether or not such Loans were made in compliance with the
terms and conditions of this Agreement or in excess of the obligation of the
Lenders to lend. Obligations shall remain obligations notwithstanding any
assignment or transfer or any subsequent assignment or transfer of any of the
Obligations or any interest therein.
"Other Taxes" means any and all present or future stamp or
-----------
documentary taxes or any other excise or Property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Parent" means any Person that Controls a Lender.
------
"Participant" has the meaning assigned to such term in Section
-----------
9.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
----
entity succeeding to any or all of its functions under ERISA.
-12-
"Permitted Liens" has the meaning assigned to such term in
---------------
Section 6.02.
"Person" means any natural person, corporation, limited
------
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means an employee benefit or other plan established or
----
maintained by the Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Prime Rate" means the rate of interest per annum publicly
----------
announced from time to time by Union Bank of California, N.A. in Los Angeles,
California, as the Union Bank Reference Rate, the Prime Rate to change when and
as such Reference Rate changes. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
Union Bank of California, N.A. may make commercial loans or other loans at rates
of interest at, above or below the Prime Rate.
"Principal Office" means the principal office of Union Bank of
----------------
California, N.A., located on the date hereof at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Projections" means forecasted (a) balance sheets, (b) income
-----------
statements, and (c) cash flow statements, in each case, for the Borrower and its
Subsidiaries, on a consolidated basis, and prepared on a consistent basis with
the Borrower's historical financial statements, together with appropriate
supporting details and a statement of underlying assumptions.
"Property" means any right or interest in or to property of
--------
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Purchasing Lender" has the meaning assigned to such term in
-----------------
Section 9.12(c).
"Quarterly Dates" means the last day of March, June, September
---------------
and December in each year, the first of which shall be the first such day after
the date hereof; provided that if any such day is not a Business Day, then such
--------
Quarterly Date shall be the next succeeding Business Day (unless such succeeding
Business Day falls in a subsequent calendar month, in which event such Quarterly
Date shall be the next preceding Business Day).
"Register" has the meaning assigned to such term in Section
--------
9.12(d).
"Related Parties" means, with respect to any specified Person,
---------------
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means the disposing, discharging, injecting,
-------
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
"Reportable Event" means an event described in Section 4043(c)
----------------
of ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27 or .28 of PBGC Regulation
-13-
Section 4043 (provided that a failure to meet the minimum funding standard of
--------
Section 412 of the Code or Section 302 of ERISA, including, without limitation,
the failure to make on or before its due date a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA, shall be a reportable
event regardless of the issuance of any waivers in accordance with Section
412(d) of the Code).
"Required Lenders" means (a) so long as the Commitments remain
----------------
in effect, Lenders having Commitments representing 51% or more of the sum of the
total Commitments at such time, or (b) if the Commitments have terminated,
Lenders holding 51% or more of the aggregate principal amount of the Loans
outstanding at such time.
"Responsible Officer" means the Treasurer, the Assistant
-------------------
Treasurer, the Chief Financial Officer or the Controller.
"Revolving Credit Exposure" means, with respect to any Lender
-------------------------
at any time, the aggregate outstanding principal amount of such Lender's
Revolving Loans at such time.
"Revolving Loan" has the meaning assigned to such term in
--------------
Section 2.01(a).
"Revolving Termination Date" means the earlier to occur of (a)
--------------------------
November 28, 2002, or such date after November 28, 2002 to which the Commitments
are extended in accordance with Section 2.06(e) and (b) the date the Obligations
and Commitments under this Agreement terminate, whether by prepayment,
cancellation, acceleration or otherwise.
"Secured Nonrecourse Obligations" means and includes (a)
-------------------------------
secured obligations of the Borrower taken on a consolidated basis where recourse
of the payee of such obligations is expressly limited to an assigned lease or
loan receivable and the Property related thereto and (b) liabilities of the
Borrower taken on a consolidated basis to manufacturers of leased equipment
where such liabilities are payable solely out of revenues derived from the
leasing or sale of such equipment.
"Sierra Pacific Resources" means Sierra Pacific Resources,
------------------------
a Nevada corporation.
"Shareholders' Equity" means, as of any date of determination,
--------------------
the amount which is shown as "shareholders' equity" (which shall include both
common and preferred equity) in the consolidated balance sheet of the Borrower
at such date.
"Sole Bookrunner" means Union Bank of California, N.A.
---------------
"SPR Credit Agreement" means the Credit Agreement, dated
--------------------
as of November 30, 2001, among Sierra Pacific Resources, Union Bank of
California, N.A., as Administrative Agent and Sole Bookrunner, ▇▇▇▇▇ Fargo
Bank, N.A., as Syndication Agent, Bank One, NA, BNP Paribas and Mellon Bank,
N.A., as Co-Documentation Agents, the lenders party thereto from time to time,
and Union Bank of California, N.A. and ▇▇▇▇▇ Fargo Bank, N.A., as Co-Lead
Arrangers, as the same may be amended, supplemented or otherwise modified from
time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
---
McGraw Hill Companies, Inc., and its successors and assigns; provided that if
--------
such corporation (or its
-14-
successors and assigns) shall for any reason no longer perform the functions of
a securities rating agency, "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency approved for purposes hereof by
the Required Lenders and the Borrower.
"Statutory Reserve Rate" means a fraction (expressed as a
----------------------
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such statutory
reserve rates without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" shall mean, as to any Person, (i) any corporation
----------
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Substitute Lender" has the meaning assigned to such term in
-----------------
Section 2.06(f).
"Syndication Agent" means ▇▇▇▇▇ Fargo Bank, N.A.
-----------------
"Taxes" means any and all present or future taxes, levies,
-----
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Indebtedness" means, as of any date of determination,
------------------
the sum of all Indebtedness of the Borrower and its consolidated Subsidiaries as
of such date.
"Triggering Event" has the meaning assigned to such term in
----------------
Section 6.09(b).
"Type", when used in reference to any Loan or Borrowing,
----
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unfunded Current Liability" of any Plan means the amount, if
--------------------------
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
-15-
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
-----------------------
any corporation 100% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or one
or more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has a 100% equity interest at the time.
SECTION 1.02 Classification of Loans and Borrowings.
--------------------------------------
For purposes of this Agreement, Loans may be classified
and referred to by Class (e.g., a "Revolving Loan") or by Type (e.g., a
"Eurodollar Loan" or an "ABR Loan") or by Class and Type (e.g., a "Eurodollar
Revolving Loan"). Borrowings also may be classified and referred to by Class
(e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or
by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03 Terms Generally.
---------------
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof and (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement.
SECTION 1.04 Accounting Terms; GAAP.
----------------------
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time.
ARTICLE II
THE CREDITS
SECTION 2.01 The Commitments.
---------------
Subject to the terms and conditions set forth herein, each
Lender agrees to make loans (each such loan, a "Revolving Loan") to the Borrower
--------------
from time to time on any Business Day during the Availability Period in an
aggregate principal amount that will not result in (i) such Lender's Revolving
Credit Exposure (after giving effect to such Revolving Loans)
-16-
exceeding such Lender's Commitment or (ii) the sum of the Revolving Credit
Exposures of all Lenders exceeding the total Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings.
--------------------
(a) Obligations of Lenders. Each Revolving Loan shall be made
----------------------
as part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder. The Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(b) Type of Loans. Subject to Section 2.11, each Borrowing
-------------
shall be comprised entirely of ABR Loans or Eurodollar Loans. Each Lender may,
at its option, make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
---------------------------------------------------
Revolving Borrowing (whether an ABR Borrowing or a Eurodollar Borrowing) shall
be in an aggregate amount equal to $5,000,000 or a multiple of $1,000,000 in
excess thereof; provided that an ABR Borrowing may be made in an aggregate
amount that is equal to the entire unused balance of the total Commitments. The
Borrower may thereafter, upon irrevocable notice to the Administrative Agent in
accordance with Section 2.05(b), (i) elect, as of any Business Day, in the case
of ABR Loans, to convert any such ABR Loans or any part thereof, in an aggregate
amount equal to $5,000,000 or a multiple of $1,000,000 in excess thereof, into
Eurodollar Loans, and (ii) elect, as of the last day of the applicable Interest
Period, to continue any Eurodollar Loans having Interest Periods expiring on
such day or any part thereof in an aggregate amount of $5,000,000 or a multiple
of $1,000,000 in excess thereof; provided that, if at any time the aggregate
amount of Eurodollar Loans in respect of any Borrowing is reduced by payment,
prepayment or conversion of part thereof to be less than $5,000,000, such
Eurodollar Loans shall automatically convert into ABR Loans. Borrowings of more
than one Type may be outstanding at the same time; provided that there shall not
at any time be more than a total of five Eurodollar Borrowings outstanding.
(d) Maximum Duration of Interest Periods. Notwithstanding any
------------------------------------
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Eurodollar Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Termination Date.
SECTION 2.03 Requests for Revolving Borrowings.
---------------------------------
To request a Revolving Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Revolving Borrowing, not later than 12:00 noon, New York, New York
time, three Business Days before the date of the
-17-
proposed Borrowing, or (b) in the case of an ABR Borrowing, not later than
12:00 noon, New York, New York time, one Business Day before the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in the form attached hereto
as Exhibit B and signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be an ABR Borrowing. If
no Interest Period is specified with respect to any Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04 Funding of Borrowings.
---------------------
(a) Funding by Lenders. No later than 12:00 noon, New York,
------------------
New York time, on the date specified in each Borrowing Request, each Lender will
make available its Applicable Percentage of each Revolving Borrowing requested
to be made on such date, in Dollars and in immediately available funds at the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with Union Bank of California,
N.A. at the Principal Office and designated by the Borrower in the applicable
Borrowing Request.
(b) Presumption by the Administrative Agent. Unless the
---------------------------------------
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative
-18-
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to the Loans of such
Borrowing. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.05 Interest Elections.
------------------
(a) Elections by the Borrower for Borrowings. Each Borrowing
----------------------------------------
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section but subject to Section 2.02. Once
Loans have been made pursuant to a Borrowing, the Borrower may elect to convert
or continue different portions of such Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this
-------------------
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative Agent and
signed by the Borrower.
(c) Information in Interest Election Requests. Each
-----------------------------------------
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
-19-
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly
---------------------------------------------
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
-----------------------------------
to deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
--------
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies the Borrower, then, so long as an Event of Default is continuing (i)
no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.06 Termination, Reduction and Extension of
---------------------------------------
Commitments.
-----------
(a) Scheduled Termination. Unless previously terminated,
---------------------
the Commitments shall terminate on the Revolving Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
----------------------------------
any time prior to the Revolving Termination Date terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount of $25,000,000 or a multiple of $1,000,000 in excess
thereof and (ii) the Borrower shall not terminate or reduce the Commitments if,
after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.08, the sum of the total Revolving Credit Exposures would exceed the
total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower
--------------------------------------------
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any such
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
--------
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
----------------------------------
reduction of the Commitments shall be permanent. Except as otherwise provided in
Section 2.06(e)(i), each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their Applicable Percentages.
-20-
(e) Extension of Commitments.
------------------------
(i) Not earlier than the date which is 60 days
(but not later than 30 days) prior to the then existing Revolving Termination
Date (the "Extension Request Notice Date"), the Borrower may deliver to the
-----------------------------
Administrative Agent (which shall promptly transmit the same to each Lender) a
notice (an "Extension Request") requesting that the Revolving Termination Date
-----------------
be extended for an additional 364 days commencing on the then existing
Revolving Termination Date. Not earlier than the date which is 30 days (but not
later than 20 days) prior to the then existing Revolving Termination Date (the
period from the Extension Request Notice Date to such date, the "Extension
---------
Request Period"), each Lender (in its sole and absolute discretion and after
--------------
conducting an internal credit review of the Borrower) shall notify the
Administrative Agent of such Lender's willingness or unwillingness to so extend
the Revolving Termination Date. Any Lender which shall fail to so notify the
Administrative Agent within such period shall be deemed to have declined to
extend the Revolving Termination Date. If Lenders having Commitments totaling
an amount equal to at least 51% of the aggregate amount of the Commitments then
in effect agree to such extension by notice to the Administrative Agent, then
(A) subject to clause (iii) below, the Revolving Termination Date shall be
extended for an additional 364 days with respect to the Commitments of the
Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment
of each Lender not so agreeing shall expire on the then expiring Revolving
Termination Date and the Borrower shall pay or prepay on such day without
premium or penalty all principal of such Lender's Loans together with accrued
interest thereon and all accrued facility fees and other amounts payable to
such Lender hereunder (including, without limitation, amounts payable pursuant
to Section 2.13 hereof as a result of such payment or prepayment); provided,
--------
however, that
-------
(x) if Lenders having Commitments totaling an amount
equal to at least 51% of the aggregate amount of the
Commitments then in effect do not agree as contemplated by
Section 2.06(e)(i), then the Revolving Termination Date shall
not be extended pursuant to this Section 2.06(e) and the
Commitments of all of the Lenders shall remain in effect until
the Revolving Termination Date except as otherwise provided in
this Agreement; and
(y) the Borrower may not request any extension of the
Revolving Termination Date pursuant to this Section 2.06(e)(i)
more frequently than once in any calendar year.
(ii) Any Loan by any Lender the Commitment of
which is to terminate pursuant to Section 2.06(e)(i) hereof that would
otherwise be made or converted by such Lender as a Eurodollar Loan having an
Interest Period ending after the date such Commitment is to terminate shall be
made or continued as an ABR Loan and all ABR Loans of such Lender that would
otherwise be converted into Eurodollar Loans having such Interest Periods shall
remain as ABR Loans.
(iii) It shall be a condition precedent to any
extension of the Revolving Termination Date that: (a) on the date of such
extension no Default or Event of Default shall have occurred and be continuing;
(b) the representations and warranties made by the Borrower in Article III
shall be true and correct on and as of the date of such extension (or if any
such
-21-
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and (c) on the date of such extension
there shall have been no material adverse change in the consolidated financial
condition, operations, business or prospects taken as a whole of the Borrower
and its Subsidiaries from that set forth in its financial statements as of
September 30, 2001 referred to in Section 3.06 hereof or, if the Borrower has
delivered its financial statements for any fiscal year to the Lenders and the
Administrative Agent pursuant to Section 5.01(a) hereof, as of the date of the
most recent such financial statements. Each request for an extension of the
Revolving Termination Date pursuant to Section 2.06(e) shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of such request and, unless the Borrower notifies the
Administrative Agent prior to the date of such extension, as of the date of
such extension).
(f) Substitute Lenders. In the event any Lender does not
------------------
agree to any extension by the date provided pursuant to Section 2.06(e) hereof,
then, unless a Default or an Event of Default shall have occurred and be
continuing, the Borrower may, not later than 10 days following the expiration
of the Extension Request Period, designate one or more other banks (each such
bank being herein called a "Substitute Lender"), which may include any of the
-----------------
Lenders, acceptable to the Administrative Agent (which acceptance will not be
unreasonably withheld), to assume such non-consenting Lender's Commitment
hereunder and to purchase, on or before the date such Lender's Loans would
otherwise be required to be paid or prepaid hereunder, the Loans and Notes of
such Lender and such Lender's rights hereunder in respect thereof, without
recourse to or representation or warranty by, or expense to, such Lender. In
such event, the purchase price shall be equal to the outstanding principal
amount of the Loans and Notes payable to such Lender plus any accrued but
unpaid interest on such Loans and Notes and accrued but unpaid facility fees in
respect of such Lender's Commitment. Upon such assumption and purchase and the
receipt by such Lender of any other amounts payable to it by the Borrower under
this Agreement, and subject to the execution and delivery to the Administrative
Agent and such Lender by the Substitute Lender of documentation reasonably
satisfactory to the Administrative Agent and such Lender pursuant to which such
Substitute Lender shall assume the obligations of such original Lender under
this Agreement in respect of its Loans, Notes and Commitment and agree to
become a "Lender" hereunder (if not already a Lender) to the extent of the
Commitments, Loans and Notes assumed and purchased, the Substitute Lender shall
succeed to the rights, obligations and benefits of such Lender hereunder in
such respect (except for such rights, obligations and benefits of the Lender as
have accrued (other than principal, accrued interest or facility fees) or are
required to be performed by it on or prior to the date of such assumption and
purchase) (and such Lender shall be released from its Commitment except for any
liability arising or relating to any event occurring prior to the date of such
assumption and purchase) and the Substitute Lender shall be deemed to have
agreed to the relevant extension of the Revolving Termination Date and,
anything in Section 2.06(e) to the contrary notwithstanding, whether such
extension is effective shall be determined accordingly; provided that following
--------
any such assumption and purchase the Commitments of each Substitute Lender
(including any Commitments theretofore held by it) shall be not less than
$10,000,000.
-22-
SECTION 2.07 Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Repayment. The Borrower hereby unconditionally promises to
---------
pay to the Administrative Agent for account of the Lenders the outstanding
principal amount of the Revolving Loans on the Revolving Termination Date.
(b) Manner of Payment. Prior to any repayment or prepayment of
-----------------
any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 12:00 noon, New York, New York time,
three Business Days before the scheduled date of such repayment or prepayment;
provided that each repayment or prepayment of Borrowings shall be applied to
--------
repay or prepay any outstanding ABR Borrowings before any other Borrowings. If
the Borrower fails to make a timely selection of the Borrowing or Borrowings to
be repaid or prepaid, such payment shall be applied, first, to pay any
outstanding ABR Borrowings and, second, to other Borrowings in the order of the
remaining duration of their respective Interest Periods (the Borrowing with the
shortest remaining Interest Period to be repaid first). Each payment of a
Revolving Borrowing shall be applied ratably to the Loans included in such
Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
---------------------------------------
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(d) Maintenance of Loan Accounts by the Administrative Agent.
--------------------------------------------------------
The Administrative Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder and the Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts
-----------------
maintained pursuant to paragraphs (c) and (d) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
--------
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(f) Notes. Any Lender may request that Loans made by it be
-----
evidenced by a promissory note (each a "Note") in substantially the form of
----
Exhibit C. In such event, the Borrower shall prepare, execute and deliver to
such Lender a Note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in the form of Exhibit C.
Thereafter, the Loans evidenced by such Note and interest thereon shall at all
times (including after assignment pursuant to Section 9.12) be represented by
one or more Notes in such form payable to the order of the payee named therein
(or, if such Note is a registered note, to such payee and its registered
assigns).
-23-
SECTION 2.08 Prepayment of Loans.
-------------------
(a) Optional Prepayments Right to Prepay Borrowings. The
-----------------------------------------------
Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of this Section.
(b) Notices, Etc. The Borrower shall notify the Administrative
------------
Agent by telephone (confirmed by telecopy) of any optional prepayment hereunder
(i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00
noon, New York, New York time, three Business Days before the date of
prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later
than 12:00 noon, New York, New York time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
--------
a conditional notice of termination of the Commitments as contemplated by
Section 2.06(c), then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.06(c). Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an aggregate principal amount equal to $5,000,000 and a
multiple of $1,000,000 in excess thereof; provided that if any prepayment of
--------
Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Revolving Loans made pursuant to such Borrowing to an amount less
than $5,000,000, such outstanding Loans shall immediately be converted into ABR
Loans. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.10 and shall be made in the manner
specified in this Section 2.08(b).
SECTION 2.09 Fees.
----
(a) Facility Fee. The Borrower shall pay to the Administrative
------------
Agent for the account of each Lender a facility fee for the period from and
including the Effective Date to but excluding the Revolving Termination Date (or
such earlier date on which the total Commitments shall have been terminated)
computed at a rate per annum equal to the Applicable Rate on each Lender's daily
average Commitment, such fee to be paid quarterly in arrears on each Quarterly
Date and on the Revolving Termination Date (or such earlier date on which the
total Commitments shall have been terminated). The facility fee shall be
calculated on the basis of the actual number of days elapsed in a year of 360
days.
(b) Fee Letter. The Borrower agrees to pay to the
----------
Administrative Agent, for the account of the Administrative Agent and the
Co-Lead Arrangers, the fees agreed to by the Borrower, NPC, Sierra Pacific
Resources, the Administrative Agent and the Co-Lead Arrangers pursuant to that
certain letter agreement, dated the date hereof (the "Fee Letter"), or as
----------
otherwise agreed from time to time.
(c) Payment of Fees. All fees payable hereunder shall be paid
---------------
on the dates due, in immediately available funds, to the Administrative Agent
for distribution, in the case of facility fees, to the Lenders entitled thereto.
-24-
SECTION 2.10 Interest.
--------
(a) ABR Loans. The Loans comprising each ABR Revolving
---------
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar
----------------
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.
(c) Default Interest. Notwithstanding the foregoing, if any
----------------
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% above the higher of (A) the rate otherwise applicable
to such Loan as provided above and (B) the rate applicable to ABR Loans as
provided in paragraph (a) of this Section, or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(d) Payment of Interest. Accrued interest on each Loan shall
-------------------
be payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Commitments; provided that (x) interest accrued pursuant to
--------
paragraph (c) of this Section shall be payable on demand, (y) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the Revolving Termination Date), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (z) in the event of any conversion of any Eurodollar
Borrowing prior to the end of the current Interest Period therefor, accrued
interest on such Borrowing shall be payable on the effective date of such
conversion.
(e) Computation. All interest hereunder shall be computed on
-----------
the basis of a year of 360 days, and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive, absent manifest error.
SECTION 2.11 Alternate Rate of Interest. If prior to the
--------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive, absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent
-25-
notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request
requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an
ABR Revolving Borrowing.
SECTION 2.12 Increased Costs.
---------------
(a) Increased Costs Generally. If any Change in Law shall:
-------------------------
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender or its
Parent (except any such reserve requirement reflected in the Adjusted
LIBO Rate); or
(ii) impose on any Lender or its Parent or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender or its Parent of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or its Parent, as
the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
--------------------
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of its
Parent as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or its Parent could have achieved but for
such Change in Law (taking into consideration such Lender's policies and the
policies of its Parent with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or its Parent for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender
-------------------------
setting forth the amount or amounts necessary to compensate such Lender or its
Parent, as the case may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive, absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
-----------------
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation.
SECTION 2.13 Break Funding Payments. In the event of (a) the
----------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow,
-26-
convert, continue or prepay any Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.08(b) and is revoked in accordance
herewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.16, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, the loss to any Lender attributable to
any such event shall be deemed to include an amount determined by such Lender
to be equal to the excess, if any, of (i) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan for
the period from the date of such payment, conversion, failure or assignment to
the last day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, convert or continue, the duration of the Interest
Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest
that such Lender would earn on such principal amount for such period if such
Lender were to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an Affiliate of such Lender) for
dollar deposits from other banks in the eurodollar market at the commencement
of such period. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive, absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.14 Taxes.
-----
(a) Payments Free of Taxes. Any and all payments by or on
----------------------
account of any obligation of the Borrower hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
--------
if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, each
Co-Lead Arranger, the Syndication Agent or each Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable Law.
(b) Payment of Other Taxes by the Borrower. In addition, the
--------------------------------------
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Law.
(c) Indemnification by the Borrower. The Borrower shall
-------------------------------
indemnify the Administrative Agent, each Co-Lead Arranger, the Syndication Agent
and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Administrative Agent, such Co-Lead Arranger, the
Syndication Agent or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to
-27-
the Borrower by a Lender, a Co-Lead Arranger, the Syndication Agent or the
Administrative Agent (on its own behalf or on behalf of a Lender, a Co-Lead
Arranger or the Syndication Agent) shall be conclusive, absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
--------------------
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
---------------
exemption from or reduction of withholding tax under the Law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable Law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable Law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.15 Payments Generally; Pro Rata Treatment;
---------------------------------------
Sharing of Set-offs.
-------------------
(a) Payments by the Borrower. The Borrower shall make each
------------------------
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.12, 2.13 or 2.14, or otherwise) prior to 1:00 PM, New
York, New York time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
such date shall be deemed to have been received on the next succeeding Business
Day for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at its Principal Office and to such account at
its Principal Office as the Administrative Agent shall specify to the Borrower,
except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.04 shall be
made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for account of any other Person to
the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
------------------------------------
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
------------------
provided herein: (i) each Revolving Borrowing shall be made from the Lenders,
each payment of facility fees under Section 2.09 shall be made for the account
of the Lenders, and each termination or reduction of
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the amount of the Commitments under Section 2.06 shall be applied to the
respective Commitments of the Lenders, pro rata according to the amounts of
their respective Commitments; (ii) each Borrowing shall be allocated pro rata
among the Lenders according to the amounts of their respective Commitments (in
the case of the making of Revolving Loans) or their respective Loans (in the
case of conversions and continuations of Loans); (iii) each payment or
prepayment of principal of Loans by the Borrower shall be made for the account
of the Lenders pro rata in accordance with the respective unpaid principal
amounts of the Loans held by them; and (iv) each payment of interest on Loans
by the Borrower shall be made for the account of the Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
------------------------------
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Loans and accrued interest thereon then due than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided that (i) if any such
--------
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
-----------------------
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any
----------------------------------------------
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(b) or 2.15(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such
-29-
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.16 Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) Designation of a Different Lending Office. If any Lender
-----------------------------------------
requests compensation under Section 2.12, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.14, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
----------------------
compensation under Section 2.12, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.14, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.12), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
--------
consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the
Administrative Agent and each Lender as follows:
SECTION 3.01 Corporate Status.
----------------
The Borrower and each Subsidiary of the Borrower is a
corporation, trust or limited liability company duly organized, validly existing
and in good standing under the Laws
-30-
of its jurisdiction of organization. The Borrower and each Subsidiary of the
Borrower has the power (corporate or otherwise) and authority to own its
Property and to transact the business in which it is engaged or presently
proposes to engage. The Borrower and each Subsidiary of the Borrower is duly
qualified to do business as a foreign corporation, trust or limited liability
company and is in good standing in all jurisdictions in which the ownership of
its Properties or the nature of its activities or both makes such qualification
necessary or advisable. Schedule II states as of the date hereof the
jurisdiction of organization of the Borrower and each Subsidiary of the
Borrower, and the jurisdictions in which the Borrower and each Subsidiary of
the Borrower is qualified to do business as a foreign corporation, trust or
limited liability company.
SECTION 3.02 Corporate Power and Authorization.
---------------------------------
The Borrower has the corporate power and authority to execute,
deliver, perform, and take all actions contemplated by this Agreement and each
of the other Loan Documents to which it is a party, and all such actions have
been duly and validly authorized by all necessary corporate proceedings on its
part. Without limiting the foregoing, the Borrower has the corporate power and
authority to borrow pursuant to the Loan Documents to the fullest extent
permitted hereby and thereby from time to time, and has taken all necessary
corporate action to authorize such borrowings.
SECTION 3.03 Execution and Binding Effect.
----------------------------
This Agreement and each of the other Loan Documents to which
the Borrower is a party and which is required to be delivered on or before the
Effective Date pursuant to Section 4.01 has been duly and validly executed and
delivered by the Borrower. This Agreement and each such other Loan Document
constitutes, and when executed and delivered by the Borrower will constitute,
the legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as the enforceability hereof or
thereof may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
SECTION 3.04 Governmental Approvals and Filings.
----------------------------------
The Public Utilities Commission of Nevada and the California
Public Utilities Commission have each duly and validly issued orders authorizing
the Borrower to enter into this Agreement and the other Loan Documents to which
it is a party and to take all actions contemplated hereby or thereby or in
connection herewith or therewith, and such orders remain in full force and
effect in the form issued. No other Governmental Action is required for the due
execution, delivery and performance by the Borrower of this Agreement or any of
the other Loan Documents to which it is a party.
SECTION 3.05 Absence of Conflicts.
--------------------
Neither the execution and delivery of any of the Loan
Documents by the Borrower, nor the consummation of the transactions herein or
therein contemplated by the Borrower, nor the performance of or the compliance
with the terms and conditions hereof or thereof by the Borrower, does or will:
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(a) violate or conflict with any Law; or
(b) violate, conflict with or result in a breach of any term
or condition of, or constitute a default under, or result in (or give rise to
-- --
any right, contingent or otherwise, of any Person to cause) any termination,
cancellation, prepayment or acceleration of performance of, or result in the
--
creation or imposition of (or give rise to any obligation, contingent or
otherwise, to create or impose) any Lien upon any of the Property of the
Borrower or any Subsidiary of the Borrower pursuant to, or otherwise result in
(or give rise to any right, contingent or otherwise, of any Person to cause) any
--
change in any right, power, privilege, duty or obligation of the Borrower or any
Subsidiary of the Borrower under or in connection with,
(i) the articles of incorporation or by-laws
(or other constituent documents) of the Borrower or any Subsidiary
of the Borrower;
(ii) any agreement or instrument creating,
evidencing or securing any Indebtedness to which the Borrower or any
Subsidiary of the Borrower is a party or by which any of them or any of
their respective properties (now owned or hereafter acquired) may be
subject or bound; or
(iii) any other material agreement or instrument to
which the Borrower or any Subsidiary of the Borrower is a party or by
which any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound.
SECTION 3.06 Audited Financial Statements.
----------------------------
The Borrower has heretofore furnished to each of the Agents
and each of the Lenders consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as of December 31, 1998, 1999 and 2000 and the related
consolidated statements of income, retained earnings and changes in cash flows
for the fiscal years then ended, as examined and reported on by independent
certified public accountants for the Borrower, who delivered an unqualified
opinion in respect thereof. Such financial statements (including the notes
thereto) present fairly the financial condition of the Borrower and its
consolidated Subsidiaries as of the end of each such fiscal year and the results
of their operations and their retained earnings and changes in cash flows for
the fiscal years then ended, all in conformity with GAAP.
SECTION 3.07 Interim Financial Statements.
----------------------------
The Borrower has heretofore furnished to each of the Agents
and each of the Lenders an interim consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as of the end of the third fiscal quarter of
the fiscal year beginning January 1, 2001, together with the related
consolidated statements of income, retained earnings and changes in cash flows
for the applicable fiscal period ending on such date. Such financial statements
(including the notes thereto) present fairly the financial condition of the
Borrower and its consolidated Subsidiaries as of the end of such fiscal quarter
and the results of their operations and their retained earnings and changes in
cash flows for the fiscal periods then ended, all in conformity with GAAP,
subject to normal and recurring year-end audit adjustments.
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SECTION 3.08 Absence of Undisclosed Liabilities.
----------------------------------
Neither the Borrower nor any Subsidiary of the Borrower has
any liability or obligation of any nature whatever (whether absolute, accrued,
contingent or otherwise, whether or not due), forward or long-term commitments
or unrealized or anticipated losses from unfavorable commitments, except (a) as
disclosed in the financial statements referred to in Sections 3.06 and 3.07, and
(b) liabilities, obligations, commitments and losses incurred after September
30, 2001, in the ordinary course of business and consistent with past practices.
SECTION 3.09 Absence of Material Adverse Change.
----------------------------------
Since September 30, 2001, there has been no material adverse
change in the business, operations, condition (financial or otherwise), or
prospects of the Borrower and its Subsidiaries taken as a whole.
SECTION 3.10 Accurate and Complete Disclosure.
--------------------------------
All information heretofore, contemporaneously or hereafter
provided by or on behalf of the Borrower to any Agent or any Lender pursuant to
or in connection with any Loan Document or any transaction contemplated hereby
or thereby is or will be (as the case may be) true and accurate in all material
respects on the date as of which such information is dated (or, if not dated,
when received by such Agent or such Lender) and does not or will not (as the
case may be) omit to state any material fact necessary to make such information
not misleading at such time in light of the circumstances in which it was
provided. The Borrower has disclosed to each Agent and each Lender in writing
every fact or circumstance which has, or which so far as the Borrower can
reasonably foresee is reasonably likely and is reasonably likely to have, a
Material Adverse Effect.
SECTION 3.11 Margin Regulations.
------------------
No part of the proceeds of any Loan hereunder will be used for
the purpose of buying or carrying any "margin stock", as such term is used in
Regulation U of the Board, as amended from time to time, or to extend credit to
others for the purpose of buying or carrying any "margin stock". Neither the
Borrower nor any Subsidiary of the Borrower is engaged in the business of
extending credit to others for the purpose of buying or carrying "margin stock".
Neither the Borrower nor any Subsidiary of the Borrower owns any "margin stock".
Neither the making of any Loan nor any use of proceeds of any such Loan will
violate or conflict with the provisions of Regulation T, U or X of the Board, as
amended from time to time.
SECTION 3.12 Litigation.
----------
There is no pending or (to the Borrower's knowledge after due
inquiry) threatened action, suit, proceeding or investigation (including any
Environmental Claim) by or before any Governmental Authority against or
affecting the Borrower or any Subsidiary of the Borrower which, if adversely
decided, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect, except for (a) matters described in the financial
statements referred to in Section 3.06 and (b) matters set forth in Schedule
III.
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SECTION 3.13 Absence of Events of Default.
----------------------------
No event has occurred and is continuing and no condition
exists which constitutes a Default or an Event of Default.
SECTION 3.14 Absence of Other Conflicts.
--------------------------
Neither the Borrower nor any Subsidiary of the Borrower is in
violation of or conflict with, or is subject to any contingent liability on
account of any violation of or conflict with:
(a) any Law (including ERISA, the Code, any applicable
occupational health, safety or welfare Law or any applicable
Environmental Law);
(b) its articles of incorporation or by-laws (or other
constituent documents); or
(c) any agreement or instrument to which it is party or by
which it or any of its properties (now owned or hereafter acquired)
may be subject or bound;
except for matters which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
SECTION 3.15 Insurance.
---------
The Borrower and each Subsidiary of the Borrower maintains
with financially sound and reputable insurers insurance with respect to its
properties and business and against at least such liabilities, casualties and
contingencies and in at least such types and amounts as is customary in the case
of corporations engaged in the same or a similar business or having similar
properties similarly situated.
SECTION 3.16 Title to Property; No Liens.
---------------------------
The Borrower and each Subsidiary of the Borrower has good and
marketable title in fee simple to all real Property owned or purported to be
owned by it and good title to all other Property of whatever nature owned or
purported to be owned by it, including but not limited to all Property reflected
in the most recent audited balance sheet referred to in Section 3.06 or
submitted pursuant to Section 5.01(b), as the case may be (except as sold or
otherwise disposed of in the ordinary course of business after the date of such
balance sheet), subject to no Liens except for (i) Liens reflected in the most
recent audited balance sheet referred to in Section 3.06 or submitted pursuant
to Section 5.01(b), as the case may be, (ii) Liens consisting of zoning or
planning restrictions, easements, permits and other restrictions or limitations
on the use of real Property or irregularities in title thereto which do not
materially detract from the value of, or impair the use of, such Property by the
Borrower or any Subsidiary of the Borrower in the operation of its business,
(iii) Liens for current Taxes not yet due and delinquent and (iv) Liens set
forth on Schedule IV.
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SECTION 3.17 Taxes.
-----
All tax and information returns required to be filed by or on
behalf of the Borrower or any Subsidiary of the Borrower have been properly
prepared, executed and filed. All Taxes upon the Borrower or any Subsidiary of
the Borrower or upon any of their respective Properties, incomes, sales or
franchises which are due and payable have been paid, other than those not yet
delinquent and payable without premium or penalty, and except for those being
diligently contested in good faith by appropriate proceedings, and in each case
for which adequate reserves and provisions for Taxes have been made on the books
of the Borrower and each Subsidiary of the Borrower. The reserves and provisions
for Taxes on the books of the Borrower and each Subsidiary of the Borrower are
adequate for all open years and for its current fiscal period. Neither the
Borrower nor any Subsidiary of the Borrower knows of any proposed additional
assessment or basis for any material assessment for additional Taxes (whether or
not reserved against).
SECTION 3.18 Borrower Not An Investment Company.
----------------------------------
Neither the Borrower nor any Subsidiary of the Borrower is an
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act of 1940.
SECTION 3.19 Environmental Matters.
---------------------
(a) The Borrower and each of its Subsidiaries have complied
with and are in compliance with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. Except as
disclosed on Schedule V, there are no pending or threatened Environmental Claims
against the Borrower or any of its Subsidiaries (including any such claim
arising out of the ownership, lease or operation by the Borrower or any of its
Subsidiaries of any real Property no longer owned, leased or operated by the
Borrower or any of its Subsidiaries) or any real Property owned, leased or
operated by the Borrower or any of its Subsidiaries. Except as disclosed on
Schedule V, there are no facts, circumstances, conditions or occurrences with
respect to the business or operations of the Borrower or any of its
Subsidiaries, or any real Property owned, leased or operated by the Borrower or
any of its Subsidiaries (including any real Property formerly owned, leased or
operated by the Borrower or any of its Subsidiaries but no longer owned, leased
or operated by the Borrower or any of its Subsidiaries) or any Property
adjoining or adjacent to any such real Property that could be expected (i) to
form the basis of an Environmental Claim against the Borrower or any of its
Subsidiaries or any real Property owned, leased or operated by the Borrower or
any of its Subsidiaries or (ii) to cause any real Property owned, leased or
operated by the Borrower or any of its Subsidiaries to be subject to any
restrictions on the ownership, occupancy or transferability of such real
Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any real Property owned,
leased or operated by the Borrower or any of its Subsidiaries where such
generation, use, treatment or storage has violated or could be expected to
violate any Environmental Law. Hazardous Materials have not at any time been
Released on or from any real Property owned, leased or operated by the Borrower
or any of its
-35-
Subsidiaries where such Release has violated or would be expected to violate
any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section,
the representations made in this Section shall not be untrue unless the effect
of all violations, claims, restrictions, failures and noncompliances of the
types described in this Section would reasonably be expected to, individually or
in the aggregate, have a Material Adverse Effect.
SECTION 3.20 ERISA.
-----
(a) Each Plan (and each related trust, insurance contract or
fund) is in substantial compliance with its terms and with all applicable Laws,
including without limitation ERISA and the Code; each Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code; no Reportable Event has occurred; no Multiemployer Plan is insolvent or in
reorganization; no Plan has an Unfunded Current Liability; no Plan which is
subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency within the meaning of such sections of the Code or ERISA or
has applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; all contributions required to be made with
respect to a Plan have been timely made; neither the Borrower nor any Subsidiary
of the Borrower nor any ERISA Affiliate has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or
expects to incur any such liability under any of the foregoing sections with
respect to any Plan; no condition exists which presents a material risk to the
Borrower or any Subsidiary of the Borrower or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no proceedings have been instituted to terminate or appoint
a trustee to administer any Plan; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending, expected
or threatened; using actuarial assumptions and computation methods consistent
with Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its Subsidiaries and its ERISA Affiliates to all Multiemployer
Plans in the event of a complete withdrawal therefrom, as of the close of the
most recent fiscal year of each such Plan ended prior to the date of the most
recent Borrowing, would not have a Material Adverse Effect; each group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code)
which covers or has covered employees or former employees of the Borrower, any
Subsidiary of the Borrower, or any ERISA Affiliate has at all times been
operated in compliance with the provisions of Part 6 of subtitle B of Title I of
ERISA and Section 4980B of the Code; no Lien imposed under the Code or ERISA on
the assets of the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate exists or is likely to arise on account of any Plan; and the Borrower
and its Subsidiaries may cease contributions to or terminate any Plan maintained
by any of them without incurring any material liability.
(b) Each Foreign Pension Plan, if any, has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable Laws, statutes,
-36-
rules, regulations and orders and has been maintained, where required, in good
standing with applicable regulatory authorities. All contributions required to
be made with respect to a Foreign Pension Plan have been timely made. Neither
the Borrower nor any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan.
The present value of the accrued benefit liabilities (whether or not vested)
under each Foreign Pension Plan, determined as of the end of the Borrower's
most recently ended fiscal year on the basis of actuarial assumptions, each of
which is reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan allocable to such benefit liabilities.
SECTION 3.21 Pari Passu Status.
-----------------
The claims and rights of the Lenders against the Borrower
hereunder are not subordinated to, but rank at least pari passu with, the claims
and rights of other holders of its unsecured indebtedness except to the extent
otherwise provided by Law (including, without limitation, the Bankruptcy Code
and the provisions of 31 U.S.C. [sec]. 3713).
SECTION 3.22 Indebtedness.
------------
Schedule VI contains a true and complete list of all
Indebtedness of the Borrower and its Subsidiaries that is, or will be,
outstanding on the Effective Date ("Existing Indebtedness").
---------------------
SECTION 3.23 General and Refunding Mortgage Bonds.
------------------------------------
Upon any issuance of General and Refunding Mortgage Bonds
pursuant to Section 6.09(b) and at all times thereafter, such General and
Refunding Mortgage Bonds will have been duly and validly issued and will be
entitled to the security and benefits of the General and Refunding Mortgage
Indenture; will be secured equally and ratably with and only with all other
bonds issued and outstanding under the General and Refunding Mortgage Indenture;
will be secured by direct and valid, duly perfected Liens on and security
interests in the collateral purported to secure such bonds in the General and
Refunding Mortgage Indenture, subject only to the prior Lien of the First
Mortgage Indenture and to Permitted Liens (as such term is defined in the
General and Refunding Mortgage Indenture); and will constitute collateral
security for the obligations of the Borrower as purported to be provided in the
General and Refunding Mortgage Indenture and herein.
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date.
--------------
This Agreement and the other Loan Documents shall become
effective as against the Lenders and the Agents on the first date on which all
of the following conditions shall be satisfied or waived:
(a) Agreement; Notes. The Administrative Agent shall have
----------------
received an executed counterpart of this Agreement for each Lender,
duly executed by the Borrower,
-37-
and, to the extent any Lender has requested a Note pursuant to Section
2.07(f), a Note conforming to the requirements hereof, duly executed on
behalf of the Borrower.
(b) Governmental Approvals and Filings. The
----------------------------------
Administrative Agent shall have received, with copies and executed
counterparts for each Lender, true and correct copies (in each case
certified as to authenticity on such date on behalf of the Borrower)
of the orders entered by the Public Utilities Commission of Nevada and
the California Public Utilities Commission as referred to in
Section 3.04, and such orders shall be satisfactory in form and
substance to the Administrative Agent and shall be in full force and
effect.
(c) Corporate Proceedings. The Administrative
---------------------
Agent shall have received, with a counterpart for each Lender,
certificates by the Secretary or Assistant Secretary of the Borrower
dated as of the Effective Date as to (i) true copies of the articles
of incorporation and by-laws (or other constituent documents) of the
Borrower as in effect on such date (which, in the case of articles of
incorporation or other constituent documents filed or required to be
filed with the Secretary of State or other Governmental Authority in
its jurisdiction of incorporation, shall be certified to be true,
correct and complete by such Secretary of State or other Governmental
Authority not more than 30 days before the date hereof), (ii) true
copies of all corporate action taken by the Borrower relative to this
Agreement and the other Loan Documents, and (iii) the incumbency and
signatures of the respective officers of the Borrower executing this
Agreement and the other Loan Documents to which the Borrower is a
party, together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Administrative Agent shall have
received, with a copy for each Lender, certificates from the
Secretary of State of Nevada (or other applicable Governmental
Authority) dated not more than 30 days before the Effective Date
showing the good standing of the Borrower in Nevada and in each state
in which the Borrower does business.
(d) Legal Opinions of Counsel to the Borrower. The
-----------------------------------------
Administrative Agent shall have received, with an executed counterpart
for each Lender, opinions addressed to the Administrative Agent and
each Lender, dated the Effective Date, of (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇,
special counsel to the Borrower, and (ii) ▇▇▇▇▇▇▇▇ & Wedge, Nevada
counsel to the Borrower, in each case as to such matters as may be
requested by the Administrative Agent and in form and substance
satisfactory to the Lenders.
(e) Financial Statements; Projections. The Administrative
---------------------------------
Agent shall have received for each Lender a true and correct copy of
the (i) audited consolidated financial statements, including balance
sheets, income statements and cash flow statements, for the Borrower
and each of its consolidated Subsidiaries for the years ended December
31, 1998, 1999 and 2000, (ii) unaudited interim consolidated financial
statements, including a balance sheet, income statement and statement
of cash flows, for the Borrower and its consolidated Subsidiaries for
the nine month period ended September 30, 2001 and (iii) Projections
for each quarterly period ending after the date hereof and on or before
December 31, 2002.
-38-
(f) No Material Adverse Effect. Nothing shall have
--------------------------
occurred (and neither the Administrative Agent nor the Lenders shall
have become aware of any facts or conditions not previously known)
which the Lenders shall determine (i) has had, or could reasonably be
expected to have, a Material Adverse Effect. The Administrative Agent
shall have received a certificate of a senior financial officer of the
Borrower, dated the Effective Date, to the effect that, as of the
Effective Date, there has been no Material Adverse Effect since
September 30, 2001.
(g) Governmental Approvals. All necessary and material
----------------------
Governmental Actions (domestic and foreign) and third party approvals
and/or consents in connection with the transactions contemplated in
this Agreement shall have been obtained and remain in effect and all
applicable waiting periods with respect thereto shall have expired
without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon, the
consummation of the transactions contemplated hereby or otherwise
referred to herein. The Administrative Agent shall have received
documentation reasonably acceptable to it that (i) the Public Utilities
Commission of Nevada has duly approved the Borrowings hereunder and
(ii) the California Public Utilities Commission has exempted the
Borrower from the requirement to secure its approval of the Borrowings
hereunder, including, without limitation, a copy of the docket of
matters pending before the California Public Utilities Commission
showing no indication of a change with respect to such exemptive order.
(h) No Injunctions. There shall not exist any judgment,
--------------
order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the
consummation of the transactions contemplated hereby or otherwise
referred to herein.
(i) Litigation, Proceedings and Investigations. There
------------------------------------------
shall ▇▇▇▇ actions, arbitrations, suits, investigations or proceedings
pending or threatened with respect to this Agreement or which the
Administrative Agent shall determine could reasonably be expected to
have a Material Adverse Effect.
(j) No Violation of Existing Agreements. Neither the
-----------------------------------
Borrower nor any Subsidiary of the Borrower is in violation of any
material agreement or instrument to which it is party or by which it
or any of its properties (now owned or hereafter acquired) may be
subject or bound;
(k) Ratings. The Administrative Agent shall have received
-------
a certificate of a senior financial officer of the Borrower, dated the
Effective Date, setting forth the then current ratings of the Index
Debt of Borrower.
(l) Officers' Certificates. The Administrative Agent
----------------------
shall have received, with an executed counterpart for each Lender,
certificates from such officers of the Borrower as to such matters as
the Administrative Agent may request.
-39-
(m) Fees, Expenses, etc. All fees and other items
-------------------
required tobe paid to the Agents and the Lenders on or before the
Effective Date (including all fees referenced in fee letters and offer
letters) shall have been paid or received.
(n) Section 4.02 Conditions.
-----------------------
(i) Each of the representations and warranties made
by the Borrower herein and in each other Loan Document shall
be true and correct in all material respects on and as of the
Effective Date as if made on and as of such date, both before
and after giving effect to the Loans requested to be made on
such date.
(ii) No Default or Event of Default shall have
occurred and be continuing on the Effective Date.
(o) Due Diligence Review. The Lenders shall be satisfied
--------------------
with the results of their due diligence review of the Borrower and
its Subsidiaries.
(p) General and Refunding Mortgage Bond Documents. The
---------------------------------------------
Administrative Agent shall have received substantially final versions
of the following documents (all as defined in the General and Refunding
Mortgage Indenture) which, upon execution, delivery and filing, shall
be sufficient for the issuance of the General and Refunding Mortgage
Bonds required by Section 6.09(b): a supplemental indenture, an
"Officer's Certificate" setting forth the terms of the General and
Refunding Mortgage Bonds, a "Company Order" requesting authentication
of the General and Refunding Mortgage Bonds by the trustee under the
General and Refunding Mortgage Indenture, a form of the General and
Refunding Mortgage Bond to be issued, a pledge agreement and forms of
all legal opinions required to issue the General and Refunding Mortgage
Bonds under the General and Refunding Mortgage Indenture. The forms of
such documents, prior to their delivery to the Administrative Agent,
shall have been approved by the trustee under the General and Refunding
Mortgage Indenture and its counsel, but shall not be executed and
delivered unless and until execution and delivery is required by
Section 6.09(b).
(q) Termination of the Existing Credit Agreements. All
---------------------------------------------
principal, interest, fees, costs, expenses and other obligations of the
Borrower under the Existing Credit Agreements shall have been (or will
have been, upon the making of the initial Loans on the Effective Date
and the application of the proceeds thereof) paid in full, and the
"Commitments" under the Existing Credit Agreements shall have
terminated in their entirety on or before such date.
(r) Additional Matters. The Administrative Agent shall
------------------
have received, with copies or executed counterparts for each Lender,
such other certificates, opinions, documents and instruments as the
Administrative Agent may have requested. All corporate and other
proceedings, and all documents, instruments and other matters in
connection with the transactions contemplated by this Agreement and the
other Loan Documents, shall be satisfactory in form and substance to
the Administrative Agent.
-40-
SECTION 4.02 Conditions to All Loans.
-----------------------
The obligation of each Lender to make, convert or continue any
Loan on the occasion of any Borrowing is subject to satisfaction of the
conditions precedent set forth in Section 4.01 and satisfaction of the following
further conditions precedent:
(a) Notice. The Borrower shall have executed and
------
delivered to the Administrative Agent a Borrowing Request or Interest
Election Request for such Borrowing in accordance with Section
2.03 or 2.05, as the case may be.
(b) Representations and Warranties. Each of the
------------------------------
representations and warranties made by the Borrower herein and in each
other Loan Document shall be true and correct in all material respects
on and as of such date as if made on and as of such date, both before
and after giving effect to the making, conversion or continuation of
Loans requested to be made, converted or continued on such date.
(c) No Defaults. No Default or Event of Default shall
-----------
have occurred and be continuing on such date or after giving effect to
the making, conversion or continuation of Loans requested to be made,
converted or continued on such date.
(d) No Violations of Law, etc. Neither the making,
-------------------------
conversion or continuation of nor use of the Loans shall cause any
Lender to violate or be in conflict with any Law.
(e) No Material Adverse Change. There shall not have
--------------------------
occurred, or be threatened, any other event, act or condition which
would reasonably be expected to have a Material Adverse Effect.
Each request by the Borrower for any Loan or conversion or
continuation thereof shall constitute a representation and warranty by the
Borrower that the conditions set forth in this Section 4.02 have been satisfied
as of the date of such request. Failure of the Administrative Agent to receive
notice from the Borrower to the contrary before such Loan is made shall
constitute a further representation and warranty by the Borrower that the
conditions referred to in this Section 4.02 have been satisfied as of the date
such Loan is made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to the Administrative Agent and
each Lender:
SECTION 5.01 Basic Reporting Requirements.
----------------------------
(a) Annual Audit Reports. As soon as practicable, and in
--------------------
any event within 90 days after the close of each fiscal year of the Borrower,
the Borrower shall furnish to the Administrative Agent, with a copy for each
Lender, consolidated statements of income, retained earnings and cash flows of
the Borrower and its consolidated Subsidiaries for such fiscal year and a
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
of the close of such fiscal year, and notes to each, all in reasonable detail,
setting forth in comparative form
-41-
the corresponding figures for the preceding fiscal year. Such financial
statements shall be accompanied by an opinion of independent certified public
accountants of recognized national standing selected by the Borrower, which
opinion shall not be subject to any qualification as to scope of audit or as to
any other matter which the Required Lenders determine is adverse. Such opinion
in any event shall contain a written statement of such accountants
substantially to the effect that (i) such accountants examined such financial
statements in accordance with generally accepted auditing standards and
accordingly made such tests of accounting records and such other auditing
procedures as such accountants considered necessary in the circumstances and
(ii) in the opinion of such accountants such financial statements present
fairly the financial position of the Borrower and its consolidated Subsidiaries
as of the end of such fiscal year and the results of their operations and their
retained earnings and cash flows for such fiscal year, in conformity with GAAP.
(b) Quarterly Consolidated Reports. As soon as
------------------------------
practicable, and in any event within 45 days after the close of each of the
first three fiscal quarters of each fiscal year of the Borrower, the Borrower
shall furnish to the Administrative Agent, with a copy for each Lender,
unaudited consolidated statements of income, retained earnings and cash flows
of the Borrower and its consolidated Subsidiaries for the period from the
beginning of such fiscal year to the end of such fiscal quarter and an
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter, and notes to each, all in
reasonable detail, setting forth in comparative form the corresponding figures
for the same periods or as of the same date during the preceding fiscal year
(except for the consolidated balance sheet, which shall set forth in
comparative form the corresponding balance sheet as of the prior fiscal year
end). Such financial statements shall be certified by a Responsible Officer of
the Borrower as presenting fairly the financial position of the Borrower and
its consolidated Subsidiaries as of the end of such fiscal quarter and the
results of their operations and their retained earnings and changes in cash
flows for such fiscal year, in conformity with GAAP, subject to normal and
recurring year-end audit adjustments.
(c) Quarterly Compliance Certificates. The Borrower shall
---------------------------------
deliver to the Administrative Agent, with a copy for each Lender, a Quarterly
Compliance Certificate in substantially the form set forth as Exhibit D, duly
completed and signed by a Responsible Officer of the Borrower concurrently with
the delivery of the financial statements referred to in subsections (a) and (b)
of this Section 5.01.
(d) Certain Other Reports and Information. Promptly upon
-------------------------------------
their becoming available to the Borrower, the Borrower shall (i) deliver to the
Administrative Agent, with a copy for each Lender, a copy of (A) all regular or
special reports, registration statements and amendments to the foregoing which
the Borrower or any Subsidiary of the Borrower shall file with the Securities
and Exchange Commission (or any successor thereto) or any securities exchange
and (B) all reports, proxy statements, financial statements and other
information distributed by the Borrower to its stockbrokers, bondholders or the
financial community generally, and (ii) if requested by the Administrative
Agent, deliver or otherwise make available to the Administrative Agent a copy of
each application and other document filed by the Borrower with the Public
Utilities Commission of Nevada with respect to the Borrower's deferred energy
rate case.
-42-
(e) Further Information. The Borrower shall promptly
-------------------
furnish to the Administrative Agent, with a copy for each Lender, such other
information and in such form as the Administrative Agent or any Lender may
reasonably request from time to time.
(f) Notice of Certain Events. Promptly (and, in the case
------------------------
of clause (i) below, no later than two Business Days) upon becoming aware of
any of the following, the Borrower shall give the Administrative Agent notice
thereof, together with a written statement of a Responsible Officer of the
Borrower setting forth the details thereof and any action with respect thereto
taken or proposed to be taken by the Borrower:
(i) Any Default or Event of Default.
(ii) The occurrence or existence of any event or condition
(including (A) the violation or alleged violation of any Environmental
Law by the Borrower or any Subsidiary of the Borrower or the assertion
of any Environmental Claim against the Borrower or any Subsidiary of
the Borrower, (B) the commencement of any other action, suit,
proceeding or investigation by or before any Governmental Authority
against or affecting the Borrower or any Subsidiary of the Borrower, or
(C) the violation, breach or default or alleged violation, breach or
default by the Borrower or any Subsidiary of the Borrower or any other
Person under any agreement or instrument material to the business,
operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole) which event or
condition, either individually or in the aggregate, has, or would
reasonably be expected to have, a Material Adverse Effect.
(iii) Any change in the rating of the Index Debt
of Borrower.
(g) Visitation; Verification. The Borrower shall permit
------------------------
such Persons as the Administrative Agent or any Lender may designate from time
to time to visit and inspect any of the properties of the Borrower and of any
of its Subsidiaries, to examine their respective books and records and take
copies and extracts therefrom and to discuss their respective affairs with
their respective officers, employees and independent accountants at such times
and as often as the Administrative Agent or any Lender may reasonably request;
provided, however, that the Borrower reserves the right to restrict access to
-------- -------
any of its generating facilities in accordance with reasonably adopted
practices relating to safety and security. The Borrower hereby authorizes such
officers, employees and independent accountants to discuss with the
Administrative Agent or any Lender the affairs of the Borrower and its
Subsidiaries.
(h) ERISA. Within 30 days after the Borrower knows that
-----
any of the events or conditions specified below with respect to any Plan or
Multiemployer Plan has occurred or exists, a statement signed by a Responsible
Officer of the Borrower setting forth details respecting such event or condition
and the action, if any, that the Borrower or its ERISA Affiliate proposes to
take with respect thereto (and a copy of any report or notice required to be
filed with or given to the PBGC by the Borrower or an ERISA Affiliate with
respect to such event or condition):
(i) any Reportable Event and any request for a
waiver under Section 412(d) of the Code for any Plan;
-43-
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by the
Borrower or an ERISA Affiliate to terminate any Plan, in each case with
respect to which there are insufficient assets to pay benefits as they
become due;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the Borrower or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt by the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA; and
(v) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA,
would result in the loss of tax-exempt status of the trust of which
such Plan is a part if the Borrower or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with the provisions
of said Sections.
(i) Satisfaction of Certain Reporting Requirements.
----------------------------------------------
Notwithstanding any other provision of this Section 5.01, the Borrower shall be
deemed to have satisfied its obligations pursuant to Sections 5.01(a) and (b) if
and to the extent that it shall have provided to the Administrative Agent and
each Lender, pursuant to Section 5.01(d), copies of its periodic reports (on
Form 10-K or 10-Q, as the case may be) as required to be filed with the
Securities and Exchange Commission (or any successor thereto) pursuant to the
Securities and Exchange Act of 1934, as amended (or any successor statute of
similar import), for the annual and quarterly periods described in such
Sections.
(j) Delivery to Lenders. The Administrative Agent shall
-------------------
promptly deliver to each Lender each of the reports, statements, certificates or
other documents delivered to the Administrative Agent by the Borrower pursuant
to this Section 5.01.
SECTION 5.02 Insurance.
---------
The Borrower shall, and shall cause each of its Subsidiaries
to, maintain with financially sound and reputable insurers insurance with
respect to its properties and business and against such liabilities, casualties
and contingencies and of such types and in such amounts as is customary in the
case of corporations engaged in the same or similar businesses or having similar
properties similarly situated and as is satisfactory from time to time to the
Required Lenders in their reasonable discretion.
-44-
SECTION 5.03 Payment of Taxes and Other Potential Charges
--------------------------------------------
and Priority Claims.
-------------------
The Borrower shall, and shall cause each of its Subsidiaries
to, pay or discharge
(a) on or prior to the date on which penalties or Liens
attach thereto, all Taxes imposed upon it or any of its Properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such Property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
Property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in a
case under the Bankruptcy Code;
provided, that, unless and until foreclosure, distraint, levy, sale or similar
--------
proceedings shall have been commenced, the Borrower or such Subsidiary need not
pay or discharge any such Tax, assessment, charge or claim so long as (x) the
validity thereof is contested in good faith and by appropriate proceedings
diligently conducted, and (y) such reserves or other appropriate provisions as
may be required by GAAP shall have been made therefor.
SECTION 5.04 Preservation of Corporate Status and Franchises.
-----------------------------------------------
The Borrower shall, and shall cause each of its Subsidiaries
to, maintain its status as a corporation, trust or limited liability company
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, and to be duly qualified to do business as a
foreign corporation, trust or limited liability company and in good standing in
all jurisdictions in which the ownership of its properties or the nature of its
business or both make such qualification necessary or advisable; provided,
--------
however, that nothing in this Section 5.04 shall prevent the withdrawal by the
-------
Borrower or any of its Subsidiaries of its qualification as a foreign
corporation in any jurisdiction where such withdrawal could not have a Material
Adverse Effect. The Borrower shall, and shall cause each of its Subsidiaries to,
do or cause to be done all things necessary to preserve and keep in full force
and effect its material rights, franchises, licenses and patents.
SECTION 5.05 Governmental Approvals and Filings.
----------------------------------
The Borrower shall keep and maintain in full force and effect
all Governmental Actions necessary or advisable in connection with execution and
delivery of any Loan Document, consummation of the transactions herein or
therein contemplated, performance of or compliance with the terms and conditions
hereof or thereof or to ensure the legality, validity, binding effect or
enforceability hereof or thereof.
-45-
SECTION 5.06 Maintenance of Properties.
-------------------------
The Borrower shall, and shall cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working order and
condition the properties now or hereafter owned, leased or otherwise possessed
by it and shall make or cause to be made all needful and proper repairs,
renewals, replacements and improvements thereto so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times.
SECTION 5.07 Avoidance of Other Conflicts.
----------------------------
The Borrower shall not, and shall not permit any of its
Subsidiaries to, violate or conflict with, be in violation of or in conflict
with, or be or remain subject to any liability (contingent or otherwise) on
account of any violation or conflict with:
(a) any Law;
(b) its articles of incorporation or by-laws; or
(c) any agreement or instrument to which it or any of its
Subsidiaries is a party or by which any of them or any of their
respective properties (now owned or hereafter acquired) may be
subject or bound,
except for matters which would not reasonably be expected, either individually
or in the aggregate, to have a Material Adverse Effect.
SECTION 5.08 Financial Accounting Practices.
------------------------------
The Borrower shall, and shall cause each of its Subsidiaries
to, make and keep books, records and accounts which, in reasonable detail,
accurately and fairly reflect its transactions and dispositions of its assets
and maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (a) transactions are executed in accordance with
management's general or specific authorization, (b) transactions are recorded as
necessary (i) to permit preparation of financial statements in conformity with
GAAP and (ii) to maintain accountability for assets, (c) access to assets is
permitted only in accordance with management's general or specific authorization
and (d) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
SECTION 5.09 Use of Proceeds.
---------------
The Borrower shall apply the proceeds of all Loans hereunder
only for working capital and general corporate purposes of the Borrower,
including commercial paper backup. The Borrower shall not use the proceeds of
any Loans hereunder directly or indirectly for any unlawful purpose, in any
manner inconsistent with Section 3.11, or inconsistent with any other provision
of any Loan Document.
-46-
SECTION 5.10 End of Fiscal Periods.
---------------------
The Borrower shall cause (a) each of its, and each of its
Subsidiary's, fiscal years to end on December 31 and (b) each of its, and each
of its Subsidiary's, fiscal quarters to end on March 31, June 30, September 30
and December 31.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants to the Administrative Agent and
each Lender as follows:
SECTION 6.01 Financial Covenants.
-------------------
(a) Maximum Leverage. The Borrower shall not permit the
----------------
ratio of (a) Total Indebtedness to (b) the sum of Total Indebtedness and
Shareholders' Equity, determined as of the last day of each fiscal quarter, to
exceed 0.60 to 1.
(b) Consolidated Interest Coverage Ratio. The Borrower
------------------------------------
shall not permit the Consolidated Interest Coverage Ratio, determined as of the
last day of each fiscal quarter set forth below for the period set forth below,
to be less than 2.0 to 1:
Fiscal Quarter Ended Period
-------------------- ------
December 31, 2001 the three consecutive
fiscal quarters ended as
of the lastday of such
fiscal quarter
March 31, 2002 and each the four consecutive
fiscal quarter ended thereafter fiscal quartersended as
of the last day of such
fiscal quarter
SECTION 6.02 Liens.
-----
The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien
on any of its Property (now owned or hereafter acquired), or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing, except for
the following ("Permitted Liens"):
---------------
(a) Liens existing on the date hereof and securing
obligations existing on the date hereof, as such Liens and
obligations are listed on Schedule IV;
(b) Liens securing obligations issued under and pursuant
to the terms and conditions of either (i) the First Mortgage Indenture
or (ii) the General and Refunding Mortgage Indenture; provided that
--------
the Borrower shall at all times (unless and until General and
Refunding Mortgage Bonds are issued pursuant to Section 6.09(b))
maintain sufficient capacity pursuant to the General and Refunding
Mortgage Indenture to issue additional General and Refunding Mortgage
Bonds in an aggregate principal amount equal to or greater than the
aggregate amount of the Lenders' Commitments hereunder;
-47-
(c) Liens on First Mortgage Bonds issued as collateral
for pollution control or gas or water facility revenue bonds issued
for the benefit of the Borrower or its Subsidiaries (and related
rights and interests) to secure obligations of the Borrower or such
Subsidiaries for the benefit of the holders of such bonds, provided
--------
that such bonds are not secured by any other assets or Properties of
the Borrower or its Subsidiaries;
(d) Liens on "transition property" arising pursuant to
Section 843 of the California Public Utility Code for the benefit of
holders of rate reduction bonds issued pursuant to a valid financing
order of the California Public Utilities Commission;
(e) Liens arising from taxes, assessments, charges or
claims described in Section 5.03 that are not yet due or that remain
payable without penalty or to the extent permitted to remain unpaid
under the proviso to such Section 5.03;
(f) Deposits or pledges of cash or securities in the
ordinary course of business to secure (i) worker's compensation,
unemployment insurance or other social security obligations, (ii)
performance of bids, tenders, trade contracts (other than for payment
of money) or leases, (iii) stay, surety or appeal bonds, or (iv)
other obligations of a like nature incurred in the ordinary course
of business;
(g) Zoning restrictions, easements, minor restrictions on
the use of real Property, minor irregularities in title thereto and
other minor Liens that do not secure the payment of money or the
performance of an obligation and that do not in the aggregate
materially detract from the value of an asset to, or materially impair
its use in the business of, the Borrower or such Subsidiary; and
(h) Liens on Property securing all or part of the
purchase price thereof and Liens (whether or not assumed) existing in
Property at the time of purchase thereof, provided that: (i) such Lien
--------
is created before or substantially simultaneously with the purchase of
such Property by the Borrower or such Subsidiary, (ii) such Lien is
confined solely to the Property so purchased, improvements thereto and
proceeds thereof, (iii) the aggregate amount secured by such Liens on
any particular Property at the time purchased by the Borrower or such
Subsidiary, as the case may be, shall not exceed the lesser of the
purchase price of such Property and the fair market value of such
Property at the time of purchase thereof by the Borrower or such
Subsidiary, and (iv) the aggregate amount secured by all Liens
described in this Section 6.02(h) shall not at any time exceed
$50,000,000.
"Permitted Liens" shall in no event include any Lien imposed by, or required to
be granted pursuant to, ERISA or any Environmental Law.
SECTION 6.03 Mergers.
-------
The Borrower shall not, and shall not permit any of its
Subsidiaries to, (a) merge with or into or consolidate with any other Person,
(b) liquidate, wind-up, dissolve or divide, or (c) agree, become or remain
liable (contingently or otherwise) to do any of the foregoing, except that:
-48-
(i) A Person may merge with or into or consolidate
with any Subsidiary of the Borrower; provided that (x) the
--------
surviving Person shall be a Subsidiary of the Borrower, (y) no
Default or Event of Default shall have occurred and be
continuing or shall exist at such time or after giving effect
to such transaction and (z) the Borrower shall deliver to the
Administrative Agent (A) a certificate, in a form reasonably
satisfactory to the Administrative Agent, certifying that no
Default or Event of Default exists or will result from such
merger and (B) pro forma financial statements in support of
such certification; and
(ii) A Person may merge with or into or consolidate
with the Borrower, provided that (x) the Borrower shall be the
--------
surviving Person, (y) no Default or Event of Default shall
have occurred and be continuing or shall exist at such time or
after giving effect to such transaction and (z) the Borrower
shall deliver to the Administrative Agent (A) a certificate,
in a form reasonably satisfactory to the Administrative Agent,
certifying that no Default or Event of Default exists or will
result from such merger and (B) pro forma financial statements
in support of such certification.
SECTION 6.04 Dispositions of Properties.
--------------------------
The Borrower shall not, and shall not permit any of its
Subsidiaries to, sell, convey, assign, lease, sale-leaseback, transfer, abandon
or otherwise dispose of, voluntarily or involuntarily (collectively, "Dispose"),
-------
any of its Properties, or agree, become or remain liable contingently or
otherwise to do any of the foregoing, except that, so long as no Default or
Event of Default shall have occurred and be continuing or shall exist at such
time or after giving effect to such transaction, the Borrower and its
Subsidiaries may Dispose of Property (a) in transactions in the ordinary course
of business consistent with past practice, (b) that is obsolete, (c) comprising
accounts receivable transferred from time to time on a revolving basis to a
commercial paper conduit, special purpose subsidiary or similar entity; provided
--------
that (i) the aggregate face amount of such accounts receivable Disposed of in
reliance on this clause (c) does not exceed $125,000,000 at any one time
outstanding and (ii) the net cash proceeds from each Disposition of such
accounts receivable, (A) when added to the net cash proceeds of all other
Dispositions of accounts receivable made in reliance on this clause (c), are not
less than 80% of the aggregate face amount of all accounts receivable Disposed
of in reliance on this clause (c) and (B) at the time of such Disposition, do
not exceed the sum of (I) the balance of the Borrower's deferred energy accrual
account at such time and (II) the Borrower's deferred energy costs actually
incurred but not yet reflected in the Borrower's deferred energy accrual
account, in each case as set forth in the Borrower's books and records;
provided, further, that each Disposition made by the Borrower in reliance on
-------- ------
this clause (c) shall constitute a representation and warranty of the Borrower,
made at the time of such Disposition, that the conditions set forth in clauses
(i) and (ii) above are satisfied at such time, and (d) in transactions other
than as provided in Section 6.04(a), (b) and (c); provided that the aggregate
--------
book value of all Property Disposed of pursuant to this Section 6.04(d) from and
after the date hereof shall not exceed $50,000,000.
-49-
SECTION 6.05 Investments and Acquisitions.
----------------------------
Prior to the making of any Investment or the consummation of
any Acquisition by the Borrower or any of its Subsidiaries, the amount or
purchase price of which, as the case may be, when aggregated with the amounts
and purchase prices of other Investments and Acquisitions made by the Borrower
and its Subsidiaries, would exceed $10,000,000 in the aggregate at any time, the
Borrower shall deliver to the Administrative Agent (i) a certificate, in a form
reasonably satisfactory to the Administrative Agent, certifying that no Default
or Event of Default exists or will result from such Acquisition and (ii) pro
forma financial statements in support of such certification.
SECTION 6.06 Dividends and Stock Repurchases.
-------------------------------
The Borrower shall not declare or pay any dividend on its
capital stock (except for dividends in the form of capital stock), or redeem or
repurchase any of its capital stock, if a Default or Event of Default shall have
occurred and be continuing or shall exist at such time or after giving effect to
such transaction; provided, however, that the Borrower may at any time during
-------- -------
the continuance of a Default or an Event of Default pay cash dividends to, or
redeem or repurchase for cash any of its capital stock from, Sierra Pacific
Resources, but only if and to the extent that Sierra Pacific Resources
immediately applies such cash to the payment of the Obligations (as such term is
defined in the SPR Credit Agreement).
SECTION 6.07 Transactions with Affiliates.
----------------------------
The Borrower shall not enter into any transaction of any kind
with any Person that Controls the Borrower or is Controlled by the Borrower or
is under common Control with the Borrower other than (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors (or executive committee thereof) of the Borrower and
expressly authorized by a resolution of the board of directors (or executive
committee) of the Borrower which is approved by a majority of the directors (or
executive committee) not having an interest in the transaction, (c) transactions
between or among the Borrower and its Wholly-Owned Subsidiaries, (d)
transactions between the Borrower and its Subsidiaries, on the one hand, and NPC
and its Subsidiaries, on the other hand, and (e) transactions on overall terms
at least as favorable to the Borrower as would be the case in an arm's-length
transaction between unrelated parties of equal bargaining power.
SECTION 6.08 Change of Business.
------------------
The Borrower shall not engage in any business other than the
businesses of (a) the generation or purchase of electrical power and (b) the
purchase of natural gas, and in each case the transmission and distribution
thereof to industrial, commercial and residential customers. In addition to, and
not by way of limitation of, the previous sentence, the Borrower shall maintain
ongoing business segments (as defined in FASB Statement 131 - Disclosure about
Segments of an Enterprise and Related Information) consisting of electricity and
gas assets (exclusive of cash and readily marketable securities) and operating
income reflected in the financial statements of the Borrower as being directly
attributable to the generation, transmission and/or distribution of
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electricity or gas, which segments and operating income shall, in the
aggregate, comprise not less than 80% of the consolidated assets (exclusive of
cash and readily marketable securities) of the Borrower and its Subsidiaries.
SECTION 6.09 Equal and Ratable Lien; Grant of Security
-----------------------------------------
Interest in Certain Events.
--------------------------
(a) If, notwithstanding the prohibition contained in Section
6.02, the Borrower or any of its Subsidiaries is subjected to any Lien upon any
of its Property, other than those permitted by the provisions of Section 6.02,
the Borrower will, and will cause its Subsidiaries to, make or cause to be made
effective provisions whereby the Borrowings will be secured equally and ratably
with any and all other obligations thereby secured, such security to be pursuant
to agreements reasonably satisfactory to the Administrative Agent and, in any
such case, the Borrowings shall have the benefit, to the fullest extent that,
and with such priority as, the Lenders may be entitled under applicable law, of
an equitable Lien on such Property. Such violation of Section 6.02 will
constitute an Event of Default, whether or not provision is made for an equal
and ratable Lien pursuant to this Section 6.09, and no such Lien or agreements
with respect thereto shall be deemed to be a waiver of or consent to such Event
of Default by the Administrative Agent or any Lender.
(b) If any of the following (each, a "Triggering Event")
----------------
shall occur:
(x) ▇▇▇▇▇'▇ shall rate the Index Debt of
Borrower as Baa3 or lower; or
(y) S&P shall rate the Index Debt of Borrower
as BB+ or lower;
then the Borrower shall issue or cause to be issued, not later than five (5)
Business Days after the date on which the Triggering Event first occurs, for the
ratable benefit of the Lenders, General and Refunding Mortgage Bonds, to the
full extent permitted under applicable orders of the Public Utilities Commission
of Nevada and the General and Refunding Mortgage Indenture, in an aggregate face
amount equal to the aggregate amount of the Commitments (but with an aggregate
outstanding principal amount equal to the amount of principal of the Loans
outstanding from time to time), with interest and other terms and conditions
substantially similar to the Loans, and the Borrower shall perform or cause to
be performed all acts, and execute or cause to be executed all resolutions,
orders, instruments, certificates, agreements and other documents required under
the General and Refunding Mortgage Indenture (including the documents referred
to in Section 4.01(p)) to give effect to the foregoing within such five-Business
Day period.
SECTION 6.10 Restrictive Agreements.
----------------------
Except for agreements referenced in or permitted under this
Article VI, the Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any of its Subsidiaries to create, incur or
permit to exist any Lien upon any of its Property or assets, or (b) the ability
of any Subsidiary of the Borrower to pay dividends or other distributions with
respect to any shares of its capital stock
-51-
or to make or repay loans or advances to the Borrower or any other Subsidiary
of the Borrower or to guarantee Indebtedness of the Borrower or any other
Subsidiary of the Borrower.
ARTICLE VII
DEFAULTS
SECTION 7.01 Events of Default.
-----------------
An "Event of Default" shall mean the occurrence or existence
----------------
of one or more of the following events or conditions (for any reason, whether
voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of
any Loan.
(b) The Borrower shall fail to pay when due interest on any
Loan, any fees, indemnity or expenses, or any other amount due
hereunder or under any other Loan Document and such failure shall have
continued for a period of three (3) Business Days.
(c) Any representation or warranty made or deemed made by the
Borrower in or pursuant to or in connection with any Loan Document, or
any statement made by the Borrower in any financial statement,
certificate, report, exhibit or document furnished by the Borrower to
the Administrative Agent or any Lender pursuant to or in connection
with any Loan Document, shall prove to have been false or misleading in
any material respect as of the time when made or deemed made (including
by omission of material information necessary to make such
representation, warranty or statement not misleading).
(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VI or any of the
covenants contained in Section 5.01(f)(i), 5.09 or 5.10.
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default
under Section 5.01 (other than as referred to in subsection (f)(i)
thereof) such default shall have continued for a period of ten (10)
Business Days and (ii) in the case of any other default such default
shall have continued for a period of 30 days after notice from the
Administrative Agent to the Borrower.
(f) The Borrower or any Subsidiary of the Borrower shall (i)
fail to make any payment (x) on account of any Indebtedness aggregating
$10,000,000 or more in principal amount or (y) aggregating $10,000,000
or more on any Indebtedness, or any interest or premium thereon, in
each case, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and, in each case, such
failure shall have continued beyond any applicable grace period
specified in any agreement or instrument relating to such Indebtedness,
or (ii) fail to perform or observe any other term, covenant or
condition on its part to be performed or observed under any agreement
or instrument relating to any Indebtedness when required to be
performed or observed, and such failure shall have continued beyond any
applicable grace period specified in any
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agreement or instrument relating to such Indebtedness, if the effect of
such failure to perform or observe is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness, the unpaid
principal amount of which then aggregates $10,000,000 or more.
(g) One or more final judgments or orders for the payment of
money shall have been entered against the Borrower or any Subsidiary of
the Borrower, which judgments or orders exceed $10,000,000 in the
aggregate, and such judgments or orders shall have remained
undischarged and unstayed for a period of thirty (30) consecutive days.
(h) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process exceeding in value the
aggregate amount of $10,000,000 shall have been issued against the
Borrower or any Subsidiary of the Borrower or any of their respective
properties and shall have remained undischarged and unstayed for a
period of thirty (30) consecutive days.
(i) Any Governmental Action now or hereafter made by or with
any Governmental Authority in connection with any Loan Document is not
obtained or shall have ceased to be in full force and effect or shall
have been modified or amended or shall have been held to be illegal or
invalid, and the Required Lenders shall have determined (which
determination shall be conclusive provided it is reached in good faith)
that the consequence of any of the foregoing events would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(j) Any Loan Document or any material term or provision
thereof shall have ceased to be in full force and effect, or the
Borrower or any Governmental Authority with jurisdiction over the
Borrower shall, or shall purport to, terminate, repudiate, declare
voidable or void or otherwise contest, any Loan Document or any
material term or provision thereof or any obligation or liability of
the Borrower thereunder.
(k) An event or condition specified in Section 5.01(h) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan or
any Lien arises pursuant to ERISA and, as a result of such event or
condition or Lien, together with all other such events or conditions or
Liens, the Borrower or any ERISA Affiliate shall incur or shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan
or the PBGC or suffer an encumbrance to exist in favor of any thereof
(or any combination of the foregoing) which would constitute a Material
Adverse Effect.
(l) The Borrower or any Subsidiary of the Borrower shall have
violated any Environmental Law or become subject to any Environmental
Claim and, in either case, the Required Lenders shall have determined
(which determination shall be conclusive provided it is reached in good
faith) that such event would reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect.
(m) A proceeding shall have been instituted in respect of
the Borrower or any Subsidiary of the Borrower:
-53-
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing
a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, winding-up,
charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief
with respect to such Person, its assets or its debts under any
Law relating to bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal entities or any
other similar Law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee,
liquidator, assignee, sequestrator or other custodian for
such Person or for all or any substantial part of its
Property,
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed and unstayed for a period of
thirty (30) consecutive days.
(n) The Borrower or any Subsidiary of the Borrower shall
become insolvent; shall fail to pay, become unable to pay, or state
that it is or will be unable to pay, its debts as they become due;
shall voluntarily suspend transaction of its business; shall make a
general assignment for the benefit of creditors; shall institute (or
fail to controvert in a timely and appropriate manner) a proceeding
described in Section 7.01(m)(i), or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.01(m)(ii), or (whether or not any
such proceeding has been instituted) shall consent to or acquiesce in
any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its Property; shall
dissolve, wind-up, revoke or forfeit its charter (or other constituent
documents) or liquidate itself or any substantial part of its Property;
or shall take any action in furtherance of any of the foregoing.
(o) A Change in Control shall occur.
SECTION 7.02 Consequences of an Event of Default.
-----------------------------------
(a) If an Event of Default specified in Section 7.01 (other
than subsections (m) and (n) thereof) shall occur and be continuing or shall
exist, then, in addition to all other rights and remedies which the
Administrative Agent or any Lender may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Lenders shall be under no further
obligation to make Loans hereunder, and the Administrative Agent may, and, upon
the written request of the Required Lenders shall, by notice to the Borrower,
from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be immediately
due and
-54-
payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(ii) Declare the unpaid principal amount of the
Loans, interest accrued thereon and all other Obligations to be
immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue.
(b) If an Event of Default specified in subsection (m) or (n)
of Section 7.01 shall occur or exist, then, in addition to all other rights and
remedies which the Administrative Agent or any Lender may have hereunder or
under any other Loan Document, at law, in equity or otherwise, the Commitments
shall automatically terminate and the Lenders shall be under no further
obligation to make Loans, and the unpaid principal amount of the Loans, interest
accrued thereon and all other Obligations shall become immediately due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby waived, and an action therefor shall immediately accrue.
ARTICLE VIII
THE AGENTS
SECTION 8.01 Appointment.
-----------
Each Lender hereby irrevocably appoints Union Bank of
California, N.A. to act as Administrative Agent for such Lender under this
Agreement and the other Loan Documents. Each Lender hereby irrevocably
authorizes the Administrative Agent to take such action on behalf of such Lender
under the provisions of this Agreement and the other Loan Documents, and to
exercise such powers and to perform such duties, as are expressly delegated to
or required of the Administrative Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto. Union Bank of California,
N.A. hereby agrees to act as Administrative Agent on behalf of the Lenders on
the terms and conditions set forth in this Agreement and the other Loan
Documents, subject to its right to resign as provided in Section 8.10. Each
Lender hereby irrevocably authorizes the Administrative Agent to execute and
deliver each of the Loan Documents executed after the date hereof and to accept
delivery of such of the other Loan Documents delivered after the date hereof as
may not require execution by the Administrative Agent (with such consents of the
Lenders as required pursuant to Section 9.01). Each Lender agrees that the
rights and remedies granted to the Administrative Agent under the Loan Documents
shall be exercised exclusively by the Administrative Agent, and that no Lender
shall have any right individually to exercise any such right or remedy, except
to the extent expressly provided herein or therein.
SECTION 8.02 General Nature of Administrative Agent's Duties.
-----------------------------------------------
Notwithstanding anything to the contrary elsewhere in this
Agreement or in any other Loan Document:
(a) The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and
the other Loan Documents, and no
-55-
implied duties or responsibilities on the part of the Administrative
Agent shall be read into this Agreement or any other Loan Document or
shall otherwise exist.
(b) The duties and responsibilities of the Administrative
Agent under this Agreement and the other Loan Documents shall be
mechanical and administrative in nature, and the Administrative Agent
shall not have a fiduciary relationship in respect of any Lender.
(c) The Administrative Agent is and shall be solely the agent
of the Lenders. The Administrative Agent does not assume, and shall not
at any time be deemed to have, any relationship of agency or trust with
or for, or any other duty or responsibility to, the Borrower or any
other Person (except only for its relationship as agent for, and its
express duties and responsibilities to, the Lenders as provided in this
Agreement and the other Loan Documents).
(d) The Administrative Agent shall be under no obligation to
take any action hereunder or under any other Loan Document if the
Administrative Agent believes in good faith that taking such action may
conflict with any Law or any provision of this Agreement or any other
Loan Document, or may require the Administrative Agent to qualify to do
business in any jurisdiction where it is not then so qualified.
SECTION 8.03 Exercise of Powers.
------------------
The Administrative Agent shall take any action of the type
specified in this Agreement or any other Loan Document as being within the
Administrative Agent's rights, powers or discretion in accordance with
directions from the Required Lenders (or, to the extent this Agreement or such
other Loan Document expressly requires the direction or consent of some other
Person or set of Persons, then instead in accordance with the directions of such
other Person or set of Persons). In the absence of such directions, the
Administrative Agent shall have the authority (but under no circumstances shall
be obligated), in its sole discretion, to take any such action, except to the
extent that this Agreement or such other Loan Document expressly requires the
direction or consent of the Required Lenders (or some other Person or set of
Persons), in which case the Administrative Agent shall not take such action
absent such direction or consent. Any action or inaction pursuant to such
direction, discretion or consent shall be binding on all the Lenders. The
Administrative Agent shall not have any liability to any Person as a result of
(a) the Administrative Agent acting or refraining from acting in accordance with
the directions of the Required Lenders (or other applicable Person or set of
Persons), (b) the Administrative Agent refraining from acting in the absence of
instructions to act from the Required Lenders (or other applicable Person or set
of Persons), whether or not the Administrative Agent has discretionary power to
take such action, or (c) the Administrative Agent taking discretionary action it
is authorized to take under this Section (subject, in the case of clauses (b)
and (c), to the provisions of Section 8.04(a)).
SECTION 8.04 General Exculpatory Provisions.
------------------------------
Notwithstanding anything to the contrary elsewhere in this
Agreement or any other Loan Document:
-56-
(a) The Administrative Agent shall not be liable for any
action taken or omitted to be taken by it under or in connection with
this Agreement or any other Loan Document, unless caused by its own
gross negligence or willful misconduct.
(b) The Administrative Agent shall not be responsible for (i)
the execution, delivery, effectiveness, enforceability, genuineness,
validity or adequacy of this Agreement or any other Loan Document, (ii)
any recital, representation, warranty, document, certificate, report or
statement in, provided for in, or received under or in connection with,
this Agreement or any other Loan Document, (iii) any failure of the
Borrower or any Lender to perform any of their respective obligations
under this Agreement or any other Loan Document, or (iv) the existence,
validity, enforceability, perfection, recordation, priority, adequacy
or value, now or hereafter, of any Lien or other direct or indirect
security afforded or purported to be afforded by any of the Loan
Documents or otherwise from time to time.
(c) The Administrative Agent shall not be under any obligation
to ascertain, inquire or give any notice relating to (i) the
performance or observance of any of the terms or conditions of this
Agreement or any other Loan Document on the part of the Borrower, (ii)
the business, operations, condition (financial or otherwise) or
prospects of the Borrower or any other Person, or (iii) except to the
extent set forth in Section 8.05(f), the existence of any Default or
Event of Default.
(d) The Administrative Agent shall not be under any
obligation, either initially or on a continuing basis, to provide any
Lender with any notices, reports or information of any nature, whether
in its possession presently or hereafter, except for such notices,
reports and other information expressly required by this Agreement or
any other Loan Document to be furnished by the Administrative Agent to
such Lender.
SECTION 8.05 Administration by the Administrative Agent.
------------------------------------------
(a) The Administrative Agent may rely upon any notice or other
communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any other Loan
Document) purportedly made by or on behalf of the proper party or parties, and
the Administrative Agent shall not have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) The Administrative Agent may consult with legal counsel
(including, without limitation, in-house counsel for the Administrative Agent or
in-house or other counsel for the Borrower), independent public accountants and
any other experts selected by it from time to time, and the Administrative Agent
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts.
(c) The Administrative Agent may conclusively rely upon the
truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Administrative Agent in accordance
with the requirements of this Agreement or any other Loan Document. Whenever the
Administrative Agent shall deem it necessary or desirable that a
-57-
matter be proved or established with respect to the Borrower or any Lender,
such matter may be established by a certificate of the Borrower or such Lender,
as the case may be, and the Administrative Agent may conclusively rely upon
such certificate (unless other evidence with respect to such matter is
specifically prescribed in this Agreement or another Loan Document).
(d) The Administrative Agent may fail or refuse to take any
action unless it shall be indemnified to its satisfaction from time to time
against any and all amounts, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature which may be imposed on, incurred by or asserted against the
Administrative Agent by reason of taking or continuing to take any such action.
(e) The Administrative Agent may perform any of its duties
under this Agreement or any other Loan Document by or through agents or
attorneys-in-fact. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
(f) The Administrative Agent shall not be deemed to have any
knowledge or notice of the occurrence of any Default or Event of Default unless
the Administrative Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default, and
stating that such notice is a "notice of default". If the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to each Lender.
SECTION 8.06 Lenders Not Relying on Administrative Agent
-------------------------------------------
or Other Lenders.
----------------
Each Lender acknowledges as follows:
(a) Neither the Administrative Agent nor any other Lender has
made any representations or warranties to it, and no act taken
hereafter by the Administrative Agent or any other Lender shall be
deemed to constitute any representation or warranty by the
Administrative Agent or such other Lender to it.
(b) It has, independently and without reliance upon the
Administrative Agent or any other Lender, and based upon such documents
and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the other
Loan Documents.
(c) It will, independently and without reliance upon the
Administrative Agent or any other Lender, and based upon such documents
and information as it shall deem appropriate at the time, make its own
decisions to take or not take action under or in connection with this
Agreement and the other Loan Documents.
SECTION 8.07 Indemnification.
---------------
Each Lender agrees to reimburse and indemnify the
Administrative Agent and its directors, officers, employees and agents (to the
extent not reimbursed by the Borrower and without limitation of the obligations
of the Borrower to do so, in each case pursuant to the terms of this Agreement
and the other Loan Documents), based on its Applicable Percentage, from and
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against any and all amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature (including, without limitation, the fees and disbursements of
counsel for the Administrative Agent or such other Person in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not the Administrative Agent or such other Person shall be designated
a party thereto) that may at any time be imposed on, incurred by or asserted
against the Administrative Agent or such other Person as a result of, or arising
out of, or in any way related to or by reason of, this Agreement, any other Loan
Document, any transaction from time to time contemplated hereby or thereby, or
any transaction financed in whole or in part or directly or indirectly with the
proceeds of any Loan, provided that no Lender shall be liable for any portion of
--------
such amounts, losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements resulting solely
from the gross negligence or willful misconduct of the Administrative Agent or
such other Person, as finally determined by a court of competent jurisdiction.
Payments under this Section 8.07 shall be due and payable on demand, and to the
extent that any Lender fails to pay any such amount on demand, such amount shall
bear interest for each day from the date of demand until paid (before and after
judgment) at a rate per annum (calculated on the basis of a year of 360 days and
actual days elapsed) which for each day shall be equal to the Federal Funds
Effective Rate for such day.
SECTION 8.08 Administrative Agent in its Individual Capacity.
-----------------------------------------------
With respect to its Commitment and the Obligations owing to
it, the Administrative Agent shall have the same rights and powers under this
Agreement and each other Loan Document as any other Lender and may exercise the
same as though it were not the Administrative Agent, and the terms "Lenders,"
"holders of Notes" and like terms shall include the Administrative Agent in its
individual capacity as such. The Administrative Agent and its affiliates may,
without liability to account, make loans to, accept deposits from, acquire debt
or equity interests in, act as trustee under indentures of, and engage in any
other business with, the Borrower and any stockholder, subsidiary or affiliate
of the Borrower, as though the Administrative Agent were not the Administrative
Agent hereunder.
SECTION 8.09 Holders of Notes.
----------------
The Administrative Agent may deem and treat the Lender which
is payee of a Note as the owner and holder of such Note for all purposes hereof
unless and until an Assignment and Acceptance with respect to the assignment or
transfer thereof shall have been filed with the Administrative Agent in
accordance with Section 9.12. Any authority, direction or consent of any Person
who at the time of giving such authority, direction or consent is shown in the
Register as being a Lender shall be conclusive and binding on each present and
subsequent holder, transferee or assignee of any Note or Notes payable to such
Lender or of any Note or Notes issued in exchange therefor.
SECTION 8.10 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign at any time by giving 10
days' prior written notice thereof to the Lenders and the Borrower. The
Administrative Agent may be removed by the Required Lenders at any time with or
without cause by giving 10 days' prior written notice
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thereof to the Administrative Agent, the other Lenders and the Borrower. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed and consented to, and shall have accepted such
appointment, within 30 days after such notice of resignation or removal, then
the retiring Administrative Agent, on behalf of the Lenders, may appoint a
successor Administrative Agent. Each successor Administrative Agent shall be a
commercial bank or trust company organized under the Laws of the United States
of America or any State thereof and having a combined capital and surplus of at
least $1,000,000,000. The appointment of any successor Administrative Agent at
any time pursuant to this Section 8.10 shall be subject to the approval of the
Borrower, provided that at such time there shall not have occurred and be
--------
continuing any Default or Event of Default, and provided further that the
----------------
Borrower's consent to any such appointment shall not be unreasonably withheld.
Upon the acceptance by a successor Administrative Agent of its appointment as
Administrative Agent hereunder, such successor Administrative Agent shall
thereupon succeed to and become vested with all the properties, rights, powers,
privileges and duties of the former Administrative Agent without further act,
deed or conveyance. Upon the effective date of resignation or removal of a
retiring Administrative Agent, the Administrative Agent shall be discharged
from its duties under this Agreement and the other Loan Documents, but the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted by it while it was Administrative Agent under this Agreement. If and
for so long as no successor Administrative Agent shall have been appointed,
then any notice or other communication required or permitted to be given by the
Administrative Agent shall be sufficiently given if given by the Required
Lenders, all notices or other communications required or permitted to be given
to the Administrative Agent shall be given to each Lender, and all payments to
be made to the Administrative Agent shall be made directly to the Borrower or
Lender for whose account such payment is made.
SECTION 8.11 Additional Administrative Agents.
--------------------------------
If the Administrative Agent shall from time to time deem it
necessary or advisable, for its own protection in the performance of its duties
hereunder or in the interest of the Lenders, the Administrative Agent and the
Borrower shall execute and deliver a supplemental agreement and all other
instruments and agreements necessary or advisable in the opinion of the
Administrative Agent to constitute another commercial bank or trust company, or
one or more other Persons approved by the Administrative Agent, to act as
co-Administrative Agent, with such powers of the Administrative Agent as may be
provided in such supplemental agreement, and to vest in such bank, trust company
or Person, as such co-Administrative Agent, any properties, rights, powers,
privileges and duties of the Administrative Agent under this Agreement or any
other Loan Document. The appointment of any co-Administrative Agent at any time
pursuant to this Section 8.11 shall be subject to the approval of the Borrower,
provided that at such time there shall not have occurred and be continuing any
--------
Default or Event of Default, and provided further that the Borrower's consent to
-------- -------
any such appointment shall not be unreasonably withheld.
SECTION 8.12 Calculations.
------------
The Administrative Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it in good faith,
in the absence of its own gross negligence or
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willful misconduct. If such calculation, apportionment or distribution is
subsequently determined to have been made in error, the sole recourse of any
Lender to whom payment was due but not made (except as provided in the
preceding sentence) shall be to recover from the other Lenders any payment in
excess of the amount to which they are determined to be entitled or, if the
amount due was not paid by the Borrower, to recover such amount from the
Borrower.
SECTION 8.13 Syndication Agent.
-----------------
As Syndication Agent, ▇▇▇▇▇ Fargo Bank, N.A. shall not have
any right, power, obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those applicable to all Lenders
as such. Without limiting the foregoing, ▇▇▇▇▇ Fargo Bank, N.A. shall not have
any or be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on ▇▇▇▇▇ Fargo Bank,
N.A. in deciding to enter into this Agreement or in not taking action hereunder
or under the Loan Documents.
SECTION 8.14 Sole Bookrunner.
---------------
As Sole Bookrunner, Union Bank of California, N.A. shall not
have any right, power, obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those applicable to all Lenders
as such. Without limiting the foregoing, Union Bank of California, N.A. shall
not have any or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on Union
Bank of California, N.A. in deciding to enter into this Agreement or in not
taking action hereunder or under the Loan Documents.
SECTION 8.15 Co-Documentation Agents.
-----------------------
As Co-Documentation Agents, none of Bank One, NA, BNP Paribas
or Mellon Bank, N.A. shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of Bank One, NA, BNP Paribas or Mellon Bank, N.A. shall have any or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on Bank One, NA, BNP
Paribas or Mellon Bank, N.A. in deciding to enter into this Agreement or in not
taking action hereunder or under the Loan Documents.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Amendments and Waivers.
----------------------
Neither this Agreement nor any other Loan Document may be
amended, modified or supplemented except in accordance with the provisions of
this Section 9.01. The Administrative Agent and the Borrower may from time to
time amend, modify or supplement the provisions of this Agreement or any other
Loan Document for the purpose of amending, adding to or waiving any provision,
or changing in any manner the rights and duties of the Borrower, the
Administrative Agent or any Lender. Any such amendment, modification or
supplement made
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by the Borrower and the Administrative Agent in accordance with the provisions
of this Section 9.01 shall be binding upon the Borrower, each Lender and the
Administrative Agent. The Administrative Agent shall enter into such
amendments, modifications or supplements from time to time as directed by the
Required Lenders, and only as so directed, provided, that no such amendment,
--------
modification or supplement may be made which will:
(a) Increase the Commitment of any Lender over the amount
thereof then in effect, without the written consent of each Lender
affected thereby;
(b) Extend the Revolving Termination Date, without the
written consent of all the Lenders;
(c) Reduce the principal amount of or extend the time for any
payment of principal of any Loan, or reduce the rate of interest or
extend the time for payment of any interest borne by any Loan, or
extend the time for payment of or reduce the amount of any fees, or
reduce the amount of or postpone the date for payment of any other
obligation, without the written consent of each Lender affected
thereby;
(d) Change the definition of "Required Lenders" or amend this
Section 9.01 or Section 9.12(a) or any other provision of this
Agreement that requires the consent of all of the Lenders to the taking
or failure to take action hereunder, without the written consent of all
the Lenders;
(e) Amend or waive any of the provisions of Article VIII, or
impose additional duties upon the Administrative Agent or otherwise
adversely affect the rights, interests or obligations of the
Administrative Agent, without the written consent of the Administrative
Agent; or
(f) Release any General and Refunding Bonds issued to the
Administrative Agent pursuant to Section 6.09(b), without the
written consent of all the Lenders;
and provided, further, that Assignment and Acceptances may be entered into in
-------- -------
the manner provided in Section 9.12. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Default or Event of Default waived or consented to in
any such amendment, modification or supplement shall be deemed to be cured and
not continuing to the extent and for the period set forth in such waiver or
consent, but no such waiver or consent shall extend to any other or subsequent
Default or Event of Default or impair any right consequent thereto.
SECTION 9.02 No Implied Waiver; Cumulative Remedies.
--------------------------------------
No course of dealing and no delay or failure of the
Administrative Agent or any Lender in exercising any right, power or privilege
under this Agreement or any other Loan Document shall affect any other or future
exercise thereof or the exercise of any other right, power or privilege; nor
shall any single or partial exercise of any such right, power or privilege or
any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege. The rights and remedies of the Administrative Agent and the Lenders
under this Agreement and any other Loan
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Document are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have hereunder or
thereunder, at law, in equity or otherwise.
SECTION 9.03 Notices.
-------
(a) Except to the extent otherwise expressly permitted
hereunder or thereunder, all notices, requests, demands, directions and other
communications (collectively "notices") under this Agreement or any other Loan
-------
Document shall be in writing (including telecopied communication) and shall be
sent by first-class mail, or by nationally-recognized overnight courier, or by
telecopier (with confirmation in writing mailed first-class or sent by such an
overnight courier), or by personal delivery. All notices shall be sent to the
applicable party at the address stated on the signature pages hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto in all cases with postage or other charges prepaid. Any
such properly given notice shall be effective on the earliest to occur of
receipt, telephone confirmation of receipt of telecopy communication, one
Business Day after delivery to a nationally-recognized overnight courier, or
three Business Days after deposit in the mail.
(b) Any Lender giving any notice to the Borrower or any other
party to a Loan Document shall simultaneously send a copy thereof to the
Administrative Agent, and the Administrative Agent shall promptly notify the
other Lenders of the receipt by it of any such notice.
(c) The Administrative Agent and each Lender may rely on any
notice (whether or not such notice is made in a manner permitted or required by
this Agreement or any other Loan Document) purportedly made by or on behalf of
the Borrower, and neither the Administrative Agent nor any Lender shall have any
duty to verify the identity or authority of any Person giving such notice.
SECTION 9.04 Expenses; Taxes; Indemnity.
--------------------------
(a) The Borrower agrees to pay or cause to be paid and to save
the Administrative Agent and each of the Lenders harmless against liability for
the payment of all reasonable out-of-pocket costs and expenses (including but
not limited to reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any Lender from time to time arising from or relating to
(i) in the case of the Administrative Agent, the negotiation, syndication,
preparation, execution, delivery, administration and performance of this
Agreement and the other Loan Documents, (ii) in the case of the Syndication
Agent, the syndication of this Agreement and the other Loan Documents, (iii) in
the case of the Administrative Agent, any amendments, modifications,
supplements, waivers or consents to this Agreement or any other Loan Document
(whether or not ultimately entered into or granted), and (iv) in the case of the
Administrative Agent or any Lender, the enforcement or preservation of rights
under this Agreement or any other Loan Document (including but not limited to
any such costs or expenses arising from or relating to (A) collection or
enforcement of an outstanding Loan or any other amount owing hereunder or
thereunder by the Administrative Agent or such Lender, and (B) any
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litigation, proceeding, dispute, work-out, restructuring or rescheduling
related in any way to this Agreement or the Loan Documents).
(b) The Borrower hereby agrees to pay all stamp, document,
transfer, recording, filing, registration, search, sales and excise fees and
taxes and all similar impositions now or hereafter determined by the
Administrative Agent or any Lender to be payable in connection with this
Agreement or any other Loan Documents or any other documents, instruments or
transactions pursuant to or in connection herewith or therewith (which
determination shall be conclusive provided it is reached in good faith), and the
Borrower agrees to save the Administrative Agent and each Lender harmless from
and against any and all present or future claims, liabilities or losses with
respect to or resulting from any omission to pay or delay in paying any such
fees, taxes or impositions.
(c) The Borrower hereby agrees to reimburse and indemnify each
of the Indemnified Parties from and against any and all losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnified Party in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnified
Party shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Indemnified Party as a result of, or
arising out of, or in any way related to or by reason of, this Agreement or any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan (and without in any way limiting the
generality of the foregoing, including any violation or breach of any
Environmental Law or any other Law by the Borrower or any Subsidiary of the
Borrower; any Environmental Claim arising out of the management, use, control,
ownership or operation of Property by any of such Persons, including all onsite
and offsite activities involving Hazardous Materials; or any exercise by the
Administrative Agent or any Lender of any of its rights or remedies under this
Agreement or any other Loan Document); but excluding any such losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting solely from the gross
negligence or willful misconduct of such Indemnified Party, as finally
determined by a court of competent jurisdiction. If and to the extent that the
foregoing obligations of the Borrower under this subsection (c), or any other
indemnification obligation of the Borrower hereunder or under any other Loan
Document, are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable Law.
SECTION 9.05 Severability.
------------
The provisions of this Agreement are intended to be severable.
If any provision of this Agreement shall be held invalid or unenforceable in
whole or in part in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
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SECTION 9.06 Prior Understandings.
--------------------
This Agreement and the other Loan Documents, as such
agreements shall be amended from time to time, supersede all prior and
contemporaneous understandings and agreements, whether written or oral, among
the parties hereto relating to the transactions provided for herein and therein.
SECTION 9.07 Duration; Survival.
------------------
All representations and warranties of the Borrower contained
herein or in any other Loan Document or made in connection herewith or therewith
shall survive the making, and shall not be waived by the execution and delivery,
of this Agreement or any other Loan Document, any investigation by or knowledge
of the Administrative Agent or any Lender, the making of any Loan, or any other
event or condition whatever. All covenants and agreements of the Borrower
contained herein or in any other Loan Document shall continue in full force and
effect from and after the date hereof so long as the Borrower may borrow
hereunder and until payment in full of all Obligations. Without limitation, all
obligations of the Borrower hereunder or under any other Loan Document to make
payments to or indemnify the Administrative Agent or any Lender shall survive
the payment in full of all other Obligations, termination of the Borrower's
right to borrow hereunder, and all other events and conditions whatever. In
addition, all obligations of each Lender to make payments to or indemnify the
Administrative Agent shall survive the payment in full by the Borrower of all
Obligations, termination of the Borrower's right to borrow hereunder, and all
other events or conditions whatever.
SECTION 9.08 Counterparts.
------------
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
SECTION 9.09 Limitation on Payments.
----------------------
The parties hereto intend to conform to all applicable Laws in
effect from time to time limiting the maximum rate of interest that may be
charged or collected. Accordingly, notwithstanding any other provision hereof or
of any other Loan Document, the Borrower shall not be required to make any
payment to or for the account of any Lender, and each Lender shall refund any
payment made by the Borrower, to the extent that such requirement or such
failure to refund would violate or conflict with nonwaivable provisions of
applicable Laws limiting the maximum amount of interest which may be charged or
collected by such Lender.
SECTION 9.10 Set-Off.
-------
The Borrower hereby agrees that, to the fullest extent
permitted by Law, if any Obligation of the Borrower shall be due and payable (by
acceleration or otherwise), each Lender shall have the right, without notice to
the Borrower, to set-off against and to appropriate and apply to such Obligation
any indebtedness, liability or obligation of any nature owing to the Borrower by
such Lender, including but not limited to all deposits (whether time or demand,
general or special, provisionally credited or finally credited, whether or not
evidenced by a
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certificate of deposit) now or hereafter maintained by the Borrower with such
Lender. Such right shall be absolute and unconditional in all circumstances
and, without limitation, shall exist whether or not such Lender or any other
Person shall have given notice or made a demand to the Borrower or any other
Person, whether such indebtedness, obligation or liability owed to the Borrower
is contingent, absolute, matured or unmatured (it being agreed that such Lender
may deem such indebtedness, obligation or liability to be then due and payable
at the time of such setoff), and regardless of the existence or adequacy of any
collateral, guaranty or any other security, right or remedy available to any
Lender or any other Person. The Borrower hereby agrees that, to the fullest
extent permitted by Law, any Participant and any branch, subsidiary or
affiliate of any Lender or any Participant shall have the same rights of
set-off as a Lender as provided in this Section (regardless of whether such
Participant, branch, subsidiary or affiliate would otherwise be deemed in
privity with or a direct creditor of the Borrower). The rights provided by this
Section are in addition to all other rights of set-off and banker's lien and
all other rights and remedies which any Lender (or any such Participant,
branch, subsidiary or affiliate) may otherwise have under this Agreement, any
other Loan Document, at law or in equity, or otherwise, and nothing in this
Agreement or any other Loan Document shall be deemed a waiver or prohibition of
or restriction on the rights of set-off or bankers' lien of any such Person.
SECTION 9.11 Sharing of Collections.
----------------------
The Lenders hereby agree among themselves that if any Lender
shall receive (by voluntary payment, realization upon security, set-off or from
any other source) any amount on account of the Loans, interest thereon, or any
other Obligation contemplated by this Agreement or the other Loan Documents to
be made by the Borrower pro rata to all Lenders (or pro rata to holders of
Notes) in greater proportion than any such amount received by any other
applicable Lender, then the Lender receiving such proportionately greater
payment shall notify each other Lender and the Administrative Agent of such
receipt, and equitable adjustment will be made in the manner stated in this
Section 9.11 so that, in effect, all such excess amounts will be shared ratably
among all of the applicable Lenders. The Lender receiving such excess amount
shall purchase (which it shall be deemed to have done simultaneously upon the
receipt of such excess amount) for cash from the other applicable Lenders a
participation in the applicable Obligations owed to such other Lenders in such
amount as shall result in a ratable sharing by all applicable Lenders of such
excess amount (and to such extent the receiving Lender shall be a Participant).
If all or any portion of such excess amount is thereafter recovered from the
Lender making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law to be paid by the Lender making such purchase.
The Borrower hereby consents to and confirms the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
SECTION 9.12 Successors and Assigns; Participations;
---------------------------------------
Assignments.
-----------
(a) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lenders, all future holders
of the Notes, the Agents and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its
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rights hereunder or interests herein without the prior written consent of all
the Lenders and the Administrative Agent, and any purported assignment without
such consent shall be void.
(b) Participations. Any Lender may, in the ordinary course of
--------------
its commercial banking business and in accordance with applicable Law, at any
time sell participations to one or more commercial banks or other Persons (each
a "Participant") in all or a portion of its rights and obligations under this
-----------
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitment and the Loans owing to it and any Note held by it);
provided, that
--------
(i) any such Lender's obligations under this Agreement and
the other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
(iv) such Participant shall be bound by the provisions of
Section 9.11, and
(v) no Participant (unless such Participant is an
Affiliate of such Lender, or is itself a Lender) shall be entitled
to require such Lender to take or refrain from taking action under
this Agreement or under any other Loan Document, except that such
Lender may agree with such Participant that such Lender will not,
without such Participant's consent, take any action, or consent to
the taking of any action, of the type described in Section 9.01(a),
(b) or (c).
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.12, 2.13, 2.14 and 9.04 with respect to its participation in the
Commitments and the Loans outstanding from time to time; provided, that no such
--------
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred.
(c) Assignments. Any Lender may, in the ordinary course of its
-----------
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Commitment and Loans owing to it and any Note held by it) to any Lender, any
Affiliate of a Lender or to one or more additional commercial banks or other
Persons (each a "Purchasing Lender"); provided, that
----------------- --------
(i) any such assignment to a Purchasing Lender which is not
a Lender or an affiliate of a Lender shall be made only with the
consent (which in each case shall not be unreasonably withheld) of the
Borrower (so long as no Default or Event of Default shall have occurred
and be continuing) and the Administrative Agent;
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(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $10,000,000 of the
Commitments and Loans then outstanding, and such assignment, unless
made to an assignee who is a Lender hereunder prior to such assignment,
shall be in a minimum principal amount of $10,000,000 of the
Commitments and Loans then outstanding;
(iii) each such assignment shall be of a constant, and not a
varying, percentage of the Commitment of the transferor Lender and of
all of the transferor Lender's rights and obligations under this
Agreement and the other Loan Documents; and
(iv) each such assignment shall be made pursuant to an
Assignment and Acceptance.
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Administrative Agent a duly completed
Assignment and Acceptance (including the consents required by clause (i) of the
preceding sentence) with respect to such assignment, together with any Note or
Notes subject to such assignment and a processing and recording fee of $3,500;
and, upon receipt thereof, the Administrative Agent shall accept such Assignment
and Acceptance. Upon receipt of notice from the transferor Lender that it has
received the consideration described in the Assignment and Acceptance, the
Administrative Agent shall record such acceptance in the Register. Upon such
execution, delivery, acceptance and recording, from and after the close of
business at the Administrative Agent's Principal Office on the settlement date
specified in such Assignment and Acceptance:
(x) the Purchasing Lender shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, shall have the
rights and obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of a transferor Lender's rights and obligations under
this Agreement, such transferor Lender shall cease to be a party to
this Agreement) from and after the settlement date.
On or prior to the settlement date specified in an Assignment and Acceptance,
the Borrower, at its expense, shall execute and deliver to the Administrative
Agent (for delivery to the Purchasing Lender) new Notes evidencing such
Purchasing Lender's assigned Commitment or Loans and (for delivery to the
transferor Lender) replacement Notes in the principal amount of the Loans or
Commitment retained by the transferor Lender (such Notes to be in exchange for,
but not in payment of, those Notes then held by such transferor Lender). Each
such Note shall be dated the date and be substantially in the form of the
predecessor Note. The Administrative Agent shall ▇▇▇▇ the predecessor Notes
"exchanged" and deliver them to the Borrower. Accrued interest and accrued fees
shall be paid to the Purchasing Lender at the same time or times provided in the
predecessor Notes and this Agreement.
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(d) Register. The Administrative Agent shall maintain at its
--------
office a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
--------
and the Commitment of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive absent
manifest error and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of the Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Financial and Other Information. The Borrower authorizes
-------------------------------
the Administrative Agent and each Lender to disclose to any Participant or
Purchasing Lender (each, a "transferee") and any prospective transferee any and
----------
all financial and other information in such Person's possession concerning the
Borrower and its Subsidiaries and Affiliates which has been or may be delivered
to such Person by or on behalf of the Borrower in connection with this Agreement
or any other Loan Document or such Person's credit evaluation of the Borrower
and its Subsidiaries and Affiliates.
(f) Assignments to Federal Reserve Bank. Any Lender may at any
-----------------------------------
time assign all or any portion of its rights under this Agreement, including
without limitation any Loans owing to it, and any Note held by it, to a Federal
Reserve Bank. No such assignment shall relieve the transferor Lender from its
obligations hereunder.
(g) Special Purpose Funding Vehicles. Notwithstanding anything
--------------------------------
to the contrary contained herein, any Lender (a "Granting Lender") may grant to
-------- ------
a special purpose funding vehicle (an "SPC") the option to fund all or any part
---
of any Loan that such Granting Lender would otherwise be obligated to fund
pursuant to this Agreement; provided that (i) nothing herein shall constitute a
--------
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to fund all or any part of such Loan,
the Granting Lender shall be obligated to fund such Loan pursuant to the terms
hereof. The funding of a Loan by an SPC hereunder shall utilize the Revolving
Credit Commitment of the Granting Lender to the same extent, and as if, such
Loan were funded by such Granting Lender. Each party hereto hereby agrees that
no SPC shall be liable for any indemnity or payment under this Agreement for
which a Lender would otherwise be liable for so long as, and to the extent, the
Granting Lender provides such indemnity or makes such payment. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC. This Section may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Loan is being funded
by an SPC at the time of such amendment.
SECTION 9.13 Governing Law; Submission to Jurisdiction
-----------------------------------------
Waiver of Jury Trial; Limitation of Liability.
---------------------------------------------
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
-------------
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
-69-
(b) Certain Waivers. EACH PARTY TO THIS AGREEMENT HEREBY
---------------
IRREVOCABLY AND UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
-------
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
----------
JURISDICTION SITTING IN NEW YORK, NEW YORK AND SUBMITS TO THE
JURISDICTION OF SUCH COURTS (AND, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE BORROWER AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION
IN ANY OTHER FORUM, BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY OTHER FORUM IN WHICH THE BORROWER OR ANY OF ITS
ASSETS MAY BE LOCATED OR IN WHICH THE BORROWER MAY BE DOING BUSINESS OR
THE RIGHT OF THE BORROWER TO ASSERT ANY DEFENSE OR COUNTERCLAIM TO ANY
ACTION BROUGHT BY THE ADMINISTRATIVE AGENT OR ANY LENDER IN ANY FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER IT;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO IT AT THE ADDRESS FOR NOTICES
DESCRIBED IN SECTION 9.03, AND CONSENTS AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT
NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS
SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED
-----------------------
BY LAW, NO CLAIM MAY BE MADE BY ANY PARTY TO THIS AGREEMENT AGAINST ANY OTHER
PARTY TO THIS AGREEMENT OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY
OR AGENT OF ANY OF THEM FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT,
-70-
OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH (WHETHER FOR
BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY). EACH PARTY TO THIS
AGREEMENT HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ UPON ANY CLAIM FOR ANY
SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND
WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
* * *
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S-1
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
Address SIERRA PACIFIC POWER COMPANY
-------
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇ By_______________________________
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Name:
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title:
Signature Page to Pacific Power Company Credit Agreement
S-2
Address UNION BANK OF CALIFORNIA, N.A., as
-------
Administrative Agent, as Co-Lead
Union Bank of California, N.A. Arranger, as Sole Bookrunner and
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 15(th) Floor as a Lender
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
By_______________________________
Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-3
Address ▇▇▇▇▇ FARGO BANK, N.A., as
-------
Syndication Agent, as Co-Lead
▇▇▇▇▇ Fargo Bank, N.A. Arranger and as a Lender
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇(▇▇) ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ By_______________________________
Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-4
Address BANK ONE, NA, as Co-Documentation Agent
------- and as a Lender
Bank One, NA
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By_______________________________
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
Address BNP PARIBAS, as Co-Documentation Agent
------- and as a Lender
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By_______________________________
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title:
By_______________________________
Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-6
Address MELLON BANK, N.A., as Co-Documentation
------- Agent and as a Lender
Mellon Bank, N.A.
One Mellon Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By_______________________________
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-7
Address BAYERISCHE LANDESBANK GIROZENTRALE
-------
Bayerische Landesbank Girozentrale
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By_______________________________
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title:
By_______________________________
Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-8
Address THE INDUSTRIAL BANK OF JAPAN, LIMITED
-------
The Industrial Bank of Japan, Limited
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By_______________________________
Attn: ▇▇ ▇▇▇▇▇▇ Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-9
Address ▇▇▇▇▇▇ COMMERCIAL PAPER INC.
-------
▇▇▇▇▇▇ Commercial Paper Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By_______________________________
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-10
Address FIRST UNION NATIONAL BANK
-------
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By_______________________________
Attn: ▇▇▇ ▇▇▇▇▇ Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
S-11
Address ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
-------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By_______________________________
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Name:
Title:
Signature Page to Pacific Power Company Credit Agreement
Commitments
-----------
[See definitions of "Commitment" in Section 1.01]
LENDER COMMITMENT AMOUNT
------ -----------------
Union Bank of California, N.A. $23,571,428.57
▇▇▇▇▇ Fargo Bank, N.A. $23,571,428.57
Bank One, NA $21,176,470.59
BNP Paribas $21,176,470.59
Mellon Bank, N.A. $18,403,361.34
Bayerische Landesbank Girozentrale $15,882,352.94
▇▇▇▇▇▇ Commercial Paper Inc. $9,201,680.67
The Industrial Bank of Japan, Limited $6,428,571.43
First Union National Bank $5,294,117.65
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $5,294,117.65
Total: $150,000,000.00