<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------
NEVADA POWER COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NEVADA 4911 88-0045330
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of Classification Code Number) Identification
incorporation or organization) No.)
</TABLE>
6226 WEST SAHARA AVENUE, LAS VEGAS, NEVADA 89146, TELEPHONE (702)367-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
MICHAEL R. NIGGLI, CHIEF EXECUTIVE OFFICER, PRESIDENT AND CHIEF OPERATING
OFFICER, NEVADA POWER COMPANY
P.O. BOX 230, LAS VEGAS, NEVADA 89151, TELEPHONE (702) 367-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
COPIES TO:
John R. Rottschaefer, Esq.
Best Best & Krieger LLP
P.O. Box 1028
Riverside, California 92502
(909) 686-1450
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
If the securities being registered on this form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TABLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
6.20% Senior Unsecured Notes, Series
B due April 15, 2004............... $130,000,000 N/A $130,000,000 $36,140
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(f).
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This registration statement covers the registration of $130,000,000
principal amount of 6.20% Senior Unsecured Notes, Series B due April 15, 2004,
referred to herein as the exchange notes, of Nevada Power Company that may be
exchanged for equal principal amounts of their outstanding 6.20% Senior
Unsecured Notes, Series A due April 15, 2004, referred to herein as the old
notes and, collectively with the exchange notes, the notes. The complete
prospectus relating to the exchange offer follows immediately after this
explanatory note.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL , 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
------------------------
EXCHANGE OFFER RELATING TO
$130,000,000
x
NEVADA POWER COMPANY
6.20% SENIOR UNSECURED NOTES, SERIES B DUE APRIL 15, 2004
------------------
TERMS OF EXCHANGE OFFER
- We are offering to exchange the notes that we sold in a private offering
for new registered exchange notes.
- The exchange offer expires 5:00 p.m., New York City time, ,
1999, unless extended.
- Tenders of old notes may be withdrawn any time prior to the expiration of
the exchange offer.
- All old notes that are validly tendered and not validly withdrawn will be
exchanged.
- We believe that the exchange of the old notes will not be a taxable
exchange for U.S. federal income tax purposes.
- The terms of the exchange notes we will issue in the exchange offer are
identical to the old notes, except the new notes are not subject to
transfer restrictions or entitled to registration rights as were the old
notes.
------------------------
THE EXCHANGE NOTES
We will pay interest on the exchange notes on April 15 and October 15 of
each year, beginning October 15, 1999. The exchange notes will mature on April
15, 2004. We may redeem the exchange notes, in whole or in part, at any time at
the redemption prices described in this document. For a more detailed
description of the terms of the exchange notes, see the section "Description of
the Exchange Notes" beginning on page 24.
The exchange notes will be senior unsecured general obligations of Nevada
Power and will rank equally with all of our other senior unsecured indebtedness.
------------------------
PRINCIPAL EXECUTIVE OFFICES
Our headquarters are located at 6226 West Sahara Avenue, Las Vegas, Nevada
89146, our telephone number is (702) 367-5000.
We are not making an offer to exchange notes in any jurisdiction where the
offer is not permitted.
Investing in the notes issued in the exchange offer involves certain risks.
See "Risk Factors" beginning on page 9.
Each broker-dealer that receives exchange notes for its own account pursuant
to the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such exchange notes. See "Plan of Distribution,"
beginning on page 39.
Neither the SEC nor any state securities commission has approved the notes
to be distributed in the exchange offer, nor have any of these organizations
determined that this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
---------
<S> <C>
Forward-Looking Statements..................... 2
Prospectus Summary............................. 3
The Company.................................... 3
The Exchange Offer............................. 4
Summary of Terms of the Exchange Notes......... 6
Selected Historical Financial Information...... 8
Risk Factors................................... 9
Use of Proceeds................................ 11
Capitalization................................. 12
The Exchange Offer............................. 13
<CAPTION>
PAGE
---------
<S> <C>
Description of the Exchange Notes.............. 24
Book-Entry System; Delivery and Form........... 33
Material U.S. Federal Income Tax
Consequences................................. 36
Plan of Distribution........................... 39
Legal Matters.................................. 40
Experts........................................ 40
Where You Can Find More Information............ 40
Incorporation of Documents by Reference........ 41
Exhibit A--Letter of Transmittal............... A-1
</TABLE>
------------------------
The terms "Nevada Power," "company," "we," "our" and "us" refer to Nevada
Power Company and its subsidiaries unless the context suggests otherwise. The
term "you" refers to a prospective investor.
------------------------
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of the Securities Exchange Act
of 1934. These forward-looking statements include those related to future events
set forth under the sections "Prospectus Summary-- The Company," "Risk
Factors--Risks Resulting from our Pending Merger," "Capitalization" and,
including in particular, the statements as to:
- The anticipated mid-1999 completion of our merger with Sierra Pacific
Resources
- The anticipated redemption of our preferred stock
- The anticipated benefits of the merger
- The anticipated divestiture of our generating assets
- Our expectations as to legislative action dealing with competition
In addition, in those and other portions of this prospectus, including the
documents incorporated by reference, the words "believe," "may," "will,"
"estimate," "continue," "anticipate," "intend," "expect" and similar
expressions, as they relate to the company or our management, are intended to
identify forward-looking statements. We have based these forward-looking
statements largely on our current expectations and projections about future
events and financial trends affecting the financial condition of our business.
These forward-looking statements are subject to a number of risks, uncertainties
and assumptions about Nevada Power. Among the important factors are:
- The receipt of favorable and timely regulatory approvals and clearances
- Increased competition resulting from customer choice of electricity
provider
- Industry restructuring initiatives undertaken to deal with customer choice
legislation
- Uncertainties surrounding divestiture of generating assets
- Availability of capital and manpower to enlarge and improve our
transmission and distribution facilities
- Delays in implementing the merger with Sierra Pacific Resources
- Availability of supplies of natural resources
- The comparative cost and availability of alternative fuels
- Various other factors beyond the control of the company, including those
listed in our Form 10-K or other reports made to the SEC
We undertake no obligation to publicly update or revise any forward-looking
statement, whether as a result of new information, future events or otherwise.
In light of these risks and uncertainties, the forward-looking events and
circumstances discussed in this prospectus may not occur and actual results
could differ materially from those anticipated in the forward-looking
statements.
2
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS
AND MAY NOT CONTAIN ALL OF THE INFORMATION THAT IS IMPORTANT TO YOU. THIS
PROSPECTUS INCLUDES SPECIFIC TERMS OF THE NOTES WE ARE OFFERING, AND OTHER
RELEVANT INFORMATION ABOUT THE EXCHANGE NOTES, THE EXCHANGE OFFER AND ABOUT OUR
COMPANY. TO UNDERSTAND THIS EXCHANGE OFFER FULLY, YOU SHOULD READ THE ENTIRE
PROSPECTUS, INCLUDING THE RISK FACTORS. WE WROTE THIS PROSPECTUS USING THE SEC'S
NEWLY-ADOPTED "PLAIN ENGLISH" RULE. THIS RULE REQUIRES THAT WE WRITE WITHOUT THE
"LEGALESE" TYPICALLY FOUND IN MOST DOCUMENTS PREVIOUSLY FILED WITH THE SEC (SEE
"WHERE YOU CAN GET MORE INFORMATION") IN ORDER TO PROVIDE YOU WITH A MORE
MEANINGFUL AND UNDERSTANDABLE DOCUMENT.
THE COMPANY
We are engaged in the electric utility business in the City of Las Vegas and
vicinity in southern Nevada. At December 31, 1998, we served approximately
548,796 customers in those areas, which have a population of approximately
1,361,700. In 1998, we obtained our electric energy requirements as follows: 38%
coal generation, 18% oil and natural gas, and 44% purchased power, including
hydroelectric.
Our service territory continues to grow at a rapid pace. The annual rates of
growth in number of customers and in sales has been as follows:
<TABLE>
<CAPTION>
CUSTOMER GROWTH KILOWATT-HOUR SALES
------------------- -------------------
<S> <C> <C>
1998................................................... 5.9% 2.1%
1997................................................... 6.4% 6.6%
1996................................................... 7.2% 13.1%
</TABLE>
In 1997, the Nevada State Legislature enacted legislation to separate
traditional electric service into regulated and unregulated services. We expect
that the generation and marketing of electricity and some other related services
will not be regulated in the future while the transmission and distribution of
electricity will continue to be regulated. The legislation authorizes customers
to obtain generation and marketing services from alternative sellers starting no
later than December 31, 1999. Bills are pending in the legislature which would
delay the beginning of customer choice until early in 2000. In addition, the
legislation allows the Public Utilities Commission of Nevada to authorize full
recovery by utilities of costs which the Nevada commission determines to be
stranded that is, costs which we would be unable to recover from customers in an
unregulated environment. The legislation does not guarantee that we will fully
recover these stranded costs. In response to this legislation, we have formed a
team of high-level employees to work exclusively on our response to the
legislation and its possible impact on us. At the present time, we cannot
predict what impact the legislation may have on our customer base, or the
effect, if any, on our future corporate structure, financial position or results
of operations.
In April 1998, we entered into a merger agreement with Sierra Pacific
Resources, a Nevada utility holding company. After the merger we will be a
subsidiary of Sierra Pacific Resources. Sierra Pacific Power Company, the
utility operating subsidiary of Sierra Pacific Resources, will also be a
subsidiary of Sierra Pacific Resources. Both utilities will retain their names
and identities in their existing territories.
Nevada Power Company will not be the surviving corporation in the merger.
However, the surviving corporation, which will be a subsidiary of Sierra Pacific
Resources, will automatically assume all of our rights and liabilities,
including assuming the exchange notes and all other outstanding securities.
Neither Sierra Pacific Resources nor any other company, other than the surviving
corporation in the merger, will be responsible for any payments on the exchange
notes after the merger.
3
<PAGE>
The merger has been approved by the stockholders of Nevada Power and Sierra
Pacific Resources and by the Federal Energy Regulatory Commission. Additional
approval of the SEC is required. We expect to complete the merger by mid-1999.
The merger has also been approved by the Nevada commission subject to some
important conditions. One of these conditions is that we divest all of our
electric generating assets. We expect to sell these assets in 1999 or 2000. For
details, see our Form 10-K for the year ended December 31, 1998.
Our principal executive offices are located in Las Vegas, Nevada, and our
mailing address is P.O. Box 230, Las Vegas, Nevada 89151, telephone number (702)
367-5000.
THE EXCHANGE OFFER
On March 30, 1999, we issued $130,000,000 principal amount of 6.20% Senior
Unsecured Notes, Series A, due April 15, 2004 to Prudential Securities
Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner & Smith
Incorporated in a private offering. These notes are sometimes called the "old
notes" in this prospectus. These initial purchasers sold the old notes to
institutional and foreign investors in transactions exempt from the registration
requirements of the Securities Act of 1933, as amended.
<TABLE>
<S> <C>
Exchange and Registration Rights
Agreement......................... When we issued the old notes, we entered into an
exchange and registration rights agreement with the
initial purchasers in which we agreed, among other
things, to deliver to you this prospectus and to
complete an exchange offer.
The Exchange Offer................ Under the terms of the exchange offer, you are entitled
to exchange the old notes in the exchange offer for
registered exchange notes with substantially identical
terms. You should read the discussion under the heading
"Summary of Terms of the Exchange Notes" for further
information regarding the exchange notes.
As of the date of the prospectus, there are $130,000,000
principal amount of the old notes outstanding. The old
notes may be tendered in the exchange only in integral
multiples of $1,000.
Resales of Exchange Notes......... We believe that the exchange notes issued in the
exchange offer may be offered for resale, resold or
otherwise transferred by you without compliance with the
registration and prospectus delivery provisions of the
Securities Act, provided:
- that you are acquiring the exchange notes in the
ordinary course of your business;
- you are not participating, do not intend to
participate, and have no arrangement or understanding
with any person to participate, in the distribution of
the exchange notes; and
- you are not an affiliate of ours.
If any of the foregoing are not true and you transfer
any exchange note without delivering a prospectus
meeting the requirements of the Securities Act or
without an exemption from the registration requirements
of the Securities Act, you may incur liability under the
Securities Act. We do not assume or indemnify you
against this liability.
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
Each broker-dealer that is issued exchange notes for its
own account in exchange for old notes that were acquired
by the broker-dealer as a result of market making or
other trading activities must acknowledge that it will
deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of the
exchange notes. A broker-dealer may use this prospectus
for an offer to resell, resale or other transfer of the
exchange notes.
Consequences of Failure to
Exchange Old Notes................ If you do not exchange your old notes for exchange
notes, you will no longer be able to require us to
register the old notes under the Securities Act. In
addition, you will not be able to offer or sell the old
notes unless they are registered under the Securities
Act, or unless you offer or sell them under an exemption
from the requirements of, or in a transaction not
subject to, the Securities Act. Accordingly, the
liquidity of the market for such old notes could be
adversely affected.
Expiration Date................... The exchange offer will expire at 5:00 p.m., New York
City time, , 1999, unless we decide to extend the
expiration date.
Conditions to the Exchange
Offer............................. We may terminate or amend the exchange offer if:
- any legal proceeding, government action or other
adverse development materially impairs our ability to
complete the exchange offer;
- any SEC rule, regulation or interpretation materially
impairs the exchange offer; or
- we have not obtained any necessary governmental
approvals with respect to the exchange offer.
We may waive any or all of these conditions. At this
time, there are no adverse proceedings, actions or
developments pending or, to our knowledge, threatened
and no governmental approvals are necessary to complete
the exchange offer.
Procedures for Tendering
Old Notes......................... If you wish to accept the exchange offer, you must
complete, sign and date the attached letter of
transmittal, or a facsimile of the letter of transmittal
and transmit it together with all other documents
required by the letter of transmittal, to IBJ Whitehall
Bank & Trust Company, as exchange agent at the address
set forth on the cover page of the letter of
transmittal. Alternatively, you can tender your old
notes by following the procedures for book-entry
transfer, as described in this document.
Special Procedures for Beneficial
Owners............................ If you beneficially own old notes registered in the name
of a broker, dealer, commercial bank, trust company or
other nominee and you wish to tender your old notes in
the exchange offer, you should contact such registered
holder
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
promptly and instruct it to tender on your behalf. If
you wish to tender on your own behalf, you must, prior
to completing and executing the letter of transmittal
and delivering your old notes, either arrange to have
your notes registered in your name or obtain a properly
completed bond power from the registered holder.
Guaranteed Delivery Procedures.... If you wish to tender your old notes and you cannot get
your required documents to the exchange agent by the
expiration date, you may tender your old notes according
to the guaranteed delivery procedure described under the
heading "The Exchange Offer--Guaranteed Delivery
Procedure."
Withdrawal Rights................. You may withdraw the tender of your old notes at any
time prior to 5:00 p.m., New York City time, on the
expiration date. To withdraw, you must send a written or
facsimile transmission notice of withdrawal to the
exchange agent at its address set forth under "The
Exchange Offer--Exchange Agent" in this document by 5:00
p.m., New York City time, on the expiration date.
Acceptance of Old Notes and
Delivery of Exchange Notes........ If all of the conditions to the exchange offer are
satisfied or waived, we will accept any and all old
notes that are properly tendered in the exchange offer
prior to 5:00 p.m., New York City time, on the
expiration date. We will deliver the exchange notes
promptly after the expiration date.
Material United States Federal Tax
Considerations.................... We believe the exchange of the old notes will not be a
taxable event for United States federal income tax
purposes. You should consult your tax adviser about the
tax consequences of this exchange as they apply to your
individual circumstances.
Use of Proceeds................... We will not receive any proceeds from the issuance of
exchange notes in accordance with the exchange offer.
Exchange Agent.................... IBJ Whitehall Bank & Trust Company is serving as
exchange agent for the exchange offer.
Fees and Expenses................. We will bear all expenses related to consummating the
exchange offer and complying with the registration
rights agreement.
</TABLE>
SUMMARY OF TERMS OF THE EXCHANGE NOTES
The form and terms of the exchange notes are the same as the form and terms
of the old notes except that the exchange notes will be registered under the
Securities Act and, therefore, will not bear legends restricting their transfer
and will not be entitled to further registration under the Securities Act. The
exchange notes will evidence the same debt as the old notes, and both the old
notes and the exchange notes are governed by the same indenture.
<TABLE>
<S> <C>
Issuer............................ Nevada Power Company
Notes Offered..................... $130 million in principal amount of 6.20% Senior
Unsecured Notes, Series B due April 15, 2004
Maturity.......................... April 15, 2004
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
Interest.......................... Annual rate 6.20%.
Payment frequency every six months on April 15 and
October 15. First payment October 15, 1999. Interest
will accrue from the date of original issuance of the
old notes or the last interest payment date on the old
notes, if any.
Ranking........................... The exchange notes will be senior unsecured general
obligations of the company and will rank equally with
all of our other present and future senior unsecured
indebtedness.
Optional Redemption............... We may redeem some or all of the exchange notes at any
time as described in the section "Description of the
Exchange Notes" under the heading "Optional Redemption
Provisions." Depending on market conditions at the time
of redemption, we may be required to pay a make whole
premium to the holders of the exchange notes when they
are redeemed.
Basic Covenants of Indenture...... The exchange notes will be issued under a senior
unsecured note indenture and a supplemental indenture
with IBJ Whitehall Bank & Trust Company. The indentures,
among other things, limit our ability to:
- create or assume liens and issue indebtedness secured
by liens,
- enter into or assume sale and leaseback transactions,
and
- sell certain assets or merge with or into other
companies.
For more details, see the section "Description of the Exchange Notes" under the heading
"Certain Covenants."
The indentures will not limit our ability to merge with Sierra Pacific Resources or to
divest our generating assets as described under the heading "The Company" above.
Use of Proceeds................... The net proceeds of the old notes, together with other
available funds, were used to repay existing short-term
variable rate indebtedness under our line of credit in
an amount up to $130 million. Any amount not used to
repay the line of credit will be used for general
corporate purposes.
Governing Law..................... The exchange notes and the indenture and any
supplemental indenture will be governed by the laws of
the State of New York.
Form of Exchange Notes............ The exchange notes will be represented by one or more
permanent global securities in bearer form deposited
with the trustee, as book-entry depository, for the
benefit of The Depository Trust Company. Other than as
described in this document, beneficial interests in the
exchange notes will be shown on, and transfers of these
will be made only through, records maintained in
book-entry form by The Depository Trust Company with
respect to its participants.
</TABLE>
7
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION
The selected historical financial information set forth below has been
derived from our previously audited published financial statements included in
the incorporated documents and other documents filed with the SEC.
The selected financial data set forth below does not purport to be complete.
The following data should be read in conjunction with the financial statements
and notes and Management's Discussion and Analysis of Financial Condition and
Results of Operations of the company incorporated in this prospectus by
reference. That information can be found in the company's Annual Report on Form
10-K for the year ended December 31, 1998.
SELECTED HISTORICAL FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------
1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Electric revenues.............................. $ 873,682 $ 799,148 $ 805,374 $ 749,981 $ 764,158
Operating expenses............................. 661,258 597,410 608,616 579,105 593,907
----------- ----------- ----------- ----------- -----------
Earnings before income taxes................... 212,424 201,738 196,758 170,876 170,251
Interest expense............................... 56,933 49,743 49,486 46,936 43,015
Taxes.......................................... 65,147 64,542 64,528 53,318 56,454
Other income (expenses)........................ 4,342 3,019 (3,876) 6,349 11,088
Distribution requirements on company-obligated
mandatorily redeemable preferred securities
of subsidiary trust.......................... 11,013 7,256 -- -- --
----------- ----------- ----------- ----------- -----------
Net Income..................................... 83,673 83,216 78,868 76,971 81,870
Dividend requirements on preferred stock....... 174 1,125 3,956 3,966 3,976
----------- ----------- ----------- ----------- -----------
Earnings available for common stock............ $ 83,499 $ 82,091 $ 74,912 $ 73,005 $ 77,894
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Weighted average common shares outstanding..... 50,993 49,691 47,976 46,288 42,784
Earnings per average common share.............. $ 1.64 $ 1.65 $ 1.56 $ 1.58 $ 1.82
Dividends declared per common share............ $ 1.45 $ 1.60 $ 1.60 $ 1.60 $ 1.60
Ratio of earnings to fixed charges(1).......... 2.49 2.76 2.92 2.84 3.11
CASH FLOW DATA:
Cash from operating activities................. $ 154,379 $ 110,372 $ 154,990 $ 185,919 $ 144,270
Cash from investing activities................. (317,146) (214,013) (180,801) (160,828) (184,349)
Cash from financing activities................. 163,817 101,817 2,848 293 40,057
----------- ----------- ----------- ----------- -----------
Net increase (decrease) during the period...... $ 1,050 $ (1,824) $ (22,963) $ 25,384 $ (22)
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
BALANCE SHEET DATA:
Net property, plant & equipment................ $ 2,199,886 $ 1,960,709 $ 1,819,330 $ 1,701,120 $ 1,584,003
Total assets................................... 2,607,824 2,339,422 2,163,224 2,073,050 1,907,389
Long-term debt................................. 900,227 895,439 841,364 799,999 712,571
Company-obligated mandatorily redeemable
preferred securities......................... 188,872 118,872 -- -- --
Stockholders' equity........................... 867,301 837,086 841,817 806,224 773,813
</TABLE>
- --------------------------
(1) In computing the ratio of earnings to fixed charges, earnings represent
income before interest expense and distribution requirements, plus income
taxes; fixed charges represent interest expense, distribution requirements,
amortization of debt discount, premium and expense and other interest plus
one-third of annual rentals.
SELECTED HISTORICAL OPERATING INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------
1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Electric sales (megawatt hours, in thousands).... 14,899,500 14,596,228 13,697,059 12,109,355 11,942,724
</TABLE>
8
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE EXCHANGE NOTES INVOLVES RISKS. PRIOR TO MAKING AN
INVESTMENT DECISION AND PARTICIPATING IN THE EXCHANGE OFFER, YOU SHOULD CONSIDER
CAREFULLY ALL THE INFORMATION IN THIS PROSPECTUS, INCLUDING THE INCORPORATED
DOCUMENTS, AND, IN PARTICULAR, THE FOLLOWING CONSIDERATIONS.
NO PUBLIC MARKET FOR THE EXCHANGE NOTES
There is no existing market for the notes. We cannot assure you that any
market will develop, or if any market will be liquid. The initial purchasers
have advised us that they presently intend to make a market in the exchange
notes; however, they are not obligated to make a market and may discontinue any
market-making at any time. Consequently, it may be difficult for holders to sell
their exchange notes.
NO SECURITY FOR THE EXCHANGE NOTES
The exchange notes are not entitled to any mortgage or other security
interest on any of our property. Substantially all of our property is subject to
a mortgage securing our first mortgage bonds (of which $428 million were
outstanding at December 31, 1998). Under the terms of our first mortgage
indenture, we could issue about $689 million of additional first mortgage bonds
(at an assumed interest rate of 7.5%). The indenture under which the notes are
issued does not restrict the amount of first mortgage bonds that we can issue.
In addition to first mortgage bonds, we may issue other debt that is secured by
liens on our property subject to the limitations described in the section
"Description of the Exchange Notes" under the heading "Limitations on Liens."
Those limitations on liens extend only to real property and depreciable
property, not to all of our assets. If we were to go into bankruptcy, holders of
the first mortgage bonds and any other secured indebtedness would be entitled to
payment from the assets on which they had a lien before any payment would be
made from our assets to pay the notes.
NO RESTRICTIONS ON ADDITIONAL DEBT
Except for the limitations on additional secured debt and additional first
mortgage bonds referred to under the heading "No Security for the Notes" above,
holders of the exchange notes are not protected by any limitation on our ability
to issue additional debt. Under the documents creating the exchange notes, there
is no limit on the amount of senior unsecured notes we can issue. We may issue
additional senior unsecured notes or other indebtedness which may increase the
amount of cash required to meet debt service payments. If we incur too much
indebtedness it could impair our ability to make debt service payments on the
exchange notes. We will have to issue significant amounts of additional
indebtedness in the future to pay for new facilities to meet expected increases
in customer demand for electric services.
RISKS ASSOCIATED WITH THE EXCHANGE NOTES AND THE EXCHANGE OFFER
FAILURE TO PARTICIPATE IN THE EXCHANGE OFFER WILL HAVE ADVERSE
CONSEQUENCES. If you do not exchange your old notes for exchange notes in
accordance with the exchange offer, you will continue to be subject to the
restrictions on transfer of your old notes. In general, the old notes may not be
offered or sold, unless:
- they are registered under the Securities Act and applicable state
securities laws; or
- they are offered or sold in connection with an exemption from the
registration requirements of the Securities Act; or
- they are offered or sold in a transaction that is not subject to the
Securities Act.
9
<PAGE>
We do not intend to and have not agreed to register old notes not tendered
in the exchange offer under the Securities Act. To the extent old notes are
tendered and accepted in the exchange offer, the trading market, if any, for the
old notes not tendered will be adversely affected. See "The Exchange Offer."
THERE IS NO PUBLIC MARKET FOR THE EXCHANGE NOTES; IF ONE DEVELOPS, IT MAY
NOT BE LIQUID. The old notes were not registered under the Securities Act or
under the securities laws of any state and may not be resold unless they are
subsequently registered or an exemption from the registration requirements of
the Securities Act and applicable state securities laws is available. The
exchange notes will be registered under the Securities Act, but will constitute
a new issue of securities with no established trading market, and there can be
no assurance as to:
- the liquidity of any trading market that may develop for the exchange
notes or old notes not exchanged;
- the ability of holders of exchange notes or old notes to sell their notes;
and
- the price at which the holders of exchange notes or old notes would be
able to sell their notes.
If any trading market were to exist, the exchange notes could trade at
prices that may be higher or lower than their principal amount or purchase
price, depending on many factors, including prevailing interest rates, the
market for similar debentures and the financial performance of our company.
We have been advised by the initial purchasers of the old notes that they
presently intend to make a market in the exchange notes. However, they are not
obligated to do so, and any market-making activity with respect to the exchange
notes may be discontinued at any time without notice. In addition, such
market-making activity will be subject to the limits imposed by the Securities
Act and the Exchange Act, and may be limited during the exchange offer or the
pendency of an applicable shelf registration statement. There can be no
assurances that an active trading market will exist for any of the notes or that
any trading market will be liquid.
RISKS RESULTING FROM OUR PENDING MERGER
UNCERTAINTIES IN ACHIEVING MERGER BENEFITS AND INTEGRATING THE
COMPANIES. We cannot assure you that the combined company resulting from our
pending merger with Sierra Pacific Resources will realize any of the anticipated
benefits of the mergers. We may not be able to successfully integrate the two
companies' businesses in an efficient manner. The consolidation of operations
will require substantial attention from management. Any difficulties encountered
during the transition and integration process could lead to unfavorable
operating results for the combined company. In such a case, we cannot predict
what the levels of expenses or revenues will be.
REGULATORY ACTION COULD DELAY IMPLEMENTATION OF THE MERGER. We cannot
assure you that we will receive the necessary regulatory approvals for the
merger in a timely manner. If the regulatory approvals are delayed, anticipated
benefits of the merger will be delayed or lost.
POSSIBLE NEED TO REFINANCE SECURITIES. We may be required to redeem or
refinance a portion of our outstanding indebtedness in order to accomplish the
merger. We cannot assure you that we could successfully refinance these
securities on reasonable terms. In the case of outstanding securities whose
interest is exempt from U.S. federal income taxation ($541 million of Industrial
Development Revenue Bonds outstanding at December 31, 1998), we must receive an
opinion from a nationally recognized bond counsel stating that the merger will
not affect the tax exempt status of those securities. If we cannot obtain that
opinion, we may have to redeem or to retire and refinance those securities. If
we choose to retire such securities, we would generally issue, subject to
approval by the Nevada commission, taxable securities with similar maturities.
We would then use the proceeds to retire the tax exempt securities.
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<PAGE>
DIVESTITURE OF GENERATION. The approval by the Nevada commission of the
merger contains conditions. One important condition is that the company and
Sierra Pacific Resources must sell all of their existing generating capacity.
When those sales occur, the company and Sierra Pacific Power Company will no
longer be responsible for providing adequate generating capacity except in
limited circumstances. The uncertainties surrounding divestiture include the
price that generation assets will bring and the ability to effectively use the
proceeds of sales in the companies' businesses. We cannot assure you that the
divestiture of generating facilities will be successful. It is possible that we
will experience operating or other business difficulties following such
divestiture.
RISKS RELATING TO UTILITY OPERATIONS
UTILITY INDUSTRY IS RAPIDLY CHANGING. We may not be able to respond in a
timely or effective manner to the many changes in the electric utility industry
including deregulation and increasing competition. In Nevada, legislation
adopted in 1997 will give all customers a choice of electricity provider in the
near future. We may not be able to maintain our revenues and earnings in this
new and intensively competitive marketplace. As noted above, we will no longer
be in the business of generating electricity. We cannot predict what operational
difficulties may develop as the industry separates the traditional functions of
providing electric service into different and unrelated providers.
POSSIBLE ADDITIONAL UTILITY DEREGULATION LEGISLATION. We cannot predict
whether the Nevada legislature will adopt additional legislation relating to the
deregulation of the electric industry in the state. There are bills pending that
would modify the existing deregulation law. We cannot predict what impact, if
any, new legislation might have on our business.
POSSIBLE INABILITY TO RESPOND TO GROWTH. We may have difficulties
responding to the rapid pace of growth in customer demand for electricity in our
market. Our market is one of the fastest growing in the United States. Although
with the advent of deregulation and the divestiture of our generating facilities
we will no longer be in the business of generating electricity, we will still be
faced with the need to enlarge and improve our transmission and distribution
facilities to meet customer growth.
USE OF PROCEEDS
There will be no proceeds resulting from the exchange offer. We used the net
proceeds of the old notes, together with other available funds, to repay the
existing short-term variable rate indebtedness under our line of credit in an
amount up to $130 million. Any amount not used to repay the line of credit will
be used for general corporate purposes. The short-term debt under the line of
credit was incurred to fund construction expenditures.
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<PAGE>
CAPITALIZATION
The following table sets forth our capitalization as of December 31, 1998
and as adjusted to give effect to the sale of the old notes and to the
redemption of all outstanding preferred stock. We expect to redeem our preferred
stock prior to completing the merger with Sierra Pacific Resources. The
aggregate principal amount of exchange notes and any old notes not exchanged
will not exceed $130 million.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1998
(IN THOUSANDS)
------------------------------------------------
ACTUAL % AS ADJUSTED %
------------ --------- ------------ ---------
<S> <C> <C> <C> <C>
DEBT:
Short-term debt and current maturities:............................ $ 155,380 7.4 $ 25,380 1.2
Secured long-term debt:
Capital leases................................................... 86,329 4.1 86,329 4.1
First mortgage bonds............................................. 382,246 18.1 382,246 18.1
Unsecured debt:
Pollution control revenue bonds.................................. 73,300 3.5 73,300 3.5
Industrial development bonds..................................... 358,025 16.9 358,025 17.0
8.50% note due 2000.............................................. 200 * 200 *
8.18% note due 2008.............................................. 127 * 127 *
Senior unsecured notes, series A................................. -- -- 130,000 6.2
------------ --------- ------------ ---------
Total debt..................................................... 1,055,607 50.0 1,055,607 50.1
PREFERRED SECURITIES:
Company-obligated mandatorily redeemable preferred securities of
NVP Capital I, holding solely subordinated debentures of the
company, due 2037................................................ 118,872 5.6 118,872 5.6
Company-obligated mandatorily redeemable preferred securities of
NVP Capital III, holding solely subordinated debentures of the
company, due 2038................................................ 70,000 3.3 70,000 3.3
------------ --------- ------------ ---------
Total preferred securities........................................... 188,872 8.9 188,872 8.9
SHAREHOLDERS' EQUITY:
Cumulative preferred stock with mandatory sinking funds and
redeemable cumulative preferred stock............................ 3,265 * -- --
Common shareholders' equity........................................ 864,036 40.9 864,036 41.0
------------ --------- ------------ ---------
Total shareholders' equity....................................... 867,301 41.1 864,036 41.0
------------ --------- ------------ ---------
Total capitalization................................................. $ 2,111,780 100.0 $ 2,108,515 100.0
------------ --------- ------------ ---------
------------ --------- ------------ ---------
</TABLE>
- ------------------------
*Less than 1%.
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<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
Nevada Power Company's 6.20% Unsecured Senior Notes, Series A due April 15,
2004 were originally sold by Nevada Power Company on March 30, 1998 to
Prudential Securities Incorporated, PaineWebber Incorporated and Merrill Lynch,
Pierce Fenner & Smith Inc. which are referred to as the "initial purchasers."
The initial purchasers subsequently sold the old notes to:
(1) qualified institutional buyers in reliance on Rule 144A under the
Securities Act; and
(2) qualified buyers outside the United States in reliance upon
Regulation S under the Securities Act.
As a condition of the purchase agreement relating to the old notes, we
entered into a registration rights agreement with the initial purchasers in
which we agreed, for the benefit of the holders of the old notes, at our
expense, to file with the SEC a registration statement for the exchange offer,
of which this prospectus is a part, within 90 days after the date of the
original issue of the old notes with respect to the exchange offer for the
exchange notes. When the SEC declares the exchange offer registration statement
effective, we will offer the exchange notes in exchange for surrender of the old
notes. For each old note surrendered to us in connection with the exchange
offer, the holder of such old note will receive an exchange note having an
original principal amount at maturity equal to that of the surrendered old note.
Based upon interpretations by the staff of the SEC set forth in certain
no-action letters to third parties, we believe that the exchange notes issued in
connection with the exchange offer in exchange for old notes will in general be
freely tradeable after the exchange offer without compliance with the
registration and prospectus delivery requirements of the Securities Act.
The following persons cannot rely on the SEC interpretation:
(1) any purchaser of old notes who is an affiliate of ours, within the
meaning of Rule 405 under the Securities Act;
(2) any person who does not acquire the exchange notes in the ordinary
course of business or who tenders in the exchange notes in the ordinary
course of business; or
(3) any person who tenders in the exchange offer for the purpose of
participating in a distribution of the exchange notes.
Because of the absence of an available exemption, the persons identified in
(1), (2) and (3) above must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
Failure to comply with these requirements may result in these persons incurring
liability under the Securities Act. We will not assume or indemnify any person
for this liability.
As contemplated by the above-mentioned no-action letters and the
registration rights agreement, each holder accepting the exchange offer is
required to represent to us in a letter of transmittal that:
(1) the exchange notes are to be acquired by the holder or the person
receiving such exchange notes, whether or not such person is the holder, in
the ordinary course of business;
(2) the holder or any other person receiving the exchange notes is not
engaging in the distribution of the exchange notes;
(3) the holder or any other person receiving the exchange notes has no
arrangement or understanding with any person to participate in the
distribution of the exchange notes;
(4) neither the holder nor any other person receiving the exchange notes
is an affiliate of Nevada Power within the meaning of Rule 405 under the
Securities Act; and
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<PAGE>
(5) the holder or any other person receiving the exchange notes
acknowledges that if the holder or any other person participates in the
exchange offer for the purpose of distributing the exchange notes it must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale of the exchange notes and
cannot rely on the above-mentioned no-action letters.
As indicated above, each participating broker-dealer that receives an
exchange note for its own account in exchange for old notes must acknowledge
that it:
(1) acquired the old notes for its own account as a result of market
making activities or other trading activities;
(2) has not entered into any arrangement or understanding with Nevada
Power or any of its affiliates, within the meaning of Rule 405 under the
Securities Act, to distribute the exchange notes to be received in the
exchange offer; and
(3) will deliver a prospectus meeting the requirements of the Securities
Act in connection with any resale of such exchange notes. For a description
of the procedures for resales by participating broker-dealers, see "Plan of
Distribution."
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
The company and the initial purchasers entered into the Exchange and
Registration Rights Agreement concurrently with the issuance of the old notes.
Pursuant to the Exchange and Registration Rights Agreement, we have agreed to:
(1) file with the SEC on or prior to June 28, 1999, a registration
statement relating to a registered exchange offer for the old notes under
the Securities Act;
(2) use our reasonable efforts to cause the exchange offer registration
statement to be declared effective under the Securities Act prior to
September 26, 1999; and
(3) use our reasonable efforts to consummate the exchange offer before
October 26, 1999.
If either:
(a) because of any change in law or applicable interpretations thereof by
the staff of the SEC, the company is not permitted to effect the exchange offer
as contemplated in this prospectus and in the Registration Rights Agreement; or
(b) if any holder of old notes which are subject to transfer restrictions
notifies the company, prior to the 20th business day following, that
(1) the holder was prohibited by law or SEC policy from participating in
the exchange offer,
(2) the holder may not resell the exchange notes acquired by it in the
exchange offer to the public without delivering a prospectus and this
prospectus is not appropriate or available for such resales by the holder,
or
(3) the holder is a broker-dealer and holds the old notes acquired
directly from us or any of our affiliates, then we will file with the SEC a
shelf registration statement covering those old notes which are not subject
to the exchange offer.
We agreed in the Registration Rights Agreement to file a shelf registration
statement on or prior to 30 days after the earlier of:
(1) the date on which we determine that the registration statement
relating to the exchange offer cannot be filed as a result of clause (a)
immediately above and
(2) the date on which the company receives the notice specified in
clause (b) immediately above (such earlier date, the "Filing Deadline"). In
addition, we will use our reasonable efforts to
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<PAGE>
cause the shelf registration statement to become effective on or prior to 90
days after the Filing Deadline (such 90th day, the "Effectiveness
Deadline").
"Transfer Restricted Notes" means each old note until;
(1) the date on which the old note has been exchanged for a freely
transferable exchange note in the exchange offer;
(2) the date on which the old note has been effectively registered under
the Securities Act and disposed of in accordance with the shelf registration
statement; or
(3) the date on which such old note is distributed to the public
pursuant to Rule 144 under the Securities Act or is salable pursuant to Rule
144(k) under the Securities Act. Once filed, we will use our reasonable
efforts to keep the shelf registration statement effective for a period of
two years after the Issue Date.
Each of the following is a "Registration Default":
(1) the exchange offer is not consummated on or prior to October 26,
1999;
(2) the shelf registration statement is not declared effective on or
prior to the effectiveness deadline, or
(3) the shelf registration statement is filed and declared effective on
or prior to the effectiveness deadline but thereafter ceases to be effective
(at any time that the company is obligated to maintain the effectiveness of
the shelf registration statement) without being succeeded within 60 days by
an additional registration statement filed and declared effective.
We will be obligated to pay liquidated damages to each holder of Transfer
Restricted Notes, during the period of one or more such Registration Defaults,
in an amount determined by multiplying .25% by the principal amount of Transfer
Restricted Notes, multiplied by a fraction, the numerator of which is the number
of days such amount accrued during such period (determined on the basis of a
360-day year comprised of twelve 30-day months), and the denominator of which is
360. A Registration Default Period will begin:
(1) the day after the October 21, 1999,
(2) the day after the effectiveness deadline, or
(3) the 61st day after the shelf registration statement ceases to be
effective, as the case may be, and shall end on the date
(a) the applicable Registration Statement is filed,
(b) the exchange offer registration statement is declared effective,
(c) the exchange offer is consummated,
(d) the shelf registration statement is declared effective, or
(e) the shelf registration statement again becomes effective, as the
case may be. All accrued liquidated damages shall be paid to holders in
the same manner as interest payments on the old notes on semi-annual
payment dates which correspond to interest payment dates for the old
notes. Following the cure of all Registration Defaults, the continued
accrual of liquidated damages will cease.
The Exchange and Registration Rights Agreement provides that the company (a)
must make available for a period of 180 days after the consummation of the
Exchange Offer a prospectus meeting the requirements of the Securities Act to
any broker-dealer for use in connection with any resale of any such Exchange
Notes and (b) must pay all expenses incident to the Exchange Offer (including
the expense of one counsel to the holders of the exchange notes) and will
indemnify certain holders of the
15
<PAGE>
old notes (including any broker-dealer) against certain liabilities, including
liabilities under the Securities Act. A broker-dealer which delivers a
prospectus to purchasers in connection with any resales will be subject to
certain of the civil liability provisions under the Securities Act and will be
bound by the provisions of the exchange and registration rights agreement
(including certain indemnification rights and obligations).
The summary of certain provisions of the exchange registration rights
agreement does not purport to be complete and is subject to, and is qualified in
its entirety by, all the provisions of the registration rights agreement, a copy
of which is filed as an exhibit to the exchange offer registration statement of
which this prospectus is a part.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this prospectus
and in the letter of transmittal (which is attached as an exhibit) for the
exchange offer, we will accept any and all old notes validly tendered and not
withdrawn prior to 5:00 p.m., New York City time, on the expiration date. We
will issue $1,000 original principal amount of exchange notes in exchange for
each $1,000 principal amount of outstanding old notes accepted in the exchange
offer. Holders may tender some or all of their old notes in accordance with the
exchange offer. However, old notes may be tendered only in integral multiples of
$1,000.
The form and terms of the exchange notes are the same as the form and terms
of the old notes except that:
(1) the exchange notes have been registered under the Securities Act and
hence will not bear legends restricting the transfer thereof; and
(2) the holders of the exchange notes will not be entitled to certain
rights under the registration rights agreement covering the old notes,
including the provisions providing for payment of liquidated damages on the
old notes, including the provisions providing for payment of liquidated
damages in certain circumstances relating to the timing of the exchange
offer, all of which rights will terminate when the exchange offer is
terminated.
The exchange notes will evidence the same debt as the old notes and will be
entitled to the benefits of the indenture governing the old notes.
As of the date of this prospectus, $130,000,000 principal amount of old
notes were outstanding. We have fixed the close of business on ,
1999 as the record date for the exchange offer for purposes of determining the
persons to whom this prospectus and the letter of transmittal will be mailed
initially.
Holders of old notes do not have any appraisal or dissenters' rights under
the laws of the State of New York or the indenture for the notes in connection
with the exchange offer. We intend to conduct the exchange offer in accordance
with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
We shall be deemed to have accepted validly tendered old notes when, as and
if we have given oral or written notice thereof to IBJ Whitehall Bank & Trust
Company, which is the exchange agent. The exchange agent will act as agent for
the tendering holders for the purpose of receiving the exchange notes from us.
16
<PAGE>
If any tendered old notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth in this
prospectus or otherwise, the certificates for any such unaccepted old notes will
be returned, without expense to the tendering holder thereof as promptly as
practicable after the exchange offer's expiration date.
Holders who tender old notes in the exchange offer will not be required to
pay brokerage commissions or fees or, subject to the instructions in the letter
of transmittal, transfer taxes with respect to the exchange of old notes in
accordance with the exchange offer. Nevada Power Company will pay all charges
and expenses, other than transfer taxes in certain circumstances, in connection
with the exchange offer. See "Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
We will keep the exchange offer open for at least 30 business days, or
longer if required by applicable law, after the date notice of the exchange
offer is mailed to holders of old notes. The expiration date shall be 5:00 p.m.,
New York City time, on , 1999 unless we, in our sole discretion,
extend the exchange offer, in which case the expiration date shall be the latest
date and time to which the exchange offer is extended.
In order to extend the exchange offer, we will notify the exchange agent of
any extension by oral or written notice and will mail to the registered holders
an announcement thereof, each prior to 9:00 a.m., New York City time, on the
next business day after the previously scheduled expiration date.
We reserve the right, in our sole discretion:
(1) to delay accepting any old notes, to extend the exchange offer or to
terminate the exchange offer if any of the conditions set forth below under
"Conditions to Exchange Offer" have not been satisfied by giving oral or
written notice of that delay, extension or termination to the exchange
agent; or
(2) to amend the terms of the exchange offer in any manner.
Any delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice to the registered
holders.
PROCEDURES FOR TENDERING
Only a registered holder of old notes may tender such old notes in the
exchange offer. To tender in the exchange offer, a holder must complete,
registered sign and date the letter of transmittal, or a facsimile, have the
signatures guaranteed if required by the letter of transmittal or transmit an
agent's message in connection with a book-entry transfer, and mail or otherwise
deliver the letter of transmittal of such facsimile, or agent's message,
together with the old notes and any other required documents, to the exchange
agent prior to 5:00 p.m., New York City time, on or prior to the expiration
date. In addition, the exchange agent must receive either:
(1) certificates for old notes prior to the expiration date along with
the letter of transmittal; or
(2) a confirmation of a book-entry transfer, of the old notes into the
exchange agent's account at The Depository Trust Company, DTC, in accordance
with the procedure for book-entry transfer described below.
If items (1) or (2) above are not followed, the holder must comply with the
guaranteed delivery procedures described below.
To be tendered effectively, the exchange agent must reserve the old notes,
or book-entry confirmation, as the case may be, the letter of transmittal and
other required documents at the address
17
<PAGE>
set forth below under "Exchange Agent" prior to 5:00 p.m., New York City time,
on the expiration date. Delivery of documents to DTC in accordance with its
procedure does not constitute delivery to the exchange agent.
DTC has authorized DTC participants that hold old notes on behalf of
beneficial owners of old notes through DTC to tender their old notes as if they
were holders. To effect a tender of old notes, DTC participants should either:
(1) complete and sign the letter of transmittal, or a manually signed
copy of the letter of transmittal to have the signature guaranteed if
required by the instructions to the letter of transmittal, and mail or
deliver the letter of transmittal, or the manually signed copy, to the
exchange agent in accordance with the procedure set forth under this
heading, or
(2) transmit their acceptance to DTC through the DTC automated tender
offer program for which the transaction will be eligible and follow the
procedure for book-entry transfer set forth in "Book-Entry Transfer."
By executing the letter of transmittal or agent's message, each holder will
make to Nevada Power Company the representations set forth above in the fourth
paragraph under the heading "Purpose and Effect of the Exchange Offer."
The tender by a holder and the acceptance by us will constitute agreement
between the holder and us in accordance with the terms and subject to the
conditions set forth in this prosepctus and in the letter of transmittal or
agent's message.
The method of delivery of old notes, the letter of transmittal or agent's
message and all other required documents to the exchange agent is at the
election and sole risk of the holder. As an alternative to delivery by mail,
holders may wish to consider overnight or hand delivery service. In all cases,
sufficient time should be allowed to assure delivery to the exchange agent
before the expiration date. No letter of transmittal or old notes should be sent
to Nevada Power Company. Holders may request their respective brokers, dealers,
commercial banks, trust companies or nominees to effect the above transactions
for them.
Any beneficial owner whose old notes are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee and who wishes to tender
should contact the registered holder promptly and instruct the registered holder
to tender on the beneficial owner's behalf. See "Instructions to Registered
Holder" and/or "Book-Entry Transfer Facility Participant from Beneficial Owner"
included with the letter of transmittal.
Signatures on a letter of transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by an Eligible Institution unless the old notes
tendered in connection therewith are tendered:
(1) by a registered holder who has not completed the box entitled
"Special Registration Instructions" or "Special Delivery Instructions" on
the letter of transmittal; or
(2) for the account of an Eligible Institution.
An Eligible Institution is a member of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the United
States or an "eligible guarantee institution" within the meaning of Rule 17Ad-15
under the Exchange Act.
In the event that signatures on a letter of transmittal or a notice of
withdrawal, as the case may be, are required to be guaranteed, the guarantee
must be by a member firm of the Medallion System.
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<PAGE>
If the letter of transmittal is signed by a person other than the registered
holder of any old notes the old notes must be endorsed or accompanied by a
properly completed bond power, signed by the registered holder as that
registered holder's name appears on the old notes with the signature guaranteed
by an Eligible Institution.
If the letter of transmittal or any old notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, offices of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and satisfactory evidence of authority
to so act must be submitted with the letter of transmittal.
All questions as to the validity, form, eligibility, including time of
receipt, acceptance of tendered old notes and withdrawal of tendered old notes
will be determined by us in our sole discretion, which determination will be
final and binding. We reserve the absolute right to reject any and all old notes
not properly tendered or any old notes our acceptance of which would, in the
opinion of our counsel be unlawful. We also reserve the right in our sole
discretion to waive any defects, irregularities or conditions of tender as to
particular conditions of the exchange offer, including the instructions in the
letter of transmittal, will be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of old notes must be
cured within such time as we shall determine.
Although we intend to notify holders of defects or irregularities with
respect to tenders of old notes, neither we, the exchange agent nor any other
person will incur any liability for failure to give such notification. Tenders
of old notes will not be deemed to have been made until all defects or
irregularities have been cured or waived. Any old notes received by the exchange
agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the exchange
agent to the tendering holders, unless otherwise provided in the letter of
transmittal, as soon as practicable following the expiration date.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF EXCHANGE NOTES
For each old note accepted for exchange, the holder of the old note will
receive an exchange note having a principal amount at maturity equal to that of
the surrendered old note. For purposes of the exchange offer, we will be deemed
to have accepted properly tendered old notes for exchange when, as and if we
have given oral or written notice thereof to the exchange agent.
In all cases, the issuance of exchange notes for old notes that are accepted
for exchange in connection with the exchange offer will be made only after
timely receipt by the exchange agent of certificates for such old notes or a
timely book-entry confirmation of such old notes into the exchange agent's
account at DTC, a properly completed and duly executed letter of transmittal or
agent's message and all other required documents. If any tendered old notes are
not accepted for any reason set forth in the terms and conditions of the
exchange offer, such unaccepted or nonexchanged old notes will be returned
without expense to the tender holder thereof, or, in the case of old notes
tendered by book-entry transfer into the exchange agent's account at DTC in
accordance with the book-entry transfer procedures described below, such
nonexchanged old notes will be credited to an account maintained with DTC, as
promptly as practicable after the expiration date.
BOOK-ENTRY TRANSFER
The exchange agent will establish a new account or utilize an existing
account with respect to the old notes at DTC promptly after the date of this
prospectus, and any financial institution that is a participant DTC and whose
name appears on a security position listing as the owner of old notes may make a
book-entry tender of old notes by causing DTC to transfer such old notes into
the exchange agent's account in accordance with DTC's procedures for such
transfer. However, although tender of old notes may be effected through
book-entry transfer into the exchange agent's account at DTC, the letter of
transmittal, or a manually signed copy properly completed and validly executed,
with any
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required signature guarantees, or an agent's message in lieu of the letter of
transmittal, and any other required documents, must, in any case, be received by
the exchange agent at its address set forth below under the caption "Exchange
Agent" on or prior to the expiration date, or the guaranteed delivery procedures
described below must be complied with. The confirmation of book-entry transfer
of old notes into the exchange agent's account at DTC as described above is
referred to in this prospectus as a book-entry confirmation. Delivery of
documents to DTC in accordance with DTC's procedures does not constitute
delivery to the exchange agent.
The term agent's message means a message transmitted by DTC to, and received
by, the exchange agent and forming a part of a book-entry confirmation, which
states that DTC has received an express acknowledgment from the participant in
DTC tendering the old notes stating:
(1) the aggregate principal amount of old notes which have been tendered
by such participant;
(2) that such participant has received and agrees to be bound by the
terms of the letter of transmittal; and
(3) that Nevada Power may enforce such agreement against the
participant.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their old notes and:
(1) whose old notes are not immediately available;
(2) who cannot deliver their old notes, the letter of transmittal or any
other required documents to the exchange agent; or
(3) who cannot complete the procedures for book-entry transfer, prior to
the expiration date, may effect a tender if:
(a) the tender is made through an Eligible Institution;
(b) prior to the expiration date, the exchange agent receives from
the Eligible Institution a properly completed and duly executed notice of
guaranteed delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder, the certificate
number(s) of such old notes and the principal amount of old notes
tendered, stating that the tender is being made thereby and guaranteeing
that, within three New York Stock Exchange trading days after the
expiration date, the letter of transmittal, or facsimile thereof, or in
the case of a book-entry transfer, an agent's message, together with the
certificate(s) representing the old notes (or a confirmation of
book-entry transfer of such notes into the exchange agent's account at
DTC), and any other documents required by the letter of transmittal will
be deposited by the Eligible Institution with the exchange agent; and
(c) the certificate(s) representing all tendered old notes in proper
form for transfer (or a confirmation of book-entry transfer of the old
notes into the exchange agent's account at DTC), together with a letter
of transmittal, or a copy, properly completed and duly executed, with any
required signature guarantees, or, in the case of a book-entry transfer,
an agent's message, and all other documents required by the letter of
transmittal are received by the exchange agent upon three New York Stock
Exchange trading days after the expiration date.
Upon request to the exchange agent, a notice of guaranteed delivery will be
sent to holders who wish to tender their old notes according to the guaranteed
delivery procedures set forth above.
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WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of old notes may be withdrawn
at any time prior to 5:00 p.m., New York City time, on the expiration date;
otherwise such tenders are irrevocable.
To withdraw a tender of old notes in the exchange offer, a telegram, telex,
letter or facsimile transmission notice of withdrawal must be received by the
exchange agent at its address set forth herein prior to 5:00 p.m., New York City
time, on the expiration date. Any notice of withdrawal must:
(1) specify the name of the person having deposited the old notes to be
withdrawn;
(2) identify the old notes to be withdrawn, including the certificate
number(s) and principal amount of the old notes, or, in the case of old
notes transferred by book-entry transfer, the name and number of the account
at DTC to be credited;
(3) be signed by the holder in the same manner as the original signature
on the letter of transmittal by which the old notes were tendered, including
any required signature guarantees, or be accompanied by documents of
transfer sufficient to have the trustee with respect to the old notes
register the transfer of such old notes into the name of the person
withdrawing the tender; and
(4) specify the name in which any identified old notes are to be
registered, if different from that of the depositor.
All questions as to the validity, form and eligibility, including time of
receipt, of withdrawal notices will be determined by us. Our determination will
be final and binding on all parties. Any old notes so withdrawn will be deemed
not to have been validly tendered for purposes of the exchange offer and no
exchange notes will be issued with respect thereto unless the old notes so
withdrawn are validly retendered. Any old notes which have been tendered but
which are not accepted for exchange will be returned to the holder thereof
without cost to the holder as soon as practicable after withdrawal, rejection of
tender or termination of the exchange offer. Properly withdrawn old notes may be
retendered by following one of the procedures described above under "Procedures
for Tendering" at any time prior to the expiration date.
CONDITIONS TO EXCHANGE OFFER
Notwithstanding any other term of the exchange offer, we are not be required
to accept for exchange, or change exchange notes for, any old notes, and may
terminate or amend the exchange offer as provided in this prospectus before the
acceptance of such old notes, if:
(1) any action or proceeding is instituted or threatened in any court or
by or before any governmental agency with respect to the exchange offer
which, in our sole judgment, might materially impair our ability to proceed
with the exchange offer or any material adverse development has occurred in
any existing action or proceeding with respect to us or any of our
subsidiaries; or
(2) any law, statute, rule, regulation or interpretation by the SEC is
proposed, adopted or enacted, which, in our sole judgment, might materially
impair our ability to proceed with the exchange offer or materially impair
the contemplated benefits of the exchange offer to us; or
(3) any governmental approval has not been obtained, which approval we
in our sole discretion, deem necessary for the consummation of the exchange
offer as contemplated in this prospectus.
The conditions listed above are for our sole benefit and may be asserted by
us regardless of the circumstances giving rise to any of those conditions or may
be waived by us in whole or in part at any time and from time to time in our
sole discretion. Our failure at any time to exercise any of those
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rights will not be deemed a waiver of any of these rights and each right will be
an ongoing right which we may assert at any time and from time to time.
If we determine in our sole discretion that any of the conditions are not
satisfied, we may:
(a) refuse to accept any old notes and return all tendered old notes to
the tendering holders;
(b) extend the exchange offer and retain all old notes tendered prior to
the expiration of the exchange offer, subject, however, to the rights of
holders to withdraw the old notes (see "Withdrawal of Tenders"); or
(c) waive any unsatisfied conditions with respect to the exchange offer
and accept all properly tendered old notes which have not been withdrawn.
We will keep the exchange offer open for at least 30 business days, or
longer if required by applicable law, including in connection with any material
modification or waiver of the terms or conditions of the exchange offer that
requires such extension under applicable law, after the date notice of the
exchange offer is mailed to holders of old notes.
EXCHANGE AGENT
IBJ Whitehall Bank & Trust Company has been appointed as exchange agent for
the exchange offer. Questions and requests for assistance, requests for
additional copies of this prospectus or of the letter of transmittal and
requests for notice of guaranteed delivery should be directed to the exchange
agent addressed as follows:
<TABLE>
<S> <C>
BY REGISTERED OR CERTIFIED MAIL: BY OVERNIGHT COURIER OR BY HAND:
IBJ Whitehall Bank & Trust Company IBJ Whitehall Bank & Trust Company
P.O. Box 84 One State Street
Bowling Green Station New York, NY 10004
New York, NY 10274-0084 Attention: Securities Processing Window
Attention: Reorganization Operations Subcellar One (SC-1)
Department
BY FACSIMILE:
(212) 858-2611
Confirm by Telephone: (212) 858-2103
</TABLE>
Delivery to an address other than set forth above will not constitute a
valid delivery.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by us. The principal
solicitation is being made by mail; however, additional solicitation may be made
by facsimile, telephone or in person by officers and regular employees of Nevada
Power and its affiliates.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers, or others soliciting
acceptances of the exchange offer. We, however, will pay the exchange agent
reasonable and customary fees for its services and will reimburse it for its
reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the exchange offer will
be paid by us. These expenses include fees and expenses of the exchange agent
and IBJ Whitehall Bank & Trust Company, the trustee, accounting and legal fees
and printing costs, among others.
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Holders who tender their old notes for exchange will be obligated to pay any
related transfer taxes, except that holders who instruct us to register exchange
notes in the name of, or request that old notes not tendered or not accepted in
the exchange offer be returned to a person other than the registered tendering
holder will be responsible for the payment of any applicable transfer taxes.
ACCOUNTING TREATMENT
The exchange notes will be recorded at the same carrying value as the old
notes, which is face value, as reflected in our accounting records on the date
of exchange. Accordingly, we will not recognize any gain or loss for accounting
purposes. The expenses of the exchange offer will be amortized over the term of
the exchange notes.
CONSEQUENCES OF FAILURE TO EXCHANGE
The old notes that are not exchanged for exchange notes in connection with
the exchange offer will remain restricted securities. Accordingly, such old
notes may be resold only:
(1) to Nevada Power Company, upon redemption or otherwise;
(2) so long as the old notes are eligible for resale in accordance with
Rule 144A, to a person inside the United States whom the seller reasonably
believes is a qualified institutional buyer within the meaning of Rule 144A
under the Securities Act in a transaction meeting the requirements of Rule
144A, in accordance with Rule 144 under the Securities Act, or in accordance
with another exemption from the registration requirements of the Securities
Act, and based upon an opinion of counsel reasonably acceptable to Nevada
Power Company;
(3) outside the United States to a foreign person in a transaction
meeting the requirements of Rule 904 under the Securities Act; or
(4) in accordance with an effective registration statement under the
Securities Act, in each case in accordance with any applicable securities
laws of any state of the United States.
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DESCRIPTION OF THE EXCHANGE NOTES
The exchange notes will be issued under an Indenture dated as of March 1,
1999, as amended by Supplemental Indenture No. 1, dated as of March 1, 1999 and
Supplemental Indenture No. 2 dated as of April , 1999, each between Nevada
Power Company and IBJ Whitehall Bank & Trust Company, as trustee. The Senior
Unsecured Note Indenture, as supplemented and as it may be further supplemented
or amended in the future, is referred to as the "Indenture". The Indenture is
subject to and governed by the Trust Indenture Act of 1939, as amended. The
statements under this caption relating to the notes and the Indenture are
summaries and do not purport to be complete, and where reference is made to
particular provisions of the indenture or the registration rights agreement,
such provisions, including the definitions of certain terms, are incorporated by
reference as a part of such summaries or terms, which are qualified in their
entirety by such reference. A copy of the Indenture has been filed as an exhibit
to the registration statement of which this prospectus is a part. You should
carefully read the Indenture, as supplemented, before participating in the
exchange offer.
The form and terms of the exchange notes are the same as the form and terms
of the old notes, which they replace, except that:
(1) the issuance of the exchange notes have been registered under the
Securities Act and, therefore, the exchange notes will not bear legends
restricting their transfer, and
(2) the holders of exchange notes will not be entitled to certain rights
under the registration rights agreement, including the provisions providing
for liquidated damages in certain circumstances relating to the timing of
the exchange offer, which rights will terminate when the exchange offer is
consummated.
INDENTURE
The following description is a summary of the material provisions of the
Indenture. Under Supplemental Indenture No. 1, we issued the old notes known as
the $130,00,000 of 6.20% Senior Unsecured Notes, Series A due April 15, 2004.
The exchange notes will be issued under Supplemental Indenture No. 2 as a
separate series of senior unsecured notes with terms identical to those of the
old notes except as noted above. Upon the issuance of the exchange notes, all
old notes tendered in the exchange offer will be deemed to be no longer
outstanding. At the date of this prospectus no other senior unsecured notes have
been issued under the Indenture.
This description does not restate the Indenture in its entirety. Therefore,
we urge you to read the Indenture because it, and not this description, defines
the rights of holders of the exchange notes.
In this description, the word "company" refers only to Nevada Power Company
and not to any of its subsidiaries.
PRINCIPAL, MATURITY AND INTEREST
The exchange notes will mature on April 15, 2004 and bear interest at an
annual rate of 6.20%. Interest on the exchange notes will accrue from the date
of initial issuance of the old notes or, if later, the last interest payment
date on the old notes to which interest was paid. We will pay interest on the
exchange notes on April 15 and October 15 in each year, beginning October 15,
1999. Subject to limited exceptions, the Indenture provides for the payment of
interest on the interest payment date only to persons in whose names the
exchange notes are registered on the applicable record date (the April 1 prior
to April 15 and the October 1 prior to October 15). The exchange notes are
limited to $130,000,000 in aggregate principal amount.
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RANKING
The exchange notes will be senior unsecured general obligations of the
company and will rank equally with other present and future senior unsecured
indebtedness of the company.
HIGHLY LEVERAGED TRANSACTION
There are no provisions in the Indenture or the exchange notes that require
the company to redeem, or permit the holders to cause a redemption of, the
exchange notes or that otherwise protect the holders in the event that the
company incurs substantial additional indebtedness, whether or not in connection
with a change in control of the company. However, any change in control
transaction that involves the incurrence of additional long-term indebtedness
(as notes, first mortgage bonds or otherwise) by the company in such a
transaction would require approval of state utility regulatory authorities and,
possibly, of federal utility regulatory authorities.
TRADING CHARACTERISTICS
The exchange notes are expected to trade at a price that takes into account
the value, if any, of accrued but unpaid interest; thus, purchasers will not pay
and sellers will not receive accrued and unpaid interest on the exchange notes
except to the extent reflected in the trading price. Any portion of the trading
price of a exchange note received that is attributable to accrued interest will
be treated as ordinary interest income for U.S. federal income tax purposes and
will not be treated as part of the amount realized for purposes of determining
gain or loss on the disposition of the exchange note. See the section "Material
U.S. Federal Income Tax Consequences."
The trading price of the exchange notes is likely to be sensitive to the
level of interest rates generally. If interest rates rise in general, the
trading price of the exchange notes may decline to reflect the additional yield
requirements of the purchasers. Conversely, a decline in interest rates may
increase the trading price of the exchange notes.
OPTIONAL REDEMPTION PROVISIONS
REDEMPTION PRICE
The company may on any one or more occasions redeem all or part of the
exchange notes upon not less than 30 days' or more than 60 days' notice, mailed
to the registered holders at their last registered addresses, at a redemption
price equal to the greater of:
(1) 100% of the principal amount of the exchange notes to be redeemed;
and
(2) the sum of the present values of the remaining scheduled payments of
principal and interest on those exchange notes from and after the date of
redemption discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points,
plus, in each case, accrued and unpaid interest to the date of redemption.
"TREASURY RATE" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the exchange notes to be redeemed that would be utilized,
at the time of selection and in accordance with
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customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the exchange notes.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury Dealers
appointed by the company.
"REFERENCE TREASURY DEALER" means each of Prudential Securities
Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the company shall substitute
therefor another Primary Treasury Dealer.
"COMPARABLE TREASURY PRICE" means, with respect to any redemption date,
(1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on
the third business day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities," or
(2) if such release (or any successor release) is not published or does
not contain such prices on such third business day,
(A) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or
(B) if the Trustee is unable to obtain at least four such Reference
Treasury Dealer Quotations, the average of all such Quotations obtained.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
OTHER REDEMPTION PROVISIONS
If we redeem less than all of the exchange notes at any time, we will notify
the Trustee at least 45 days prior to the redemption date (or such shorter
period as is satisfactory to the Trustee) of the aggregate principal amount of
exchange notes to be redeemed and their redemption date. The Trustee will select
the exchange notes to be redeemed in accordance with its customary practice and
procedure in effect from time to time. So long as the exchange notes are
represented by the global notes, if less than all of the exchange notes are to
be redeemed, the particular interest to be redeemed will be selected by lot by
DTC.
If at the time of mailing the notice of redemption, the company has not
irrevocably directed the Trustee to apply funds deposited with the Trustee to
redeem the exchange notes called for redemption, such notice may state that (a)
the redemption is subject to the receipt of the redemption moneys by the Trustee
before the date fixed for redemption and (b) such notice will be of no effect
unless the redemption moneys are received before the redemption date.
EFFECT OF GIVING NOTICE OF REDEMPTION
Unless the notice of redemption contains the condition referred to in the
preceding paragraph, exchange notes called for redemption will become due and
payable on the date stated in the notice of redemption and will cease to accrue
interest and will no longer be entitled to any benefit under the
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Indenture (other than being entitled to payment of the redemption price) on and
after the date of redemption, provided that funds sufficient to pay the
redemption price in full are on deposit with the Trustee on the redemption date.
If the notice of redemption contains the condition described in the preceding
paragraph, the exchange notes called for redemption will become due and payable,
and cease to accrue interest as described in the preceding sentence, only if
funds are on deposit with the Trustee on the redemption date sufficient to pay
the redemption price of the exchange notes called for redemption.
NO SINKING FUND
The exchange notes are not entitled to the benefit of any sinking fund.
PAYMENT AND PAYING AGENTS
The company has appointed the Trustee to act as paying agent for the
exchange notes. The company may at any time designate additional paying agents
or rescind the designation of any paying agents or approve a change in the
office through which any paying agent acts, except that the company will be
required to maintain a paying agent in each place of payment for the exchange
notes.
All moneys paid to the paying agent for the payment of the principal of or
premium, if any, or interest on the exchange notes that remain unclaimed at the
end of two years after such principal, premium, if any, or interest shall have
become due and payable will be repaid to the company. The holders of such
exchange notes may thereafter look only to the company for payment.
CERTAIN COVENANTS
LIMITATIONS ON LIENS
So long as any exchange notes are outstanding, the company may not issue,
assume or guarantee any debt for money borrowed ("Debt") that is secured by any
mortgage, security interest, pledge or lien ("lien") of or upon any Operating
Property of the company and will not permit to exist any Debt secured by any
lien, without in any case effectively securing the exchange notes (together
with, if the company so determines, any other indebtedness of the company
ranking senior to, or equally with, the exchange notes) with such Debt equally
and ratably, except that this restriction will not apply to:
(1) liens on any property existing at the time of its acquisition;
(2) liens on property of a corporation existing at the time such
corporation is merged into or consolidated with, or disposes of
substantially all its properties (or those of a division) to, the company;
(3) liens to secure the cost of acquisition, construction, development
or substantial repair, alteration or improvement of property or to secure
indebtedness incurred to provide funds for any such purpose or for
reimbursement of funds previously expended for any such purpose, provided
such liens are created or assumed contemporaneously with, or within 18
months after, such acquisition or completion of substantial repair or
alteration, construction, development or substantial improvement or within
six months thereafter pursuant to a commitment for financing arranged with a
lender or investor within such 18 month period;
(4) liens in favor of the United States of America or any State thereof,
or for the benefit of holders of securities issued by any such entity, or
any department, agency or instrumentality or political subdivision of the
United States of America or any State thereof, to secure any Debt incurred
for the purpose of financing all or any part of the purchase price or the
cost of substantially repairing or altering, constructing, developing or
substantially improving the property subject to such liens;
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(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien referred to in
clauses (1) through (4), provided, however, that the principal amount of
indebtedness secured by such lien and not otherwise authorized by clauses
(1) through (4), shall not exceed the principal amount of indebtedness, plus
any premium or fee payable in connection with any such extension, renewal or
replacement, so secured at the time of such extension, renewal or
replacement; or
(6) the lien of the Indenture of Mortgage dated as of October 1, 1953
between the company and Bankers Trust Company, as trustee, as previously and
hereafter supplemented and amended, providing for the issuance of the
company's first mortgage bonds.
The restriction on liens does not apply to the issuance, assumption or
guarantee by the company of Debt secured by a lien which would otherwise be
subject to that restriction up to an aggregate amount which, together with all
other secured Debt of the company (not including secured Debt permitted under
the exceptions described in paragraphs (1) through (6) above) and the Value of
Sale and Lease-Back Transactions existing at such time (other than Sale and
Lease-Back Transactions the proceeds of which have been applied to the
retirement of certain indebtedness, Sale and Lease-Back Transactions in which
the property involved would have been permitted to be mortgaged under the
foregoing exceptions and Sale and Lease-Back Transactions that are permitted by
the first sentence of "Limitations on Sale and Lease-Back Transactions" below),
does not exceed the greater of 15% of Net Tangible Assets or 15% of
Capitalization.
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS
For so long as any exchange notes are outstanding, the company may not enter
into any Sale and Lease-Back Transaction with respect to any Operating Property
(except for transactions involving leases for a term, including renewals, of not
more than 24 months) if the company obtains the purchaser's commitment more than
18 months after the later of the completion of the acquisition or the placing in
operation of such Operating Property or of such Operating Property as so
constructed or developed or substantially repaired, altered or improved. This
restriction will not apply if:
(1) the company would be entitled pursuant to the provisions described
in paragraphs (1) through (6) under "Limitations on Liens" above to issue,
assume or guarantee Debt secured by a lien on such Operating Property
without equally and ratably securing the exchange notes and any other notes
entitled by their terms to similar security;
(2) after giving effect to such Sale and Lease-Back Transaction, the
company could incur pursuant to the provisions described in the last
paragraph under "Limitations on Liens," additional Debt secured by liens; or
(3) the company applies within 180 days an amount equal to, in the case
of a sale or transfer for cash, the net proceeds (not exceeding the net book
value), and, otherwise, an amount equal to the fair value (as determined by
its Board of Directors) of the Operating Property so leased to the
retirement of notes or other Debt of the company ranking senior to, or
equally with, the exchange notes, subject to reduction for notes and Debt
retired during such 180-day period otherwise than pursuant to mandatory
sinking fund or prepayment provisions and payments at stated maturity. For
purposes of this paragraph (3), the term "notes" includes other senior
unsecured notes issued under the Indenture.
"CAPITALIZATION" means the total of all the following items appearing on, or
included in, the balance sheet of the company:
(1) liabilities for indebtedness maturing more than 12 months from the
date of determination, and
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(2) common stock, preferred stock, premium on capital stock, capital
surplus, capital in excess of par value, and retained earnings, less to the
extent not otherwise deducted, the cost of shares of capital stock of the
company held in its treasury.
"NET TANGIBLE ASSETS" means the amount shown as total assets on the balance
sheet of the company, less the following:
(1) intangible assets including, but without limitation, such items as
goodwill, trademarks, trade names, patents and unamortized debt discount and
expense carried as an asset on said balance sheet, and
(2) appropriate adjustments, if any, on account of minority interests.
"OPERATING PROPERTY" means:
(1) any interest in real property owned by the company, and
(2) any asset owned by the company that is depreciable in accordance
with generally accepted accounting principles.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with any person
providing for the leasing to the company of any Operating Property (except for
temporary leases for a term, including any renewal thereof, of not more than 24
months), which Operating Property has been or is to be sold or transferred by
the company to such person.
"VALUE" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of:
(1) the net proceeds to the company from the sale or transfer of the
property leased pursuant to such Sale and Lease-Back Transaction or
(2) the net book value of such property, as determined in accordance
with generally accepted U.S. accounting principles by the company at the
time of entering into such Sale and Lease-Back Transaction, in either case
multiplied by a fraction, the numerator of which is equal to the number of
full years of the term of the lease that is part of such Sale and Lease-Back
Transaction remaining at the time of determination and the denominator of
which is equal to the number of full years of such term, without regard, in
any case, to any renewal or extension options contained in such lease.
CONSOLIDATION, MERGER AND SALE OR DISPOSITION OF ASSETS
The company will not:
(1) consolidate with or merge into any other corporation; or
(2) sell, transfer or otherwise dispose of all or substantially all of
its assets;
unless the successor or transferee corporation assumes by supplemental indenture
the due and punctual payment of the principal of, premium and interest on all
the Senior Notes and the performance of every covenant of the company under the
Indenture. Upon any such consolidation, merger, sale, transfer or other
disposition of all or substantially all of the assets of the company, the person
formed or surviving any such consolidation or merger or the person to which such
transfer has been made shall succeed to, and be substituted for, and may
exercise every right and power of, the company with the same effect as if such
person had been named as the company under the Indenture. The company will be
released from all obligations under the Indenture. The Indenture defines all or
substantially all of the assets of the company as being 50% or more of the total
assets of the company as shown on the balance sheet of the company as of the end
of the prior year, reduced by the carrying value of any assets disposed of since
the end of the prior year.
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The Indenture provides that there will be no restriction on the Company's
ability to complete the merger with Sierra Pacific Resources or to divest its
generating facilities in the manner approved by the Nevada commission. See the
section "Prospectus Summary--The Company."
ADDITIONAL SENIOR NOTES
Additional senior unsecured notes of other series may be issued under the
Indenture, without limitation. Each additional series will be an initial issue
of a new series of senior unsecured notes (all these senior unsecured notes,
together with the exchange notes, are referred to as the "Senior Notes") issued
under the Indenture as supplemented by a new supplemental indenture for the new
series.
There is no requirement under the Indenture that future issues of debt
securities of the company be issued under the Indenture. The company will be
free to employ other indentures or documentation, containing provisions
different from those included in the Indenture or applicable to one or more
issues of Senior Notes, in connection with future issues of other debt
securities.
EVENTS OF DEFAULT
The following constitute events of default under the Indenture:
(1) default for five days in the payment when due of principal of or
premium, if any, on any Senior Note,
(2) default for 30 days in the payment when due of interest on any
Senior Note,
(3) default for 90 days, after written notice to the company as provided
in the Indenture, in the performance or breach of any other covenant or
warranty of the company in the Indenture, and
(4) a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness of the company, whether such indebtedness now exists or is
created hereafter, which default (a) is caused by a failure to pay principal
of such indebtedness after notice and the lapse of any applicable grace
period provided in such indebtedness on the date of such default (a "payment
default") or (b) results in the acceleration of such indebtedness prior to
its express maturity (and such acceleration is not rescinded, or such
indebtedness is not repaid, within 30 days) and, in each case, the principal
amount of any such indebtedness, together with the principal amount of any
other such indebtedness under which there has been a payment default or the
maturity of which has been so accelerated (and such acceleration is not
rescinded, or such indebtedness is not repaid, within 30 days), aggregates
$15 million;
(5) one or more judgments in an aggregate amount in excess of $15
million not covered by adequate insurance shall have been rendered against
the company and the judgments remain undischarged, unpaid or unstayed for a
period of 60 days after the judgment or judgments become final and
nonappealable;
(6) certain events of bankruptcy, insolvency, assignment or receivership
of the company.
If an event of default occurs and is continuing, either the Trustee or the
holders of a majority in principal amount of the then outstanding Senior Notes
may declare the principal amount of all Senior Notes to be due and payable
immediately. At any time after an acceleration of the Senior Notes has been
declared, but before a judgment or decree of the immediate payment of the
principal amount of the Senior Notes has been obtained, if the company pays or
deposits with the Trustee a sum sufficient to pay all matured installments of
interest and the principal and any premium which has become due otherwise than
by acceleration and all defaults shall have been cured or waived, then such
payment or deposit will cause an automatic recission and annulment of the
acceleration of the Senior Notes.
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The Indenture provides that the Trustee generally will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders unless such holders have offered to
the Trustee reasonable security or indemnity. Subject to certain conditions, the
holders of a majority in principal amount of the then outstanding Senior Notes
generally will have the right to direct the time, method and place of:
(1) conducting any proceeding for any remedy available to the Trustee,
or
(2) exercising any trust or power conferred on the Trustee.
Subject to certain conditions precedent, each holder of Senior Notes has the
right to institute a proceeding with respect to the Indenture. Within 90 days
after the occurrence of a default with respect to the Senior Notes, the Trustee
is required to give the holders of the Senior Notes notice of such default,
unless cured or waived. However, except in the case of an event of default
relating to the payment of principal, premium or interest, the Trustee may
withhold such notice if it determines in good faith that withholding notice is
in the holders' interest. The company is required to deliver annually to the
Trustee an officers' certificate as to whether or not, to their knowledge, the
company is in compliance with the conditions and covenants under the Indenture.
MODIFICATION
The company, the Trustee and the holders of a majority in principal amount
of the then outstanding Senior Notes may effect a modification and amendment of
the Indenture. However, no such modification or amendment may, without the
consent of each holder affected:
(1) change the maturity date of any series of the Senior Notes,
(2) reduce the rate or change the time for payment of interest on any
Senior Note,
(3) reduce the principal amount of, or premium payable on, any Senior
Note,
(4) change the currency of any payment of any Senior Note,
(5) change the date on which any Senior Note may be redeemed or repaid
at the option of a holder or adversely affect the rights of a holder to
institute suit for the enforcement of any payment on any Senior Note, or
(6) modify the foregoing requirements or reduce the percentage of
outstanding Senior Notes necessary to modify or amend the Indenture or to
waive any past default to less than a majority.
The company and the Trustee may modify and amend the Indenture without the
consent of the holders:
(1) to add to the covenants of the company for the benefit of the
holders or to surrender a right conferred on the company in the Indenture,
(2) to add security for the Senior Notes, or
(3) to make certain other modifications, generally of a ministerial or
immaterial nature.
DEFEASANCE AND DISCHARGE
The company may, at its option, discharge its obligations on the outstanding
Senior Notes and under the Indenture ("Legal Defeasance"), except for certain
obligations including obligations to:
(1) register the transfer or exchange of Senior Notes,
(2) replace stolen, lost or mutilated Senior Notes and
(3) maintain paying agencies.
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Among other things, in order to exercise Legal Defeasance:
(1) the company must irrevocably deposit with the Trustee, in trust for
the benefit of holders of Senior Notes, money or certain United States
government obligations, or any combination thereof, which through the
payment of interest and principal will provide money in an amount
sufficient, without further reinvestment, to make all payments of principal
of, and any premium and interest on, the Senior Notes on the payment due
dates in accordance with the terms of the Indenture and the Senior Notes;
and
(2) unless all of the Senior Notes are to be due within 90 days of such
deposit by redemption or otherwise, the company must deliver to the Trustee
an opinion of counsel, based on a ruling of the Internal Revenue Service or
a change of law, to the effect that the holders of the Senior Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of the defeasance or discharge of the Indenture.
Thereafter, the holders of Senior Notes must look only to such deposit for
payment of the principal of, and interest and any premium on, the Senior Notes.
GOVERNING LAW
The Indenture and the exchange notes will be governed by, and construed in
accordance with, the laws of the State of New York.
RESIGNATION OR REMOVAL OF TRUSTEE
The Trustee may resign at any time upon written notice to the company
specifying the day upon which the resignation is to take effect. The resignation
will not take effect until a successor Trustee is appointed.
Upon filing the proper documentation with the Trustee, the holders of at
least a majority in principal amount of the then outstanding Senior Notes may
remove the Trustee at any time. In addition, the company may remove the Trustee
upon notice to each holder and the Trustee, and appoint a successor trustee, so
long as no event of default or event which, with the giving of notice or lapse
of time or both, would become an event of default has occurred and is
continuing.
CONCERNING THE TRUSTEE
The IBJ Whitehall Bank & Trust Company is the Trustee under the Indenture.
The Trustee also acts as trustee under various agreements related to the
company-obligated preferred securities.
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BOOK-ENTRY SYSTEM; DELIVERY AND FORM
The old notes were initially offered and sold to qualified institutional
buyers in reliance on Rule 144A and Regulation S. Except as set forth below, the
exchange notes will be issued in registered, global form in minimum
denominations of $1,000 and integral multiples thereof.
The exchange notes initially will be represented by one or more exchange
notes, in registered, global form without interest coupons (the "Global Note").
The Global Note will be deposited with, or on behalf of, DTC in New York, New
York, and registered in the name of DTC or its nominee, in each case for credit
to an account of a direct or indirect participant in DTC as described below.
Except as set forth below, the Global Note may be transferred, in whole and
not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Note may not be exchanged for Notes
in certificated form except in the limited circumstances described below. For
more information you should read "Certificated Notes."
Old notes (including beneficial interests in the Global Note) are subject to
certain restrictions on transfer and will bear a restrictive legend. In
addition, transfer of beneficial interests in the Global Note will be subject to
the applicable rules and procedures of DTC and its direct or indirect
participants, which may change from time to time.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the exchange notes will be made by the initial purchasers in
immediately available funds. So long as the exchange notes are issued in the
form of a Global Note, all payments of principal, premium and interest on the
exchange notes will be made in immediately available funds to DTC or its
nominee.
Secondary trading in long-term notes, debentures and bonds of corporate
issuers is generally settled in clearinghouse or next-day funds. In contrast,
the exchange notes will trade in the DTC's Same-Day Funds Settlement System
until maturity, redemption or repayment in whole, or until the exchange notes
are issued in certificated form. Secondary market trading activity in the
exchange notes will therefore be required by DTC to settle in immediately
available funds. We can not assure you what effect, if any, settlement in
immediately available funds will have on trading activity in the exchange notes.
CERTAIN BOOK-ENTRY PROCEDURES FOR THE GLOBAL NOTES
The descriptions of the operations and procedures of DTC set forth below are
provided solely as a matter of convenience. These operations and procedures are
solely within the control of the respective settlement systems and are subject
to change by them from time to time. Neither the company nor any initial
purchaser takes any responsibility for these operations or procedures, and
investors are urged to contact the relevant system or its participants directly
to discuss these matters.
DTC has advised the company that it is (a) a limited purpose trust company
organized under the laws of the State of New York, (b) a "banking organization"
within the meaning of the New York Banking Law, (c) a member of the Federal
Reserve System, (d) a "clearing corporation" within the meaning of the Uniform
Commercial Code, as amended, and (e) a "clearing agency" registered pursuant to
Section 17A of the Exchange Act of 1934. DTC was created to hold securities for
its participants (collectively, the "Participants") and facilitates the
clearance and settlement of securities transactions between Participants through
electronic book-entry changes to the accounts of its Participants, thereby
eliminating the need for physical transfer and delivery of certificates. DTC's
Participants include securities brokers and dealers (including the initial
purchasers), banks and trust companies, clearing corporations and certain other
organizations. Indirect access to DTC's system is also available to other
entities such as banks, brokers, dealers and trust companies (collectively, the
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"Indirect Participants") that clear through or maintain a custodial relationship
with a Participant, either directly or indirectly. Investors who are not
Participants may beneficially own securities held by or on behalf of DTC only
through Participants or Indirect Participants.
The company expects that pursuant to procedures established by DTC (a) upon
deposit of each Global Note, DTC will credit the accounts of Participants
designated by the initial purchasers with an interest in the Global Note and (b)
ownership of the exchange notes will be shown on, and the transfer of ownership
thereof will be effected only through, records maintained by DTC (with respect
to the interests of Participants) and the records of Participants and the
Indirect Participants (with respect to the interests of persons other than
Participants).
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Accordingly, the ability to transfer interests in the exchange notes represented
by a Global Note to such persons may be limited. In addition, because DTC can
act only on behalf of its Participants, who in turn act on behalf of persons who
hold interests through Participants, the ability of a person having an interest
in exchange notes represented by a Global Note to pledge or transfer such
interest to persons or entities that do not participate in DTC's system, or to
otherwise take actions in respect of such interest, may be affected by the lack
of a physical definitive security in respect of such interest.
So long as DTC or its nominee is the registered owner of a Global Note, DTC
or such nominee, as the case may be, will be considered the sole owner or holder
of the exchange notes represented by the Global Note for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Note will not be entitled to have exchange notes represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of Certificated Notes, and will not be considered their owners or
holders under the Indenture for any purpose, including with respect to the
giving of any direction, instruction or approval to the Trustee thereunder.
Accordingly, each holder owning a beneficial interest in a Global Note must rely
on the procedures of DTC and, if such holder is not a Participant or an Indirect
Participant, on the procedures of the Participant through which such holders
owns its interest, to exercise any rights of a holder of exchange notes under
the Indenture or such Global Note. The company understands that under existing
industry practice, in the event that the company requests any action of holders
of exchange notes, or a holder that is an owner of a beneficial interest in a
Global Note desires to take any action that DTC, as the holder of such Global
Note, is entitled to take, DTC would authorize the Participants to take such
action and the Participants would authorize holders owning through such
Participants to take such action or would otherwise act upon the instruction of
such holders. Neither the company nor the Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of exchange notes by DTC, or for maintaining, supervising or reviewing
any records of DTC relating to such exchange notes.
Payments with respect to the principal of, and premium, if any, liquidated
damages, if any, and interest on, any exchange notes represented by a Global
Note registered in the name of DTC or its nominee on the applicable record date
will be payable by the Trustee to or at the direction of DTC or its nominee in
its capacity as the registered holder of the Global Note representing such
exchange notes under the Indenture. Under the terms of the Indenture, the
company and the Trustee may treat the persons in whose names the exchange notes,
including the Global Notes, are registered as the owners thereof for the purpose
of receiving payment thereon and for any and all other purposes whatsoever.
Accordingly, neither the company nor the Trustee has or will have any
responsibility or liability for the payment of such amounts to owners of
beneficial interests in a Global Note (including principal, premium, if any,
liquidated damages, if any, and interest). Payments by the Participants and the
Indirect Participants to the owners of beneficial interests in a Global Note
will be governed by standing instructions and customary industry practice and
will be the responsibility of the Participants or the Indirect Participants and
DTC.
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CERTIFICATED NOTES
If (a) the company notifies the Trustee in writing that DTC is no longer
willing or able to act as a depositary or DTC ceases to be registered as a
clearing agency under the Exchange Act of 1934 and a successor depositary is not
appointed within 90 days of such notice or cessation, (b) the company, at its
option, notifies the Trustee in writing that it elects to cause the issuance of
exchange notes in definitive form under the Indenture or (c) upon the occurrence
of certain other events as provided in the Indenture, then, upon receipt of a
company order and surrender by DTC of the Global Notes, Certificated Notes will
be issued to each person that DTC identifies as the beneficial owner of the
exchange notes represented by the Global Notes. Upon any such issuance, the
Trustee is required to register such Certificated Notes in the name of such
person or persons (or the nominee of any thereof) and cause the same to be
delivered thereto.
Neither the company nor the Trustee shall be liable for any delay by DTC or
any Participant or Indirect Participant in identifying the beneficial owners of
the related exchange notes and each such person may conclusively rely on, and
shall be protected in relying on, instructions from DTC for all purposes
(including with respect to the registration and delivery, and the respective
principal amount, of the exchange notes to be issued).
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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of material U.S. federal income tax consequences
associated with the acquisition, ownership, and disposition of the exchange
notes. For purposes of this discussion, it is assumed that all initial holders
of the exchange notes purchased old notes at the time they were initially
offered and that all such old notes were purchased at the initial issue price.
The following summary does not discuss all of the aspects of U.S. federal income
taxation that may be relevant to a prospective holder of old notes who elects to
participate in the exchange offer in light of his or her particular
circumstances, or to certain types of holders (including dealers in securities,
insurance companies, tax-exempt organizations, financial institutions,
broker-dealers, S corporations, and, except as discussed below, foreign
corporations, persons who are not citizens or residents of the United States and
persons who hold the exchange notes as part of a hedge, straddle, "synthetic
security" or other integrated investment) which are subject to special treatment
under the U.S. federal income tax laws. In addition, this discussion is limited
to holders who hold the exchange notes as capital assets within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code"). This
summary does not describe any tax consequences under state, local, or foreign
tax laws.
This discussion is based upon the Code, Treasury Regulations, Internal
Revenue Service ("IRS") rulings and pronouncements and judicial decisions, all
in effect as of the date of this offering memorandum and all of which are
subject to change at any time by legislative, judicial or administrative action.
Any such changes may be applied retroactively in a manner that could adversely
affect a holder of the exchange notes. The company has not sought and will not
seek any rulings or opinions from the IRS with respect to the matters discussed
below. There can be no assurance that the IRS will not take positions concerning
the tax consequences of the purchase, ownership or disposition of the exchange
notes that are different from those discussed here.
Prospective purchasers of exchange notes should consult their own tax
advisors with respect to the U.S. federal income tax consequences that may apply
to them, as well as the application of state, local and foreign tax laws.
U.S. HOLDERS
A U.S. holder is any holder who or which is (a) a citizen or individual
resident of the United States for U.S. federal income tax purposes; (b) a
corporation, partnership or other business entity created or organized under the
laws of the United States or of any political subdivision thereof; (c) an estate
the income of which is subject to U.S. federal income taxation regardless of its
source; or (d) a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust. The term "non-U.S. holder" means a beneficial owner of an exchange note
who is not a U.S. holder.
TAXATION OF STATED INTEREST. In general, U.S. holders of the exchange notes
will be required to include interest received in taxable income as ordinary
income at the time it accrues or is received, in accordance with the holder's
regular method of accounting for U.S. federal income tax purposes.
EFFECT OF OPTIONAL REDEMPTION AND REGISTRATION RIGHTS. The company is
entitled to redeem the exchange notes. Further, the exchange notes provide for
additional payments if the company fails to comply with certain obligations
under the exchange and registration rights agreement. Treasury Regulations
contain special rules for determining the yield to maturity and maturity on a
debt instrument in the event the debt instrument provides for a contingency that
could result in the payment of supplemental amounts. The company does not
believe that these rules are likely to apply to the company's rights to redeem
the exchange notes or to the provision for additional payments under certain
circumstances. Therefore, the company does not intend to treat such provisions
of the exchange notes as affecting the computation of the yield to maturity or
maturity date of the exchange notes.
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SALE OR OTHER TAXABLE DISPOSITION OF THE EXCHANGE NOTES. The sale,
exchange, redemption, retirement or other taxable disposition of an exchange
note will result in the recognition of gain or loss to a U.S. holder in an
amount equal to the difference between (a) the amount of cash and fair market
value of property received in the exchange (except to the extent attributable to
the payment of accrued but unpaid stated interest not previously included in
income) and (b) the holder's adjusted tax basis in such exchange note. A
holder's initial tax basis in an exchange note purchased by such holder will be
equal to the price paid for the exchange note. Any gain or loss on the sale of
an exchange note generally will be capital gain or loss, and will be long-term
capital gain or loss if the holding period for the exchange note exceeded one
year at the time of sale. Proceeds received by a holder in exchange for an
exchange note, if attributable to accrued interest not previously included in
income, will be treated as ordinary interest income.
The exchange of an old note by a U.S. holder for an exchange note should not
be a taxable exchange. A U.S. holder should have the same basis and holding
period for the exchange note as such U.S. holder had for the old note.
BACKUP WITHHOLDING. The backup withholding rules require a payor to deduct
and withhold a tax if (a) the payee fails to furnish a taxpayer identification
number ("TIN") in the proper manner, (b) the IRS notifies the payor that the TIN
furnished by the payee is incorrect, (c) the payee has failed to report properly
the receipt of "reportable payments" and the IRS has notified the payor that
withholding is required, or (d) the payee fails to certify under penalty of
perjury that such payee is not subject to backup withholding. If any one of
these events occurs with respect to a holder of exchange notes, the company, its
paying agent or other withholding agent will be required to withhold a tax equal
to 31% of any "reportable payment" made in connection with the exchange notes of
such holder. A "reportable payment" includes amounts paid in respect of interest
on exchange notes. Any amounts withheld from a payment to a holder under the
backup withholding rules will be allowed as a refund or credit against such
holder's U.S. federal income tax liability, provided that the required
information is furnished to the IRS. Certain holders (including foreign persons,
corporations and certain tax-exempt organizations) are not subject to backup
withholding if appropriate certification of their exempt status is provided to a
payor.
EFFECT OF EXCHANGE OF OLD NOTES FOR EXCHANGE NOTES
We believe that the exchange of old notes for exchange notes in accordance
with the exchange offer will not be treated as an "exchange" for U.S. federal
income tax purposes because the exchange notes will not be considered to differ
materially in kind or extent from the old notes. Rather, the exchange notes
received by a holder will be treated as a continuation of the old notes in the
hands of such holder. As a result, holders will not recognize any taxable gain
or loss or any interest income as a result of exchanging old notes for exchange
notes in accordance with the exchange offer, the holding period of the exchange
notes will include the holding period of the old notes, and the basis of the
exchange notes will equal the basis of the old notes immediately before the
exchange.
NON-U.S. HOLDERS
This section discusses rules applicable to a non-U.S. holder of exchange
notes. This summary does not address the tax consequences to stockholders,
partners or beneficiaries in a non-U.S. holder.
In general, interest that is paid to a non-U.S. holder on a exchange note
will not be subject to U.S. withholding tax if the interest qualifies as
"portfolio interest." Generally, interest on the exchange notes that is paid by
the company will qualify as a portfolio interest if (a) the non-U.S. holder does
not own, actually or constructively, 10% or more of the total combined voting
power of all classes of stock of the company entitled to vote; (b) the non-U.S.
holder is not a controlled foreign corporation that is related to the company
actually or constructively through stock ownership for U.S. federal income tax
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purposes; (c) the non-U.S. holder is not a bank receiving interest on a loan
entered into in the ordinary course of business; and (d) the non-U.S. holder
provides appropriate documentation of its foreign status. Payments of interest
not exempt from U.S. withholding tax as "portfolio interest" are subject to
withholding at a 30% rate (or lower applicable treaty rate).
EFFECTIVELY CONNECTED INCOME. If interest and other payments received by a
non-U.S. holder with respect to the exchange notes (including proceeds from the
disposition of the exchange notes) are effectively connected with the conduct by
the non-U.S. holder of a trade or business within the United States (or the
non-U.S. holder is otherwise subject to U.S. federal income taxation on a net
basis), such holder will generally be subject to the rules described above under
the heading "U.S. Holders" (subject to any modification provided under an
applicable income tax treaty). Such non-U.S. holder may also be subject to the
"branch profits tax" if such holder is a corporation.
A non-U.S. holder generally will not be subject to U.S. federal income tax
(and generally no tax will be withheld) with respect to gain realized on the
disposition of an exchange note, unless (a) the gain is "effectively connected"
with a trade or business conducted by the non-U.S. holder within the United
States (see below), or (b) the non-U.S. holder is an individual who is present
in the United States for 183 or more days during the tax year and certain other
conditions are satisfied.
The exchange of an old note by a non-U.S. holder for an exchange note should
not be a taxable exchange. A non-U.S. holder should have the same basis and
holding period for the exchange note as such non-U.S. holder had for the old
note.
U.S. Information Reporting and Backup Withholding Tax. Backup withholding
generally will not apply to payments on an exchange note issued in registered
form that is beneficially owned by a non-U.S. holder if appropriate
certification of non-U.S. holder status is provided to the company or its agent.
The company may be required to report annually to the IRS and to each non-U.S.
holder the amount of interest paid to, and the tax withheld, if any, with
respect to each non-U.S. holder.
If payments of principal and interest are made to the beneficial owner of an
exchange note by or through the foreign office of a custodian, nominee or other
agent of such beneficial owner, or if the proceeds of the sale, exchange or
other disposition of an exchange note are paid to the beneficial owner of an
exchange note through a foreign office of a "broker" (as defined in the
pertinent Regulations), the proceeds will not be subject to backup withholding
(absent actual knowledge that the payee is a U.S. person). However, information
reporting will apply to a payment by a foreign office of a custodian, nominee,
agent or broker that is (a) a U.S. person, (b) a controlled foreign corporation
for U.S. federal income tax purposes, or (c) a foreign person that derives 50%
or more of its gross income from the conduct of a U.S. trade or business for a
specified three-year period (subject to certain exceptions). Payment through the
U.S. office of a custodian, nominee, agent or broker is subject to both backup
withholding at a rate of 31% and information reporting, unless the holder
certifies that it is a non-U.S. holder under penalties of perjury or otherwise
establishes an exemption.
Any amount withheld under the backup withholding rules from a payment to a
non-U.S. holder will be allowed as a credit against, or refund of, a holder's
U.S. federal income tax liability, provided that certain information is provided
by the holder to the IRS.
The U.S. Treasury Department has issued Regulations effective for payments
made after December 31, 1999 that govern information reporting and certification
procedures for withholding and backup withholding. While these rules will alter
certain procedures, they generally will not change the treatment of non-U.S.
holders described above. Prospective investors should consult their tax advisors
concerning the effect of such Regulations.
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PLAN OF DISTRIBUTION
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account pursuant
to the exchange offer must deliver a prospectus in connection with any resale of
those exchange notes. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
exchange notes received in exchange for old notes where those old notes were
acquired as a result of market-making activities or other trading activities.
The company has agreed that, for a period of 180 days after the Expiration Date,
it will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
1999, all dealers effecting transactions in the exchange notes may
be required to deliver a prospectus.
The company will not receive any proceeds from any sale of exchange notes by
broker-dealers. Exchange notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the exchange notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such exchange notes. Any broker-dealer
that resells exchange notes that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a
distribution of such exchange notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of exchange
notes and any commissions or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date, the Company will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests those documents
in the Letter of Transmittal. The company has agreed to pay all expenses
incident to the exchange offer (including the expenses of one counsel for the
holders of the old notes) other than commissions or concessions of any
broker-dealers and will indemnify the holders of the old notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
Certain of the initial purchasers and their affiliates have provided
financial advisory and investment banking and commercial banking services to us
in the past, for which they received customary fees, and may do so in the
future.
39
<PAGE>
LEGAL MATTERS
The validity of the issuance of the exchange notes offered by this
prospectus will be passed upon for the company by Best Best & Krieger LLP,
Riverside, California and by Richard L. Hinckley, Vice President, Secretary and
General Counsel of the company.
EXPERTS
The consolidated financial statements and the related consolidated financial
statement schedule incorporated by reference in this prospectus by reference
from the Company's Annual Report on Form 10-K for the year ended December 31,
1998 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their reports which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-4 under the
Securities Act covering the exchange notes and the exchange offer. This
prospectus does not contain all of the information included in the registration
statement. Any statement made in this prospectus concerning the contents of any
contract, agreement or other document is not necessarily complete. If we have
filed any of those contracts, agreements or other documents as an exhibit to the
registration statement, you should read the exhibit for a more complete
understanding of the document or matter involved. Each statement regarding a
contract, agreement or other document is qualified in its entirety by reference
to the actual document.
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Chicago, Illinois 60661-2511
</TABLE>
You may also obtain copies of these documents by mail from the Public
Reference Section of the Securities and Exchange Commission, 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. You may obtain
information regarding the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330.
The SEC maintains an Internet site that contains reports, proxy statements
and other documents relating to issuers, like Nevada Power (New York Stock
Exchange symbol "NVP"), who file electronically with the SEC. The address of
that site is http://www.sec.gov.
You may also inspect reports, proxy statements and other documents relating
to Nevada Power at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
You should rely only on the information provided in this prospectus. No
person has been authorized to provide you with different information.
The information in this prospectus is accurate as of the date on the front
cover. You should not assume that the information contained in this prospectus
is accurate as of any other date.
40
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
The documents described below which have been or will be filed by us with
the SEC are incorporated by reference into this prospectus. The information
contained in these documents is considered to be part of this prospectus, except
that the information contained in later-dated documents will supplement, modify
or supersede, as applicable, the information contained in earlier-dated
documents.
We incorporate by reference into this prospectus the document listed below
and all documents filed by us with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Exchange Act of 1934 after the date of this prospectus and prior to
the time that the offering made by this prospectus is completed.
- Nevada Power's Annual Report on Form 10-K for the year ended December 31,
1998
You should rely on the information contained in this prospectus. Neither we
nor any initial purchaser has authorized anyone to provide you with different
information. Neither we nor any initial purchaser is making an offer to sell
these notes in any jurisdiction where the offer or sale is not permitted. You
should not assume the prospectus is accurate as of any date other than the date
on the front cover of this prospectus.
You may obtain without charge a copy of any of the documents incorporated by
reference into this prospectus, except for any exhibits to those documents that
are not expressly incorporated by reference into this document, by writing or
telephoning Nevada Power Company, P.O. Box 230, Las Vegas, Nevada 89151,
Attention: Director of Treasury (telephone: (702) 367-5000).
41
<PAGE>
EXHIBIT A
PURSUANT TO THE PROSPECTUS DATED APRIL , 1999
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 1999, UNLESS EXTENDED (THE "EXPIRATION DATE").
NEVADA POWER COMPANY
LETTER OF TRANSMITTAL
6.20% SENIOR UNSECURED NOTES, SERIES B DUE APRIL 15, 2004
TO: IBJ WHITEHALL BANK & TRUST COMPANY
<TABLE>
<S> <C>
BY REGISTERED OR CERTIFIED MAIL: BY OVERNIGHT COURIER OR BY HAND:
IBJ Whitehall Bank & Trust Company IBJ Whitehall Bank & Trust Company
P.O. Box 84 One State Street
Bowling Green Station New York, NY 10004
New York, NY 10274-0084 Attention: Securities Processing Window
Attention: Reorganization Operations Department Subcellar One (SC-1)
</TABLE>
BY FACSIMILE:
(212) 858-2611
Confirm by Telephone: (212) 858-2103
Delivery of this instrument to an address other than as set forth above or
transmission of this instrument via a facsimile number other than the one listed
above will not constitute a valid delivery. The instructions accompanying this
Letter of Transmittal should be read carefully before this Letter of Transmittal
is completed. The undersigned acknowledges receipt of the Prospectus, dated
April , 1999 (the "Prospectus") of Nevada Power Company (the "Issuer") and
the related Letter of Transmittal (the "Letter of Transmittal"), which together
describe the Issuer's offer (the "Exchange Offer") to exchange $1,000 principal
amount at maturity of their 6.20% Senior Unsecured Notes, Series B due April 15,
2004 (the "Exchange Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to a Registration
Statement, for each $1,000 principal amount at maturity of their outstanding
6.20% Senior Unsecured Notes, Series A due April 15, 2004 (the "Old Notes"), of
which $130,000,000 principal amount at maturity is outstanding. The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on , 1999,
unless the Issuer, in its sole discretion, extend the Exchange Offer, in which
case the term shall mean the latest date and time to which the Exchange Offer is
extended. The term "Holder" with respect to the Exchange Offer means any person:
(i) in whose name Old Notes are registered on the books of the Issuer or any
other person who has obtained a properly completed bond power from the
registered Holder or (ii) whose Old Notes are held of record by The Depository
Trust Company ("DTC") and who desires to deliver such Old Notes by book-entry
transfer at DTC. Certain terms used herein but not defined herein, shall have
the respective meanings set forth in the Prospectus.
This Letter of Transmittal is to be used by Holders if: (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent
herewith by Holders; (ii) tender of Old Notes is to be made by book-entry
transfer to the Exchange Agent's account at DTC pursuant to the procedures set
forth in the Prospectus under "The Exchange Offer--Procedures for Tendering" by
any financial institution that is a participant in DTC and whose name appears on
a security position listing as the owner of Old Notes (such participants, acting
on behalf of Holders, are referred to herein as "Acting Holders"); or (iii)
tender of Old Notes is to be made according to the guaranteed delivery
procedures described in the Prospectus under the
A-1
<PAGE>
caption "The Exchange Offer--Guaranteed Delivery Procedures." See Instruction 2
below. Delivery of documents to DTC does not constitute delivery to the exchange
agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old Notes must complete
this Letter of Transmittal in its entirety.
<TABLE>
<S> <C>
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY DTC TO THE EXCHANGE AGENTS
ACCOUNT AT DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
DTC Book-Entry Account No.:
Transaction Code No.:
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING (SEE INSTRUCTION
2):
Name of Registered or Acting Holder(s):
Window Ticket No. (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Eligible Institution that
Guaranteed Delivery:
If Delivered by Book-Entry Transfer,
DTC Book-Entry Account No.:
Transaction Code Number:
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
PLEASE NOTE: THE ISSUER HAS AGREED THAT, FOR A PERIOD OF 180 DAYS AFTER THE EXPIRATION
DATE, THEY WILL MAKE COPIES OF THE PROSPECTUS AVAILABLE TO ANY PARTICIPATING
BROKER-DEALER FOR USE IN CONNECTION WITH RESALES OF THE EXCHANGE NOTES (PROVIDED THAT
THE ISSUER RECEIVES NOTICE FROM ANY PARTICIPATING BROKER-DEALER OF ITS STATUS AS A
BROKER-DEALER).
Name:
Address:
Attention:
</TABLE>
A-2
<PAGE>
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY
BEFORE COMPLETING ANY BOX BELOW
List below the Old Notes to which this Letter of Transmittal relates. If the
space provided below is inadequate, the certificate numbers and principal amount
at maturity of Old Notes should be listed on a separate signed scheduled affixed
hereto.
<TABLE>
<CAPTION>
BOX 1
DESCRIPTION OF 6.20% SENIOR UNSECURED NOTES, SERIES A DUE APRIL 15, 2004 (OLD NOTES)
PRINCIPAL AMOUNT
AGGREGATE AT
PRINCIPAL MATURITY TENDERED
AMOUNT AT (MUST BE IN
NAME(S) AND ADDRESS(ES) OF MATURITY INTEGRAL
REGISTERED HOLDER(S) CERTIFICATE REPRESENTED BY MULTIPLE OF
(PLEASE FILL IN, IF BLANK) NUMBER(S)** CERTIFICATE(S) $1,000)*
<S> <C> <C> <C>
TOTAL
</TABLE>
* Need not be completed by Holders who wish to tender with respect to all Old
Notes listed. See Instruction 4.
If the space provided above is inadequate, list the certificate numbers and
principal amounts at maturity on a separate signed schedule and affix the
list of this Letter of Transmittal.
** Need not be completed by Holders tendering by book-entry transfer.
A-3
<PAGE>
- ------------------------------------------------------
BOX 2
SPECIAL REGISTRATION INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Old Notes in a principal amount at
maturity not tendered, or Exchange Notes issued in exchange for Old Notes
accepted for exchange, are to be issued in a name other than the name
appearing in Box 1 above
Issue certificate(s) to:
Name _________________________________________________________________________
(please print)
Address ______________________________________________________________________
______________________________________________________________________________
(include zip code)
______________________________________________________________________________
(tax identification or social security number)
- ------------------------------------------------------
- ------------------------------------------------------
BOX 3
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Old Notes in a principal amount at
maturity not tendered, or Exchange Notes issued in exchange for Old Notes
accepted for exchange, are to be sent to an address other than the address
appearing in Box 1 above, or if Box 2 is filled in, to an address other than
the address appearing in Box 2.
Deliver certificate(s) to:
Name _________________________________________________________________________
(please print)
Address ______________________________________________________________________
______________________________________________________________________________
(include zip code)
______________________________________________________________________________
(tax identification or social security number)
- -----------------------------------------------------
BOX 4
BROKER-DEALER STATUS
/ / Check this box if the beneficial owner of the Old Notes is a
participating broker-dealer and such participating broker-dealer acquired
the Old Notes for its own account as a result of market-making activities
or other trading activities.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to Nevada Power Company (the "Issuer") the principal amount at
maturity of Old Notes indicated in Box 1.
Subject to and effective upon the acceptance for exchange of the principal
amount at maturity of Old Notes tendered in accordance with this Letter of
Transmittal, the undersigned sells, assigns and transfers to, or upon the order
of, the Issuer all right, title and interest in and to the Old Notes tendered
hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent its agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as the agent of the Issuer) with respect to the tendered Old
Notes with the full power of substitution to (i) present such Old Notes and all
evidences of transfer and authenticity to, or transfer ownership of, such Old
Notes on the account books maintained by DTC to, or upon, the order of, the
Issuer, (ii) deliver certificates for such Old Notes to the Issuer and deliver
all accompanying evidences of transfer and authenticity to, or upon the order
of, the Issuer and (iii) present such Old Notes for transfer on the books of the
Issuer and receive all benefits and otherwise
A-4
<PAGE>
exercise all rights of beneficial ownership of such Old Notes, all in accordance
with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Old Notes tendered
hereby and that the Issuer will acquire good, valid and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claims, when the same are acquired by the Issuer. The
undersigned hereby further represents that (i) the Exchange Notes are to be
acquired by the Holder or the person receiving such Exchange Notes, whether or
not such person is the Holder, in the ordinary course of business, (ii) the
Holder or any other person receiving the Exchange Notes is not engaging and does
not intend to engage in the distribution of the Exchange Notes, (iii) the Holder
or any other person receiving the Exchange Notes has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Notes, and (iv) neither the Holder nor any other person receiving the Exchange
Notes is an "affiliate" of the Issuer within the meaning of Rule 405 under the
Securities Act. As indicated above, each participating broker-dealer that
receives an Exchange Note for its own account in exchange for Old Notes must
acknowledge that it (i) acquired the Old Notes for its own account as a result
of market-making activities or other trading activities, (ii) has not entered
into any arrangement or understanding with the Issuer or any "affiliate" of the
Issuer (within the meaning of Rule 405 under the Securities Act) to distribute
the Exchange Notes to be received in the Exchange Offer and (iii) will deliver a
Prospectus in connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a Prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
If applicable, the undersigned shall use its reasonable best efforts to notify
the Issuer when it is no longer subject to such Prospectus delivery
requirements. Unless otherwise notified in accordance with the instructions set
forth herein in Box 4 under "Broker-Dealer Status," the Issuer will assume that
the undersigned is not a participating broker-dealer. If the undersigned is not
a broker-dealer, the undersigned represents that it is not engaged in and does
not intend to engage in, a distribution of Exchange Notes.
For purposes of the Exchange Offer, the Issuer shall be deemed to have
accepted validly tendered Old Notes when, as and if the Issuer has given oral or
written notice thereof to the Exchange Agent.
If any Old Notes tendered herewith are not accepted for exchange pursuant to
the Exchange Offer for any reason, certificates for any such unaccepted Old
Notes will be returned (except as noted below with respect to tenders through
DTC), without expense, to the undersigned at the address shown below or to a
different address as may be indicated herein in Box 3 under "Special Delivery
Instructions" as promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representative, successors and assigns.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Issuer upon the terms and
subject to the conditions of the Exchange Offer, subject only to withdrawal of
such tenders on the terms set forth in the Prospectus under the caption "The
Exchange Offer--Withdrawal of Tenders."
Unless otherwise indicated in Box 2 under "Special Registration
Instructions" please issue the certificates representing the Exchange Notes
issued in exchange for the Old Notes accepted for exchange and any certificates
for Old Notes not tendered or not exchanged, in the name(s) of the registered
Holder of the Old Notes appearing in Box 1 above (or in such event in the case
of Old Notes tendered by DTC, by credit to the account of DTC). Similarly,
unless otherwise indicated in Box 3 under "Special Delivery Instructions,"
please send the certificates, if any, representing the Exchange Notes issued in
exchange for the Old Notes accepted for exchange and any certificates for Old
Notes not tendered or not exchanged (and accompanying documents, as appropriate)
to the undersigned at the address shown below in the
A-5
<PAGE>
undersigned's signature(s), unless tender is being made through DTC. In the
event that the box entitled "Special Registration Instructions" and the box
entitled "Special Delivery Instructions" both are completed, please issue the
certificates representing the Exchange Notes issued in exchange for the Old
Notes accepted for exchange in the name(s) of, and return any certificates for
Old Notes not tendered or not exchanged to, the person(s) so indicated. The
undersigned understands that the Issuer has no obligation pursuant to the
"Special Registration Instructions" and "Special Delivery Instructions" to
transfer any Old Notes from the name of the registered Holder(s) thereof if the
Issuer does not accept for exchange any of the Old Notes so tendered.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver the Old Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date, may tender their Old Notes according to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer-- Guaranteed Delivery Procedures." See Instruction 2.
The lines below must be signed by the registered Holder(s) exactly as their
name(s) appear(s) on the Old Notes or, if tendered by a participant in DTC,
exactly as such participant's name appears on a security position listing as the
owner of Old Notes, or by person(s) authorized to become registered Holder(s) by
a properly completed bond power form the registered Holder(s), a copy of which
must be transmitted with this Letter of Transmittal. If Old Notes to which this
Letter of Transmittal relate are held of record by two or more joint Holders,
then all such Holders must sign this Letter of Transmittal.
PLEASE SIGN HERE WHETHER OR NOT
OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY
<TABLE>
<S> <C>
X
date
signature(s) of registered Holder(s) date
or authorized signatory
Area Code and Telephone Number: --------------------
</TABLE>
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, then such person must (i) set forth his or her full
title below and (ii) submit evidence satisfactory to the Issuer of such person's
authority so to act. See Instruction 5.
Name(s): _______________________________________________________________________
(please print)
Capacity: ______________________________________________________________________
Address: _______________________________________________________________________
(include zip code)
A-6
<PAGE>
MEDALLION SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 5)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
signature(s) guaranteed by an Eligible Institution:
(authorized signature)
(title)
(name of firm)
(address, include zip code)
(area code and telephone number)
Dated:
- ------------------------- , 1999
A-7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR OLD NOTES OR
BOOK-ENTRY CONFIRMATIONS. Certificates representing the tendered Old Notes (or
a confirmation of book-entry transfer of such Old Notes into the Exchange
Agent's account with DTC), as well as a properly completed and duly executed
copy of this Letter of Transmittal (or facsimile thereof) (or, in the case of a
book-entry transfer, an Agent's Message), a substitute Form W-9 (or facsimile
thereof) and any other documents required by this Letter of Transmittal must be
received by the Exchange Agent at its address set forth herein prior to the
Expiration Date. The method of delivery of certificates for Old Notes and all
other required documents is at the election and sole risk of the tendering
Holder and delivery will be deemed made only when actually received by the
Exchange Agent. If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. As an alternative to delivery by
mail, the Holder may wish to use an overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure timely delivery. Neither the
Issuer nor the Exchange Agent is under any obligation to notify any tendering
Holder of the Issuer's acceptance of tendered Old Notes prior to the completion
of the Exchange Offer.
2. GUARANTEED DELIVERY PROCEDURES. Holder who wish to tender their Old
Notes but whose Old Notes are not immediately available and who cannot deliver
their certificates for Old Notes (or comply with the procedures for book-entry
transfer prior to the Expiration Date), the Letter of Transmittal and any other
documents required by the Letter of Transmittal to the Exchange Agent prior to
the Expiration Date must tender their Old Notes according to the guaranteed
delivery procedures set forth below. Pursuant to such procedures:
(i) such tender must be made by or through a firm which is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States or an "eligible guarantor
institution" with the meaning of Rule 17Ad-15 under the Exchange Act (an
"Eligible Institution");
(ii) prior to the Expiration Date, the Exchange Agent must have received
from the Eligible Institution a properly completed and duly executed Notice
of Guaranteed Delivery (by facsimile transmission, mail, or hand delivery)
setting forth the name and address of the Holder, the certificate number or
numbers of the tendered Old Notes, and the principal amount of tendered Old
Notes and stating that the tender is being made thereby and guaranteeing
that, within three New York Stock Exchange Trading days after the Expiration
Date, the Letter of Transmittal (or facsimile thereof) (or, in the case of a
book-entry transfer, an Agent's Message), together with the tendered Old
Notes (or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account with DTC) and any other requirement documents will
be deposited by the Eligible Institution with the Exchange Agent; and
(iii) the certificates representing the tendered Old Notes in proper
form for transfer (or a confirmation of book-entry transfer of the Old Notes
into the Exchange Agent's account with DTC), together with the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees (or, in the case of a book-entry
transfer, an agent's message) and all other documents required by the Letter
of Transmittal must be received by the Exchange Agent within three New York
Stock Exchange trading days after the Expiration Date.
Failure to complete the guaranteed delivery procedures outlined above will
not, of itself, affect the validity or effect a revocation of any Letter of
Transmittal form properly completed and executed by a Holder who attempted to
use the guaranteed delivery procedure.
A-8
<PAGE>
3. TENDER BY HOLDER. Only a Holder or Acting Holder of Old Notes may
tender such Old Notes in the Exchange Offer. Any beneficial owner of Old Notes
who is not the registered Holder and who wishes to tender should arrange with
such Holder to execute and deliver this Letter of Transmittal on such owner's
behalf or must, prior to completing and executing this Letter of Transmittal and
delivering such Old Notes, either make appropriate arrangements to register
ownership of the Old Notes in such owner's name or obtain a properly completed
bond power from the registered Holder.
4. PARTIAL TENDERS. Tenders of Old Notes will be accepted only in integral
multiples of $1,000 principal amount at maturity. If less than the entire
principal amount at maturity of Old Notes is tendered, the tendering Holder
should fill in the principal amount at maturity tendered in the column labeled
"Principal Amount at Maturity Tendered" of the box entitled "Description of
6.20% Senior Unsecured Notes, Series A due April 15, 2004 (Old Notes)" (Box 1)
above. The entire principal amount at maturity of Old Notes delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount at maturity of Old Notes is not tendered, Old
Notes for the principal amount at maturity of Old Notes not tendered and
Exchange Notes exchanged for any Old Notes tendered will be sent to the Holder
at his or her registered address, unless a different address is provided in the
appropriate box on this Letter of Transmittal or unless tender is made through
DTC.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
MEDALLION GUARANTEE OF SIGNATURE. If this Letter of Transmittal is signed by
the registered Holder(s) of the Old Notes tendered herewith, the signatures must
correspond with the name(s) as written on the face of the tendered Old Notes
without alteration, enlargement, or any change whatsoever.
If any of the tendered Old Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any tendered
Old Notes are held in different names on several Old Notes, it will be necessary
to complete, sign, and submit as many separate copies of the Letter of
Transmittal documents as there are names in which tendered Old Notes are held.
If this Letter of Transmittal is signed by the registered Holder, and
Exchange Notes are to be issued and any untendered or unaccepted principal
amount at maturity of Old Notes are to be reissued or returned to the registered
Holder, then the registered Holder need not and should not endorse any tendered
Old Notes nor provide a separate bond power. In any other case, the registered
must either properly endorse the Old Notes tendered or transmit a properly
completed separate bond power with this Letter of Transmittal (executed exactly
as the name(s) of the registered Holder(s) appear(s) on such Old Notes), with
the signature(s) on the endorsement or bond power guaranteed by an Eligible
Institution unless such certificates or bond powers are signed by an Eligible
Institution.
If this Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should also indicate when signing and evidence satisfactory to the
Issuer of their authority to so act must be submitted with this Letter of
Transmittal.
No medallion signature guarantee is required if (i) this Letter of
Transmittal is signed by the registered Holder(s) of the Old Notes tendered
herewith and (ii) the issuance of Exchange Notes (and any Old Notes not tendered
or not accepted) are to be issued directly to such registered Holder(s) and
(iii) neither the "Special Registration Instructions" (Box 2) nor the "Special
Delivery Instructions" (Box 3) has been completed. In all other cases, all
signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution.
6. SPECIAL REGISTRATION AND DELIVER INSTRUCTIONS. Tender Holders should
indicate, in the applicable box, the name and address in which the Exchange
Notes and/or substitute Old Notes for principal amount at maturity not tendered
or not accepted for exchange are to be sent, if different from the name and
address or account of the person signing this Letter of Transmittal. In the case
of issuance in
A-9
<PAGE>
a different name, the employer identification number or social security number
of the person named must also be indicated and the indicated and the tendering
Holders should complete the applicable box.
If no such instructions are given, the Exchange Notes (and any Old Notes not
tendered or not accepted) will be issued in the name of and sent to the
registered Holder of the Old Notes.
7. TRANSFER TAXES. The Issuer will pay all transfer taxes, if any,
applicable to the sale and transfer of Old Notes to the Issuer or their order
pursuant to the Exchange Offer. If, however, a transfer tax is imposed for any
reason other than the transfer and sale of Old Notes to the Issuer or their
order pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered Holder or on any other person) will be
payable by the tendering Holder. If satisfactory evidence of payment of such
axes or exemption from such taxes is not submitted with this Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering Holder.
Except as provided in this instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
8. TAX IDENTIFICATION NUMBER. Under the federal income tax laws, payments
that may be made by the Issuer on account of Exchange Notes issued pursuant to
the Exchange Offer may be subject to backup withholding at the rate of 31%. In
order to avoid such backup withholding, each tendering Holder should complete
and sign the substitute Form W-9 included in this Letter of Transmittal and
either (a) provide the correct taxpayer identification number ("TIN") and
certify, under penalties of perjury, that the TIN provided is correct and that
(i) the Holder has not been notified by the Internal Revenue Service (the "IRS")
that the Holder is subject to backup withholding as a result of failure to
report all interest or dividends, or (ii) the IRS has notified the Holder that
the Holder is no longer subject to backup withholding; or (b) provide an
adequate basis for exemption. If the tendering Holder has not been issued a TIN
and has applied for one, or intends to apply for one in the near future, such
Holder should write "Applied For" in the space provided for the TIN in Part I of
the substitute Form W-9, sign and date the substitute Form W-9 and sign the
certificate of payee awaiting taxpayer identification number. If "Applied For"
is written in Part I, the Issuer (or the Exchange Agent with respect to Exchange
Notes or a broker or custodian) may still withhold 31% of the amount of any
payments made on account of the Exchange Notes until the Holder furnishes the
Issuer or the Exchange Agent with respect to the Exchange Notes, broker or
custodian with its TIN. In general, if a Holder is an individual, the taxpayer
identification number is the Social Security number of such individual. If the
Exchange Agent or the Issuer are not provided with the correct TIN, the Holder
may be subject to a $50 penalty imposed by the IRS. Certain Holder (including
among others, all corporations and certain foreign individuals) are not subject
to these backup withholding and reporting requirements. In order for a foreign
individual to qualify as an exempt recipient, such Holder must submit a
statement (generally, IRS Form W-8), signed under penalties of perjury,
attesting to that individuals' exempt status. Such statements can be obtained
from the Exchange Agent.
Failure to complete the substitute Form W-9 will not, by itself, cause Old
Notes to be deemed invalidly tendered, but may require the Issuer or the
Exchange Agent with respect to the Exchange Notes, broker or custodian to
withhold 31% of the amount of any payments made on account for the Exchange
Notes. Backup withholding is not an additional federal income tax. Rather, the
federal income tax liability of a person subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the IRS.
9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), and acceptance of tendered Old Notes
will be determined by the Issuer, in their sole discretion, which determination
will be final and binding. The Issuer reserve the right to reject any and all
Old Notes not validly tendered or any Old Notes, the Issuer's acceptance of
which would, in the opinion of the Issuer or their counsel, be unlawful. The
Issuer also reserve the right to waive any conditions of the Exchange Offer or
defects or irregularities in tenders of notes as to any ineligibility of any
Holder who seeks to tender Old Notes in the Exchange Offer. The interpretation
of the terms and conditions of the Exchange
A-10
<PAGE>
Offer (including this Letter of Transmittal and the instructions hereto) by the
Issuer shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Issuer shall determine. The Issuer will use reasonable efforts to
give notification of defects or irregularities with respect to tenders of Old
Notes, but shall not incur any liability for failure to give such notification.
10. WAIVER OF CONDITIONS. The Issuer reserve the absolute right to amend,
waive, or modify specified conditions in the Exchange Offer in the case of any
tendered Old Notes.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular, or
contingent tender of Old Notes will be accepted.
12. MUTILATED, LOST, STOLEN, OR DESTROYED OLD NOTES. Any tendering Holder
whose Old Notes have been mutilated, lost, stolen, or destroyed should contact
the Exchange Agent at the address indicated above for further instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus may be
directed to the Exchange Agent at the address set forth on the first page of
this Letter of Transmittal. Holders may also contact their broker, dealer,
commercial bank, trust company, or other nominee for assistance concerning the
Exchange Offer.
14. ACCEPTANCE OF TENDERED OLD NOTES AND ISSUANCE OF EXCHANGE NOTES; RETURN
OF OLD NOTES. Subject to the terms and conditions of the Exchange Offer, the
Issuer will accept for exchange all validly tendered Old Notes as soon as
practicable after the Expiration Date and will issue Exchange Notes therefor as
soon as practicable thereafter. For purposes of the Exchange Offer, the Issuer
shall be deemed to have accepted tendered Old Notes when, as and if the Issuer
have given written and oral notice thereof to the Exchange Agent. If any
tendered Old Notes are not exchanged pursuant to the Exchange Offer for any
reason, such unexchanged Old Notes will be returned, without expense, to the
undersigned at the address shown above or at a different address as may be
indicated under "Special Delivery Instructions."
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the Caption "The Exchange
Offer--Withdrawal of Tenders."
(DO NOT WRITE IN THE SPACE BELOW)
<TABLE>
<S> <C> <C>
Certificate Old Notes Old Notes
Surrendered Tendered Accepted
Delivery
Prepared By: Checked By: Date:
</TABLE>
A-11
<PAGE>
PAYOR NAME: NEVADA POWER COMPANY
<TABLE>
<C> <S> <C>
Name (if joint names, list first and circle the name of the person or entity whose number
you enter in Part 1 below. See instructions if your name has changed.)
Address
City, State and Zip Code
SUBSTITUTE Part 1 -- PLEASE PROVIDE ---------------------------
FORM W-9 YOUR TAXPAYER Social Security Number
DEPARTMENT OF THE TREASURY IDENTIFICATION NUMBER OR
INTERNAL REVENUE SERVICE ("TIN") IN THE BOX AT TIN:
RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW
Part 2 -- Check the box if you are NOT subject to backup
withholding under the provisions of section 3408(a)(1)(C)
of the Internal Revenue Code because (1) you have not
been notified that you are subject to backup withholding
as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has
notified you that you are no longer subject to backup
withholding.
PART 3 -- AWAITING TIN / /
CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT THE INFORMATION PROVIDED
ON THIS FORM IS TRUE, CORRECT AND COMPLETE.
Signature: --------------------------------------------------------------------- Date:
- ------------------------
</TABLE>
Note: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE PURSUANT TO THE EXCHANGE OFFER. YOU MUST
COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administrative Office or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a Taxpayer Identification Number by the
time of the exchange, 31% of all reportable payments made to me thereafter
will be withheld until I provide a number.
Signature: ________________________________________ Date: ___________________
A-12
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF NEVADA POWER COMPANY SINCE THE DATE HEREOF
OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
------------------------
PROSPECTUS GUIDE
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Forward-Looking Statements..................... 2
Prospectus Summary............................. 3
The Company.................................... 3
The Exchange Offer............................. 4
Summary of Terms of the Exchange
Notes........................................ 6
Selected Historical Financial
Information.................................. 8
Risk Factors................................... 9
Use of Proceeds................................ 11
Capitalization................................. 12
The Exchange Offer............................. 13
Description of the Exchange Notes.............. 24
Book-Entry System; Delivery and Form........... 33
Material U.S. Federal Income Tax
Consequences................................. 36
Plan of Distribution........................... 39
Legal Matters.................................. 40
Experts........................................ 40
Where You Can Find More Information............ 40
Incorporation of Documents by
Reference.................................... 41
Exhibit A - Letter of Transmittal.............. A-1
</TABLE>
NEVADA POWER COMPANY
(COMPANY LOGO)
EXCHANGE
OFFER RELATING TO
$130,000,000
6.20% SENIOR UNSECURED
NOTES, SERIES B
DUE APRIL 15, 2004
-------------
PROSPECTUS
-------------
APRIL , 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
As permitted by Section 78.037 of the Nevada General Corporation Law, the
Company has included in its Restated Articles of Incorporation a provision which
states that a director or officer of the Company shall not be liable to the
Company or its shareholders for monetary damages for breach of fiduciary duty as
a director or officer, except to the extent such limitation of liability is
prohibited by Nevada General Corporation Law as the same exists or may hereafter
be amended. Section 78.037 currently provides that any such provision may not
eliminate or limit the liability of a director or officer for (a) acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law; or (b) the payment of dividends in violation of the Nevada General
Corporation Law.
As permitted by Section 78.751 of the Nevada General Corporation Law,
Article VIII of the Company's Bylaws provides for the indemnification by the
Company, including suits brought by or on behalf of the Company, of each
director, officer, employee or agent thereof to the fullest extent permitted by
Nevada law.
As permitted by the Nevada General Corporation Law and Article VIII of the
Company's Bylaws, the Company has entered into indemnity agreements with its
directors and officers that provide for indemnification of such individuals to
the fullest extent permitted under Nevada law, and the Company maintains
director's and officer's liability insurance for its directors and officers
against certain liabilities.
ITEM 21. EXHIBITS*
<TABLE>
<C> <S>
**2.1 Agreement and Plan of Merger by and among Nevada Power Company, Sierra Pacific
Resources, Desert Merger Sub, Inc. and Lake Merger Sub, Inc. dated as of April 29,
1998 (incorporated by reference from the Company's Current Report on Form 8-K
dated April 29, 1998, File No. 1-4698).
4.1 Form of Senior Unsecured Note Indenture between Nevada Power Company and IBJ
Whitehall Bank & Trust Company dated as of April 1, 1999.
4.2 Supplemental Indenture No. 1 between Nevada Power Company and IBJ Whitehall Bank &
Trust Company dated as of March 1, 1999.
4.3 Supplemental Indenture No. 2 between Nevada Power Company and IBJ Whitehall Bank &
Trust Company dated as of April , 1999.
4.4 Form of Exchange Note (included in Exhibit 4.3).
4.5 Exchange and Registration Rights Agreement dated as of March 1, 1999 between Nevada
Power Company and Prudential Securities as representative of the initial
purchasers.
5.1 Opinion of Best Best & Krieger LLP, relating to the legality of the exchange notes.
12.1 Statement Re: Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Richard L. Hinckley, Esq.
23.2 Consent of Best Best & Krieger LLP (included in Exhibit 5.1).
23.3 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on signature page hereto).
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
25.1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of
IBJ Whitehall Bank & Trust Company, as Indenture Trustee.
</TABLE>
- ------------------------
* Reference is made to a duplicate list of exhibits being filed as part of the
Registration Statement, which list, prepared in accordance with Item 102 of
Regulation S-T of the Securities and Exchange Commission, immediately
precedes the exhibits being physically filed with the Registration
Statement.
** Incorporated by reference herein as indicated.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(2) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling persons of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(3) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(4) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Las Vegas and State of
Nevada on the 27th day of April, 1999.
<TABLE>
<S> <C> <C>
NEVADA POWER COMPANY
By: /s/ MICHAEL R. NIGGLI
-----------------------------------------
Michael R. Niggli
(MICHAEL R. NIGGLI, CHIEF EXECUTIVE
OFFICER, PRESIDENT, CHIEF OPERATING
OFFICER AND DIRECTOR)
</TABLE>
POWER OF ATTORNEY
Know All Men By These Presents, that each individual whose signature appears
below constitutes and appoints Michael R. Niggli and Steven W. Rigazio, and each
of them, his true and lawful attorneys in fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys in fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys in fact and agents, or any of them, or their
or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
<TABLE>
<S> <C> <C> <C>
(1) PRINCIPAL EXECUTIVE OFFICER
/s/ MICHAEL R. NIGGLI Chief Executive Officer,
------------------------------------------- President, Chief April 27,
Michael R. Niggli Operating Officer and 1999
Director
(2) PRINCIPAL FINANCIAL AND PRINCIPAL ACCOUNTING
OFFICER
/s/ STEVEN W. RIGAZIO Vice President, Finance
------------------------------------------- and Planning, Treasurer April 28,
Steven W. Rigazio and Chief Financial 1999
Officer
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C> <C> <C>
(3) DIRECTORS
------------------------------------------- Director April ,
Mary Kaye Cashman 1999
/s/ MARY LEE COLEMAN
------------------------------------------- Director April 27,
Mary Lee Coleman 1999
/s/ FRED D. GIBSON, JR.
------------------------------------------- Director April 27,
Fred D. Gibson, Jr. 1999
/s/ JOHN L. GOOLSBY
------------------------------------------- Director April 29,
John L. Goolsby 1999
/s/ JERRY HERBST
------------------------------------------- Director April 28,
Jerry Herbst 1999
------------------------------------------- Director April ,
Charles A. Lenzie 1999
------------------------------------------- Director April ,
John F. O'Reilly 1999
/s/ FRANK E. SCOTT
------------------------------------------- Director April 27,
Frank E. Scott 1999
/s/ J.A. TIBERTI
------------------------------------------- Director April 27,
J.A. Tiberti 1999
</TABLE>
II-4
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NEVADA POWER COMPANY
AND
IBJ WHITEHALL BANK & TRUST COMPANY
as Trustee
SENIOR UNSECURED NOTE INDENTURE
DATED AS OF MARCH 1, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
THIS SENIOR UNSECURED NOTE INDENTURE (this "Indenture"), dated as of
March 1, 1999, between NEVADA POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Nevada (the "COMPANY"), and IBJ
Whitehall Bank & Trust Company, a banking corporation duly organized and
existing under the laws of the State of New York, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its senior unsecured notes (the "Notes"), to be
issued as in this Indenture provided;
AND WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed, and the execution
of this Indenture and the issue hereunder of the Notes have in all respects been
duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Notes by the Holders thereof
the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time of the Notes,
as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. GENERAL. The terms defined in this Article One (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Article One.
SECTION 1.02. TRUST INDENTURE ACT.
(a) The Company does not intend to qualify this Indenture under the Trust
Indenture Act of 1939, as amended (the "TIA") immediately upon the execution and
delivery thereof. The Company represents to the Trustee that it will cause this
Indenture to be qualified under the TIA on or prior to the date (the "TIA
Qualification Date") any Notes are issued which would give rise to a requirement
under the TIA that this Indenture be so qualified. From and after the TIA
Qualification Date, whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of this
Indenture.
1
<PAGE>
(b) Unless otherwise indicated, all terms used in this Indenture
that are defined by the TIA, defined by the TIA by reference to another statute
or defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the TIA
Qualification Date.
SECTION 1.03. DEFINITIONS. For purposes of this Indenture, the following
terms shall have the following meanings.
AUTHENTICATING AGENT:
The term "AUTHENTICATING AGENT" shall mean any agent of the Trustee which
shall be appointed and acting pursuant to Section 8.15 hereof.
AUTHORIZED AGENT:
The term "AUTHORIZED AGENT" shall mean any agent of the Company
designated as such by an Officer's Certificate delivered to the Trustee, as the
same may be amended from time to time.
BOARD OF DIRECTORS:
The term "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company or the Executive Committee of such Board or any other duly authorized
committee of such Board.
BOARD RESOLUTION:
The term "BOARD RESOLUTION" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions or trust
companies in the Borough of Manhattan, the City and State of New York, the city
where the Corporate Trust Office of the Trustee is located, or the State of
Nevada, are obligated or authorized by law or executive order to close.
COMMISSION:
The term "COMMISSION" shall mean the United States Securities and
Exchange Commission, or if at any time hereafter the Commission is not existing
or performing the duties now assigned to it under the TIA, then the body
performing such duties.
2
<PAGE>
COMPANY:
The term "COMPANY" shall mean the corporation named as the "Company" in
the first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
COMPANY ORDER:
The term "COMPANY ORDER" shall mean a written order signed in the name of
the Company by one of the Chairman of the Board, Chief Executive Officer, the
President, any Vice President, the Treasurer, an Assistant Treasurer or any
other officer or agent of the Company duly authorized by the Board of Directors
of the Company to act in respect of matters relating to this Indenture, and
delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar term,
shall mean the corporate trust office of the Trustee, at which at any particular
time its corporate trust business shall be principally administered, which
office is at the date of the execution of this Indenture located at One State
Street, New York, New York 10004, Attention: Corporate Finance Department.
DEPOSITARY:
The term "DEPOSITARY" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.05 hereof, The Depository Trust Company, New York,
New York, or any successor thereto registered and qualified under the Securities
and Exchange Act of 1934, as amended, or other applicable statute or regulation.
EVENT OF DEFAULT:
The term "EVENT OF DEFAULT" shall mean any event specified in Section
7.01 hereof, continued for the period of time, if any, and after the giving of
the notice, if any, therein designated.
EXCHANGE ACT:
The term "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
EXPERT:
The term "EXPERT" shall mean any officer of the Company familiar with the
terms of this Indenture, any law firm, any investment banking firm, or any other
Person to whom a matter may be referred to because of such Person's knowledge of
and familiarity with the particular subject.
3
<PAGE>
GLOBAL NOTE:
The term "GLOBAL NOTE" shall mean a Note that pursuant to Section 2.01
and a Company order pursuant to Section 2.05 hereof is issued to evidence Notes,
that is delivered to the Depositary or pursuant to the instructions of the
Depositary and that shall be registered in the name of the Depositary or its
nominee.
INDENTURE:
The term "INDENTURE" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented.
INITIAL PURCHASERS:
The term "INITIAL PURCHASERS" shall mean any purchasers of a series of
Notes on original issue where such Notes are subject to transfer restrictions as
provided in Section 2.14.
INSTITUTIONAL ACCREDITED INVESTOR:
The term "INSTITUTIONAL ACCREDITED INVESTOR" has the meaning specified in
Section 2.14(a).
INTEREST PAYMENT DATE:
The term "INTEREST PAYMENT DATE" shall mean (a) the date specified in or
calculated in accordance with a Company Order pursuant to Section 2.05 hereof,
(b) a date of maturity of such Note and (c) only with respect to defaulted
interest on such Note, the date established by the Trustee for the payment of
such defaulted interest pursuant to Section 2.11 hereof.
LEGEND:
The term "LEGEND" has the meaning specified in Section 2.06(h).
MATURITY:
The term "MATURITY," when used with respect to any Note, shall mean the
date on which the principal of such Note becomes due and payable as therein or
herein provided, whether at the stated maturity thereof or by declaration of
acceleration, redemption or otherwise.
NOTE OR NOTES:
The terms "NOTE" or "NOTES" shall mean any Note or Notes, as the case may
be, authenticated and delivered under this Indenture, including any Global Note.
4
<PAGE>
NOTEHOLDER:
The terms "NOTEHOLDER", "HOLDER OF NOTES," "HOLDER" "NOTE OWNER"or "NOTE
HOLDER" shall mean any Person in whose name at the time a particular Note is
registered on the books of the Trustee kept for that purpose in accordance with
the terms hereof.
OFFICER'S CERTIFICATE:
The term "OFFICER'S CERTIFICATE" when used with respect to the Company,
shall mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer.
OPINION OF COUNSEL:
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 14.05 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain conditions and qualifications satisfactory to the
Trustee.
OPINION OF INDEPENDENT COUNSEL:
The term "OPINION OF INDEPENDENT COUNSEL" shall mean an opinion in
writing signed by legal counsel, who shall not be an employee of the Company,
meeting the applicable requirements of Section 14.05. Any Opinion of
Independent Counsel may contain conditions and qualifications satisfactory to
the Trustee.
OUTSTANDING:
The term "OUTSTANDING", when used with reference to Notes, shall, subject
to Section 9.04 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company), provided that if such
Notes are to be redeemed prior to the maturity thereof,
5
<PAGE>
notice of such redemption shall have been given as provided in Article Three, or
provisions satisfactory to the Trustee shall have been made for giving such
notice;
(c) Notes, or portions thereof, that have been paid and discharged or
are deemed to have been paid and discharged pursuant to the provisions of this
Indenture; and
(d) Notes in lieu of or in substitution for which other Notes shall
have been authenticated and delivered, or which have been paid, pursuant to
Section 2.07 hereof.
PERSON:
The term "PERSON" shall mean any individual, corporation, partnership,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agent or political
subdivision thereof.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean
6226 West Sahara Avenue, Las Vegas, Nevada 89146, or such other place where the
main corporate offices of the Company are located as designated in writing to
the Trustee by an Authorized Agent.
PRIVATE PLACEMENT MEMORANDUM:
The term "PRIVATE PLACEMENT MEMORANDUM" shall mean the Offering
Memorandum dated March 25, 1999, relating to the Notes.
QIB:
The term QIB has the meaning specified in Section 2.14(a).
REGULAR RECORD DATE:
The term "REGULAR RECORD DATE" shall mean (a) the date specified in a
Company Order pursuant to Section 2.05, for an Interest Payment Date for a
particular Note (unless the Interest Payment Date is the date of maturity of
such Note, in which event, the Regular Record Date shall be as described in
clause (b) hereof) and (b) the date of maturity of such Note.
RESPONSIBLE OFFICER:
The term "RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used with
respect to the Trustee shall mean one or more of the following assigned to its
Corporate Trust Office: the chairman of the board of directors, the vice
chairman of the board of directors, the chairman of the executive committee, the
president, any vice president, the secretary, the treasurer, any trust officer,
any assistant trust officer, any second or assistant vice president, any
assistant secretary, any
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assistant treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
RESTRICTED REGULATION S GLOBAL NOTES:
The term "RESTRICTED REGULATION S GLOBAL NOTES" has the meaning specified
in Section 2.01(c).
RULE 144:
The term "RULE 144" has the meaning specified in Section 2.13(b)(iii).
RULE 144A:
The term "RULE 144A" has the meaning specified in Section 2.01(d).
RULE 144A GLOBAL NOTES:
The term "RULE 144A GLOBAL NOTES" has the meaning specified in Section
2.01(d).
RULE 144A INFORMATION:
The term "RULE 144A INFORMATION" has the meaning specified in Section
6.02(b).
SECURITIES ACT:
The term "Securities Act" shall mean the Securities Act of 1933, as
amended.
SPECIAL RECORD DATE:
The term "SPECIAL RECORD DATE" shall mean, with respect to any Note, the
date established by the Trustee in connection with the payment of defaulted
interest on such Note pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "STATED MATURITY" shall mean with respect to any Note, the last
date on which principal on such Note becomes due and payable as therein or
herein provided, other than by declaration of acceleration or by redemption.
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TRUSTEE:
The term "TRUSTEE" shall mean IBJ Whitehall Bank & Trust Company and,
subject to Article Eight, shall also include any successor Trustee.
UNRESTRICTED REGULATION S GLOBAL NOTES:
The term "UNRESTRICTED REGULATION S GLOBAL NOTES" has the meaning set
forth in Section 2.01(c).
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or an agency thereof for
the payment of which obligations or guarantee the full faith and credit of the
United States is pledged or (ii) certificates or receipts representing direct
ownership interests in obligations or specified portions (such as principal or
interest) of obligations described in clause (i) above, which obligations are
held by a custodian in safekeeping in a manner consistent with customary
practices and industry standards.
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
SECTION 2.01. FORM GENERALLY.
(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in EXHIBIT A to this Indenture, and, if the
Notes are not in the form of a Global Note, they shall be in substantially the
form set forth in EXHIBIT B to this Indenture, or, in any case, in such other
form as shall be established by a Board Resolution, or a Company Order pursuant
to a Board Resolution, or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable rules
of any securities exchange or of the Depositary or with applicable law or as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or
engraved on certificates with steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
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Any certificated Notes shall be typewritten, printed, lithographed,
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
(c) If any Notes are offered and sold in reliance on Regulation S
under the Securities Act ("Regulation S"), such Notes may, at the direction of
the Company, be issued in the form of one or more Global Notes in definitive,
fully registered form without interest coupons substantially in the form of the
Note attached as Exhibit A hereto, which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee at the Corporate
Trust Office, as custodian for the Depositary and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as herein provided, for credit to their respective
accounts (or to such other accounts as they may direct) at Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System
("Euroclear") or Cedel Bank, societe anonyme ("Cedel"). Until the termination
of the restricted period (as defined in Regulation S) with respect to the offer
and sale of any such Notes, interests in any such Global Note may only be held
by the Agent Members as defined in Section 2.01(e)(ii) for Euroclear and Cedel.
Until such time as the restricted period shall have terminated, any such Global
Notes shall be referred to herein as the "Restricted Regulation S Global Notes."
After such time as the restricted period shall have terminated, such Global
Notes shall be referred to herein as "Unrestricted Regulation S Global Notes."
The aggregate principal amount of the Restricted Regulation S Global Notes and
the Unrestricted Regulation S Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided. The Company shall promptly notify the
Trustee of the termination of the restricted period with respect to such Notes
by furnishing to the Trustee a certificate substantially in the form of Exhibit
C hereto.
(d) If any Notes are offered and sold in reliance of Rule 144A under
the Securities Act ("Rule 144A"), such Notes may, at the direction of the
Company, be issued in the form of one or more permanent Global Notes (the "Rule
144A Global Notes") in definitive, fully registered form without interest
coupons substantially in the form of the Note attached as Exhibit A hereto,
which shall be deposited with the Trustee, at the Corporate Trust Office, as
custodian for the Depositary and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as herein provided. The aggregate principal amount of the Rule 144A
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary, and the
Depositary or its nominee, as the case may be, as hereinafter provided.
(e)(i) If the Company shall establish in a Company Order pursuant to
Section 2.05 hereof that the Notes of a particular series are to be issued in
whole or in part in the form of one or more Global Notes, the Company shall
execute and the Trustee shall, in accordance with this Section 2.1(e)(i),
authenticate and deliver Global Notes that (A) shall be registered in the name
of the Depositary or the nominee of such Depositary, (B) shall be deposited on
behalf of Agent Members
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(as defined herein) with the Trustee as custodian for the Depositary and (C)
shall bear legends substantially to the following effect:
"UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE IS REGISTERED IN
THE NAME OF [INSERT NAME OF NOMINEE OF DEPOSITARY]
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF
DEPOSITARY] (AND ANY PAYMENT IS MADE TO [INSERT NAME
OF NOMINEE OF DEPOSITARY]) OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF DEPOSITARY]), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, [INSERT NAME OF NOMINEE OF
DEPOSITARY], HAS AN INTEREST HEREIN."
"TRANSFERS OF THIS NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
[INSERT NAME OF DEPOSITARY] OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(ii) With respect only to the Global Notes deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee as custodian for
the Depositary for credit to their respective accounts (or to such other
accounts as they may direct) as Euroclear or Cedel insofar as interest in the
Global Notes are held by the Agent Members for Euroclear or Cedel, the
provisions of the "Operating Procedures of the Euroclear System" and the "Terms
and Conditions Governing Use of Euroclear" and the "Management Regulations" and
"Instructions to Participants" of Cedel, respectively, shall be applicable to
such Global Notes insofar as interests therein are held by the Agent Members for
Euroclear and Cedel. Members of, or participants in, a Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary or under any Global Note, and the
Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as
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between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a holder of any security.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described
or provided for in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST
COMPANY, as Trustee
By:
---------------------------
Authorized Signatory
SECTION 2.03. AMOUNT UNLIMITED. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture or any indenture
supplemental hereto.
SECTION 2.04. DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES.
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indenture supplements hereto;
provided that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date or, as
provided in Section 2.13(g) hereof, two or more Original Issue Dates; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(g) hereof.
(c) Each Note shall bear interest from the later of (1) its Original
Issue Date (or, if pursuant to Section 2.13 hereof, a Global Note has two or
more Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount of such Global Note
to which that Original Issue Date is applicable), or (2) the most recent date to
which interest has been paid or duly provided for with respect to such Note
until the principal of
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such Note is paid or made available for payment, and interest on each Note shall
be payable on each Interest Payment Date after the Original Issue Date.
(d) Each Note shall mature on a stated maturity specified in the Note.
The principal amount of each outstanding Note shall be payable on the maturity
date or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section
2.05 hereof, interest on each of the Notes shall be calculated on the basis of a
360-day year of twelve 30-day months and shall be computed at a fixed rate until
the maturity of such Notes. The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth in a Company Order pursuant
to Section 2.05 hereof. Unless otherwise specified in a Company Order pursuant
to Section 2.05 hereof, principal, interest and premium on the Notes shall be
payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose
name any Note is registered at the close of business on any Regular Record Date
or Special Record Date with respect to an Interest Payment Date for such Note
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) The Trustee (or any duly selected paying agent) shall provide to
the Company during each month that precedes an Interest Payment Date a list of
the principal, interest and premium to be paid on Notes on such Interest Payment
Date and to the Depositary a list of the principal, interest and premium to be
paid on Global Notes on such Interest Payment Date. The Trustee shall assume
responsibility for withholding taxes on interest paid as required by law except
with respect to any Global Note.
SECTION 2.05. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President, its Treasurer or an Assistant Treasurer
of the Company and attested by the Secretary or an Assistant Secretary of the
Company. The signature of any of these officers on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes,
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and the Trustee in accordance with any such Company Order shall authenticate and
deliver such Notes. The Notes shall be issued in series. Such Company Order
shall specify the following with respect to each series of Notes: (i) any
limitations on the aggregate principal amount of the Notes to be issued as part
of such series, (ii) the Original Issue Date or Dates for such series, (iii) the
stated maturity of such series, (iv) the interest rate or rates, or method of
calculation of such rate or rates, for such series, (v) the terms, if any,
regarding the optional or mandatory redemption of such series, including
redemption date or dates of such series, if any, and the price or prices
applicable to such redemption (including any premium), (vi) whether or not the
Notes of such series shall be issued in whole or in part in the form of a Global
Note and, if so, the Depositary for such Global Note, (vii) the designation of
such series, (viii) if the form of the Notes of such series is not as described
in EXHIBIT A or EXHIBIT B hereto, the form of the Notes of such series, (ix) the
maximum annual interest rate, if any, of the Notes permitted for such series,
(x) any other information necessary to complete the Notes of such series, (xi)
the establishment of any office or agency pursuant to Section 5.02 hereof, (xii)
the interest payment dates, or methods of determining the same, the Regular
Record Dates, or method of determining the same, and (xiii) any other terms of
such series not inconsistent with this Indenture. Prior to authenticating Notes
of any series, and in accepting the additional responsibilities under this
Indenture in relation to such Notes, the Trustee shall receive from the Company
the following at or before the issuance of the initial Note of such series of
Notes, and (subject to Section 8.01 hereof) shall be fully protected in relying
upon:
(1) A Board Resolution authorizing such Company Order or Orders
and, if the form of Notes is established by a Board Resolution or a
Company Order pursuant to a Board Resolution, a copy of such Board
Resolution;
(2) an Opinion of Counsel stating substantially the following
subject to customary qualifications and exceptions:
(A) if the form of Notes has been established by or
pursuant to a Board Resolution, a Company Order pursuant to a
Board Resolution, or in a supplemental indenture as permitted by
Section 2.01 hereof, that such form has been established in
conformity with this Indenture;
(B) that the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of creditors and the
application of general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and
except as enforcement of provisions of the Indenture may be
limited by state laws affecting the remedies for the enforcement
of the security provided for in the Indenture;
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(C) on and after the TIA Qualification Date that the
Indenture is qualified to the extent necessary under the TIA;
(D) that such Notes have been duly authorized and executed
by the Company, and when authenticated by the Trustee and issued
by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application relating to or
affecting the enforcement of creditors and the application of
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except as
enforcement of provisions of this Indenture may be limited by
state laws affecting the remedies for the enforcement of the
security provided for in this Indenture;
(E) that the issuance of the Notes will not result in any
default under this Indenture, or any other contract, indenture,
loan agreement or other instrument to which the Company is a party
or by which it or any of its property is bound; and
(F) that all consents or approvals of the Public Utilities
Commission of Nevada (or any successor agency) and of any other
federal or state regulatory agency required in connection with the
Company's execution and delivery of this Indenture and such series
of Notes have been obtained and not withdrawn (except that no
statement need be made with respect to state securities laws).
(3) an Officer's Certificate stating that (i) the Company is
not, and upon the authentication by the Trustee of the series of Notes,
will not be in default under any of the terms or covenants contained in
the Indenture and (ii) all conditions that must be met by the Company to
issue Notes under this Indenture have been met.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Note:
(1) if the issuance of such Notes pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Notes and
this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee;
(2) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors,
executive officers or a trust committee of directors and/or responsible
officers determines that such action would expose the Trustee to personal
liability to Holders of any outstanding Notes.
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(e) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
(f) If all Notes of a series are not to be authenticated and issued at
one time, the Company shall not be required to deliver the Company Order, Board
Resolutions, certificate of an Expert, Officer's Certificate and Opinion of
Counsel (including any such that would be otherwise required pursuant to Section
12.05 hereof) described in Section 2.05(c) hereof at or prior to the
authentication of each Note of such series, if such items are delivered at or
prior to the time of authentication of the first Note of such series to be
authenticated and issued. If all of the Notes of a series are not authenticated
and issued at one time, for each issuance of Notes after the initial issuance of
Notes, the Company shall be required only to deliver to the Trustee the Note and
a written request (executed by one of the Chairman, the President, any Vice
President, the Treasurer, or an Assistant Treasurer) to the Trustee to
authenticate such Note and to deliver such Note in accordance with the
instructions specified by such request. Any such request shall constitute a
representation and warranty by the Company that the statements made in the
Officer's Certificate delivered to the Trustee prior to the authentication and
issuance of the first Note of such series are true and correct on the date of
such request as if made on and as of the date of such request.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES
(a) Subject to Section 2.13 hereof, Notes may be exchanged for one or
more new Notes of any authorized denominations and of a like aggregate principal
amount, series and stated maturity and having the same terms and Original Issue
Date or Dates. Notes to be exchanged shall be surrendered at any of the offices
or agencies to be maintained pursuant to Section 5.02 hereof, and the Trustee
shall deliver, or make available for delivery, in exchange therefor the Note or
Notes which the Noteholder making the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article Two
provided. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register shall be open for inspection by the Company. Upon due
presentment for registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees one or more new Notes
of any authorized denominations and of a like aggregate principal amount, series
and stated maturity and having the same terms and Original Issue Date or Dates.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of
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transfer in form satisfactory to the Company and the Trustee and duly executed
by the Holder or the attorney in fact of such Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration
of transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register a
transfer of any Notes selected, called or being called for redemption (including
Notes, if any, redeemable at the option of the Holder provided such Notes are
then redeemable at such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, of part, but not
all of a Global Note is paid, then upon surrender to the Trustee of such Global
Note, the Company shall execute, and the Trustee shall authenticate, deliver and
register, a Global Note in an authorized denomination in aggregate principal
amount equal to, and having the same terms, Original Issue Date or Dates and
series as, the unpaid portion of such Global Note.
(g) Notwithstanding any provision to the contrary herein, so long as a
Global Note remains outstanding and is held by or on behalf of the Depositary,
transfers of a Global Note, in whole or in part, shall only be made (x) in the
case of transfers of portions of a Global Note to beneficial owners thereof in
certificated form, in accordance with Section 2.13, and (y) transfers of such
Global Note in whole, and not in part, to nominees of the Depositary or to a
successor of the Depositary of such successor's nominee.
(h) If Notes are issued upon the registration of transfer, exchange or
replacement of Notes not bearing the legends required by the form of Note
attached as Exhibit A hereto and Section 2.14 below (collectively the
"Legend"), the Notes so issued shall not bear the Legend; provided that if a
Legend is removed from the face of a Note and the Note is subsequently held by
an affiliate of the Company, the Legend shall be reinstated. If Notes are
issued upon the registration of transfer, exchange or replacement of Notes
bearing the Legend, or if a request is made to remove the Legend on a Note, the
Notes so issued shall bear the Legend, or the Legend shall not be removed, as
the case may be, unless there is delivered to the Company and the Trustee such
satisfactory evidence, which may include an opinion of counsel of recognized
standing licensed to practice law in the State of New York and experienced in
matters involving the Securities Act, as may be reasonably required by the
Company that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with applicable
securities laws. Upon provision of such satisfactory evidence, the Trustee, at
the direction of the Company, shall authenticate and deliver a Note that does
not bear the Legend.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
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when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN NOTES
(a) If any temporary or definitive Note shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its request the
Trustee shall authenticate and deliver, a new Note of like form and principal
amount and having the same terms and Original Issue Date or Dates and bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or Authenticating Agent such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by
virtue of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
such destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder. All Notes shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary Notes
shall be issuable in any authorized denomination and substantially in the form
of the definitive Notes but with such omissions,
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insertions and variations as may be appropriate for temporary Notes, all as may
be determined by the Company. Every such temporary Note shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Notes. Without unreasonable delay
the Company shall execute and shall deliver to the Trustee definitive Notes and
thereupon any or all temporary Notes shall be surrendered in exchange therefor
at the corporate trust office of the Trustee, and the Trustee shall
authenticate, deliver and register in exchange for such temporary Notes an
equal aggregate principal amount of definitive Notes. Such exchange shall be
made by the Company at its own expense and without any charge therefor to the
Noteholders. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes
authenticated and delivered hereunder.
SECTION 2.09. CANCELLATION OF NOTES PAID, ETC. All Notes surrendered for
the purpose of payment, redemption, exchange or registration of transfer shall
be surrendered to the Trustee for cancellation and promptly canceled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by this
Indenture. The Company's acquisition of any Notes shall operate as a redemption
or satisfaction of the indebtedness represented by such Notes and such Notes
shall be surrendered by the Company to and canceled by the Trustee.
SECTION 2.10. INTEREST RIGHTS PRESERVED. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer, exchange or
substitution.
SECTION 2.11. SPECIAL RECORD DATE. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on any
series of Notes (other than on an Interest Payment Date that is a maturity
date), that interest shall cease to be payable to the Persons who were the
Noteholders of such series at the applicable Regular Record Date. In that event,
when moneys become available for payment of the interest, the Trustee shall (a)
establish a date of payment of such interest and a Special Record Date for the
payment of that interest, which Special Record Date shall be not more than 15 or
fewer than 10 days prior to the date of the proposed payment and (b) mail notice
of the date of payment and of the Special Record Date not fewer than 10 days
preceding the Special Record Date to each Noteholder of such series at the close
of business on the 15th day preceding the mailing at the address of such
Noteholder, as it appeared on the register for the Notes. On the day so
established by the Trustee the interest shall be payable to the Holders of the
applicable Notes at the close of business on the Special Record Date.
SECTION 2.12. PAYMENT OF NOTES. Payment of the principal, interest and
premium on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, of the day on which
payment of principal, interest and premium is due on any Global Note pursuant to
the terms thereof, the Company shall deliver to the Trustee funds available on
such date sufficient to make such payment, by wire transfer of immediately
available funds or by instructing the Trustee to withdraw sufficient
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funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee and the Depositary. On or before 10:00
a.m., New York City time, or such other time as shall be agreed upon between the
Trustee and the Depositary, of the day on which any payment of interest is due
on any Global Note (other than at maturity), the Trustee shall pay to the
Depositary such interest in same day funds. On or before 10:00 a.m., New York
City time or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which principal, interest payable at maturity and
premium, if any, is due on any Global Note, the Trustee shall deposit with the
Depositary the amount equal to the principal, interest payable at maturity and
premium, if any, by wire transfer into the account specified by the Depositary.
As a condition to the payment, at maturity or upon redemption, of any part of
the principal of interest on and applicable premium of any Global Note, the
Depositary shall surrender, or cause to be surrendered, such Global Note to the
Trustee, whereupon a new Global Note shall be issued to the Depositary pursuant
to Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global Note, principal,
applicable premium and interest due at the maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the Corporate Trust Office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at maturity) shall be paid to the Holder thereof as its name
appears on the register by check payable in clearinghouse funds; provided that
if the Trustee receives a written request from any Holder of Notes, the
aggregate principal amount of which having the same Interest Payment Date equals
or exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such Holder
designated by such Holder in its request if such account is maintained with the
Trustee or any paying agent.
(c) At the Company's option, payments on Notes, if such Notes are
issued in certificated form, may also be made (i) by checks mailed by the
Trustee to the holders entitled thereto at their registered addresses or (ii) to
a holder of $1,000,000 or more in aggregate principal amount of the Notes who
has delivered a written request to the Trustee at least 14 days prior to the
relevant Interest Payment Date electing to have payments made by wire transfer
to a designated account in the United States of America, by wire transfer to a
designated account. Notwithstanding the above, the final installment of
principal payable with respect to any certificated Note shall be payable as
provided in the following paragraph. The funds represented by any such checks
returned undelivered shall be held in accordance with Section 4.04.
The Trustee shall notify the Person in whose name a certificated Note is
registered at the close of business on the Record Date preceding its Maturity or
redemption of such Note in whole. Such notice shall be mailed no later than
five days prior to its Maturity or date fixed for such redemption and shall
specify that such final principal payment will be payable only upon presentation
and surrender of such Note and shall specify the place where such note may be
presented and surrendered for payment of such installment. Such notices shall
be mailed to Noteholders as provided in Article Three hereof.
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SECTION 2.13. GLOBAL NOTES.
(a) If (a) the Company notifies the Trustee in writing that the
Depositary is no longer willing or able to act as depositary or the Depositary
ceases to be registered as a clearing agency under the Exchange Act and a
successor depositary is not appointed by the Company within 90 days of such
notice or cessation or (b) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Series A Notes in definitive
form under this Indenture, then, upon receipt of a Company Order for the
authentication and delivery of individual Notes of such series in exchange for
such Global Notes and surrender by the Depositary of the Global Notes,
certificated Notes will be issued to each person that the Depositary identifies
as the beneficial owner of the Notes represented by the Global Notes. Upon any
such issuance, the Trustee is required to register such certificated Notes in
the name of such person or person (or the nominee of any thereof) and cause the
same to be delivered thereto.
Neither the Company nor the Trustee shall be liable for any delay by the
Depositary or any Participant or Indirect Participant in identifying the
beneficial owners of the related Series A Notes and each such person may
conclusively rely on, and shall be protected in relying on, instructions from
the Depositary for all purposes (including with respect to the registration and
delivery and the respective principal amount, of the Notes to be issued).
If after the occurrence of an Event of Default, Noteholders representing
beneficial interests aggregating at least a majority of the Outstanding
principal amount of the Notes advise the Trustee, the Company and the Depositary
through DTC Participants in writing that the continuation of a book-entry system
through the Depositary is no longer in the best interests of the Note Owners,
then the Trustee shall within ten days give notice to the Noteholders of the
occurrence of any such event and of the availability of certificated Notes in
authorized denominations in accordance with the instructions of the Depositary.
Any certificated Note delivered in exchange for a portion of a Global Note
shall, except as otherwise provided in Section 2.05(h), bear the Legend
regarding transfer restrictions set forth on the form of Note attached as
Exhibit A hereto. None of the Company or the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be fully protected in relying on, such instructions. Upon the issuance of
certificated Notes, the Trustee shall recognize the holders of the Notes as
Noteholders.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Note remains outstanding and is held by or on behalf of the Depositary,
transfers of a Global Note, in whole or in part, shall only be made (x) in the
case of transfers of portions of a Global Note to beneficial owners thereof in
certificated form, in accordance with subsection (a) of this Section 2.13, and
(y) in all other cases, in accordance with this subsection (b) (and subject, in
each case, to the provisions of any Legend (as defined herein) imprinted on such
Global Note).
(i) TRANSFERS OF GLOBAL NOTES AS SUCH. Subject to clauses (ii)
through (v) of this Section 2.13(b), transfers of a Global Note shall be
limited to transfers of such Global Note
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in whole, and not in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
(ii) RULE 144A GLOBAL NOTE TO A RESTRICTED REGULATION S GLOBAL
NOTE. If a holder of a beneficial interest in the Rule 144A Global Note
deposited with the Depositary wishes at any time to exchange its interest
in such Note for an interest in the Restricted Regulation S Global note
or transfer its interest in such Note to a person who wishes to take
delivery thereof in the form of an interest in the Restricted Regulation
S Global Note, such holder may, subject to the rules and procedures of
the Depositary, exchange or transfer or cause the exchange or transfer of
such interest for an equivalent beneficial interest in the Restricted
Regulation S Global Note in accordance with, and subject to, this clause
(ii). Upon receipt by the Trustee at the Corporate Trust Office of (1)
instructions given in accordance with the Depositary's procedures from an
Agent Member directing the Trustee to credit or cause to be credited a
beneficial interest in the Restricted Regulation S Global Note in an
amount equal to the beneficial interest in the Rule 144A Global Note to
be exchanged or transferred, (2) a written order given in accordance with
the Depositary's procedures containing information regarding the
Euroclear or Cedel account to be credited with such increase and the name
of such account, and (3) a certificate in the form of Exhibit D attached
hereto given by the holder of such interest stating that the exchange or
transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Notes and pursuant to and in accordance
with Regulation S, the Trustee shall instruct the Depositary to reduce
the Rule 144A Global Note by the aggregate principal amount of the
beneficial interest in the Rule 144A Global Note to be so exchanged or
transferred and the Trustee shall instruct the Depositary, concurrently
with such reduction to increase the principal amount of the Restricted
Regulation S Global Note by the aggregate principal amount of the
beneficial interest in the Rule 144A Global Note and to credit or cause
to be credited to the account of the Person specified in such
instructions (who shall be the Agent Member for Euroclear or Cedel, or
both, as the case may be) a beneficial interest in the Restricted
Regulation S Global Note equal to the reduction in the principal amount
of the Rule 144A Global Note.
(iii) RULE 144A GLOBAL NOTE TO UNRESTRICTED REGULATION S GLOBAL
NOTE. If a holder of a beneficial interest in the Rule 144A Global Note
deposited with the Depositary wishes at any time to exchange its interest
in such Note for an interest in the Unrestricted Regulation S Global Note
or transfer its interest in such Note to a Person who wishes to take
delivery thereof in the form of an interest in the Unrestricted
Regulation S Global Note, such holder may, subject to the rules and
procedures of the Depositary, exchange or cause the exchange or transfer
or cause the transfer of such interest for an equivalent beneficial
interest in the Unrestricted Regulation S Global Note in accordance with,
and subject to, this clause (iii). Upon receipt by the Trustee at the
Corporate Trust Office of (1) instructions given in accordance with the
Depositary's procedures from an Agent Member directing the Trustee to
credit or cause to be credited a beneficial interest in the Unrestricted
Regulation S Global Note in an amount equal to the beneficial interest in
the Rule 144A Global Note to be exchanged or transferred, (2) a written
order given in accordance with the Depositary's procedures containing
information regarding the participant account of the Depositary and,
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in the case of a transfer pursuant to and in accordance with Regulation
S, the Euroclear or Cedel account to be credited with such increase and
(3) a certificate in the form of Exhibit E attached hereto given by the
holder of such interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Notes and (A) in the case of an exchange, that either
(x) the Note being exchanged is not a "restricted security" as defined in
Rule 144 under the Securities Act ("Rule 144"), or (y) the exchange is
being made to facilitate a contemporaneous transfer that complies with
this clause (iii), (B) in the case of a transfer pursuant to Regulation
S, that the Note is being transferred pursuant to and in accordance with
Regulation S, (C) in the case of a transfer pursuant to Rule 144, that
the Note is being transferred pursuant to and in accordance with Rule 144
or (D) in the case of a transfer pursuant to another exemption from the
Securities Act (including without limitation Rule 144A), specifying the
basis for such exemption, the Trustee shall instruct the Depositary to
reduce the Rule 144A Global Note by the aggregate principal amount of the
beneficial interest in the Rule 144A Global Note to be so exchanged or
transferred and the Trustee shall instruct the Depositary, concurrently
with such reduction, to increase the principal amount of the Unrestricted
Regulation S Global Note by the aggregate principal amount of the
beneficial interest in the Rule 144A Global Note and to credit or cause
to be credited to the account of the Person specified in such
instructions a beneficial interest in the Unrestricted Regulation S
Global Note equal to the reduction in the principal amount of the Rule
144A Global Note.
(iv) RESTRICTED REGULATION S GLOBAL NOTE, UNRESTRICTED
REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE. If a holder or a
beneficial interest in the Restricted Regulation S Global Note or the
Unrestricted Regulation S Global Note deposited with the Depositary as
the case may be, wishes at any time to exchange its interest in such Note
for an interest in the Rule 144A Global Note or transfer its interest in
such Note to a Person who wishes to take delivery thereof in the form of
an interest in the Rule 144A Global Note, such holder may, subject to the
rules and procedures of Euroclear or Cedel and the Depositary, as the
case may be, exchange or transfer or cause the exchange or transfer of
such interest for an equivalent beneficial interest in the Rule 144A
Global Note, in accordance with, and subject to, this clause (iv). Upon
receipt by the Trustee, at the Corporate Trust Office of (1) instructions
from Euroclear or Cedel or the Depositary, as the case may be, directing
the Trustee to credit or cause to be credited a beneficial interest in
the Rule 144A Global Note in an amount equal to the beneficial interest
in the Restricted Regulation S Global Note or the Unrestricted Regulation
S Global Note to be exchanged or transferred, such instructions to
contain information regarding the Agent Member's account with the
Depositary to be credited with such increase, and, with respect to an
exchange or transfer of an interest in the Unrestricted Regulation S
Global Note or Restricted Regulation S Global Note, information regarding
the Agent Member's account with the Depositary to be debited with such
decrease, and (2) a certificate in the form of Exhibit F attached hereto
given by the holder of such interest and stating that the Person
exchanging or transferring such interest in the Restricted Regulation S
Global Note or the Unrestricted Regulation S Global Note, as the case may
be, reasonably believes that the Person acquiring such interest in the
Rule 144A Global Note is a qualified institutional buyer (as defined in
Rule 144A) and is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A, Euroclear or Cedel or the
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Trustee, as the case may be, shall instruct the Depositary to reduce the
Restricted Regulation S Global Note or the Unrestricted Regulation S
Global Note, as the case may be, by the aggregate principal amount of the
beneficial interest in the Restricted Regulation S Global Note or the
Unrestricted Regulation S global Note to be exchanged or transferred, and
the Trustee shall instruct the Depositary, concurrently with such
reduction or cancellation to increase the principal amount of the Rule
144A Global note by the aggregate principal amount of the beneficial
interest in the Restricted Regulation S Global Note or the Unrestricted
Regulation S Global Note, as the case may be, to be so exchanged or
transferred, and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Rule
144A Global Note equal to the reduction in the principal amount of the
Restricted Regulation S Global Note or the Unrestricted Regulation S
Global Note.
(v) OTHER EXCHANGES. In the event that a Global Note is
exchanged for Notes in certificated form without interest coupons
pursuant to this Section 2.13 hereof, such Notes may be exchanged or
transferred for one another only in accordance with such procedures as
are substantially consistent with the provisions of clauses (ii) through
(v) above (including, without limitation, the certification requirements
intended to insure that such exchanges or transfers comply with Rule
144A, Rule 144 or Regulation S and generally with the Securities Act, as
the case may be) and as may be from time to time adopted by the Company
and the Trustee.
(c) Portions of a Global Note deposited with the Depositary pursuant
to Section 2.01 shall be transferred in certificated form to the beneficial
owners thereof only if such transfer complies with this Section 2.13.
(d) In order to facilitate the delivery of certificated Notes upon the
occurrence of certain events as specified in Section 2.13(a), the Company shall
promptly make available to the Trustee a reasonable supply of certificated Notes
in definitive fully registered form without interest coupons.
(e) Unless and until certificated Notes have been issued to
Noteholders:
(i) this Section shall be in full force and effect;
(ii) the Trustee may deal with the Depositary for all purposes
(including the payment of principal of and interest on the Notes) as the
authorized representative of the Noteholders;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iv) the rights of Noteholders shall be exercised only through
the Depositary and shall be limited to those established by law and
agreements between such Noteholders and the Depositary and/or the Agent
Members pursuant to the Note Depositary Agreement;
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(v) the Depositary will make book-entry transfers among the
Agent Members and receive and transmit payments of principal of and
interest on the Notes to such Agent Members; and
(vi) whenever this Indenture requires or permits actions to be
taken based upon instruments or directions of Noteholders evidencing a
specified percentage of the Outstanding principal amount of the Notes,
the Depositary shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Noteholders
and/or Noteholders owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered such
instructions to the Trustee.
Whenever a notice or other communication to the Noteholders is
required under this Indenture, unless and until certificated Notes have
been issued to Noteholders, the Trustee shall give all such notices and
communications to the Depositary.
(f) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(g) Pursuant to the provisions of this subsection, at the option of
the Trustee and upon 30 days' written notice to the Depositary but not prior to
the first Interest Payment Date of the respective Global Notes, the Depositary
shall be required to surrender any two or more Global Notes which have identical
terms, including, without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated at
least 30 days prior to any Interest Payment Date applicable to any of the Global
Notes surrendered to the Trustee. Upon any exchange of any Global Note with two
or more Original Issue Dates, whether pursuant to this Section or pursuant to
Section 2.06 or Section 3.03 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same before and after such
exchange, after giving effect to any retirement of Notes and the Original Issue
Dates applicable to such Notes occurring in connection with such exchange.
SECTION 2.14. TRANSFER RESTRICTIONS. Except as otherwise provided in an
indenture supplement for a series of Notes, the following transfer restrictions
shall apply to any Note not sold pursuant to a registration statement which has
been declared effective under the Securities Act:
(a) No transfer of a Note (or any interest therein) shall be made
except (i) to the Company or to an Initial Purchaser, (ii) so long as such Note
is eligible for resale pursuant to Rule
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144A, to a person whom the seller reasonably believes is a qualified
institutional buyer (as defined in Rule 144A) ("QIB") acquiring such Note for
its own account or as a fiduciary or agent for others (which others must also be
QIBs) and to whom notice is given that the resale or other transfer is being
made in reliance on Rule 144A, (iii) outside the United States in compliance
with Rule 904 of Regulation S under the Securities Act ("Regulation S"), (iv)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), (v) to an institutional "accredited investor," as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (an
"Institutional Accredited Investor") pursuant to another available exemption
under the Securities Act or (vi) pursuant to a registration statement that has
been declared effective under the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States or any
other jurisdiction. In connection with any proposed transfer, the transferor
shall furnish to the Trustee and the Company such certifications, legal opinions
or other information as the Company may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
(b) Each purchaser of Notes from the Initial Purchasers, by its
acceptance thereof, shall be deemed to have acknowledged, represented to and
agreed with the Company and the Initial Purchasers as follows:
(1) It understands and acknowledges that the Notes have not
been registered under the Securities Act or any other applicable
securities law and that the Notes are being offered for resale in
transactions not requiring registration under the Securities Act or any
other securities laws, including sales pursuant to Rule 144A, and, unless
so registered, may not be offered, sold or otherwise transferred except
in compliance with the registration requirements of the Securities Act or
any other applicable securities laws, pursuant to an exemption therefrom
or in a transaction not subject thereto and in each case in compliance
with the conditions for transfer set forth in paragraph (4) below.
(2) It is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company or acting on behalf of the Company, and it
is either (a) a "qualified institutional buyer" as defined in Rule 144A
and is aware that any sale of the Notes to it will be made in reliance on
Rule 144A and such acquisition will be for its own account or for the
account of another "qualified institutional buyer" or (b) not a "U.S.
Person" as defined in Regulation S or purchasing for the account or
benefit of a U.S. Person (other than a distributor) and is purchasing
Notes in an offshore transaction in accordance with Regulation S (a
"Non-U.S. Person").
(3) It acknowledges that none of the Company, the Initial
Purchasers or any person representing the Company or the Initial
Purchasers has made any representation to it with respect to the Company
or the offering, other than the information contained in the Offering
Memorandum, which has been delivered to it and upon which it is relying
in making its investment decision with respect to the Notes. It has had
access to such financial and other information concerning the Company and
the Notes as it has deemed necessary in
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connection with its decision to purchase the Notes, including an
opportunity to ask questions of and request information from the Company
and the Initial Purchasers.
(4) It is purchasing the Notes for its own account, or for one
or more investor accounts for which it is acting as a fiduciary or agent,
in each case not with a view to, or for offer or sale in connection with,
any distribution thereof in violation of the Securities Act, subject to
any requirement of law that the disposition of its property or the
property of such investor account or accounts be at all times within its
or their control and subject to its or their ability to resell such Notes
pursuant to Rule 144A or any other available exemption from registration
under the Securities Act. It agrees on its own behalf and on behalf of
any investor account for which it is purchasing the Notes, and each
subsequent holder of the Notes by its acceptance thereof will agree, to
offer, sell or otherwise transfer such Notes prior to the date that is
two years after the later of the date of original issue of such Notes and
the last date that the Company or any affiliate of the Company was the
owner of such Notes (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a
registration statement that has been declared effective under the
Securities Act, (c) for so long as the Notes are eligible for resale
pursuant to Rule 144A, to a person it reasonably believes is a "qualified
institutional buyer" that purchases for its own account or for the
account of a "qualified institutional buyer" to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales that occur outside the United States within the meaning
of Regulation S, or (e) pursuant to any other available exemption from
the registration requirements of the Securities Act, subject to any
requirement of law that the disposition of its property or the property
of such investor account or accounts be at all times within its or their
control. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to any offer,
sale or other transfer prior to the Resale Restriction Termination Date
of the Notes pursuant to clause (e) above to require the delivery of an
opinion of counsel, certifications and/or other information satisfactory
to the Company and the Trustee. Each purchaser acknowledges that each
Note will contain a legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE
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HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, SUBJECT TO
THE COMPANY AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
(5) It acknowledges that the Company, the Initial Purchasers
and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements and agrees that, if any
of the acknowledgments, representations or agreements deemed to have been
made by it by its purchaser of Notes is no longer accurate, it shall
promptly notify the Company and the Initial Purchasers. If it is
acquiring any Notes as a fiduciary or agent for one or more investor
accounts, it represents that it has sole investment discretion with
respect to each such account and that is has full power to make the
foregoing acknowledgments, representations and agreements on behalf of
each such account.
SECTION 2.15 CUSIP NUMBERS. The Company in issuing the Notes may, and
in the case of Global Notes issued pursuant to Section 2.13 shall, use "CUSIP"
numbers (if then generally in use), and, if so used, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to holders of Notes;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers. The
Global Notes issued and authenticated pursuant to Section 2.01(c) (both before
and after the expiration of the restricted period) and the Rule 144A Global
Notes shall each be assigned separate securities identification numbers.
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ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01. APPLICABILITY OF ARTICLE. Such of the Notes as are, by
their terms, redeemable prior to their stated maturity date at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article Three.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) The election of the Company to redeem any Notes shall be evidenced
by a Board Resolution which shall be given with written notice of redemption to
the Trustee (such notice shall contain the relevant information required by the
Trustee to allow it to give its notice hereunder) at least 45 days (or such
shorter period acceptable to the Trustee in its sole discretion) prior to the
redemption date specified in such notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part shall be given by the Trustee, in the manner provided in
Section 14.10 hereof, no less than 30 or more than 60 days prior to the date
fixed for redemption. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Noteholder receives the notice. In any case, failure duly to give such notice,
or any defect in such notice, to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
(c) Each such notice shall specify the date fixed for redemption, the
places of redemption and the redemption price at which such Notes are to be
redeemed, and shall state that payment of the redemption price of such Notes or
portion thereof to be redeemed will be made upon surrender of such Notes at such
places of redemption, that interest accrued to the date fixed for redemption
will be paid as specified in such notice, and that from and after such date
interest thereon shall cease to accrue. If less than all of a series of Notes
having the same terms are to be redeemed, the notice shall specify the Notes or
portions thereof to be redeemed. If any Note is to be redeemed in part only, the
notice which relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that, upon surrender of such
Note, a new Note or Notes having the same terms in aggregate principal amount
equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company
Order under Section 2.05 hereof, if less than all of a series of Notes is to be
redeemed, the Trustee shall select in accordance with its customary practice and
procedure in effect from time to time the particular Notes to be redeemed in
whole or in part and shall thereafter promptly notify the Company in writing of
the Notes so to be redeemed. If less than all of a series of Notes represented
by a Global Note is to be redeemed, the particular Notes or portions thereof of
such series to be redeemed shall be selected by the Depositary for such series
of Notes in such manner as the Depositary shall determine. Notes
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shall be redeemed only in denominations of $1,000, provided that any remaining
principal amount of a Note redeemed in part shall be a denomination authorized
under this Indenture.
(e) If at the time of the mailing of any notice of redemption the
Company shall not have irrevocably directed the Trustee to apply funds deposited
with the Trustee or held by it and available to be used for the redemption of
Notes to redeem all the Notes called for redemption, such notice, at the
election of the Company, may state that it is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for redemption and that
such notice shall be of no effect unless such moneys are so received before such
date.
SECTION 3.03. PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF REDEMPTION
PRICE.
(a) If notice of redemption for any Notes shall have been given as
provided in Section 3.02 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.02(e) hereof, such Notes or
portions of Notes called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such Notes.
Interest on the Notes or portions thereof so called for redemption shall cease
to accrue and such Notes or portions thereof shall be deemed not to be entitled
to any benefit under this Indenture except to receive payment of the redemption
price together with interest accrued thereon to the date fixed for redemption.
Upon presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to such redemption date an amount sufficient to pay the
redemption price together with interest accrued to the date fixed for
redemption. Upon the Company making such deposit and, upon presentation and
surrender of such Notes at such a place of payment in such notice specified,
such Notes or the specified portions thereof shall be paid and redeemed at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption. If the Company shall not make such deposit on or prior to
the redemption date, the notice of redemption shall be of no force and effect
and the principal on such Notes or specified portions thereof shall continue to
bear interest as if the notice of redemption had not been given.
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(c) No notice of redemption of Notes shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall redeem such Notes but only if
funds sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for such purpose, and
(2) that notices of redemption of all outstanding Notes may be given during the
continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company
shall execute, and the Trustee shall authenticate, deliver and register, a new
Note or Notes of authorized denominations in aggregate principal amount equal
to, and having the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 4.01. SATISFACTION AND DISCHARGE.
(a) If at any time:
(1) the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on all the outstanding
Notes, as and when the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for
cancellation all outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds the entire
amount in (A) cash, (B) U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as will insure
the availability of cash, or (C) a combination of cash and U.S.
Government Obligations, in any case sufficient, without reinvestment, as
certified by an independent public accounting firm of national reputation
in a written certification delivered to the Trustee, to pay at maturity
or the applicable redemption date (provided that notice of redemption
shall have been duly given or irrevocable provision satisfactory to the
Trustee shall have been duly made for the giving of any notice of
redemption) all outstanding Notes, including principal and any premium
and interest due or to become due to such date of maturity, as the case
may be and, unless all outstanding Notes are to be due within 90 days of
such deposit by redemption or otherwise, shall also deliver to the
Trustee an Opinion of Independent Counsel to the effect that the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or similar pronouncement by the Internal Revenue Service
or that there has been a change of law, in either case to the effect that
the Holders of the Notes will not recognize income, gain or loss for
United States federal income tax purposes as a result of such defeasance
or discharge of the Indenture,
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and if, in any such case, the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of transfer and
exchange of Notes, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal
thereof, and any premium and interest thereon, upon the original stated due
dates therefor or upon the applicable redemption date (but not upon acceleration
of maturity) from the moneys and U.S. Government Obligations held by the Trustee
pursuant to Section 4.02 hereof, (iv) the rights and immunities and indemnities
of the Trustee hereunder, (v) the rights of the Holders of Notes as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, (vi) the obligations and rights of the Trustee
and the Company under Section 4.04 hereof, and (vii) the duties of the Trustee
with respect to any of the foregoing), and the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and its obligations
under, the Notes, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture and the Trustee shall at the
request of the Company return to the Company all property and money held by it
under this Indenture and determined by it from time to time in accordance with
the certification pursuant to this Section 4.01(a)(3) to be in excess of the
amount required to be held under this Section.
If the Notes are deemed to be paid and discharged pursuant to this
Section 4.01(a)(3) within 15 days after those Notes are so deemed to be paid and
discharged, the Trustee shall cause a written notice to be given to each Holder
in the manner provided by Section 14.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and discharged;
(ii) set forth a description of any U.S. Government Obligations
and cash held by the Trustee as described above; and
(iii) if any Notes will be called for redemption, specify the date
or dates on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.06 hereof, shall
survive.
(b) If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
for cancellation any outstanding Note, such Note shall cease to be entitled to
any lien, benefit or security under this Indenture.
SECTION 4.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys
and U.S. Government Obligations deposited with the Trustee pursuant to Section
4.01 hereof, shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its own
paying agent), to the Holders of the particular
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Notes for the payment or redemption of which such moneys and U.S. Government
Obligations have been deposited with the Trustee of all sums due and to become
due thereon for principal and premium, if any, and interest.
SECTION 4.03. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction
and discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by an Authorized
Agent, be repaid to the Company or paid to the Trustee, and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
SECTION 4.04. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any premium or interest
on any Notes and not applied but remaining unclaimed by the Holders of such
Notes for two years after the date upon which the principal of or any premium or
interest on such Notes, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee on written demand by an Authorized
Agent, and all liability of the Trustee shall thereupon cease; and any Holder of
any of such Notes shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Notes that it will
duly and punctually pay or cause to be paid the principal of and any premium and
interest on each of the Notes at the places, at the respective times and in the
manner provided in such Notes or in this Indenture.
SECTION 5.02. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any of the
Notes remain outstanding, the Company at its option may cause to be maintained
in the Borough of Manhattan, the City and State of New York, or elsewhere, an
office or agency where the Notes may be presented for registration of transfer
and for exchange as in this Indenture provided, and where, at any time when the
Company is obligated to make a payment of principal and premium upon Notes, the
Notes may be surrendered for payment, and may maintain at any such office or
agency and at its principal office an office or agency where notices and demands
to or upon the Company in respect of the Notes or of this Indenture may be
served. The designation of any such office or agency shall be made by Company
Order pursuant to Section 2.05 hereof or at any subsequent time pursuant to this
Section 5.02 hereof. The Company will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof. If
the Company shall fail to give such notice of the location or of any change in
the location of any such office or agency, presentations may be made and notices
and demands may be served at the Corporate Trust Office of the Trustee.
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SECTION 5.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.11 hereof, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 5.04. PROVISION AS TO PAYING AGENT. The Trustee shall be the
paying agent for the Notes and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself). Whenever
the Company shall appoint an additional paying agent, it shall cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to this Section 5.04:
(1) that it will hold in trust for the benefit of the Holders and
the Trustee all sums held by it as such agent for the payment of the
principal of and any premium or interest on the Notes (whether such sums
have been paid to it by the Company or by any other obligor on such
Notes) in trust for the benefit of the Holders of such Notes;
(2) that it will give to the Trustee notice of any failure by the
Company (or by any other obligor on such Notes) to make any payment of
the principal of and any premium or interest on such Notes when the same
shall be due and payable; and
(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
If the Company shall act as its own paying agent with respect to any
Notes, it will, on or before each due date of the principal of and any premium
or interest on such Notes, set aside, segregate and hold in trust for the
benefit of the Holders of such Notes a sum sufficient to pay such principal and
any premium or interest so becoming due and will notify the Trustee of any
failure by it to take such action and of any failure by the Company (or by any
other obligor on such Notes) to make any payment of the principal of and any
premium or interest on such Notes when the same shall become due and payable.
Whenever the Company shall have one or more paying agents, it will, on or
prior to each due date of the principal of (and premium, if any) or interest, if
any, on any Notes, deposit with such paying agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, if any, and (unless such paying agent is the Trustee) the
Company shall promptly notify the Trustee of any failure on its part to so act.
Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.04, such sums to be held by the Trustee upon the
trusts herein contained.
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Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.04 is subject to
Sections 5.03 and 5.04 hereof.
SECTION 5.05. CERTIFICATES AND NOTICE TO TRUSTEE. The Company shall, on
or before May 1 of each year, beginning in 2000, deliver to the Trustee a
certificate from its principal executive officer, principal financial officer or
principal accounting officer covering the preceding calendar year and stating
whether or not, to the knowledge of such party, the Company has complied with
all conditions and covenants under this Indenture, and, if not, describing in
reasonable detail any failure by the Company to comply with any such conditions
or covenants. For purposes of this Section, compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
ARTICLE SIX
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. NOTEHOLDER LISTS.
(a) The Company shall furnish or cause to be furnished to the Trustee
semiannually, not later than 15 days after each Regular Record Date for each
Interest Payment Date that is not a maturity date and at such other times as
such Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company, or
any paying agents other than the Trustee, as to the names and addresses of the
Holders of Notes, obtained since the date as of which the next previous list, if
any, was furnished. Any such list may be dated as of a date not more than 15
days prior to the time such information is furnished or caused to be furnished
and need not include information received after such date; provided that as long
as the Trustee is the registrar for the Notes, no such list shall be required to
be furnished. The Trustee shall preserve any list provided to it pursuant to
this Section until such time as the Company or any paying agent, as applicable,
shall provide it with a more recent list.
(b) Within five business days after the receipt by the Trustee of a
written application by any three or more Holders holding in the aggregate no
less than 25% of the then outstanding principal amount of the Notes stating that
the applicants desire to communicate with other Holders with respect to their
rights under the Indenture or under the Notes, and accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
and by reasonable proof that each such applicant has owned a Note for a period
of at least six months preceding the date of such application, the Trustee
shall, at its election, either:
(i) afford to such applicants access to all information
furnished to or received by the Trustee pursuant to Section 6.01(a)
hereof or, if applicable, in its capacity as registrar to the Notes; or
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(ii) inform such applicants as to the approximate number of
Holders according to the most recent information furnished to or
received by the Trustee under Section 6.01(a) hereof or if applicable in
its capacity as registrar for the Notes, and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Notes a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of such mailing, unless within five days
after such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of a Note, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any paying agent nor any Authenticating Agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
this Section.
SECTION 6.02. REPORTS BY THE COMPANY. The Company shall:
(a) As of the date hereof, the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act. While the Company is
subject to such reporting requirements, it shall file with the Trustee, and the
Trustee shall provide Noteholders, within 30 days after it files them with the
Commission, copies of its annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(b) If at any time (i) the Company is not subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, (ii) the Company is not
exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act and
(iii) any Notes are "restricted securities" within the meaning of Rule 144 under
the Securities Act, upon the request of a Noteholder, the Company shall promptly
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furnish or cause to be furnished "Rule 144A Information" (as defined herein) to
such Noteholder or Note Owner or to a prospective purchaser of such Note
designated by such Noteholder or Note Owner in order to permit compliance by
such holder or beneficial owner with Rule 144A in connection with the resale of
such Note (or interest therein) to a QIB. "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
(c) So long as any of the Notes are Outstanding and the Company is not
required to make reports under the requirements of Section 13 or 15(d) of the
Exchange Act, in addition to the requirement to furnish Rule 144A Information as
provided in subsection (b), the Company shall file with the Trustee, and the
Trustee shall (upon the written request thereof delivered to the Trustee)
provide to any Noteholder, annual consolidated financial statements of the
Company prepared in accordance with GAAP and the FERC uniform system of
accounts, as applicable, except as noted therein (together with notes thereto
and a report thereon by an independent accountant of established national
reputation) and setting forth in comparative form the figures for the previous
fiscal year, such statements to be filed with the Trustee within 120 days after
the end of the fiscal year covered thereby. In addition, the Company will file
with the Trustee, and the Trustee will (upon written request thereof delivered
to the Trustee) provide to any Noteholder, unaudited consolidated financial
statements (including a balance sheet and statements of income and retained
earnings) of the Company as of the end of each of the first three fiscal
quarters of each fiscal year and for the period of such fiscal year then ended
prepared on a basis consistent with the annual financial statements furnished
pursuant to this clause (c) and setting forth in comparative form the figures
for the corresponding periods in the previous fiscal year, such statements to be
filed with the Trustee within 60 days after the end of each such fiscal quarter.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officer's Certificates).
SECTION 6.03. REPORTS BY THE TRUSTEE.
(a) Within 60 days after May 15 of each year on or after the TIA
Qualification Date, beginning with the May 15 after the first issuance of Notes
hereunder, the Trustee shall transmit by mail a brief report dated as of such
date that complies with Section 313(a) of the TIA (to the extent required by
such Section).
(b) From and after the TIA Qualification Date, the Trustee shall from
time to time transmit by mail brief reports that comply, both in content and
date of delivery, with Section 313(b) of the TIA (to the extent required by such
Section).
(c) A copy of each such report filed pursuant to this section shall,
at the time of such transmission to such Holders, be filed by the Trustee with
each stock exchange upon which any
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Notes are listed and also with the Commission. The Company will notify the
Trustee promptly upon the listing of such Notes on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
6.03(b) and (c) hereof, to all Holders of Notes whose names and addresses
have been furnished to or received by the Trustee pursuant to Section
6.01 hereof; and
(4) at the time such report is transmitted to the Holders of
the Notes, to each exchange on which Notes are listed and also with the
Commission.
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of or any premium
on any of the Notes as and when the same shall become due and payable
and continuance of such default for five days;
(3) failure on the part of the Company to duly observe or
perform any other of the covenants or agreements on the part of the
Company contained in the Notes or in this Indenture for a period of 90
days after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the Trustee
by registered mail, or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Notes at the time
outstanding;
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(4) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any indebtedness of the Company, whether such indebtedness now exists or
is created hereafter, which default (a) is caused by a failure to pay
principal of such indebtedness after notice and the lapse of any
applicable grace period provided in such indebtedness on the date of such
default (a "payment default") or (b) results in the acceleration of such
indebtedness prior to its express maturity (and such acceleration is not
rescinded, or such indebtedness is not repaid, within 30 days) and, in
each case, the principal amount of any such indebtedness, together with
the principal amount of any other such indebtedness under which there has
been a payment default or the maturity of which has been so accelerated
(and such acceleration is not rescinded, or such indebtedness is not
repaid, within 30 days), aggregates $15,000,000;
(5) one or more judgments in an aggregate amount in excess of
$15,000,000 not covered by adequate insurance shall have been rendered
against the Company and the judgments remain undischarged, unpaid or
unstayed for a period of 60 days after the judgment or judgments become
final and nonappealable;
(6) the entry of a decree or order by a court having
jurisdiction over the Company for relief in respect of the Company under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable federal or state bankruptcy, insolvency
or other similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official of the Company or
of any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(7) the filing by the Company with respect to itself or its
property of a petition or answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other applicable federal or state bankruptcy, insolvency or other
similar law, or the consent by it to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Company or of
any substantial part of its property, or the failure of the Company
generally to pay its debts as such debts become due, or the taking of
corporate action by the Company to effectuate any such action;
then and in each and every such case, unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the Holders of
a majority in aggregate principal amount of the Notes then outstanding, by
notice in writing to the Company (and to the Trustee if given by Noteholders),
may declare the principal of all the Notes to be due and payable immediately and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided the Company shall
pay or shall
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deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all of the Notes and the principal of and any premium on any and
all Notes which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, to the extent that payment of such
interest is enforceable under applicable law, and on such principal and
applicable premium at the rate borne by the Notes to the date of such payment or
deposit) and all sums paid or advanced by the Trustee hereunder, the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.06 hereof,
and any and all defaults under this Indenture, other than the non-payment of
principal of and accrued interest on Notes which shall have become due solely by
acceleration of maturity, shall have been cured or waived, then and in every
such case such payment or deposit shall cause an automatic waiver of the Event
of Default and its consequences and shall cause an automatic rescission and
annulment of the acceleration of the Notes; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceeding had been
taken.
SECTION 7.02. PAYMENT OF NOTES ON DEFAULT; SUIT THEREFOR.
(a) The Company covenants that in case of:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any of the Notes as and when the same shall have become due and
payable whether at the stated maturity thereof, upon redemption thereof
(provided that such redemption is not conditioned upon the deposit of
sufficient moneys for such redemption), upon declaration of acceleration
or otherwise and continuation of such default for a period of five days;
then, upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Notes, the whole amount that then shall have so
become due and payable on all such Notes for principal and any premium or
interest, or both, as the case may be, with interest upon the overdue principal
and any premium and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Notes; and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, any
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expenses or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith, and any other amounts due the Trustee under Section
8.06 hereof.
(b) If the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on such series of Notes wherever situated, the moneys adjudged
or decreed to be payable.
(c) If there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under the
United States Bankruptcy Code or any other applicable law, or in case a receiver
or trustee shall have been appointed for the property of the Company or such
other obligor, or in the case of any similar judicial proceedings relative to
the Company or other obligor upon the Notes, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to this Section 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing and
unpaid in respect of the Notes, and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any amounts due
to the Trustee under Section 8.06 hereof) and of the Holders of Notes allowed in
such judicial proceedings relative to the Company or any other obligor on the
Notes, its or their creditors, or its or their property, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of its charges and expenses.
(d) All claims and rights of action under this Indenture, or under any
of the Notes, may be enforced by the Trustee without the possession of any of
the Notes, or the production thereof in any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the Holders of the Notes in respect
of which such action was taken.
(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent or to accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Noteholder in any such proceeding.
SECTION 7.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to any of the Notes pursuant to this
Article Seven shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys, upon presentation of
the several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid.
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FIRST: To the payment of all amounts due to the Trustee pursuant to
Section 8.06 hereof;
SECOND: If the principal of the outstanding Notes in respect of which
such moneys have been collected shall not have become due and be unpaid,
to the payment of interest on the Notes, in the order of the maturity of
the installments of such interest, with interest (to the extent allowed
by law and to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate borne by
the Notes, such payments to be made ratably to the persons entitled
thereto, and then to the payment to the Holders entitled thereto of the
unpaid principal of and applicable premium on any of the Notes which
shall have become due (other than Notes previously called for redemption
for the payment of which moneys are held pursuant to the provisions of
this Indenture), whether at stated maturity or by redemption, in the
order of their due dates, beginning with the earliest due date, and if
the amount available is not sufficient to pay in full all Notes due on
any particular date, then to the payment thereof ratably, according to
the amounts of principal and applicable premium due on that date, to the
Holders entitled thereto, without any discrimination or privilege;
THIRD: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon
the Notes for principal and any premium and interest thereon, with
interest on the overdue principal and any premium and (to the extent
allowed by law and to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the rate borne by
the Notes; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Notes, then to the payment of
such principal and any premium and interest without preference or
priority of principal and any premium over interest, or of interest over
principal and any premium or of any installment of interest over any
other installment of interest, or of any Note over any other Note,
ratably to the aggregate of such principal and any premium and accrued
and unpaid interest; and
FOURTH: to the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the
same, or as a court of competent jurisdiction may determine.
SECTION 7.04. PROCEEDINGS BY NOTEHOLDERS.
(a) No Holder of any Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to such Note and of the continuance
thereof, as hereinabove provided, and unless also Noteholders of a majority in
aggregate principal amount of the Notes then outstanding affected by such Event
of Default shall have made written request upon the Trustee to
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institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding.
(b) Notwithstanding any other provision in this Indenture, however,
the rights of any Holder of any Note to receive payment of the principal of and
any premium and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 7.05. PROCEEDINGS BY TRUSTEE. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted to it under this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 7.06. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies
given by this Article Seven to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any powers
and remedies hereof or of any other powers and remedies available to the Trustee
or the Holders of the Notes, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder of any of
the Notes in exercising any right or power accruing upon any default occurring
and continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to Section 7.04 hereof, every power and remedy given by this Article
Seven or by law to the Trustee or to the Noteholders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders.
SECTION 7.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY
OF NOTEHOLDERS. The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; provided, that
(subject to Section 8.01 hereof) the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall determine that the action or proceeding so directed
would involve the Trustee in personal liability or would be unduly prejudicial
to the rights of Noteholders not joining in such directions. The Holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of all of the Holders of the Notes waive any past default or Event of
Default hereunder and its consequences except a default in the payment of
principal of or any premium or interest on the
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Notes. Upon any such waiver the Company, the Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this
Section 7.07, said default or Event of Default shall for all purposes of the
Notes and this Indenture be deemed to have been cured and to be not continuing.
SECTION 7.08. NOTICE OF DEFAULT. The Trustee shall, within 90 days after
the occurrence of a default, give to all Holders of the Notes, in the manner
provided in section 14.10, notice of such default, unless such default shall
have been cured before the giving of such notice. For the purpose of this
Section 7.08, the term "default" means any event which is or after notice or
lapse of time or both would become an Event of Default; provided that, except in
the case of default in the payment of the principal of or any premium or
interest on any of the Notes, or in the payment of any sinking or purchase fund
installments, the Trustee shall be protected in withholding such notice if and
so long as it in good faith determines that the withholding of such notice is in
the interests of the Holders of the Notes. The Trustee shall not be charged with
knowledge of any default or Event of Default unless a Responsible Officer of the
Trustee shall have actual knowledge of such default or Event of Default.
SECTION 7.09. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Note by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but this Section 7.09 shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in principal amount of the Notes
outstanding, or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of or any premium or interest on any Note on or
after the due date expressed in such Note or the applicable redemption date.
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
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(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and after the
curing or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or officers of the Trustee,
unless it shall be conclusively proved by a court of competent
jurisdiction beyond all applicable appeals that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
Section 7.07 hereof relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture.
SECTION 8.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 8.01 hereof:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
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(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance upon such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders, pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by such
exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
outstanding Notes; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it;
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents, attorneys,
custodians or nominees; provided that the Trustee shall not be liable for the
supervision, conduct or acts of any such agent, attorney, custodian or nominee
that shall have been appointed in accordance herewith with due care;
(i) the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Indenture;
(j) no permissive power or authority available to the Trustee shall be
construed as a duty;
(k) the Trustee shall have no duty to monitor the performance of the
Company, nor shall it have any liability in connection with the malfeasance or
nonfeasance by the Company; and
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(l) in the event that the Trustee is also acting as paying agent or
registrar hereunder, the rights, protections, immunities and indemnities
afforded to the Trustee pursuant to this Article 8 shall also be afforded to
such paying agent and registrar.
SECTION 8.03. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Notes (except in the certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with this Indenture. The Trustee shall not be
responsible for recording or filing this Indenture, any supplemental indenture,
or any financing or continuation statement in any public office at any time or
times.
SECTION 8.04. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR REGISTRAR
MAY OWN NOTES. The Trustee and any Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not Trustee, Authenticating Agent or paying
agent.
SECTION 8.05. MONEYS TO BE HELD IN TRUST. Subject to Section 4.04
hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
SECTION 8.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
law in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and agents, including any
Authenticating Agents, and of all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee and its officers,
directors, employees and agents for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the acceptance or
administration of this Indenture, including the costs and expenses of defending
itself against any claim or liability. The obligations of the Company under this
Section 8.06 to compensate the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Notes upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of any
particular Notes. When the Trustee incurs expenses or renders services in
connection with an Event of Default as set forth in Sections 7.01(a)(4) or (5)
such expenses (including the fees and expenses of its counsel and agents) and
the compensation for such services are intended to constitute expenses of
administration
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under any bankruptcy law or law relating to creditors rights generally. The
obligations of the Company set forth in this Section 8.06 shall survive the
payment in full of all amounts due and owing hereunder and under the Notes, the
termination and discharge of this Indenture or the earlier resignation or
removal of the Trustee.
SECTION 8.07. OFFICER'S CERTIFICATE AS EVIDENCE. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking, suffering
or omitting of any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, and the Trustee shall be
entitled to receive, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by, an
Officer's Certificate delivered to the Trustee, and such Officers' Certificate,
in the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under this Indenture in reliance thereon.
SECTION 8.08. CONFLICTING INTEREST OF TRUSTEE. The Trustee shall be
subject to and shall comply with the provisions of Section 310 of the TIA;
provided that, to the extent permitted by law, the Trustee shall not be deemed
to have a conflicting interest for purposes of Section 310(b) of the TIA because
of its capacity as trustee under (i) the Junior Subordinated Indenture, as
supplemented by a Supplemental Indenture No. 1, each dated as of March 1, 1997
and a related Guarantee Agreement dated as of March 1,1997 and (ii) the
Indenture dated as of October 1, 1998 and a related Preferred Securities
Guarantee Agreement dated as of October 1, 1998. Nothing in this Indenture
shall be deemed to prohibit the Trustee or the Company from making any
application permitted pursuant to such section.
SECTION 8.09. EXISTENCE AND ELIGIBILITY OF TRUSTEE. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia (or a corporation or other Person
permitted to act as trustee by the Commission), subject to supervision or
examination by such bodies and authorized under such laws to exercise corporate
trust powers and having a combined capital and surplus of at least $150,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid authority, then for the purposes
of this Section 8.09, the combined capital and surplus shall be deemed to be as
set forth in its most recent report of condition so published. No obligor upon
the Notes or Person directly or indirectly controlling, controlled by, or under
common control with such obligor shall serve as Trustee. If at any time the
Trustee shall cease to be eligible in accordance with this Section 8.09, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.10 hereof.
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article Eight, the Trustee may
at any time resign and be discharged of the trusts created by this Indenture by
giving written notice to the Company
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specifying the day upon which such resignation shall take effect, and such
resignation shall take effect immediately upon the later of the appointment of a
successor trustee and such day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
outstanding Notes or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and
no event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would become an Event of Default, the Company may remove
any Trustee upon written notice to the Holder of each Note outstanding and the
Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible in
accordance with Section 8.09 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (2) the Trustee shall fail to comply with Section 8.08
hereof after written request therefor by the Company or any such Holder, or (3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Trustee may be removed forthwith by an instrument or concurrent instruments in
writing filed with the Trustee and either:
(1) signed by the President or any Vice President of the
Company and attested by the Secretary or an Assistant Secretary of the
Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of outstanding Notes or by their attorneys in fact duly
authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.11 hereof.
SECTION 8.11. APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be removed, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
Successor Trustee to the Holder of each Note outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 8.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
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(d) Any Trustee appointed under this Section 8.11 as a successor
Trustee shall be a bank or trust company eligible under Section 8.09 hereof and
qualified under Section 8.08 hereof.
SECTION 8.12. ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in Section 8.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 8.06 hereof, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such Trustee to secure any amounts then
due it pursuant to Section 8.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 8.08 hereof and eligible under Section 8.09 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 8.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
SECTION 8.13. SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article Eight.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificates
of
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the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 8.14. LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall be subject to, and shall comply with, the provisions of
Section 311 of the TIA.
SECTION 8.15. AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 12.04 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 8.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or other Person of the character and qualifications set forth in Section
8.09 hereof.
(b) Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 8.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 8.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
14.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance with Section 8.06
hereof.
(e) Sections 8.02, 8.03, 8.06, 8.07 and 8.09 hereof shall be
applicable to any Authenticating Agent.
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ARTICLE NINE
CONCERNING THE NOTEHOLDERS
SECTION 9.01. ACTION BY NOTEHOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Noteholders in person or by agent or proxy appointed in
writing, (b) by the record of such Noteholders voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with Article Ten
hereof, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders.
SECTION 9.02. PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 8.01, 8.02 and 10.05 hereof, proof of the
execution of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the
manner provided in Section 10.06 hereof.
SECTION 9.03. WHO DEEMED ABSOLUTE OWNERS. Subject to Sections 2.04(f)
and 5.01 hereof, the Company, the Trustee, any paying agent and any
Authenticating Agent shall deem the person in whose name any Note shall be
registered upon the register for the Notes to be, and shall treat such person
as, the absolute owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the principal and
premium, if any, and interest on such Note, and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Authenticating
Agent shall be affected by any notice to the contrary. All such payments shall
be valid and effectual to satisfy and discharge the liability upon any such Note
to the extent of the sum or sums so paid.
SECTION 9.04. COMPANY-OWNED NOTES DISREGARDED. In determining whether
the Holders of the requisite aggregate principal amount of outstanding Notes
have concurred in any direction, consent or waiver under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Notes shall
be disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Notes which a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Notes so owned which have been pledged in
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good faith to third parties may be regarded as outstanding for the purposes of
this Section 9.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to take action with respect to such Notes and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 9.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. Except as
may be otherwise required in the case of a Global Note by the applicable rules
and regulations of the Depositary, at any time prior to the taking of any action
by the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at the Corporate
Trust Office of the Trustee and upon proof of ownership as provided in Section
9.02(a) hereof, revoke such action so far as it concerns such Note. Except as
aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange, substitution or upon registration of
transfer therefor, irrespective of whether or not any notation thereof is made
upon such Note or such other Notes.
SECTION 9.06. RECORD DATE FOR NOTEHOLDER ACTS. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after the record
date, but only the Noteholders of record at the close of business on the record
date shall be deemed to be Noteholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
outstanding Notes shall be computed as of the record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other act
by the Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to this Indenture not later than six months after the
record date. Any such record date shall be at least 30 days prior to the date of
the solicitation to the Noteholders by the Company.
ARTICLE TEN
NOTEHOLDERS' MEETING
SECTION 10.01. PURPOSES OF MEETINGS. A meeting of Noteholders may be
called at any time and from time to time pursuant to this Article Ten for any of
the following purposes:
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(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any Event of
Default hereunder and its consequences, or to take any other action authorized
to be taken by Noteholders pursuant to Article Seven;
(b) to remove the Trustee pursuant to Article Eight;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 12.02 hereof; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Notes, as the
case may be, under any other provision of this Indenture or under applicable
law.
SECTION 10.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Holders of Notes to take any action specified in Section 10.01
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given to Holders of the Notes that may be
affected by the action proposed to be taken at such meeting in the manner
provided in Section 14.10 hereof. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. If at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, shall have requested
the Trustee to call a meeting of Noteholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Noteholders may determine the
time and the place for such meeting and may call such meeting to take any action
authorized in Section 10.01 hereof, by giving notice thereof as provided in
Section 10.02 hereof.
SECTION 10.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
SECTION 10.05. REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Noteholders in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and
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duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by the Noteholders as provided in Section 10.03 hereof, in which
case the Company or Noteholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by the Holders of a majority
in aggregate principal amount of the Notes present in person or by proxy at the
meeting.
(c) Subject to Section 9.04 hereof, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that no vote shall be cast or
counted at any meeting in respect of any Note ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Notes held by such chairman or instruments in
writing as aforesaid duly designating such chairman as the person to vote on
behalf of other Noteholders. At any meeting of Noteholders duly called pursuant
to Section 10.02 or 10.03 hereof, the presence of persons holding or
representing Notes in an aggregate principal amount sufficient to take action on
any business for the transaction for which such meeting was called shall
constitute a quorum. Any meeting of Noteholders duly called pursuant to Section
10.02 or 10.03 hereof may be adjourned from time to time by the Holders of a
majority in aggregate principal amount of the Notes present in person or by
proxy at the meeting, whether or not constituting a quorum, and the meeting may
be held as so adjourned without further notice.
SECTION 10.06. VOTING. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes or of their representatives by proxy and
the principal amount of Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of such meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 10.02 hereof. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 10.07. RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED. Nothing in
this Article Ten shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call,
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any hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders of Notes under any of the provisions
of this Indenture or of the Notes.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other corporation or sell,
or otherwise dispose of all or substantially all of its assets unless the
corporation formed by such consolidation or into which the Company is merged or
the Person which receives all or substantially all of the assets pursuant to
such sale, transfer or other disposition (a) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium and interest on all of the Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed and (b) deliver to the Trustee an Officer's Certificate and an Opinion
of Counsel each stating that all conditions precedent to such action, if any,
provided for in this Indenture have been satisfied. For purposes of this
Article Eleven, the phrase "ALL OR SUBSTANTIALLY ALL OF ITS ASSETS" shall mean
50% or more of the total assets of the Company as shown on the balance sheet of
the Company as of the end of the calendar year immediately preceding the day of
the year in which such determination is made and nothing in this Indenture shall
prevent or hinder the Company from selling, transferring or otherwise disposing
during any calendar year (in one transaction or a series of transactions) less
than 50% of the amount of its total assets as shown on the balance sheet of the
Company as of the end of the immediately preceding calendar year.
Notwithstanding anything to the contrary herein, nothing in this Indenture shall
prevent (i) the merger of the Company with and into a subsidiary of Sierra
Pacific Resources pursuant to the Agreement and Plan of Merger dated as of April
29, 1998; provided that such surviving corporation assumes the Company's
obligations under the Notes and this Indenture in the manner described above or
(ii) the disposition by the Company of its generating assets and related
property pursuant to the condition contained in the order of the Public Utility
Commission of Nevada approving the merger with Sierra Pacific Resources referred
to in clause (i).
SECTION 11.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any sale, transfer or other disposition of all or substantially
all of the assets of the Company in accordance with Section 11.01 hereof, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
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SECTION 12.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) The Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders, for the purpose of supplying any omission, curing any
ambiguity, or curing, correcting or supplementing any defective or
inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Note outstanding created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Notes issued after the effective date of such change or
elimination;
(3) to establish the form of Notes as permitted by Section 2.01
hereof or to establish or reflect any terms of any Note determined
pursuant to Section 2.05 hereof;
(4) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Notes;
(5) to grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed
upon it by law;
(7) to specify further the duties and responsibilities of, and
to define further the relationships among the Trustee, any
Authenticating Agent and any paying agent;
(8) to add to the covenants of the Company for the benefit of
the Holders, to add to the security for the Notes or to surrender a
right or power conferred on the Company herein;
(9) to add to or modify any transfer restrictions or securities
legends as set forth herein; and
(10) to make any other change that is not prejudicial to the
Trustee or the Holders.
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(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or indemnities under this
Indenture or otherwise.
(c) Any supplemental indenture authorized by this Section 12.01 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time outstanding, notwithstanding any of the provisions
of Section 12.02 hereof.
SECTION 12.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section 9.01 hereof) of
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
(1) change the maturity date of any Note, or reduce the rate or
extend the time of payment of interest thereon, or reduce the principal
amount thereof or any premium thereon, or change the coin or currency in
which the principal of any Note or any premium or interest thereon is
payable, or change the date on which any Note may be redeemed or
adversely affect the rights of the Noteholders to institute suit for the
enforcement of any payment of principal of or any premium or interest on
any Note, in each case without the consent of the Holder of each Note so
affected; or
(2) modify this Section 12.02(a) to reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to any
such supplemental indenture or to reduce the percentage of Notes, the
Holders of which are required to waive Events of Default, in each case,
without the consent of the Holders of all of the Notes then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Noteholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties, immunities or indemnities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
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(c) It shall not be necessary for the consent of the Holders of Notes
under this Section 12.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 12.02, the Trustee shall give
notice in the manner provided in Section 14.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 12.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. From and after the TIA Qualification Date, any
supplemental indenture executed pursuant to this Article Twelve shall comply
with the TIA. Upon the execution of any supplemental indenture pursuant to this
Article Twelve, the Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 12.04. NOTATION ON NOTES. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article Twelve may
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as approved by the Trustee and the Board of Directors with respect to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Notes then outstanding.
SECTION 12.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TO THE TRUSTEE. The Trustee, subject to Sections 8.01 and 8.02 hereof,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Twelve.
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of or any premium or interest on any
Note or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in this Indenture, or in any supplemental indenture, or in any Note or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, either directly
or through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
SECTION 14.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
SECTION 14.03. NOTICES.
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Noteholders
on the Company may be given or served by being deposited postage prepaid in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) at the principal executive offices of the Company, to the
attention of the Secretary. Any notice, direction, request or demand by any
Noteholder or the Company to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
(b) The Company shall provide any notices required under this
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any series of Notes is listed.
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SECTION 14.04. GOVERNING LAW. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 14.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenants compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates delivered
pursuant to Section 5.05 hereof) shall include (1) a statement that each Person
making such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of each such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any opinion of counsel delivered
hereunder may contain standard exceptions and qualifications satisfactory to the
Trustee.
60
<PAGE>
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
independent public accountant or firm of accountants, unless such officer or
counsel, as the case may be, knows that the certificate or opinions or
representations with respect to the accounting matters upon which the
certificate, statement or opinion of such officer or counsel may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate or opinion of any firm of
independent public accountants filed with the Trustee shall contain a
statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 14.06. BUSINESS DAYS. Unless otherwise provided pursuant to
Section 2.05(c) hereof, in any case where the date of maturity of the principal
of or any premium or interest on any Note or the date fixed for redemption of
any Note is not a Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and affect as if made on the date of maturity
or the date fixed for redemption, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of the Note is required to be paid.
SECTION 14.07. TRUST INDENTURE ACT TO CONTROL. From and after the TIA
Qualification Date, if and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the TIA, such required provision of the TIA shall govern.
SECTION 14.08. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents
and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 14.09. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
SECTION 14.10. MANNER OF MAILING NOTICE TO NOTEHOLDERS. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or the Company to or on the Holders of Notes, as
the case may be, shall be given or served by first-class mail, postage prepaid,
addressed to the Holders of such Notes at their last addresses as the same
appear on the register for the Notes referred to in Section 2.06, and any such
notice shall be deemed to be given or served by being deposited in a post office
letter box in the form and manner provided in this Section 14.10. In case by
reason of the suspension of regular mail service or by reason of any other cause
it shall be impracticable to give notice to any Holder by mail,
61
<PAGE>
then such notification to such Holder as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 14.11. TRANSFEREES OF INITIAL PURCHASERS. Any rights of notice
or rights to receive information of the Initial Purchasers as may be contained
herein shall also be conferred upon the initial transferees of the Initial
Purchasers.
SECTION 14.12. APPROVAL BY TRUSTEE OF EXPERT OR COUNSEL. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
62
<PAGE>
IN WITNESS WHEREOF, NEVADA POWER COMPANY has caused this Senior
Unsecured Note Indenture to be signed and acknowledged by one of its Vice
Presidents, and attested by its Secretary, and IBJ Whitehall Bank & Trust
Company has caused this Indenture to be signed and acknowledged by one of its
Vice Presidents, and attested by one of its Vice Presidents, as of the day and
year first written above.
NEVADA POWER COMPANY
By:
-------------------------------------
ATTEST:
Secretary
IBJ WHITEHALL BANK & TRUST
COMPANY, as Trustee
By:
-------------------------------------
ATTEST:
Vice President
63
<PAGE>
EXHIBIT A
FORM OF GLOBAL NOTE
REGISTERED REGISTERED
[INCLUDE IF NOTE IS A GLOBAL NOTE DEPOSITED WITH THE DEPOSITARY -- UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF
DEPOSITARY], TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE IS REGISTERED IN THE NAME OF [INSERT NAME OF NOMINEE OF
DEPOSITORY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] (AND ANY PAYMENT IS MADE TO
[INSERT NAME OF NOMINEE OF DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY]), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [INSERT NAME OF NOMINEE OF
DEPOSITORY], HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF [INSERT NAME OF DEPOSITARY] OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.]
[INSERT LEGEND SPECIFIED IN SECTION 2.14 IF REQUIRED]
NEVADA POWER COMPANY
__% SENIOR UNSECURED NOTE, SERIES __ DUE _____
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
INITIAL INTEREST PAYMENT DATE:
NEVADA POWER COMPANY, a corporation of the State of Nevada (the
"COMPANY"), for value received hereby promises to pay to [Nominee of Depositary]
or registered assigns, the principal sum of
A-1
<PAGE>
DOLLARS
on the Maturity Date set forth above, premium, if any, and to pay interest
thereon from the Original Issue Date (or if this Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount to which that
Original Issue Date is applicable) set forth above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on the ____________ and ____________ in each year,
commencing on the Initial Interest Payment Date set forth above, at the per
annum Interest Rate set forth above, until the principal hereof is paid or made
available for payment. No interest shall accrue on the Maturity Date, so long
as the principal amount of this Global Note is paid on the Maturity Date. The
interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note is registered at the close of business on the Regular
Record Date for such interest, which shall be the ____________ or the
_____________, as the case may be, next preceding such Interest Payment Date;
provided, that the first Interest Payment Date for any part of this Note, the
Original Issue Date of which is after a Regular Record Date but prior to the
applicable Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date; and provided, that interest payable on
the Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be payable.
Except as otherwise provided in the Indenture (as defined below), any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Noteholders not more than fifteen
days or fewer than ten days prior to such Special Record Date. On or before
10:00 a.m., New York City time, or such other time as shall be agreed upon
between the Trustee and the Depositary, of the day on which such payment of
interest is due on this Global Note (other than maturity), the Trustee shall pay
to the Depositary such interest in same day funds. On or before 10:00 a.m., New
York City time, or such other time as shall be agreed upon between the Trustee
and the Depositary, of the day on which principal, interest payable at maturity
and premium, if any, is due on this Global Note, the Trustee shall deposit with
the Depositary the amount equal to the principal, interest payable at maturity
and premium, if any, by wire transfer into the account specified by the
Depositary. As a condition to the payment, on the Maturity Date or upon
redemption or acceleration, of any part of the principal and applicable premium
of this Global Note, the Depositary shall surrender, or cause to be surrendered,
this Global Note to the Trustee, whereupon a new Global Note shall be issued to
the Depositary.
This Global Note is a global security in respect of a duly authorized
issue of __% Senior Unsecured Notes, Series ___ Due _____ (the "NOTES OF THIS
SERIES", which term includes any Global Notes representing such Notes) of the
Company issued and to be issued under a Senior Unsecured Note Indenture dated as
of March 1, 1999 between the Company and IBJ Whitehall Bank & Trust Company, as
trustee (herein called the "TRUSTEE", which term includes any successor Trustee
under the Indenture) and indentures supplemental thereto (collectively, the
"INDENTURE").
A-2
<PAGE>
Under the Indenture, one or more series of notes may be issued and, as used
herein, the term "Notes" refers to the Notes of this Series and any other
outstanding series of Notes. Reference is hereby made for a more complete
statement of the respective rights, limitations of rights, duties and immunities
under the Indenture of the Company, the Trustee and the Noteholders and of the
terms upon which the Notes are and are to be authenticated and delivered. This
Global Note has been issued in respect of the series designated on the first
page hereof, limited in aggregate principal amount to $_____________.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date or Dates.
Each Note or Global Note issued upon transfer, exchange or substitution of such
Note or Global Note shall bear the Original Issue Date or Dates of such
transferred, exchanged or substituted Note or Global Note, as the case may be.
[As applicable, one of the following two sentences or other redemption
provisions established in an indenture supplement: This Global Note may not be
redeemed prior to _____________________, ______. This Global Note is not
redeemable prior to the Maturity Date set forth on the first page hereof.] [If
applicable: On or after ____________, 20__, this Global Note is redeemable in
whole or in part in increments of $1,000 (provided that any remaining principal
amount of this Global Note shall be at least $100,000) at the option of the
Company at the following redemption prices (expressed as a percentage of the
principal amount to be redeemed) plus accrued interest to the redemption date:
REDEMPTION PERIODS REDEMPTION PRICES
Notice of redemption will be given by mail to Holders of Notes of this Series
not less than 30 or more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. In the event of redemption of this Global
Note in part only, a new Global Note or Notes of like tenor and series for the
unredeemed portion hereof will be issued in the name of the Noteholder hereof
upon the surrender hereof.]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. In any case where any Interest
Payment Date or date on which the principal of this Global Note is required to
be paid is not a Business Day, then payment of principal, premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date or
date on which the principal of this Global Note is required to be paid and, in
the case of timely payment thereof, no interest shall accrue for the period from
and after such Interest Payment Date or the date on which the principal of this
Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations
A-3
<PAGE>
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, or a combination of money and
U.S. Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Notes on the dates such payments are due in accordance with the terms of the
Notes.
If an Event of Default shall occur and be continuing, the principal of
the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to this Global Note. If a successor Depositary for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes of this Series in
A-4
<PAGE>
exchange for this Global Note, will authenticate and deliver individual Notes
of this Series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of this Global Note.
The Company may at any time and in its sole discretion determine that all
Notes of this Series (but not less than all) issued or issuable in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company shall execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Notes of
this Series in exchange for such Global Note, shall authenticate and deliver,
individual Notes of this Series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary
may be required to surrender any two or more Global Notes which have identical
terms (but which may have differing Original Issue Dates) to the Trustee, and
the Company shall execute and the Trustee shall authenticate and deliver to, or
at the direction of, the Depositary a Global Note in principal or amount equal
to the aggregate principal amount of, and with all terms identical to, the
Global Notes surrendered thereto and that shall indicate all Original Issue
Dates and the principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
indicated herein.
A-5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NEVADA POWER COMPANY
Dated: By:
-----------------------------
Title:
------------------------
Attest:
- -------------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY, as
Trustee
By:
-----------------------------
Authorized Officer
A-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
-------- -----------
(Cust) (Minor)
TEN ENT -- as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in common
--------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- ---------------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
-------------------------------- --------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
A-7
<PAGE>
TRANSFER NOTICE
[TO BE INCLUDED IF SERIES OF NOTE
IS NOT REGISTERED UNDER THE SECURITIES ACT]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______ _______________________________________________ whose taxpayer
identification number is _________________________________________ and whose
address including postal/zip code is
_______________________________________________________________________________
the within Note and all rights thereunder, hereunder irrevocably constituting
and appointing ____________________________________________ attorney-in-fact to
transfer said Note on the books of the Company with full power of substitution
in the premises.
In connection with the transfer of this Note, the undersigned certifies
that:
(Check one)
/ / This Note is being transferred to a person the undersigned
reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) (a "QIB") acquiring
such Notes for its own account or as a fiduciary or agent for
others (which others are also QIBs) and such person has been given
notice that the transfer is being made in reliance on Rule 144A.
/ / This Note is being transferred outside the United States in
compliance with Rule 904 of Regulation S under the Securities Act.
/ / This Note is being transferred to an "institutional accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) pursuant to another available exemption
under the Securities Act.
/ / This Note is being transferred to Nevada Power Company, [Name of
Initial Purchasers]
/ / This Note is being transferred pursuant to the exemption from
registration provided by Rule 144 under the Securities Act.
/ / This Note is being transferred pursuant to a registration
statement that has been declared effective under the Securities
Act.
Dated: Name:
--------------------- -----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
<PAGE>
EXHIBIT B
FORM OF NOTE
[INSERT LEGEND SPECIFIED IN SECTION 2.14 IF REQUIRED]
REGISTERED REGISTERED
NEVADA POWER COMPANY
__% SENIOR UNSECURED NOTE, SERIES ___ DUE _____
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
INITIAL INTEREST PAYMENT DATE:
NEVADA POWER COMPANY, a corporation of the State of Nevada (the
"COMPANY"), for value received hereby promises to pay to
__________________________ or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, premium, if any, and to pay interest
thereon from the Original Issue Date set forth above or from the most recent
date to which interest has been paid or duly provided for, semiannually in
arrears on _____________ and ______________ in each year, commencing on the
Initial Interest Payment Date set forth above, at the per annum Interest Rate
set forth above, until the principal hereof is paid or made available for
payment. No interest shall accrue on the Maturity Date, so long as the
principal amount of this Note is paid in full on the Maturity Date. The
interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture (as defined below), be
paid to the Person in whose name this Note is registered at the close of
business on the Regular Record Date for such interest, which shall be the
__________ or __________, as the case may be, next preceding such Interest
Payment Date; provided that the first Interest Payment Date for any Note, the
Original Issue Date of which is after a Regular Record Date but prior to the
applicable Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date; and provided, that interest payable on
the Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be payable.
Except as otherwise provided in the Indenture (referred to on the reverse
hereof), any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
shall
B-2
<PAGE>
be paid to the Person in whose name this Note is registered at the close of
business on a Special Record Date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be given to Noteholders not more
than fifteen days nor fewer than ten days prior to such Special Record Date.
Principal, applicable premium and interest due at the maturity of this Note
shall be payable in immediately available funds when due upon presentation and
surrender of this Note at the Corporate Trust Office of the Trustee or at the
authorized office of any paying agent in the Borough of Manhattan, the City and
State of New York. Interest on this Note (other than interest payable at
maturity) shall be paid by check in clearinghouse funds to the Holder as its
name appears on the register; provided, that if the Trustee receives a written
request from any Holder of Notes (as defined below), the aggregate principal
amount of all of which having the same Interest Payment Date as this Note equals
or exceeds $1,000,000, on or prior to the applicable Regular Record Date,
interest on the Note shall be paid by wire transfer of immediately available
funds to a bank within the continental United States (designated by such Holder
in its request or by direct deposit into the account of such Holder designated
by such Holder in its request if such account is maintained with the Trustee or
any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
B-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: NEVADA POWER COMPANY
By:
--------------------------------
Title:
-----------------------------
ATTEST:
- ------------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
IBJ WHITEHALL BANK &
TRUST COMPANY, as Trustee
By:
---------------------------
AUTHORIZED OFFICER
B-4
<PAGE>
[FORM OF REVERSE OF NOTE]
NEVADA POWER COMPANY
__% SENIOR UNSECURED NOTE, SERIES __ DUE _____
This Note is one of a duly authorized issue of __% Senior Unsecured
Notes, Series __ Due _____ (the "NOTES OF THIS SERIES") of the Company issued
and to be issued under a Senior Unsecured Note Indenture dated as of March 1,
1999 between the Company and IBJ Whitehall Bank & Trust Company, as trustee
(herein called the "TRUSTEE", which term includes any successor Trustee under
the Indenture) and indentures supplemental thereto (collectively, the
"INDENTURE"). Under the Indenture, one or more series of notes may be issued
and, as used herein, the term "Notes" refers to the Notes of this Series and
any other outstanding series of Notes. Reference is hereby made for a more
complete statement of the respective rights, limitations of rights, duties and
immunities under the Indenture of the Company, the Trustee and the Noteholders
and of the terms upon which the Notes are and are to be authenticated and
delivered. This Note is one of the series designated on the face hereof,
limited in aggregate principal amount to $________________.
[As applicable, one of the following two sentences or other redemption
provisions established in an indenture supplement: This Note may not be
redeemed prior to ________________, 20__. This Note is not redeemable prior to
the Maturity Date set forth on the face hereof.] [If applicable: On or after
______________, this Note is redeemable in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Note shall be at
least $1,000) at the option of the Company at the following redemption prices
(expressed as a percentage of the principal amount to be redeemed) plus accrued
interest to the redemption date:
REDEMPTION PERIODS REDEMPTION PRICES
Notice of redemption will be given by mail to Holders of Notes of this Series
not less than 30 or more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. In the event of redemption of this Note in
part only, a new Note or Notes of this Series of like tenor for the unredeemed
portion hereof will be issued in the name of the Noteholder hereof upon the
surrender hereof.]
Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months. In any case where any Interest
Payment Date or the date on which the principal of this Note is required to be
paid is not a Business Day, then payment of principal, premium or interest need
not be made on such date but may be made on the next succeeding Business Day
with the same force and effect as if made on such Interest Payment Date or the
date on which the principal of this Note is required to be paid, and, in the
case of timely payment thereof, no interest shall accrue for the period from and
after such Interest Payment Date or the date on which the principal of this
Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain
B-5
<PAGE>
obligations including obligations to register the transfer or exchange of Notes,
replace stolen, lost or mutilated Notes, maintain paying agencies and hold
moneys for payment in trust, all as set forth in the Indenture) if the Company
deposits with the Trustee money, U.S. Government Obligations which through the
payment of interest thereon and principal thereof in accordance with their
terms will provide money, or a combination of money and U.S. Government
Obligations, in any event in an amount sufficient, without reinvestment, to pay
all the principal of and any premium and interest on the Notes on the dates
such payments are due in accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of
the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu thereof whether
or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of this Series of like tenor and of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees.
B-6
<PAGE>
The Notes of this Series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this Series are exchangeable for a like aggregate principal amount of
Notes of this Series of like tenor and of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
B-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
------------- ---------------
(Cust) (Minor)
TEN ENT -- as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in common
---------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of
assignee
- --------------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
-------------------------------- --------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
B-8
<PAGE>
TRANSFER NOTICE
[TO BE INCLUDED IF SERIES OF NOTE
IS NOT REGISTERED UNDER THE SECURITIES ACT]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ whose taxpayer
identification number is _________________________________________ and whose
address including postal/zip code is __________________________________the
within Note and all rights thereunder, hereunder irrevocably constituting and
appointing ____________________________________________ attorney-in-fact to
transfer said Note on the books of the Company with full power of substitution
in the premises.
In connection with the transfer of this Note, the undersigned certifies
that:
(Check one)
/ / This Note is being transferred to a person the undersigned
reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) (a "QIB") acquiring
such Notes for its own account or as a fiduciary or agent for
others (which others are also QIBs) and such person has been given
notice that the transfer is being made in reliance on Rule 144A.
/ / This Note is being transferred outside the United States in
compliance with Rule 904 of Regulation S under the Securities Act.
/ / This Note is being transferred to an "institutional accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) pursuant to another available exemption
under the Securities Act.
/ / This Note is being transferred to Nevada Power Company, [Name of
Initial Purchasers]
/ / This Note is being transferred pursuant to the exemption from
registration provided by Rule 144 under the Securities Act.
/ / This Note is being transferred pursuant to a registration
statement that has been declared effective under the Securities
Act.
Dated: Name:
--------------------- ----------------------------
By:
----------------------------
Title:
----------------------------
B-9
<PAGE>
EXHIBIT C
FORM OF RESTRICTED PERIOD CERTIFICATE
[DATE]
The Depository Trust Company
55 Water Street
New York, NY 10041
IBJ Whitehall Bank & Trust Company,
as Trustee
Attn: Corporate Trust Administration
Re: Nevada Power Company __% Series Senior Unsecured Notes Series A
Due ____ (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Senior Unsecured Note Indenture dated as
of March 1, 1999 (the "Indenture") between Nevada Power Company and IBJ
Whitehall Bank & Trust Company, as Trustee. Capitalized terms used and not
defined herein shall have the meanings given them in the Indenture.
This letter is related to U.S.$___________ principal amount of the Notes
presented by the Restricted Regulation S Global note, held by the Trustee
pursuant to Section 2.13 of the Indenture. We hereby certify that the offering
of the Notes has closed and that the distribution compliance period (as defined
in Regulation S) with respect to the offer and sale of the Notes has terminated.
NEVADA POWER COMPANY
By:
------------------------------
Name:
Title:
cc: Euroclear
CEDEL Bank
C-1
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL NOTE
TO RESTRICTED REGULATION S GLOBAL NOTE
(Transfers or exchanges pursuant to Section 2.13(b)(ii) of the Indenture)
IBJ Whitehall Bank & Trust Company
Attn: Corporate Trust Administration
Re: Nevada Power Company __% Senior Unsecured Notes Series A Due ___
(the "Notes")
Reference is hereby made to the Senior Unsecured Note Indenture dated as
of March 1, 1999 (the "Indenture") between Nevada Power Company (the "Issuer")
and IBJ Whitehall Bank & Trust Company, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S.$______________ principal amount of the Notes
which are held into the form of [the Rule 144A (CUSIP NO. [__________] with the
Depositary] in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer or exchange of such [beneficial interest]
[Note] for an interest in the Restricted Regulation S Global Note (CINS No.
___________) to be held with [Euroclear] [Cedel Bank] (common Code ___________)
through the Depositary.
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
in accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Regulation S under the Securities
Act, and accordingly the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the United
States;
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States,](*)
- -----------------------
(*) Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
D-1
<PAGE>
[(2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States,]*
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903 or 904 of Regulation S, as applicable,
and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
----------------------
cc: Nevada Power Company
- ---------------------
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
D-2
<PAGE>
EXHIBIT E
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL NOTE
NOTE TO UNRESTRICTED REGULATION S GLOBAL NOTE
(Exchanges or transfers pursuant to
Section 2.13(b)(iii) of the Indenture)
IBJ Whitehall Bank & Trust Company
Attn: Corporate Trust Administration
Re: Nevada Power Company __% Senior Unsecured Notes Series A Due ___
(the "Notes")
Reference is hereby made to the Senior Unsecured Note Indenture dated as
of March 1, 1999 (the "Indenture") between Nevada Power Company (the "Issuer")
and IBJ Whitehall Bank & Trust Company, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S. $_____________ principal amount of the Notes
which are held in the form of [the Rule 144A (CUSIP No. [_______] with the
Depositary] in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested an exchange or transfer of such [beneficial interest in
the Note] [Note] for an interest in the Unrestricted Regulation S Global
Security (CUSIP No. _________).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
in accordance with the transfer restrictions set forth in the Indenture and the
Notes; and:
(i) with respect to transfers made in reliance on Regulation S
under the Securities Act, the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in
the United States;
[(2) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the
transferee was outside the United States,]*
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States,]*
E-1
<PAGE>
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903 or 904 of Regulation
S, as applicable, and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, certify that the Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act,
(iii) with respect to transfers made in reliance on another exemption
from the Securities Act, the following is the basis for the exemption:
______________________________, and
(iv) with respect to an exchange, either (x) the Note being exchanged
is not a "restricted security" as defined in Rule 144 under the Securities Act
or (y) the exchange is being made to facilitate a contemporaneous transfer that
complies with Section 2.13(b)(iii) of the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated:
-----------------------
cc: Nevada Power Company
- -------------------
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
E-2
<PAGE>
EXHIBIT F
FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE FROM
RESTRICTED REGULATION S GLOBAL NOTE OR UNRESTRICTED REGULATION S
GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Exchanges or transfers pursuant to Section 2.13(b)(iv) of the Indenture)
IBJ Whitehall Bank & Trust Company
Attn: Corporate Trust Administration
Re: Nevada Power Company __% Senior Unsecured Notes Series A Due ___
(the "Notes")
Reference is hereby made to the Senior Unsecured Note Indenture dated as
of March 1, 1999 (the "Indenture") between Nevada Power Company (the "Issuer")
and IBJ Whitehall Bank & Trust Company, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S. $_____________ principal amount of the Notes
which are held in the form of [the [Restricted] [Unrestricted] Regulation S
Global Note with [Euroclear] [Cedel Bank] (Common Code _______________)] [with
the Depositary (CUSIP No. _____________)] in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer or
exchange of such [beneficial interest] [Note] for an interest in the Rule 144A
Global Note.
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred or
exchanged in accordance with (i) the transfer restrictions set forth in the
Indenture and the Notes and (ii) Rule 144A under the Securities Act to a
transferee that the Transferor reasonably believes is purchasing the Notes for
its own account or as an agent or fiduciary for others with respect to which
account the transferee exercises sole investment discretion and the transferee
and any such account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
F-1
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated:
------------------
cc: Nevada Power Company
F-2
<PAGE>
CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(A) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
<S> <C> <C>
310 (a)(1) 8.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
310 (a)(2) 8.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
310 (a)(3) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
310 (a)(4) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
310 (a)(5) 8.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
310 (b) 8.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
310 (c) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
311 (a) 8.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
311 (b) 8.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
311 (c) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
312 (a) 6.01(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
312 (b) 6.01(b). . . . . . . . . . . . . . . . . . . . . . . . . . .33-34
312 (c) 6.01(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
313 (a) 6.03(a). . . . . . . . . . . . . . . . . . . . . . . . . . .35-36
313 (b) 6.03(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
313 (c) 6.03(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
313 (d) 6.03(c) and 6.03(d). . . . . . . . . . . . . . . . . . . . . . 36
314 (a) 5.05, 6.02(a), 6.02(b) and 6.02(c) . . . . . . . . . . . 33;34-35
314 (b) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
314 (c)(1) Definition of Officer's Certificate and 14.05(a) . . . . . . 5;58
314 (c)(2) Definition of Opinion of Counsel and 14.05 . . . . . . . . . 5;58
314 (c)(3) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
314 (d)(1) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
314 (d)(2) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
314 (d)(3) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
314 (e) 14.05(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
314 (f) NOT APPLICABLE . . . . . . . . . . . . . . . . . . . . . . . . --
315 (a) 8.01 and 8.02. . . . . . . . . . . . . . . . . . . . . . . .42-44
315 (b) 7.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
315 (c) 8.01(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
315 (d) 8.01(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
315 (e) 7.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
316 (a) 7.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . .41-42
9.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12.02. . . . . . . . . . . . . . . . . . . . . . . . . . . .55-56
316 (b) 7.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . .40-41
9.06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12.02. . . . . . . . . . . . . . . . . . . . . . . . . . . .55-56
316 (c) 9.06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
317 (a)(1) 7.02(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
317 (a)(2) 7.02(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
317 (b) 4.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . .32-33
318 (a) 14.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS
SECTION 1.01. GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.03. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE TWO FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. FORM GENERALLY.. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . . . . . . . . 10
SECTION 2.03. AMOUNT UNLIMITED.. . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.04. DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES. . . . . . . 11
SECTION 2.05. EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . . . . . . . 12
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES . . . . . . . . . . . 15
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN NOTES . . . . . . . . . . . . . 16
SECTION 2.08. TEMPORARY NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.09. CANCELLATION OF NOTES PAID, ETC. . . . . . . . . . . . . . . . . . . 17
SECTION 2.10. INTEREST RIGHTS PRESERVED. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.11. SPECIAL RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.12. PAYMENT OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.13. GLOBAL NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.14. TRANSFER RESTRICTION . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE THREE REDEMPTION OF NOTES
SECTION 3.01. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF NOTES . . . . . . . . . . . . . . 27
SECTION 3.03. PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF
REDEMPTION PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FOUR SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 4.01. SATISFACTION AND DISCHARGE.. . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. . . . . . . . . . . 31
SECTION 4.03. PAYING AGENT TO REPAY MONEYS HELD. . . . . . . . . . . . . . . . . . 31
SECTION 4.04. RETURN OF UNCLAIMED MONEYS . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FIVE PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . . . . . . 31
SECTION 5.02. OFFICE FOR NOTICES AND PAYMENTS, ETC.. . . . . . . . . . . . . . . . 31
SECTION 5.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE . . . . . . . . . 32
SECTION 5.04. PROVISION AS TO PAYING AGENT . . . . . . . . . . . . . . . . . . . . 32
-i-
<PAGE>
ARTICLE SIX NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. NOTEHOLDER LISTS . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.02. REPORTS BY THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.03. REPORTS BY THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE SEVEN REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.02. PAYMENT OF NOTES ON DEFAULT; SUIT THEREFOR . . . . . . . . . . . . . 38
SECTION 7.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE.. . . . . . . . . . . . . 39
SECTION 7.04. PROCEEDINGS BY NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.05. PROCEEDINGS BY TRUSTEE.. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.06. REMEDIES CUMULATIVE AND CONTINUING . . . . . . . . . . . . . . . . . 41
SECTION 7.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF NOTEHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.08. NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.09. UNDERTAKING TO PAY COSTS . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE EIGHT CONCERNING THE TRUSTEE
SECTION 8.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE . . . . . . . . . . . . . . . 42
SECTION 8.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC . . . . . . . . . . . . . . . . 43
SECTION 8.03. NO RESPONSIBILITY FOR RECITALS, ETC. . . . . . . . . . . . . . . . . 45
SECTION 8.04. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR
REGISTRAR MAY OWN NOTES. . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.05. MONEYS TO BE HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.06. COMPENSATION AND EXPENSES OF TRUSTEE.. . . . . . . . . . . . . . . . 45
SECTION 8.07. OFFICER'S CERTIFICATE AS EVIDENCE. . . . . . . . . . . . . . . . . . 46
SECTION 8.08. CONFLICTING INTEREST OF TRUSTEE. . . . . . . . . . . . . . . . . . . 46
SECTION 8.09. EXISTENCE AND ELIGIBILITY OF TRUSTEE . . . . . . . . . . . . . . . . 46
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE. . . . . . . . . . . . . . . . . . 46
SECTION 8.11. APPOINTMENT OF SUCCESSOR TRUSTEE . . . . . . . . . . . . . . . . . . 47
SECTION 8.12. ACCEPTANCE BY SUCCESSOR TRUSTEE. . . . . . . . . . . . . . . . . . . 47
SECTION 8.13. SUCCESSION BY MERGER, ETC. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.14. LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR . . . . . . . . . . . 48
SECTION 8.15. AUTHENTICATING AGENT . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE NINE CONCERNING THE NOTEHOLDERS
SECTION 9.01. ACTION BY NOTEHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.02. PROOF OF EXECUTION BY NOTEHOLDERS. . . . . . . . . . . . . . . . . . 50
SECTION 9.03. WHO DEEMED ABSOLUTE OWNERS . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.04. COMPANY-OWNED NOTES DISREGARDED. . . . . . . . . . . . . . . . . . . 50
SECTION 9.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND . . . . . . . . . . . . 50
SECTION 9.06. RECORD DATE FOR NOTEHOLDER ACTS. . . . . . . . . . . . . . . . . . . 51
ARTICLE TEN NOTEHOLDERS' MEETING
SECTION 10.01. PURPOSES OF MEETINGS. . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.02. CALL OF MEETINGS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. . . . . . . . . . . . . 52
SECTION 10.04. QUALIFICATIONS FOR VOTING . . . . . . . . . . . . . . . . . . . . . 52
-ii-
<PAGE>
SECTION 10.05. REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.06. VOTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.07. RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED. . . . . . . . . . . . 53
ARTICLE ELEVEN CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS . . . . . . . . 53
SECTION 11.02. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . . . . . . . 54
ARTICLE TWELVE SUPPLEMENTAL INDENTURES
SECTION 12.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 12.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS . . . . . . . . 55
SECTION 12.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 12.04. NOTATION ON NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE
TO BE FURNISHED TO THE TRUSTEE. . . . . . . . . . . . . . . . . . . 57
ARTICLE THIRTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS . . . . . . . . . 57
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<PAGE>
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS
SECTION 14.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS . . . . . . . . . . . . 57
SECTION 14.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION . . . . . . . . . . . . . . 57
SECTION 14.03. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 14.04. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 14.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT . . . . . . . . . 58
SECTION 14.06. BUSINESS DAYS. . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 14.07. TRUST INDENTURE ACT TO CONTROL . . . . . . . . . . . . . . . . . . 59
SECTION 14.08. TABLE OF CONTENTS, HEADINGS, ETC . . . . . . . . . . . . . . . . . 59
SECTION 14.09. EXECUTION IN COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . 60
SECTION 14.10. MANNER OF MAILING NOTICE TO NOTEHOLDERS. . . . . . . . . . . . . . 60
SECTION 14.11. TRANSFEREES OF INITIAL PURCHASERS. . . . . . . . . . . . . . . . . 60
SECTION 14.12. APPROVAL BY TRUSTEE OF EXPERT OR COUNSEL . . . . . . . . . . . . . 60
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
EXHIBIT A Form of Global Note . . . . . . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B Form of Note. . . . . . . . . . . . . . . . . . . . . . . . . . . .B-1
EXHIBIT C Form of Restricted Period Certificate . . . . . . . . . . . . . . .C-1
EXHIBIT D Form of Transfer Certificate for Transfer or Exchange From
Rule 144A Global Note to Restricted Regulation S
Global Note . . . . . . . . . . . . . . . . . . . . . . . . . . . .D-1
EXHIBIT E Form of Transfer Certificate for Transfer or Exchange
From Rule 144A Global Note to Unrestricted Regulation S
Global Note . . . . . . . . . . . . . . . . . . . . . . . . . . . .E-1
EXHIBIT F Form of Transfer Certificate for Transfer or Exchange From
Restricted Regulation S Global Note or Unrestricted
Regulation S Global Note. . . . . . . . . . . . . . . . . . . . . .F-1
</TABLE>
-v-
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1
FROM
NEVADA POWER COMPANY
TO
IBJ WHITEHALL BANK & TRUST COMPANY
TRUSTEE
DATED AS OF
MARCH 1, 1999
SUPPLEMENTAL TO SENIOR UNSECURED NOTE INDENTURE
DATED AS OF MARCH 1, 1999
<PAGE>
SUPPLEMENTAL INDENTURE No. 1, made as of the 1st day of March, 1999, by and
between NEVADA POWER COMPANY, a corporation duly organized and existing under
the laws of the State of Nevada (the "Company"), and IBJ Whitehall Bank & Trust
Company, a banking corporation duly organized and existing under the laws of the
State of New York, as trustee (the "Trustee"):
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered its Senior
Unsecured Note Indenture (hereinafter referred to as the "Indenture"), made as
of March 1, 1999; and
WHEREAS, Section 2.05 of the Indenture provides that Notes shall be issued
in series and that a Company Order shall specify the terms of each series; and
WHEREAS, the Company has delivered a Company Order setting forth the terms
of a series of Notes designated "6.20 % Senior Unsecured Notes, Series A Due
April 15, 2004" (hereinafter sometimes referred to as the "Series A Notes"); and
WHEREAS, Section 12.01 of the Indenture provides that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes, among
others, of establishing the form of Notes or establishing or reflecting any
terms of any Note and adding to the covenants of the Company; and
WHEREAS, the execution and delivery of this Supplemental Indenture No. 1
(herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to set forth the terms and conditions upon which the Series A
Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises of the purchase and acceptance of the Series A
Notes by the Holders thereof and the sum of one dollar duly paid to it by the
Trustee at the execution of this Supplemental Indenture, the receipt whereof is
hereby acknowledged, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective Holders from time to time of
the Series A Notes, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 This Supplemental Indenture constitutes an integral part of
the Indenture.
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<PAGE>
SECTION 1.02 For all purposes of this Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
6.20% SENIOR UNSECURED NOTES, SERIES A DUE APRIL 15, 2004
SECTION 2.01 There shall be a series of Notes designated the " 6.20% Senior
Unsecured Notes, Series A due April 15, 2004" (the "Series A Notes"). The Series
A Notes shall be limited to $130,000,000 aggregate principal amount outstanding.
SECTION 2.02 Except as otherwise provided in Section 2.05 or Section 2.06
hereof, the principal amount of the Series A Notes shall be payable on the
stated maturity date of April 15, 2004.
SECTION 2.03 The Series A Notes shall be dated their date of
authentication as provided in the Indenture and shall bear interest at the rate
of 6.20% per annum, payable semi-annually on April 15 and October 15 of each
year, commencing October 15, 1999. The Regular Record Dates with respect to such
interest payment dates shall be April 1 and October 1, respectively. Principal
and interest shall be payable to the persons and in the manner provided in
Sections 2.04 and 2.12 of the Indenture.
SECTION 2.04 The Series A Notes shall be payable at the Corporate Trust
Office of the Trustee and at the offices of such paying agents as the Company
may appoint by Company Order in the future.
SECTION 2.05 The Company, at its option, may redeem on any date all or,
from time to time, any part of the Series A Notes upon notice as provided in the
Indenture, at a redemption price equal to the greater of (i) 100% of the
principal amount of such Series A Notes to be redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon from and after the date of redemption discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 25 basis points, plus in each case accrued and
unpaid interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the
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<PAGE>
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Series A Notes to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Series A Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such third business day, (A) the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Trustee is unable to obtain at least four such
Reference Treasury Dealer Quotations, the average of all such Quotations
obtained.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices of the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Prudential Securities
Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
The Series A Notes shall not be subject to any sinking fund.
SECTION 2.06 The Series A Notes shall be issued in fully registered form
without coupons in denominations of $1,000 and integral multiples thereof.
SECTION 2.07 The Series A Notes shall not initially be registered under the
Securities Act. While the Series A Notes remain unregistered under the
Securities Act, the transfer restrictions set forth in Section 2.14 of the
Indenture shall apply to the transfer of the Senior Notes and the Legend
required by Section 2.14 of the Indenture shall be required to be placed on each
certificate
3
<PAGE>
representing the Notes until such time as said restrictions are no longer
applicable to the Series A Notes.
SECTION 2.08 The Series A Notes shall initially be in the form attached as
Exhibit A hereto.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01 (a) So long as any Series A Notes are outstanding, the Company
will not issue, assume or guarantee any debt for money borrowed ("Debt") that is
secured by any mortgage, security interest, pledge or lien (herein referred to
as a "lien") of or upon any Operating Property of the Company, whether owned at
the date of the Indenture or thereafter acquired, and will not permit to exist
any Debt secured by a lien on any Operating Property, without in any such case
effectively securing, on the later to occur of the issuance, assumption or
guaranty of any such Debt, the outstanding Series A Notes (together with, if the
Company shall so determine, any other Notes or indebtedness or obligation of or
guaranteed by the Company ranking senior to, or equally with, the Series A Notes
and then existing or thereafter created) equally and ratably with such Debt;
provided, however, that the foregoing restriction shall not apply to Debt
secured by any of the following:
(1) Liens on any property existing at the time of acquisition
thereof;
(2) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company, or at the time
of a sale, lease or other disposition of the properties of such corporation
or a division thereof as an entirety or substantially as an entirety to the
Company, provided that such mortgage as a result of such merger,
consolidation, sale, lease or other disposition is not extended to property
owned by the Company immediately prior thereto;
(3) Liens on property to secure all or part of the cost of acquiring,
substantially repairing or altering, constructing, developing or
substantially improving such property, or to secure indebtedness incurred
to provide funds for any such purpose or for reimbursement of funds
previously expended for any such purpose, provided such mortgages are
created or assumed contemporaneously with, or within 18 months after, such
acquisition or completion of substantial repair or alteration,
construction, development or substantial improvement or within six months
thereafter pursuant to a commitment for financing arranged with a lender or
investor within such 18 month period;
(4) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof, or for
the benefit of holders of securities issued by any such entity, to secure
any Debt incurred for the purpose of financing all or any part of the
purchase price or the cost of substantially repairing or altering,
constructing, developing or substantially improving the property subject to
such Liens;
4
<PAGE>
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien referred to in
the foregoing clauses (1) to (4), inclusive; provided, however, that the
principal amount of indebtedness secured thereby and not otherwise
authorized by said clauses (1) to (4), inclusive, shall not exceed the
principal amount of indebtedness, plus any premium or fee payable in
connection with any such extension, renewal or replacement, so secured at
the time of such extension, renewal or replacement; or
(6) the lien of the Indenture of Mortgage dated as of October 1, 1953
between the Company and Bankers Trust Company, as successor trustee, as
supplemented and amended, providing for the issuance of the Company's first
mortgage bonds.
(b) Notwithstanding the provisions of Section 3.01(a), and so long as any
Series A Notes are outstanding, the Company may issue, assume or guarantee Debt,
or permit to exist Debt, secured by Liens which would otherwise be subject to
the restrictions of Section 3.01(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 3.01(a) that would otherwise be
subject to the foregoing restrictions) and the Value of all Sale and Lease-Back
Transactions in existence at such time (other than any Sale and Lease-Back
Transaction that, if such Sale and Lease-Back Transaction had been a lien, would
have been permitted by Section 3.01(a), other than Sale and Lease-Back
Transactions permitted by Section 3.02 because the commitment by or on behalf of
the purchaser was obtained no later than 18 months after the later of events
described in clause (i) or (ii) of Section 3.02, and other than Sale and
Lease-Back Transactions as to which application of amounts have been made in
accordance with clause (z) of Section 3.02), does not at the time exceed the
greater of 15% of Net Tangible Assets or 15% of Capitalization.
(c) If at any time the Company shall issue, assume or guarantee any Debt
secured by any lien and if Section 3.01(a) requires that the outstanding Series
A Notes be secured equally and ratably with such Debt, the Company will promptly
execute, at its expense, any instruments necessary to so equally and ratably
secure such series of Notes and deliver the same to the Trustee along with:
(1) An Officer's Certificate stating that the covenant of the
Company contained in Section 3.01(a) has been complied with; and
(2) An Opinion of Counsel to the effect that such covenant has been
complied with, and that any instruments executed by the Company in the
performance of such covenant comply with the requirements of such
covenant.
In the event that the Company shall hereafter secure outstanding Series A
Notes equally and ratably with any other obligation or indebtedness (including
other Notes) pursuant to the provisions of this Section 3.01, the Trustee is
hereby authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to
enforce
5
<PAGE>
effectively the rights of the holders of such series of Notes so secured,
equally and ratably with such other obligation and indebtedness.
SECTION 3.02. So long as any Series A Notes are outstanding, the Company
will not enter into any Sale and Lease-Back Transaction with respect to any
Operating Property if the commitment by or on behalf of the purchaser is
obtained more than 18 months after the later of (i) the completion of the
acquisition, substantial repair or alteration, construction, development or
substantial improvement of such Operating Property or (ii) the placing in
operation of such Operating Property or of such Operating Property as so
substantially repaired or altered, constructed, developed or substantially
improved, unless (x) the Company would be entitled pursuant to Section 3.01(a)
to issue, assume or guarantee Debt secured by a lien on such Operating Property
without equally and ratably securing the Series A Notes and other indebtedness
as provided in said Section 3.01(a), or (y) the Company would be entitled
pursuant to Section 3.01(b), after giving effect to such Sale and Lease-Back
Transaction, to incur $1.00 of additional Debt secured by a lien (other than a
lien permitted by Section 3.01(a)) or (z) the Company shall apply or cause to be
applied, in the case of a sale or transfer for cash, an amount equal to the net
proceeds thereof (but not in excess of the net book value of such Operating
Property at the date of such sale or transfer) and, in the case of a sale or
transfer otherwise than for cash, an amount equal to the fair value (as
determined by the Board of Directors) of the Operating Property so leased, to
the retirement, within 180 days after the effective date of such Sale and
Lease-Back Transaction, of Notes or other Debt of the Company ranking senior to,
or equally with, the Notes; provided, however, that any such retirement of Notes
shall be in accordance with the terms and provisions of the Indenture and the
Notes and provided, further, that the amount to be applied to such retirement of
Notes or other Debt shall be reduced by an amount equal to the sum of (a) an
amount equal to the redemption price with respect to Notes delivered within such
180-day period to the Trustee for retirement and cancellation and (b) the
principal amount, plus any premium or fee paid in connection with any redemption
in accordance with the terms of other Debt voluntarily retired by the Company
within such 180-day period, excluding in each case retirements pursuant to
mandatory sinking fund or prepayment provisions and payments at maturity.
SECTION 3.03. For purposes of Section 3.01 and Section 3.02, the following
terms shall have the following meanings:
CAPITALIZATION: The term "Capitalization" shall mean the total of all the
following items appearing on, or included in, the balance sheet of the Company:
(1) liabilities for indebtedness maturing more than 12 months from
the date of determination; and
(2) common stock, preferred stock, capital surplus, premium on
capital stock, capital in excess of par value and retained
earnings (however the foregoing may be designated), less to the
extent not otherwise deducted, the cost of shares of capital
stock of the Company held in its treasury.
6
<PAGE>
Capitalization shall be determined in accordance with generally accepted
accounting principles and practices applicable to the type of business in which
the Company is engaged and that are approved by independent accountants
regularly retained by the Company, and may be determined as of a date not more
than 60 days prior to the happening of an event for which such determination is
being made.
DEBT: The term "Debt" shall mean any outstanding debt for money borrowed.
NET TANGIBLE ASSETS: The term "Net Tangible Assets" shall mean the amount
shown as total assets on the balance sheet of the Company, less the following:
(1) intangible assets including, but without limitation, such items
as goodwill, trademarks, trade names, patents and unamortized
debt discount and expense carried as an asset on said balance
sheet; and
(2) appropriate adjustments, if any, on account of minority
interests.
Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than 60 days prior to the happening of the event for which such
determination is being made.
OPERATING PROPERTY: The term "Operating Property" shall mean (i) any
interest in real property owned by the Company and (ii) any asset owned by the
Company that is depreciable in accordance with generally accepted accounting
principles.
SALE AND LEASE-BACK TRANSACTION: The term "Sale and Lease-Back Transaction"
shall mean any arrangement with any person providing for the leasing to the
Company of any Operating Property (except for temporary leases for a term,
including any renewal thereof, of not more than 24 months), which Operating
Property has been or is to be sold or transferred by the Company to such person.
VALUE: The term "Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (2) the net book value of
such property, as determined in accordance with generally accepted accounting
principles by the Company at the time of entering into such Sale and Lease-Back
Transaction, in either case multiplied by a fraction, the numerator of which
shall be equal to the number of full years of the term of the lease that is part
of such Sale and Lease-Back Transaction remaining at the time of determination
and the denominator of which shall be equal to the number of full years of such
term, without regard, in any case, to any renewal or extension options contained
in such lease.
7
<PAGE>
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 The recitals of fact herein and in the Series A Notes (except
the Trustee's Certificate) shall be taken as statements of the Company and shall
not be construed as made by the Trustee.
SECTION 4.02 This Supplemental Indenture shall be construed in connection
with and as a part of the Indenture.
SECTION 4.03 In case any one or more of the provisions contained in this
Supplemental Indenture or in the notes issued hereunder should be invalid,
illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 4.04 Whenever in this Supplemental Indenture either of the parties
hereto is named or referred to, this shall be deemed to include the successors
or assigns of such party, and all the covenants and agreements in this
Supplemental Indenture contained by or on behalf of the Company or by or on
behalf of the Trustee shall bind and inure to the benefit of the respective
successors and assigns of such parties, whether so expressed or not.
SECTION 4.05
(a) This Supplemental Indenture may be simultaneously executed in several
counterparts, and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Indenture were formulated, used and inserted in
this Supplemental Indenture for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.
8
<PAGE>
IN WITNESS WHEREOF, NEVADA POWER COMPANY has caused this Supplemental
Indenture No. 1 to be signed by its President or a Vice President, and attested
by its Secretary or an Assistant Secretary and IBJ Whitehall Bank & Trust
Company, has caused this Supplemental Indenture to be signed by its President or
a Vice President, and attested by a Vice President, this first day of March,
1999.
NEVADA POWER COMPANY
By:
------------------------------------
ATTEST:
- ------------------------------------
IBJ WHITEHALL BANK & TRUST COMPANY, Trustee
By:
-------------------------------------
Vice President
9
<PAGE>
FORM OF EXHIBIT A
FORM OF 6.20% SENIOR UNSECURED NOTE, SERIES A
DUE APRIL 15, 2004
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES IN
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<PAGE>
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, IF AVAILABLE, SUBJECT TO THE COMPANY AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
REGISTERED REGISTERED
NEVADA POWER COMPANY
6.20% SENIOR UNSECURED NOTE, SERIES A DUE APRIL 15, 2004
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): March 30, 1999 PRINCIPAL AMOUNT(S): $
INTEREST RATE: 6.20% MATURITY DATE: April 15, 2004
INITIAL INTEREST PAYMENT DATE: October 15, 1999
NEVADA POWER COMPANY, a corporation of the State of Nevada (the "COMPANY"),
for value received hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of
DOLLARS
on the Maturity Date set forth above, premium, if any, and to pay interest
thereon from the Original Issue Date (or if this Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount to which that
Original Issue Date is applicable) set forth above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on April 15 and October 15 in each year, commencing on
the Initial Interest Payment Date set forth above, at the per annum Interest
Rate set forth above, until the principal hereof is paid or made available for
payment. No interest shall accrue on the Maturity Date, so long as the principal
amount of this Global Note is paid on the Maturity Date.
The interest so payable and punctually paid or duly provided for on any
such Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be April 1 prior to April 15
or the October 1 prior to October 15, as the case may be, next preceding such
Interest Payment Date; provided that the first Interest Payment Date for any
part of this Note,
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<PAGE>
the Original Issue Date of which is after a Regular Record Date but prior to the
applicable Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date; and provided that interest payable on
the Maturity Date set forth above or, if applicable, upon redemption, repayment
or acceleration, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture (as defined below), any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Noteholders not more than fifteen
days or fewer than ten days prior to such Special Record Date. On or before
10:00 a.m., New York City time, or such other time as shall be agreed upon
between the Trustee and the Depositary, of the day on which such payment of
interest is due on this Global Note (other than maturity), the Trustee shall pay
to the Depositary such interest in same day funds. On or before 10:00 a.m., New
York City time, or such other time as shall be agreed upon between the Trustee
and the Depositary, of the day on which principal, interest payable at maturity
and premium, if any, is due on this Global Note, the Trustee shall deposit with
the Depositary the amount equal to the principal, interest payable at maturity
and premium, if any, by wire transfer into the account specified by the
Depositary. As a condition to the payment, on the Maturity Date or upon
redemption, repayment or acceleration, of any part of the principal and
applicable premium of this Global Note, the Depositary shall surrender, or cause
to be surrendered, this Global Note to the Trustee, whereupon a new Global Note
shall be issued to the Depositary.
This Global Note is a global security in respect of a duly authorized issue
of 6.20% Senior Unsecured Notes, Series A Due April 15, 2004 (the "NOTES OF THIS
SERIES", which term includes any Global Notes representing such Notes) of the
Company issued and to be issued under a Senior Unsecured Note Indenture and
Supplemental Indenture No. 1, each dated as of March 1, 1999 between the Company
and IBJ Whitehall Bank & Trust Company, as trustee (the "TRUSTEE", which term
includes any subsequent successor Trustee under the Indenture) and indentures
supplemental thereto (collectively, the "INDENTURE"). Under the Indenture, one
or more series of notes may be issued and, as used herein, the term "Notes"
refers to the Notes of this Series and any other outstanding series of Notes.
Reference is hereby made to the Indenture for a more complete statement of the
respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Global Note
has been issued in respect of the series designated on the first page hereof,
limited in aggregate principal amount to $130,000,000.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date or Dates.
Each Note or Global Note issued upon transfer, exchange or substitution of such
Note or Global Note shall bear the Original Issue Date or Dates of such
transferred, exchanged or substituted Note or Global Note, as the case may be.
The Company, at its option, may redeem from time to time, all or any part
of this Global Note at a redemption price equal to the greater of (i) 100% of
the principal amount of this Global Note to be redeemed and (ii) the sum of the
present values of the remaining scheduled payments of
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<PAGE>
principal and interest hereon discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 25 basis points, plus in each case accrued and unpaid
interest hereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes of this Series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of Notes of this Series.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such third business day, (A) the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Trustee is unable to obtain at least four such
Reference Treasury Dealer Quotations, the average of all such Quotations
obtained.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer" means each of Prudential Securities
Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner &
Smith Incorporated and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
Notice of redemption will be given by mail to Holders of Notes of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Global Note in part only, a new Global Note or Notes of like tenor
13
<PAGE>
and series for the unredeemed portion hereof will be issued in the name of the
Noteholder hereof upon the surrender hereof.
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or
date on which the principal of this Global Note is required to be paid is not a
Business Day, then payment of principal, premium or interest need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date or date on which the
principal of this Global Note is required to be paid and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of this Global Note is
required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made a written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
14
<PAGE>
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to this Global Note. If a successor Depositary for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes of this Series in exchange for this Global Note, will authenticate and
deliver individual Notes of this Series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of this
Global Note.
The Company may at any time and in its sole discretion determine that all
Notes of this Series (but not less than all) issued or issuable in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company shall execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Notes of
this Series in exchange for such Global Note, shall authenticate and deliver,
individual Notes of this Series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical terms
(but which may have differing Original Issue Dates) to the Trustee, and the
Company shall execute and the Trustee shall authenticate and deliver to, or at
the direction of, the Depositary a Global Note in principal amount equal to the
aggregate principal amount of, and with all terms identical to, the Global Notes
surrendered thereto and that shall indicate all Original Issue Dates and the
principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
15
<PAGE>
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
16
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NEVADA POWER COMPANY
By:
-------------------------------
Attest:
- ------------------------------
Secretary
Dated:
17
<PAGE>
TRUSTEE'S CERTIFICATION
OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
IBJ Whitehall Bank & Trust Company,
as Trustee
By:
-----------------------------
Authorized Officer
18
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
------- -------------
(Cust) (Minor)
TEN ENT -- as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in common -------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
-------------------------------------------------------------------------
- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- ----------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
--------------------- ---------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument
in every particular, without alteration
or enlargement or any change whatever.
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<PAGE>
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________ whose taxpayer
identification number is _________________________________________ and whose
address including postal/zip code is _________________________________________
___________________________________________________________ the within Note and
all rights thereunder, hereunder irrevocably constituting and appointing
____________________________________________ attorney-in-fact to transfer said
Note on the books of the Company with full power of substitution in the
premises.
In connection with the transfer of this Note, the undersigned certifies
that:
(Check one)
/ / This Note is being transferred to a person the undersigned reasonably
believes is a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) (a "QIB") acquiring such Notes for its own
account or as a fiduciary or agent for others (which others are also
QIBs) and such person has been given notice that the transfer is being
made in reliance on Rule 144A.
/ / This Note is being transferred outside the United States in compliance
with Rule 904 of Regulation S under the Securities Act.
/ / This Note is being transferred to an "institutional accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) pursuant to another available exemption under the
Securities Act.
/ / This Note is being transferred to Nevada Power Company, Prudential
Securities, Incorporated, PaineWebber Incorporated or Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
/ / This Note is being transferred pursuant to the exemption from
registration provided by Rule 144 under the Securities Act.
/ / This Note is being transferred pursuant to a registration statement
that has been declared effective under the Securities Act.
Dated: Name:
------------------- ----------------------------------
By:
----------------------------------
Title:
----------------------------------
20
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2
FROM
NEVADA POWER COMPANY
TO
IBJ WHITEHALL BANK & TRUST COMPANY
TRUSTEE
DATED AS OF
___________ 1, 1999
SUPPLEMENTAL TO SENIOR UNSECURED NOTE INDENTURE
DATED AS OF MARCH 1, 1999
<PAGE>
SUPPLEMENTAL INDENTURE No. 2, made as of the 1st day of _____, 1999, by and
between NEVADA POWER COMPANY, a corporation duly organized and existing under
the laws of the State of Nevada (the "Company"), and IBJ Whitehall Bank & Trust
Company, a banking corporation duly organized and existing under the laws of the
State of New York, as trustee (the "Trustee"):
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered its Senior
Unsecured Note Indenture (hereinafter referred to as the "Indenture"), made as
of March 1, 1999; and
WHEREAS, Section 2.05 of the Indenture provides that Notes shall be issued
in series and that a Company Order shall specify the terms of each series; and
WHEREAS, the Company has heretofore issued a series of Notes designated
"6.20 % Senior Unsecured Notes, Series A Due April 15, 2004" (hereinafter
sometimes referred to as the "Series A Notes"); and
WHEREAS, the Series A Notes were sold to a group consisting of Prudential
Securities Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (collectively the "Initial Purchasers"); and
WHEREAS, sales and transfers of the Series A Notes are restricted to
qualified institutional investors pursuant to Rule 144A under the Securities Act
and qualified buyers outside the United States pursuant to Regulation S under
the Securities Act; and
WHEREAS, the Company and the Initial Purchasers entered into an Exchange
and Registration Rights Agreement dated as of March 30, 1999 (the "Exchange
Agreement") pursuant to which the Company agreed, for the benefit of the holders
of the Series A Notes, to file a registration statement relating to an exchange
offer allowing the holders of the Series A Notes to exchange their transfer
restricted notes for an issue of a second series of notes that are identical in
all material respects to the Series A Notes except that the exchange notes will
not contain the transfer restrictions applicable to the Series A Notes and the
exchange notes would be registered under the Securities Act; and
WHEREAS, the Company has delivered a Company Order setting forth the terms
of a series of Notes designated 6.20% Senior Unsecured Notes, Series B Due
April 15, 2004" (hereinafter sometimes referred to as the "Series B Notes") to
be issued and delivered to the holders of the Series A Notes in exchange for the
tender and delivery of Series A Notes as described in the Exchange Agreement;
and
WHEREAS, Section 12.01 of the Indenture provides that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes, among
others, of establishing the form
1
<PAGE>
of Notes or establishing or reflecting any terms of any Note and adding to the
covenants of the Company; and
WHEREAS, the execution and delivery of this Supplemental Indenture No. 2
(herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to set forth the terms and conditions upon which the Series A
Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises of the purchase and acceptance of the Series A
Notes by the Holders thereof and the sum of one dollar duly paid to it by the
Trustee at the execution of this Supplemental Indenture, the receipt whereof is
hereby acknowledged, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective Holders from time to time of
the Series A Notes, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 This Supplemental Indenture constitutes an integral part of
the Indenture.
SECTION 1.02 For all purposes of this Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
6.20% SENIOR UNSECURED NOTES, SERIES B DUE APRIL 15, 2004
SECTION 2.01 There shall be a series of Notes designated the "6.20% Senior
Unsecured Notes, Series B due April 15, 2004" (the "Series B Notes"). The Series
B Notes shall be limited to $130,000,000 aggregate principal amount outstanding.
SECTION 2.02 Except as otherwise provided in Section 2.05 or Section 2.06
hereof, the principal amount of the Series B Notes shall be payable on the
stated maturity date of April 15, 2004.
SECTION 2.03 The Series B Notes shall be dated their date of authentication
as provided in the Indenture and shall bear interest at the rate of 6.20% per
annum, payable semi-annually on
2
<PAGE>
April 15 and October 15 of each year, commencing October 15, 1999. The Regular
Record Dates with respect to such interest payment dates shall be April 1 and
October 1, respectively. Principal and interest shall be payable to the persons
and in the manner provided in Sections 2.04 and 2.12 of the Indenture.
SECTION 2.04 The Series B Notes shall be payable at the Corporate Trust
Office of the Trustee and at the offices of such paying agents as the Company
may appoint by Company Order in the future.
SECTION 2.05 The Company, at its option, may redeem on any date all or,
from time to time, any part of the Series B Notes upon notice as provided in the
Indenture, at a redemption price equal to the greater of (i) 100% of the
principal amount of such Series B Notes to be redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon from and after the date of redemption discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 25 basis points, plus in each case accrued and
unpaid interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Series B Notes to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Series B Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such third business day, (A) the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Trustee is unable to obtain at least four such
Reference Treasury Dealer Quotations, the average of all such Quotations
obtained.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
3
<PAGE>
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices of the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Prudential Securities
Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
The Series B Notes shall not be subject to any sinking fund.
SECTION 2.06 The Series B Notes shall be issued in fully registered form
without coupons in denominations of $1,000 and integral multiples thereof.
SECTION 2.07 The Series B Notes shall be registered under the Securities
Act and the transfer restrictions set forth in Section 2.14 of the Indenture
shall not apply to the transfer of the Series B Notes and the Legend required by
Section 2.14 of the Indenture shall not be required to be placed on each
certificate representing the Series B Notes. Pursuant to Company Order the
Company shall execute and the Trustee shall authenticate and deliver Series B
Notes in $1,000 original principal amount in exchange for each $1,000 principal
amount of outstanding Series A Notes tendered by the holder thereof together
with completed letter of transmittal in the form attached hereto as Exhibit B;
incorporated herein by this reference.
SECTION 2.08 The Series B Notes shall initially be in the form attached as
Exhibit A hereto.
SECTION 2.09 For all purposes of the Indenture the Series A Notes and the
Series B Notes shall be treated as the same series and the holders of the Series
A Notes and the Series B Notes shall vote and consent together on all matters as
one class and none of the holders of the Series A Notes or the Series B Notes
shall have the right to vote or consent as a separate class on any matter.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01 (a) So long as any Series B Notes are outstanding, the Company
will not issue, assume or guarantee any debt for money borrowed ("Debt") that is
secured by any mortgage, security interest, pledge or lien (herein referred to
as a "lien") of or upon any Operating Property of the Company, whether owned at
the date of the Indenture or thereafter acquired, and will not permit to exist
any Debt secured by a lien on any Operating Property, without in any such case
effectively securing, on the later to occur of the issuance, assumption or
guaranty of any such Debt, the outstanding Series B Notes (together with, if the
Company shall so determine, any other Notes or
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<PAGE>
indebtedness or obligation of or guaranteed by the Company ranking senior to, or
equally with, the Series B Notes and then existing or thereafter created)
equally and ratably with such Debt; provided, however, that the foregoing
restriction shall not apply to Debt secured by any of the following:
(1) Liens on any property existing at the time of acquisition
thereof;
(2) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company, or at the time
of a sale, lease or other disposition of the properties of such corporation
or a division thereof as an entirety or substantially as an entirety to the
Company, provided that such mortgage as a result of such merger,
consolidation, sale, lease or other disposition is not extended to property
owned by the Company immediately prior thereto;
(3) Liens on property to secure all or part of the cost of acquiring,
substantially repairing or altering, constructing, developing or
substantially improving such property, or to secure indebtedness incurred
to provide funds for any such purpose or for reimbursement of funds
previously expended for any such purpose, provided such mortgages are
created or assumed contemporaneously with, or within 18 months after, such
acquisition or completion of substantial repair or alteration,
construction, development or substantial improvement or within six months
thereafter pursuant to a commitment for financing arranged with a lender or
investor within such 18 month period;
(4) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof, or for
the benefit of holders of securities issued by any such entity, to secure
any Debt incurred for the purpose of financing all or any part of the
purchase price or the cost of substantially repairing or altering,
constructing, developing or substantially improving the property subject to
such Liens;
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien referred to in
the foregoing clauses (1) to (4), inclusive; provided, however, that the
principal amount of indebtedness secured thereby and not otherwise
authorized by said clauses (1) to (4), inclusive, shall not exceed the
principal amount of indebtedness, plus any premium or fee payable in
connection with any such extension, renewal or replacement, so secured at
the time of such extension, renewal or replacement; or
(6) the lien of the Indenture of Mortgage dated as of October 1, 1953
between the Company and Bankers Trust Company, as successor trustee, as
supplemented and amended, providing for the issuance of the Company's first
mortgage bonds.
(b) Notwithstanding the provisions of Section 3.01(a), and so long as any
Series B Notes are outstanding, the Company may issue, assume or guarantee Debt,
or permit to exist Debt, secured by Liens which would otherwise be subject to
the restrictions of Section 3.01(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured
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<PAGE>
by Liens (other than Liens permitted by Section 3.01(a) that would otherwise be
subject to the foregoing restrictions) and the Value of all Sale and Lease-Back
Transactions in existence at such time (other than any Sale and Lease-Back
Transaction that, if such Sale and Lease-Back Transaction had been a lien, would
have been permitted by Section 3.01(a), other than Sale and Lease-Back
Transactions permitted by Section 3.02 because the commitment by or on behalf of
the purchaser was obtained no later than 18 months after the later of events
described in clause (i) or (ii) of Section 3.02, and other than Sale and
Lease-Back Transactions as to which application of amounts have been made in
accordance with clause (z) of Section 3.02), does not at the time exceed the
greater of 15% of Net Tangible Assets or 15% of Capitalization.
(c) If at any time the Company shall issue, assume or guarantee any Debt
secured by any lien and if Section 3.01(a) requires that the outstanding Series
B Notes be secured equally and ratably with such Debt, the Company will promptly
execute, at its expense, any instruments necessary to so equally and ratably
secure such series of Notes and deliver the same to the Trustee along with:
(1) An Officer's Certificate stating that the covenant of the
Company contained in Section 3.01(a) has been complied with; and
(2) An Opinion of Counsel to the effect that such covenant has been
complied with, and that any instruments executed by the Company in the
performance of such covenant comply with the requirements of such
covenant.
In the event that the Company shall hereafter secure outstanding Series B
Notes equally and ratably with any other obligation or indebtedness (including
other Notes) pursuant to the provisions of this Section 3.01, the Trustee is
hereby authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to
enforce effectively the rights of the holders of such series of Notes so
secured, equally and ratably with such other obligation and indebtedness.
SECTION 3.02. So long as any Series B Notes are outstanding, the Company
will not enter into any Sale and Lease-Back Transaction with respect to any
Operating Property if the commitment by or on behalf of the purchaser is
obtained more than 18 months after the later of (i) the completion of the
acquisition, substantial repair or alteration, construction, development or
substantial improvement of such Operating Property or (ii) the placing in
operation of such Operating Property or of such Operating Property as so
substantially repaired or altered, constructed, developed or substantially
improved, unless (x) the Company would be entitled pursuant to Section 3.01(a)
to issue, assume or guarantee Debt secured by a lien on such Operating Property
without equally and ratably securing the Series B Notes and other indebtedness
as provided in said Section 3.01(a), or (y) the Company would be entitled
pursuant to Section 3.01(b), after giving effect to such Sale and Lease-Back
Transaction, to incur $1.00 of additional Debt secured by a lien (other than a
lien permitted by Section 3.01(a)) or (z) the Company shall apply or cause to be
applied, in the case of a sale or transfer for cash, an amount equal to the net
proceeds thereof (but not in excess of the net book value of such Operating
Property at the date of such sale or transfer) and, in the case of a sale
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<PAGE>
or transfer otherwise than for cash, an amount equal to the fair value (as
determined by the Board of Directors) of the Operating Property so leased, to
the retirement, within 180 days after the effective date of such Sale and
Lease-Back Transaction, of Notes or other Debt of the Company ranking senior to,
or equally with, the Notes; provided, however, that any such retirement of Notes
shall be in accordance with the terms and provisions of the Indenture and the
Notes and provided, further, that the amount to be applied to such retirement of
Notes or other Debt shall be reduced by an amount equal to the sum of (a) an
amount equal to the redemption price with respect to Notes delivered within such
180-day period to the Trustee for retirement and cancellation and (b) the
principal amount, plus any premium or fee paid in connection with any redemption
in accordance with the terms of other Debt voluntarily retired by the Company
within such 180-day period, excluding in each case retirements pursuant to
mandatory sinking fund or prepayment provisions and payments at maturity.
SECTION 3.03. For purposes of Section 3.01 and Section 3.02, the following
terms shall have the following meanings:
CAPITALIZATION: The term "Capitalization" shall mean the total of all the
following items appearing on, or included in, the balance sheet of the Company:
(1) liabilities for indebtedness maturing more than 12 months from
the date of determination; and
(2) common stock, preferred stock, capital surplus, premium on
capital stock, capital in excess of par value and retained
earnings (however the foregoing may be designated), less to the
extent not otherwise deducted, the cost of shares of capital
stock of the Company held in its treasury.
Capitalization shall be determined in accordance with generally accepted
accounting principles and practices applicable to the type of business in which
the Company is engaged and that are approved by independent accountants
regularly retained by the Company, and may be determined as of a date not more
than 60 days prior to the happening of an event for which such determination is
being made.
DEBT: The term "Debt" shall mean any outstanding debt for money borrowed.
NET TANGIBLE ASSETS: The term "Net Tangible Assets" shall mean the amount
shown as total assets on the balance sheet of the Company, less the following:
(1) intangible assets including, but without limitation, such items
as goodwill, trademarks, trade names, patents and unamortized
debt discount and expense carried as an asset on said balance
sheet; and
(2) appropriate adjustments, if any, on account of minority
interests.
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<PAGE>
Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than 60 days prior to the happening of the event for which such
determination is being made.
OPERATING PROPERTY: The term "Operating Property" shall mean (i) any
interest in real property owned by the Company and (ii) any asset owned by the
Company that is depreciable in accordance with generally accepted accounting
principles.
SALE AND LEASE-BACK TRANSACTION: The term "Sale and Lease-Back Transaction"
shall mean any arrangement with any person providing for the leasing to the
Company of any Operating Property (except for temporary leases for a term,
including any renewal thereof, of not more than 24 months), which Operating
Property has been or is to be sold or transferred by the Company to such person.
VALUE: The term "Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (2) the net book value of
such property, as determined in accordance with generally accepted accounting
principles by the Company at the time of entering into such Sale and Lease-Back
Transaction, in either case multiplied by a fraction, the numerator of which
shall be equal to the number of full years of the term of the lease that is part
of such Sale and Lease-Back Transaction remaining at the time of determination
and the denominator of which shall be equal to the number of full years of such
term, without regard, in any case, to any renewal or extension options contained
in such lease.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 The recitals of fact herein and in the Series B Notes (except
the Trustee's Certificate) shall be taken as statements of the Company and shall
not be construed as made by the Trustee.
SECTION 4.02 This Supplemental Indenture shall be construed in connection
with and as a part of the Indenture.
SECTION 4.03 In case any one or more of the provisions contained in this
Supplemental Indenture or in the notes issued hereunder should be invalid,
illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 4.04 Whenever in this Supplemental Indenture either of the parties
hereto is named or referred to, this shall be deemed to include the successors
or assigns of such party, and all
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<PAGE>
the covenants and agreements in this Supplemental Indenture contained by or on
behalf of the Company or by or on behalf of the Trustee shall bind and inure to
the benefit of the respective successors and assigns of such parties, whether so
expressed or not.
SECTION 4.05
(a) This Supplemental Indenture may be simultaneously executed in several
counterparts, and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Indenture were formulated, used and inserted in
this Supplemental Indenture for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, NEVADA POWER COMPANY has caused this Supplemental
Indenture No. 2 to be signed by its President or a Vice President, and attested
by its Secretary or an Assistant Secretary and IBJ Whitehall Bank & Trust
Company, has caused this Supplemental Indenture to be signed by its President or
a Vice President, and attested by a Vice President, this first day of
__________, 1999.
NEVADA POWER COMPANY
By:
------------------------------------
ATTEST:
- ------------------------------------
IBJ WHITEHALL BANK & TRUST COMPANY, Trustee
By:
-------------------------------------
Vice President
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<PAGE>
EXHIBIT A
FORM OF 6.20% SENIOR UNSECURED NOTE, SERIES B
DUE APRIL 15, 2004
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
REGISTERED REGISTERED
NEVADA POWER COMPANY
6.20% SENIOR UNSECURED NOTE, SERIES B DUE APRIL 15, 2004
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): March 30, 1999 PRINCIPAL AMOUNT(S): $
INTEREST RATE: 6.20% MATURITY DATE: April 15, 2004
INITIAL INTEREST PAYMENT DATE: October 15, 1999
NEVADA POWER COMPANY, a corporation of the State of Nevada (the "COMPANY"),
for value received hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of
DOLLARS
on the Maturity Date set forth above, premium, if any, and to pay interest
thereon from the Original Issue Date (or if this Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount to which that
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<PAGE>
Original Issue Date is applicable) set forth above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on April 15 and October 15 in each year, commencing on
the Initial Interest Payment Date set forth above, at the per annum Interest
Rate set forth above, until the principal hereof is paid or made available for
payment. No interest shall accrue on the Maturity Date, so long as the principal
amount of this Global Note is paid on the Maturity Date.
The interest so payable and punctually paid or duly provided for on any
such Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be April 1 prior to April 15
or the October 1 prior to October 15, as the case may be, next preceding such
Interest Payment Date; provided that the first Interest Payment Date for any
part of this Note, the Original Issue Date of which is after a Regular Record
Date but prior to the applicable Interest Payment Date, shall be the Interest
Payment Date following the next succeeding Regular Record Date; and provided
that interest payable on the Maturity Date set forth above or, if applicable,
upon redemption, repayment or acceleration, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in the Indenture
(as defined below), any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date and shall be paid to the Person in whose name this Note is registered at
the close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to
Noteholders not more than fifteen days or fewer than ten days prior to such
Special Record Date. On or before 10:00 a.m., New York City time, or such other
time as shall be agreed upon between the Trustee and the Depositary, of the day
on which such payment of interest is due on this Global Note (other than
maturity), the Trustee shall pay to the Depositary such interest in same day
funds. On or before 10:00 a.m., New York City time, or such other time as shall
be agreed upon between the Trustee and the Depositary, of the day on which
principal, interest payable at maturity and premium, if any, is due on this
Global Note, the Trustee shall deposit with the Depositary the amount equal to
the principal, interest payable at maturity and premium, if any, by wire
transfer into the account specified by the Depositary. As a condition to the
payment, on the Maturity Date or upon redemption, repayment or acceleration, of
any part of the principal and applicable premium of this Global Note, the
Depositary shall surrender, or cause to be surrendered, this Global Note to the
Trustee, whereupon a new Global Note shall be issued to the Depositary.
This Global Note is a global security in respect of a duly authorized issue
of 6.20% Senior Unsecured Notes, Series B Due April 15, 2004 (the "NOTES OF THIS
SERIES", which term includes any Global Notes representing such Notes) of the
Company issued and to be issued under a Senior Unsecured Note Indenture dated as
of March 1, 1999 and Supplemental Indenture No. 2, dated as of ___________ 1,
1999 between the Company and IBJ Whitehall Bank & Trust Company, as trustee (the
"TRUSTEE", which term includes any subsequent successor Trustee under the
Indenture) and indentures supplemental thereto (collectively, the "INDENTURE").
Under the Indenture, one or more series of notes may be issued and, as used
herein, the term "Notes" refers to the Notes of this Series and any other
outstanding series of Notes. Reference is hereby made to the Indenture for a
more complete statement of the respective rights, limitations of rights, duties
and
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immunities under the Indenture of the Company, the Trustee and the Noteholders
and of the terms upon which the Notes are and are to be authenticated and
delivered. This Global Note has been issued in respect of the series designated
on the first page hereof, limited in aggregate principal amount to $130,000,000.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date or Dates.
Each Note or Global Note issued upon transfer, exchange or substitution of such
Note or Global Note shall bear the Original Issue Date or Dates of such
transferred, exchanged or substituted Note or Global Note, as the case may be.
The Notes of this Series are payable on a parity basis with the Company's
6.20% Senior Unsecured Notes, Series A Due April 15, 2004 (the "Series A Notes")
issued under the Senior Unsecured Note Indenture and Supplemental Indenture No.
1, dated as of March 1, 1999 issued in the aggregate principal amount of
$130,000,000. The Notes of this Series are being issued in exchange for a like
principal amount of Series A Notes and the combined aggregate principal amount
of the Notes of this Series and the Series A Notes outstanding at any one time
is limited to $130,000,000. Pursuant to the Indenture, the Series A Notes and
the Notes of this Series shall be treated as the same series and the holders of
the Series A Notes and the Notes of this Series shall vote and consent together
on all matters as one class and none of the holders of the Series A Notes or the
Notes of this Series shall have the right to vote or consent as a separate class
on any matter.
The Company, at its option, may redeem from time to time, all or any part
of this Global Note at a redemption price equal to the greater of (i) 100% of
the principal amount of this Global Note to be redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
hereon discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25
basis points, plus in each case accrued and unpaid interest hereon to the date
of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes of this Series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of Notes of this Series.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New
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<PAGE>
York and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not published
or does not contain such prices on such third business day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (B) if the Trustee is unable to obtain at least four such Reference Treasury
Dealer Quotations, the average of all such Quotations obtained.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer" means each of Prudential Securities
Incorporated, PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner &
Smith Incorporated and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
Notice of redemption will be given by mail to Holders of Notes of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Global Note in part only, a new Global Note or Notes of like tenor and series
for the unredeemed portion hereof will be issued in the name of the Noteholder
hereof upon the surrender hereof.
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or
date on which the principal of this Global Note is required to be paid is not a
Business Day, then payment of principal, premium or interest need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date or date on which the
principal of this Global Note is required to be paid and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of this Global Note is
required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in
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<PAGE>
an amount sufficient, without reinvestment, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made a written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to this Global Note. If a successor Depositary for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes of this Series in exchange for this Global Note, will authenticate and
deliver individual Notes of this Series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of this
Global Note.
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<PAGE>
The Company may at any time and in its sole discretion determine that all
Notes of this Series (but not less than all) issued or issuable in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company shall execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Notes of
this Series in exchange for such Global Note, shall authenticate and deliver,
individual Notes of this Series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical terms
(but which may have differing Original Issue Dates) to the Trustee, and the
Company shall execute and the Trustee shall authenticate and deliver to, or at
the direction of, the Depositary a Global Note in principal amount equal to the
aggregate principal amount of, and with all terms identical to, the Global Notes
surrendered thereto and that shall indicate all Original Issue Dates and the
principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NEVADA POWER COMPANY
By:
-------------------------------
Attest:
- ------------------------------
Secretary
Dated:
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<PAGE>
TRUSTEE'S CERTIFICATION
OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
IBJ Whitehall Bank & Trust Company,
as Trustee
By:
-----------------------------
Authorized Officer
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- Custodian
------- ----------------
(Cust) (Minor)
TEN ENT -- as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in common -------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
---------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- ------------------------------
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:
--------------------- ----------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
A-9
<PAGE>
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ whose taxpayer
identification number is _________________________________________ and whose
address including postal/zip code is ________________________________________
_____________________ the within Note and all rights thereunder, hereunder
irrevocably constituting and appointing______________________________________
_________________________ attorney-in-fact to transfer said Note on the books of
the Company with full power of substitution in the premises.
Dated: Name:
------------------- ----------------------------------
By:
----------------------------------
Title:
-----------------------------------
A-10
<PAGE>
EXHIBIT B
FORM OF TRANSMITTAL LETTER
PURSUANT TO THE PROSPECTUS DATED APRIL , 1999
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 1999, UNLESS EXTENDED (THE "EXPIRATION DATE").
NEVADA POWER COMPANY
LETTER OF TRANSMITTAL
6.20% SENIOR UNSECURED NOTES, SERIES B DUE APRIL 15, 2004
TO: IBJ WHITEHALL BANK & TRUST COMPANY
<TABLE>
<S> <C>
BY REGISTERED OR CERTIFIED MAIL: BY OVERNIGHT COURIER OR BY HAND:
IBJ Whitehall Bank & Trust Company IBJ Whitehall Bank & Trust Company
P.O. Box 84 One State Street
Bowling Green Station New York, NY 10004
New York, NY 10274-0084 Attention: Securities Processing Window
Attention: Reorganization Operations Department Subcellar One (SC-1)
</TABLE>
BY FACSIMILE:
(212) 858-2611
Confirm by Telephone: (212) 858-2103
Delivery of this instrument to an address other than as set forth above or
transmission of this instrument via a facsimile number other than the one listed
above will not constitute a valid delivery. The instructions accompanying this
Letter of Transmittal should be read carefully before this Letter of Transmittal
is completed. The undersigned acknowledges receipt of the Prospectus, dated
April , 1999 (the "Prospectus") of Nevada Power Company (the "Issuer") and
the related Letter of Transmittal (the "Letter of Transmittal"), which together
describe the Issuer's offer (the "Exchange Offer") to exchange $1,000 principal
amount at maturity of their 6.20% Senior Unsecured Notes, Series B due April 15,
2004 (the "Exchange Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to a Registration
Statement, for each $1,000 principal amount at maturity of their outstanding
6.20% Senior Unsecured Notes, Series A due April 15, 2004 (the "Old Notes"), of
which $130,000,000 principal amount at maturity is outstanding. The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on , 1999,
unless the Issuer, in its sole discretion, extend the Exchange Offer, in which
case the term shall mean the latest date and time to which the Exchange Offer is
extended. The term "Holder" with respect to the Exchange Offer means any person:
(i) in whose name Old Notes are registered on the books of the Issuer or any
other person who has obtained a properly completed bond power from the
registered Holder or (ii) whose Old Notes are held of record by The Depository
Trust Company ("DTC") and who desires to deliver such Old Notes by book-entry
transfer at DTC. Certain terms used herein but not defined herein, shall have
the respective meanings set forth in the Prospectus.
This Letter of Transmittal is to be used by Holders if: (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent
herewith by Holders; (ii) tender of Old Notes is to be made by book-entry
transfer to the Exchange Agent's account at DTC pursuant to the procedures set
forth in the Prospectus under "The Exchange Offer--Procedures for Tendering" by
any financial institution that is a participant in DTC and whose name appears on
a security position listing as the owner of Old Notes (such participants, acting
on behalf of Holders, are referred to herein as "Acting Holders"); or (iii)
tender of Old Notes is to be made according to the guaranteed delivery
procedures described in the Prospectus under the
B-1
<PAGE>
caption "The Exchange Offer--Guaranteed Delivery Procedures." See Instruction 2
below. Delivery of documents to DTC does not constitute delivery to the exchange
agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old Notes must complete
this Letter of Transmittal in its entirety.
<TABLE>
<S> <C>
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY DTC TO THE EXCHANGE AGENTS
ACCOUNT AT DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
DTC Book-Entry Account No.:
Transaction Code No.:
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING (SEE INSTRUCTION
2):
Name of Registered or Acting Holder(s):
Window Ticket No. (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Eligible Institution that
Guaranteed Delivery:
If Delivered by Book-Entry Transfer,
DTC Book-Entry Account No.:
Transaction Code Number:
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
PLEASE NOTE: THE ISSUER HAS AGREED THAT, FOR A PERIOD OF 180 DAYS AFTER THE EXPIRATION
DATE, THEY WILL MAKE COPIES OF THE PROSPECTUS AVAILABLE TO ANY PARTICIPATING
BROKER-DEALER FOR USE IN CONNECTION WITH RESALES OF THE EXCHANGE NOTES (PROVIDED THAT
THE ISSUER RECEIVES NOTICE FROM ANY PARTICIPATING BROKER-DEALER OF ITS STATUS AS A
BROKER-DEALER).
Name:
Address:
Attention:
</TABLE>
B-2
<PAGE>
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY
BEFORE COMPLETING ANY BOX BELOW
List below the Old Notes to which this Letter of Transmittal relates. If the
space provided below is inadequate, the certificate numbers and principal amount
at maturity of Old Notes should be listed on a separate signed scheduled affixed
hereto.
<TABLE>
<CAPTION>
BOX 1
DESCRIPTION OF 6.20% SENIOR UNSECURED NOTES, SERIES A DUE APRIL 15, 2004 (OLD NOTES)
PRINCIPAL AMOUNT
AGGREGATE AT
PRINCIPAL MATURITY TENDERED
AMOUNT AT (MUST BE IN
NAME(S) AND ADDRESS(ES) OF MATURITY INTEGRAL
REGISTERED HOLDER(S) CERTIFICATE REPRESENTED BY MULTIPLE OF
(PLEASE FILL IN, IF BLANK) NUMBER(S)** CERTIFICATE(S) $1,000)*
<S> <C> <C> <C>
TOTAL
</TABLE>
* Need not be completed by Holders who wish to tender with respect to all Old
Notes listed. See Instruction 4.
If the space provided above is inadequate, list the certificate numbers and
principal amounts at maturity on a separate signed schedule and affix the
list of this Letter of Transmittal.
** Need not be completed by Holders tendering by book-entry transfer.
B-3
<PAGE>
- ------------------------------------------------------
BOX 2
SPECIAL REGISTRATION INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Old Notes in a principal amount at
maturity not tendered, or Exchange Notes issued in exchange for Old Notes
accepted for exchange, are to be issued in a name other than the name
appearing in Box 1 above
Issue certificate(s) to:
Name _________________________________________________________________________
(please print)
Address ______________________________________________________________________
______________________________________________________________________________
(include zip code)
______________________________________________________________________________
(tax identification or social security number)
- ------------------------------------------------------
- ------------------------------------------------------
BOX 3
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Old Notes in a principal amount at
maturity not tendered, or Exchange Notes issued in exchange for Old Notes
accepted for exchange, are to be sent to an address other than the address
appearing in Box 1 above, or if Box 2 is filled in, to an address other than
the address appearing in Box 2.
Deliver certificate(s) to:
Name _________________________________________________________________________
(please print)
Address ______________________________________________________________________
______________________________________________________________________________
(include zip code)
______________________________________________________________________________
(tax identification or social security number)
- -----------------------------------------------------
BOX 4
BROKER-DEALER STATUS
/ / Check this box if the beneficial owner of the Old Notes is a
participating broker-dealer and such participating broker-dealer acquired
the Old Notes for its own account as a result of market-making activities
or other trading activities.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to Nevada Power Company (the "Issuer") the principal amount at
maturity of Old Notes indicated in Box 1.
Subject to and effective upon the acceptance for exchange of the principal
amount at maturity of Old Notes tendered in accordance with this Letter of
Transmittal, the undersigned sells, assigns and transfers to, or upon the order
of, the Issuer all right, title and interest in and to the Old Notes tendered
hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent its agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as the agent of the Issuer) with respect to the tendered Old
Notes with the full power of substitution to (i) present such Old Notes and all
evidences of transfer and authenticity to, or transfer ownership of, such Old
Notes on the account books maintained by DTC to, or upon, the order of, the
Issuer, (ii) deliver certificates for such Old Notes to the Issuer and deliver
all accompanying evidences of transfer and authenticity to, or upon the order
of, the Issuer and (iii) present such Old Notes for transfer on the books of the
Issuer and receive all benefits and otherwise
B-4
<PAGE>
exercise all rights of beneficial ownership of such Old Notes, all in accordance
with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Old Notes tendered
hereby and that the Issuer will acquire good, valid and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claims, when the same are acquired by the Issuer. The
undersigned hereby further represents that (i) the Exchange Notes are to be
acquired by the Holder or the person receiving such Exchange Notes, whether or
not such person is the Holder, in the ordinary course of business, (ii) the
Holder or any other person receiving the Exchange Notes is not engaging and does
not intend to engage in the distribution of the Exchange Notes, (iii) the Holder
or any other person receiving the Exchange Notes has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Notes, and (iv) neither the Holder nor any other person receiving the Exchange
Notes is an "affiliate" of the Issuer within the meaning of Rule 405 under the
Securities Act. As indicated above, each participating broker-dealer that
receives an Exchange Note for its own account in exchange for Old Notes must
acknowledge that it (i) acquired the Old Notes for its own account as a result
of market-making activities or other trading activities, (ii) has not entered
into any arrangement or understanding with the Issuer or any "affiliate" of the
Issuer (within the meaning of Rule 405 under the Securities Act) to distribute
the Exchange Notes to be received in the Exchange Offer and (iii) will deliver a
Prospectus in connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a Prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
If applicable, the undersigned shall use its reasonable best efforts to notify
the Issuer when it is no longer subject to such Prospectus delivery
requirements. Unless otherwise notified in accordance with the instructions set
forth herein in Box 4 under "Broker-Dealer Status," the Issuer will assume that
the undersigned is not a participating broker-dealer. If the undersigned is not
a broker-dealer, the undersigned represents that it is not engaged in and does
not intend to engage in, a distribution of Exchange Notes.
For purposes of the Exchange Offer, the Issuer shall be deemed to have
accepted validly tendered Old Notes when, as and if the Issuer has given oral or
written notice thereof to the Exchange Agent.
If any Old Notes tendered herewith are not accepted for exchange pursuant to
the Exchange Offer for any reason, certificates for any such unaccepted Old
Notes will be returned (except as noted below with respect to tenders through
DTC), without expense, to the undersigned at the address shown below or to a
different address as may be indicated herein in Box 3 under "Special Delivery
Instructions" as promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representative, successors and assigns.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Issuer upon the terms and
subject to the conditions of the Exchange Offer, subject only to withdrawal of
such tenders on the terms set forth in the Prospectus under the caption "The
Exchange Offer--Withdrawal of Tenders."
Unless otherwise indicated in Box 2 under "Special Registration
Instructions" please issue the certificates representing the Exchange Notes
issued in exchange for the Old Notes accepted for exchange and any certificates
for Old Notes not tendered or not exchanged, in the name(s) of the registered
Holder of the Old Notes appearing in Box 1 above (or in such event in the case
of Old Notes tendered by DTC, by credit to the account of DTC). Similarly,
unless otherwise indicated in Box 3 under "Special Delivery Instructions,"
please send the certificates, if any, representing the Exchange Notes issued in
exchange for the Old Notes accepted for exchange and any certificates for Old
Notes not tendered or not exchanged (and accompanying documents, as appropriate)
to the undersigned at the address shown below in the
B-5
<PAGE>
undersigned's signature(s), unless tender is being made through DTC. In the
event that the box entitled "Special Registration Instructions" and the box
entitled "Special Delivery Instructions" both are completed, please issue the
certificates representing the Exchange Notes issued in exchange for the Old
Notes accepted for exchange in the name(s) of, and return any certificates for
Old Notes not tendered or not exchanged to, the person(s) so indicated. The
undersigned understands that the Issuer has no obligation pursuant to the
"Special Registration Instructions" and "Special Delivery Instructions" to
transfer any Old Notes from the name of the registered Holder(s) thereof if the
Issuer does not accept for exchange any of the Old Notes so tendered.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver the Old Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date, may tender their Old Notes according to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer-- Guaranteed Delivery Procedures." See Instruction 2.
The lines below must be signed by the registered Holder(s) exactly as their
name(s) appear(s) on the Old Notes or, if tendered by a participant in DTC,
exactly as such participant's name appears on a security position listing as the
owner of Old Notes, or by person(s) authorized to become registered Holder(s) by
a properly completed bond power form the registered Holder(s), a copy of which
must be transmitted with this Letter of Transmittal. If Old Notes to which this
Letter of Transmittal relate are held of record by two or more joint Holders,
then all such Holders must sign this Letter of Transmittal.
PLEASE SIGN HERE WHETHER OR NOT
OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY
<TABLE>
<S> <C>
X
date
signature(s) of registered Holder(s) date
or authorized signatory
Area Code and Telephone Number: --------------------
</TABLE>
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, then such person must (i) set forth his or her full
title below and (ii) submit evidence satisfactory to the Issuer of such person's
authority so to act. See Instruction 5.
Name(s): _______________________________________________________________________
(please print)
Capacity: ______________________________________________________________________
Address: _______________________________________________________________________
(include zip code)
B-6
<PAGE>
MEDALLION SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 5)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
signature(s) guaranteed by an Eligible Institution:
(authorized signature)
(title)
(name of firm)
(address, include zip code)
(area code and telephone number)
Dated:
- ------------------------- , 1999
B-7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR OLD NOTES OR
BOOK-ENTRY CONFIRMATIONS. Certificates representing the tendered Old Notes (or
a confirmation of book-entry transfer of such Old Notes into the Exchange
Agent's account with DTC), as well as a properly completed and duly executed
copy of this Letter of Transmittal (or facsimile thereof) (or, in the case of a
book-entry transfer, an Agent's Message), a substitute Form W-9 (or facsimile
thereof) and any other documents required by this Letter of Transmittal must be
received by the Exchange Agent at its address set forth herein prior to the
Expiration Date. The method of delivery of certificates for Old Notes and all
other required documents is at the election and sole risk of the tendering
Holder and delivery will be deemed made only when actually received by the
Exchange Agent. If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. As an alternative to delivery by
mail, the Holder may wish to use an overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure timely delivery. Neither the
Issuer nor the Exchange Agent is under any obligation to notify any tendering
Holder of the Issuer's acceptance of tendered Old Notes prior to the completion
of the Exchange Offer.
2. GUARANTEED DELIVERY PROCEDURES. Holder who wish to tender their Old
Notes but whose Old Notes are not immediately available and who cannot deliver
their certificates for Old Notes (or comply with the procedures for book-entry
transfer prior to the Expiration Date), the Letter of Transmittal and any other
documents required by the Letter of Transmittal to the Exchange Agent prior to
the Expiration Date must tender their Old Notes according to the guaranteed
delivery procedures set forth below. Pursuant to such procedures:
(i) such tender must be made by or through a firm which is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States or an "eligible guarantor
institution" with the meaning of Rule 17Ad-15 under the Exchange Act (an
"Eligible Institution");
(ii) prior to the Expiration Date, the Exchange Agent must have received
from the Eligible Institution a properly completed and duly executed Notice
of Guaranteed Delivery (by facsimile transmission, mail, or hand delivery)
setting forth the name and address of the Holder, the certificate number or
numbers of the tendered Old Notes, and the principal amount of tendered Old
Notes and stating that the tender is being made thereby and guaranteeing
that, within three New York Stock Exchange Trading days after the Expiration
Date, the Letter of Transmittal (or facsimile thereof) (or, in the case of a
book-entry transfer, an Agent's Message), together with the tendered Old
Notes (or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account with DTC) and any other requirement documents will
be deposited by the Eligible Institution with the Exchange Agent; and
(iii) the certificates representing the tendered Old Notes in proper
form for transfer (or a confirmation of book-entry transfer of the Old Notes
into the Exchange Agent's account with DTC), together with the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees (or, in the case of a book-entry
transfer, an agent's message) and all other documents required by the Letter
of Transmittal must be received by the Exchange Agent within three New York
Stock Exchange trading days after the Expiration Date.
Failure to complete the guaranteed delivery procedures outlined above will
not, of itself, affect the validity or effect a revocation of any Letter of
Transmittal form properly completed and executed by a Holder who attempted to
use the guaranteed delivery procedure.
B-8
<PAGE>
3. TENDER BY HOLDER. Only a Holder or Acting Holder of Old Notes may
tender such Old Notes in the Exchange Offer. Any beneficial owner of Old Notes
who is not the registered Holder and who wishes to tender should arrange with
such Holder to execute and deliver this Letter of Transmittal on such owner's
behalf or must, prior to completing and executing this Letter of Transmittal and
delivering such Old Notes, either make appropriate arrangements to register
ownership of the Old Notes in such owner's name or obtain a properly completed
bond power from the registered Holder.
4. PARTIAL TENDERS. Tenders of Old Notes will be accepted only in integral
multiples of $1,000 principal amount at maturity. If less than the entire
principal amount at maturity of Old Notes is tendered, the tendering Holder
should fill in the principal amount at maturity tendered in the column labeled
"Principal Amount at Maturity Tendered" of the box entitled "Description of
6.20% Senior Unsecured Notes, Series A due April 15, 2004 (Old Notes)" (Box 1)
above. The entire principal amount at maturity of Old Notes delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount at maturity of Old Notes is not tendered, Old
Notes for the principal amount at maturity of Old Notes not tendered and
Exchange Notes exchanged for any Old Notes tendered will be sent to the Holder
at his or her registered address, unless a different address is provided in the
appropriate box on this Letter of Transmittal or unless tender is made through
DTC.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
MEDALLION GUARANTEE OF SIGNATURE. If this Letter of Transmittal is signed by
the registered Holder(s) of the Old Notes tendered herewith, the signatures must
correspond with the name(s) as written on the face of the tendered Old Notes
without alteration, enlargement, or any change whatsoever.
If any of the tendered Old Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any tendered
Old Notes are held in different names on several Old Notes, it will be necessary
to complete, sign, and submit as many separate copies of the Letter of
Transmittal documents as there are names in which tendered Old Notes are held.
If this Letter of Transmittal is signed by the registered Holder, and
Exchange Notes are to be issued and any untendered or unaccepted principal
amount at maturity of Old Notes are to be reissued or returned to the registered
Holder, then the registered Holder need not and should not endorse any tendered
Old Notes nor provide a separate bond power. In any other case, the registered
must either properly endorse the Old Notes tendered or transmit a properly
completed separate bond power with this Letter of Transmittal (executed exactly
as the name(s) of the registered Holder(s) appear(s) on such Old Notes), with
the signature(s) on the endorsement or bond power guaranteed by an Eligible
Institution unless such certificates or bond powers are signed by an Eligible
Institution.
If this Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should also indicate when signing and evidence satisfactory to the
Issuer of their authority to so act must be submitted with this Letter of
Transmittal.
No medallion signature guarantee is required if (i) this Letter of
Transmittal is signed by the registered Holder(s) of the Old Notes tendered
herewith and (ii) the issuance of Exchange Notes (and any Old Notes not tendered
or not accepted) are to be issued directly to such registered Holder(s) and
(iii) neither the "Special Registration Instructions" (Box 2) nor the "Special
Delivery Instructions" (Box 3) has been completed. In all other cases, all
signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution.
6. SPECIAL REGISTRATION AND DELIVER INSTRUCTIONS. Tender Holders should
indicate, in the applicable box, the name and address in which the Exchange
Notes and/or substitute Old Notes for principal amount at maturity not tendered
or not accepted for exchange are to be sent, if different from the name and
address or account of the person signing this Letter of Transmittal. In the case
of issuance in
B-9
<PAGE>
a different name, the employer identification number or social security number
of the person named must also be indicated and the indicated and the tendering
Holders should complete the applicable box.
If no such instructions are given, the Exchange Notes (and any Old Notes not
tendered or not accepted) will be issued in the name of and sent to the
registered Holder of the Old Notes.
7. TRANSFER TAXES. The Issuer will pay all transfer taxes, if any,
applicable to the sale and transfer of Old Notes to the Issuer or their order
pursuant to the Exchange Offer. If, however, a transfer tax is imposed for any
reason other than the transfer and sale of Old Notes to the Issuer or their
order pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered Holder or on any other person) will be
payable by the tendering Holder. If satisfactory evidence of payment of such
axes or exemption from such taxes is not submitted with this Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering Holder.
Except as provided in this instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
8. TAX IDENTIFICATION NUMBER. Under the federal income tax laws, payments
that may be made by the Issuer on account of Exchange Notes issued pursuant to
the Exchange Offer may be subject to backup withholding at the rate of 31%. In
order to avoid such backup withholding, each tendering Holder should complete
and sign the substitute Form W-9 included in this Letter of Transmittal and
either (a) provide the correct taxpayer identification number ("TIN") and
certify, under penalties of perjury, that the TIN provided is correct and that
(i) the Holder has not been notified by the Internal Revenue Service (the "IRS")
that the Holder is subject to backup withholding as a result of failure to
report all interest or dividends, or (ii) the IRS has notified the Holder that
the Holder is no longer subject to backup withholding; or (b) provide an
adequate basis for exemption. If the tendering Holder has not been issued a TIN
and has applied for one, or intends to apply for one in the near future, such
Holder should write "Applied For" in the space provided for the TIN in Part I of
the substitute Form W-9, sign and date the substitute Form W-9 and sign the
certificate of payee awaiting taxpayer identification number. If "Applied For"
is written in Part I, the Issuer (or the Exchange Agent with respect to Exchange
Notes or a broker or custodian) may still withhold 31% of the amount of any
payments made on account of the Exchange Notes until the Holder furnishes the
Issuer or the Exchange Agent with respect to the Exchange Notes, broker or
custodian with its TIN. In general, if a Holder is an individual, the taxpayer
identification number is the Social Security number of such individual. If the
Exchange Agent or the Issuer are not provided with the correct TIN, the Holder
may be subject to a $50 penalty imposed by the IRS. Certain Holder (including
among others, all corporations and certain foreign individuals) are not subject
to these backup withholding and reporting requirements. In order for a foreign
individual to qualify as an exempt recipient, such Holder must submit a
statement (generally, IRS Form W-8), signed under penalties of perjury,
attesting to that individuals' exempt status. Such statements can be obtained
from the Exchange Agent.
Failure to complete the substitute Form W-9 will not, by itself, cause Old
Notes to be deemed invalidly tendered, but may require the Issuer or the
Exchange Agent with respect to the Exchange Notes, broker or custodian to
withhold 31% of the amount of any payments made on account for the Exchange
Notes. Backup withholding is not an additional federal income tax. Rather, the
federal income tax liability of a person subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the IRS.
9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), and acceptance of tendered Old Notes
will be determined by the Issuer, in their sole discretion, which determination
will be final and binding. The Issuer reserve the right to reject any and all
Old Notes not validly tendered or any Old Notes, the Issuer's acceptance of
which would, in the opinion of the Issuer or their counsel, be unlawful. The
Issuer also reserve the right to waive any conditions of the Exchange Offer or
defects or irregularities in tenders of notes as to any ineligibility of any
Holder who seeks to tender Old Notes in the Exchange Offer. The interpretation
of the terms and conditions of the Exchange
B-10
<PAGE>
Offer (including this Letter of Transmittal and the instructions hereto) by the
Issuer shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Issuer shall determine. The Issuer will use reasonable efforts to
give notification of defects or irregularities with respect to tenders of Old
Notes, but shall not incur any liability for failure to give such notification.
10. WAIVER OF CONDITIONS. The Issuer reserve the absolute right to amend,
waive, or modify specified conditions in the Exchange Offer in the case of any
tendered Old Notes.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular, or
contingent tender of Old Notes will be accepted.
12. MUTILATED, LOST, STOLEN, OR DESTROYED OLD NOTES. Any tendering Holder
whose Old Notes have been mutilated, lost, stolen, or destroyed should contact
the Exchange Agent at the address indicated above for further instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus may be
directed to the Exchange Agent at the address set forth on the first page of
this Letter of Transmittal. Holders may also contact their broker, dealer,
commercial bank, trust company, or other nominee for assistance concerning the
Exchange Offer.
14. ACCEPTANCE OF TENDERED OLD NOTES AND ISSUANCE OF EXCHANGE NOTES; RETURN
OF OLD NOTES. Subject to the terms and conditions of the Exchange Offer, the
Issuer will accept for exchange all validly tendered Old Notes as soon as
practicable after the Expiration Date and will issue Exchange Notes therefor as
soon as practicable thereafter. For purposes of the Exchange Offer, the Issuer
shall be deemed to have accepted tendered Old Notes when, as and if the Issuer
have given written and oral notice thereof to the Exchange Agent. If any
tendered Old Notes are not exchanged pursuant to the Exchange Offer for any
reason, such unexchanged Old Notes will be returned, without expense, to the
undersigned at the address shown above or at a different address as may be
indicated under "Special Delivery Instructions."
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the Caption "The Exchange
Offer--Withdrawal of Tenders."
(DO NOT WRITE IN THE SPACE BELOW)
<TABLE>
<S> <C> <C>
Certificate Old Notes Old Notes
Surrendered Tendered Accepted
Delivery
Prepared By: Checked By: Date:
</TABLE>
B-11
<PAGE>
PAYOR NAME: NEVADA POWER COMPANY
<TABLE>
<C> <S> <C>
Name (if joint names, list first and circle the name of the person or entity whose number
you enter in Part 1 below. See instructions if your name has changed.)
Address
City, State and Zip Code
SUBSTITUTE Part 1 -- PLEASE PROVIDE ---------------------------
FORM W-9 YOUR TAXPAYER Social Security Number
DEPARTMENT OF THE TREASURY IDENTIFICATION NUMBER OR
INTERNAL REVENUE SERVICE ("TIN") IN THE BOX AT TIN:
RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW
Part 2 -- Check the box if you are NOT subject to backup
withholding under the provisions of section 3408(a)(1)(C)
of the Internal Revenue Code because (1) you have not
been notified that you are subject to backup withholding
as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has
notified you that you are no longer subject to backup
withholding.
PART 3 -- AWAITING TIN / /
CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT THE INFORMATION PROVIDED
ON THIS FORM IS TRUE, CORRECT AND COMPLETE.
Signature: --------------------------------------------------------------------- Date:
- ------------------------
</TABLE>
Note: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE PURSUANT TO THE EXCHANGE OFFER. YOU MUST
COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administrative Office or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a Taxpayer Identification Number by the
time of the exchange, 31% of all reportable payments made to me thereafter
will be withheld until I provide a number.
Signature: ________________________________________ Date: ___________________
B-12
<PAGE>
NEVADA POWER COMPANY
$130,000,000
6.20% Senior Unsecured Notes, Series A due April 15, 2004
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 30, 1999
PRUDENTIAL SECURITIES INCORPORATED
PAINEWEBBER INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
c/o Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, New York 10292
Ladies and Gentlemen:
Nevada Power Company, a Nevada corporation (the "COMPANY"), proposes
to issue and sell to Prudential Securities Incorporated ("PSI"), PaineWebber
Incorporated and Merrill Lynch, Pierce, Fenner & Smith Incorporated (together
with PSI, the "INITIAL PURCHASERS"), upon the terms and subject to the
conditions set forth in a purchase agreement dated March 25, 1999 (the "PURCHASE
AGREEMENT"), $130,000,000 aggregate principal amount of its 6.20% Senior
Unsecured Notes, Series A due April 15, 2004 (the "SERIES A NOTES"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company agrees with the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Series A Notes,
the Exchange Notes (as defined herein) and the Private Exchange Notes (as
defined herein) (collectively, the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. The Company shall (i) prepare and,
not later than 90 days following the date of original issuance of the Series A
Notes (the "ISSUE DATE"), file with the Commission a registration statement (the
"EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the
Securities Act with respect to a proposed offer to the Holders of the Series A
Notes (the "REGISTERED EXCHANGE OFFER") to issue and deliver to such Holders, in
exchange for the Series A Notes, a like aggregate principal amount of debt
securities of the Company (the "EXCHANGE NOTES") that are identical in all
material respects to the Series A Notes, except for the transfer restrictions
relating to the Series A Notes, (ii) use its reasonable efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act no
<PAGE>
2
later than 180 days after the Issue Date and the Registered Exchange Offer to be
consummated no later than 210 days after the Issue Date (such later date, the
"CONSUMMATION DEADLINE") and (iii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "EXCHANGE OFFER
REGISTRATION PERIOD"). The Exchange Notes will be issued under the Indenture or
an indenture (the "EXCHANGE NOTES INDENTURE" ) among the Company and the Trustee
or such other bank or trust company that is reasonably satisfactory to the
Initial Purchasers, as trustee (the "EXCHANGE NOTES TRUSTEE"), such indenture to
be identical in all material respects to the Indenture, except for the transfer
restrictions relating to the Series A Notes (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of the Registered Exchange Offer to enable each Holder electing to
exchange Series A Notes for Exchange Notes (assuming that such Holder (i) is not
an affiliate of the Company or an Exchanging Dealer (as defined herein) that
fails to comply with the requirements of the next sentence, (ii) is not an
Initial Purchaser holding Series A Notes that have, or that are reasonably
likely to have, the status of an unsold allotment in an initial distribution,
(iii) acquires the Exchange Notes in the ordinary course of such Holder's
business and (iv) has no arrangements or understandings with any person to
participate in the distribution of the Exchange Notes) and to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Company,
the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, each Holder that is a broker-dealer electing to exchange Series A Notes,
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Notes (an "EXCHANGING DEALER") is required to
deliver a prospectus containing substantially the information set forth in Annex
A hereto on the cover, in Annex B hereto in the "The Exchange Offer" section and
in Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Series A Notes acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Company shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Series
A Notes held by such Holder (the "PRIVATE EXCHANGE"), a like aggregate principal
amount of debt securities of the Company (the "PRIVATE EXCHANGE NOTES") that are
identical in all material respects to the Exchange Notes, except for the
transfer restrictions relating to such Private Exchange Notes. The Private
Exchange Notes will be issued under the same indenture as the Exchange Notes,
and the Company shall use its reasonable efforts to cause the Private Exchange
Notes to bear the same CUSIP number as the Exchange Notes.
<PAGE>
3
In connection with the Registered Exchange Offer, the Company shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer if required by applicable law) after the date on which notice of
the Registered Exchange Offer is mailed to the Holders;
(c) use the services of a depositary for the Registered Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Series A Notes at any time
prior to the close of business, New York City time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Series A Notes properly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancellation all Series A Notes so
accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to
the Series A Notes of such Holder so accepted for exchange.
The Company shall use its reasonable efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; PROVIDED that (i) in the case where such
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Notes held by them and (ii)
the Company shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period of not less than 180 days after the consummation of
the Registered Exchange Offer.
<PAGE>
4
The Indenture or the Exchange Notes Indenture, as the case may be,
shall provide that the Series A Notes, the Exchange Notes and the Private
Exchange Notes shall vote and consent together on all matters as one class and
that none of the Series A Notes, the Exchange Notes or the Private Exchange
Notes will have the right to vote or consent as a separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and in the Private Exchange,
respectively, will accrue from the last interest payment date on which interest
was paid on the Series A Notes surrendered in exchange therefor or, if no
interest has been paid on the Series A Notes, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes to be received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Series A Notes or the Exchange Notes within the meaning of
the Securities Act, (iii) such Holder is not an affiliate of the Company or, if
it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of Exchange Notes and (v) if such
Holder is a broker-dealer that will receive Exchange Notes for its own account
in exchange for Series A Notes that were acquired as a result of market-making
or other trading activities, it will deliver a prospectus in connection with any
resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not as of the consummation of the
Registered Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
2. SHELF REGISTRATION. (a) If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof or (ii) any Holder of Series A Notes which are Transfer Restricted Notes
(as defined below) notifies the Company prior to the 20th business day following
the Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Registered Exchange Offer, (B) such
Holder may not resell the Exchange Notes acquired by it in the Registered
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is a
<PAGE>
5
broker-dealer and holds the Series A Notes acquired directly from the Company or
any of its affiliates, then the Company shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above
and (ii) the date on which the Company receives the notice specified in
clause (a)(ii) above (such earlier date, the "FILING DEADLINE"), a shelf
registration statement on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Notes by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "SHELF
REGISTRATION STATEMENT" and, together with any Exchange Offer Registration
Statement, a "REGISTRATION STATEMENT"), and
(y) use its reasonable efforts to cause such Shelf Registration
Statement to become effective on or prior to 90 days after the Filing
Deadline (such 90th day, the "EFFECTIVENESS DEADLINE").
(b) The Company shall use its reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer
Restricted Notes for a period ending on the earlier of (i) two years from
the Issue Date or such shorter period that will terminate when all the
Transfer Restricted Notes covered by the Shelf Registration Statement have
been sold pursuant thereto and (ii) the date on which the Series A Notes
become eligible for resale without volume restrictions pursuant to Rule 144
under the Securities Act (in any such case, such period being called the
"SHELF REGISTRATION PERIOD"). The Company shall be deemed not to have used
its reasonable efforts to keep the Shelf Registration Statement effective
during the requisite period if the Company voluntarily takes any action
that would result in Holders of Transfer Restricted Notes covered thereby
not being able to offer and sell such Transfer Restricted Notes during that
period, unless such action is required by applicable law, PROVIDED,
HOWEVER, that the foregoing shall not apply to actions taken by the Company
in good faith and for valid business reasons (not including avoidance of
its obligations hereunder), including, without limitation, the acquisition
or divestiture of assets, so long as the Company within 60 days thereafter
complies with the requirements of Section 4(j) hereof. Any such period
during which the Company fails to keep the registration statement effective
and usable for offers and sales of Series A Notes and Exchange Notes or any
period during the pendency of any stop order, injunction or other order
prohibiting the sale of Series A Notes or Exchange Notes under the
registration statement is referred to as a "Suspension Period." A
Suspension Period shall commence on and include the date that the Company
gives notice that the Shelf Registration Statement is no longer effective
or the prospectus included therein is no longer usable for offers and sales
of Series A Notes and Exchange Notes and shall end on the date when each
Holder of Series A Notes and Exchange Notes covered by such registration
statement either receives the copies of the supplemented or amended
prospectus contemplated by Section 4(j) hereof or is advised in writing by
the Company that use of the prospectus may be resumed. If one or more
Suspension Periods occur, the
<PAGE>
6
two-year time period referenced above shall be extended by the number of
days in each such Suspension Period.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with
respect to information included therein in reliance upon or in conformity
with written information furnished to the Company by or on behalf of any
Holder specifically for use therein (the "HOLDERS' INFORMATION")) does not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Shelf
Registration Statement and any supplement to such prospectus (in either
case, other than with respect to Holders' Information) does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. LIQUIDATED DAMAGES. (a) The parties hereto agree that the
Holders of Transfer Restricted Notes will suffer damages if (i) the applicable
Registration Statement is not filed with the Commission on or prior to 90 days
after the Issue Date, (ii) the Exchange Offer Registration Statement is not
declared effective within 180 days after the Issue Date, (iii) the Registered
Exchange Offer is not consummated on or prior to the Consummation Deadline, (iv)
the Shelf Registration Statement is not declared effective on or prior to the
Effectiveness Deadline, or (v) the Shelf Registration Statement is filed and
declared effective on or prior to the Effectiveness Deadline but shall
thereafter cease to be effective (at any time that the Company is obligated to
maintain the effectiveness thereof) without being succeeded within 60 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (v), a "REGISTRATION DEFAULT"). The parties
hereto agree that it would not be feasible to ascertain the extent of such
damages. Accordingly, the parties agree that the Company will be obligated to
pay liquidated damages to each Holder of Transfer Restricted Notes, during the
period of one or more such Registration Defaults, in an amount determined by
multiplying .25% by the principal amount of Transfer Restricted Notes,
multiplied by a fraction, the numerator of which is the number of days such
amount accrued during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360. Such
period shall commence (i) on the 91st day after the Issue Date, (ii) the 181st
day after the Issue Date, (iii) the day after the Consummation Deadline, (iv)
the day after the Effectiveness Deadline, or (v) the 61st day after the Shelf
Registration Statement ceases to be effective and the Company has failed to
comply with Section 2(b), as the case may be, and shall end on the date (i) the
applicable Registration Statement is filed, (ii) the Exchange Offer Registration
Statement is declared effective, (iii) the Registered Exchange Offer is
consummated, (iv) the Shelf Registration Statement is declared effective or (v)
the Shelf Registration Statement again becomes effective, as the case may be.
Following the cure of all Registration Defaults, the accrual of liquidated
damages will cease.
<PAGE>
7
As used herein, the term "'Transfer Restricted Notes" means (i) each Series
A Note until the date on which such Series A Note has been exchanged for a
freely transferable Exchange Note in the Registered Exchange Offer, (ii) each
Series A Note or Private Exchange Note until the date on which it has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) each Series A Note or Private
Exchange Note until the date on which it is distributed to the public pursuant
to Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k)
under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Company
shall not be required to pay liquidated damages to a Holder of Transfer
Restricted Notes if such Holder failed to comply with its obligations to make
the representations set forth in the penultimate paragraph of Section 1 or
failed to provide the information required to be provided by it, if any,
pursuant to Section 4(n).
(b) The Company shall notify the Trustee and the Paying Agent under
the Indenture promptly upon the happening of each and every Registration
Default. The Company shall pay the liquidated damages due on the Transfer
Restricted Notes by depositing with the Paying Agent (which may not be the
Company for these purposes), in trust, for the benefit of the Holders thereof,
prior to 10:00 a.m., New York City time, on the next interest payment date
specified by the Indenture and the Series A Notes, sums sufficient to pay the
liquidated damages then due. The liquidated damages due shall be payable on each
interest payment date specified by the Indenture and the Series A Notes to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Notes by reason of a Registration Default.
4. REGISTRATION PROCEDURES. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall use its reasonable efforts to reflect
in each such document, when so filed with the Commission, such comments as
any Initial Purchaser may reasonably propose; (ii) include substantially
the information set forth in Annex A hereto on the cover, in Annex B hereto
in the "The Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include substantially the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and (iii) if requested by any Initial
Purchaser, include the information required by Item 507 or 508 of
Regulation S-K, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement.
<PAGE>
8
(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Series A Notes,
the Exchange Notes or the Private Exchange Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Company will use its reasonable efforts to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if any such Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Notes included within the
coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the
<PAGE>
9
Company consents to the use of such prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Notes in connection with the offer and sale of the Transfer Restricted
Notes covered by such prospectus or any amendment or supplement thereto.
(f) The Company will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge,
at least one conformed copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules and, if any Initial Purchaser or Exchanging Dealer or any
such Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each
Initial Purchaser, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement or the Shelf Registration Statement
and any amendment or supplement thereto as such Initial Purchaser,
Exchanging Dealer or other persons may reasonably request; and the Company
consents to the use of such prospectus or any amendment or supplement
thereto by any such Initial Purchaser, Exchanging Dealer or other persons,
as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company will use its reasonable efforts to register or qualify, or
cooperate with the Holders of Series A Notes, Exchange Notes or Private
Exchange Notes included therein and their respective counsel in connection
with the registration or qualification of, such Series A Notes, Exchange
Notes or Private Exchange Notes for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Holder reasonably requests
in writing and do any and all other acts or things reasonably necessary to
enable the offer and sale in such jurisdictions of the Series A Notes,
Exchange Notes or Private Exchange Notes covered by such Registration
Statement; PROVIDED that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process or to taxation in any such jurisdiction where it is not then so
subject.
(i) The Company will cooperate with the Holders of Series A Notes,
Exchange Notes or Private Exchange Notes to facilitate the timely
preparation and delivery of certificates representing Series A Notes,
Exchange Notes or Private Exchange Notes to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders thereof may
request in writing prior to sales of Series A Notes, Exchange Notes or
Private Exchange Notes pursuant to such Registration Statement.
<PAGE>
10
(j) If (i) any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company is required to maintain an
effective Registration Statement or (ii) any Suspension Period remains in
effect for more than 60 days after the occurrence thereof, the Company will
promptly prepare and file with the Commission a post-effective amendment to
the Registration Statement or a supplement to the related prospectus or
file any other required document so that, as thereafter delivered to
purchasers of the Series A Notes, Exchange Notes or Private Exchange Notes
from a Holder, the prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Series A Notes,
the Exchange Notes and the Private Exchange Notes, as the case may be, and
provide the applicable trustee with certificates for the Series A Notes,
the Exchange Notes or the Private Exchange Notes, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Company will comply in all material respects with all
applicable rules and regulations of the Commission and the Company will
make generally available to its security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earning statement satisfying the provisions of Section 11(a) of the
Securities Act; PROVIDED that in no event shall such earning statement be
delivered later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Company will cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture
Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted Notes
to be registered pursuant to any Shelf Registration Statement to furnish to
the Company such information concerning the Holder and the distribution of
such Transfer Restricted Notes as the Company may from time to time
reasonably request for inclusion in such Shelf Registration Statement, and
the Company may exclude from such registration the Transfer Restricted
Notes of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Notes to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Notes that, upon receipt of any
notice from the Company pursuant to Section 2(b) or 4(b)(ii) through (v),
such Holder will discontinue disposition of such Transfer Restricted Notes
until such Holder's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"ADVICE") by the
<PAGE>
11
Company that the use of the applicable prospectus may be resumed. If the
Company shall give any notice under Section 2(b) or 4(b)(ii) through (v)
during the period that the Company is required to maintain an effective
Registration Statement (the "EFFECTIVENESS PERIOD"), such Effectiveness
Period shall be extended by the number of days during such period from and
including the date of the giving of such notice to and including the date
when each seller of Transfer Restricted Notes covered by such Registration
Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company shall
enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action,
if any, as Holders of a majority in aggregate principal amount of the
Series A Notes, Exchange Notes and Private Exchange Notes being sold or the
managing underwriters (if any) shall reasonably request in order to
facilitate any disposition of Series A Notes, Exchange Notes or Private
Exchange Notes pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection at the location where they are
normally kept and during normal business hours by a representative of, and
Special Counsel (as defined below) acting for, Holders of a majority in
aggregate principal amount of the Series A Notes, Exchange Notes and
Private Exchange Notes being sold and any underwriter participating in any
disposition of Series A Notes, Exchange Notes or Private Exchange Notes
pursuant to such Shelf Registration Statement, all relevant financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use its reasonable efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or
any such underwriter (an "INSPECTOR") in connection with such Shelf
Registration Statement. Each Inspector shall agree in writing to keep
confidential all information received pursuant to this Section 4(q) (the
"INFORMATION"), except that each Inspector and Holder shall be permitted to
disclose Information (i) that has generally been made available to the
public, (ii) that has become available to such Inspector or Holder on a
nonconfidential basis from a source other than the Company, its affiliates
or its accountants or counsel, (iii) if such Inspector or Holder reasonably
believes upon the advice of counsel that disclosure of such Information is
necessary or advisable to insure compliance by such Inspector or Holder
with the Securities Act or any other securities laws, (iv) to the extent
otherwise required by applicable laws and regulations or by subpoena or
similar legal process, (v) in connection with any suit, action or
proceeding to which it is a party relating to the Series A Notes or any
securities laws, (vi) to any regulatory authority having jurisdiction over
such Inspector or Holder upon the request of such regulatory authority or
(vii) to its officers, directors, employees, agents or representatives on a
confidential and need-to-know basis.
<PAGE>
12
(r) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Series A Notes, Exchange Notes and Private Exchange Notes being sold, their
Special Counsel or the managing underwriters (if any) in connection with
such Shelf Registration Statement, use its reasonable efforts to cause (i)
its counsel to deliver an opinion relating to the Shelf Registration
Statement and the Series A Notes, Exchange Notes or Private Exchange Notes,
as applicable, in customary form and substance, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Series A Notes,
Exchange Notes and Private Exchange Notes being sold, their Special Counsel
or the managing underwriters (if any) and (iii) its independent public
accountants to provide a comfort letter or letters in customary form and
substance, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. REGISTRATION EXPENSES. The Company will bear all expenses
incurred in connection with the performance of its obligations under Sections 1,
2, 3 and 4 and the Company will reimburse the Initial Purchasers and the Holders
for the reasonable fees and disbursements of one firm of attorneys (in addition
to any local counsel) chosen by the Holders of a majority in aggregate principal
amount of the Series A Notes, the Exchange Notes and the Private Exchange Notes
to be sold pursuant to each Registration Statement (the "SPECIAL COUNSEL")
acting for the Initial Purchasers or Holders in connection therewith.
6. INDEMNIFICATION. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company shall indemnify and hold harmless each Holder
(including, without limitation, any such Initial Purchaser or Exchanging
Dealer), its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (collectively
referred for purposes of this Section 6 and Section 7 as a Holder) from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Series A Notes, Exchange
Notes or Private Exchange Notes), to which that Holder may become subject,
whether commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each Holder promptly upon demand for any legal or other expenses reasonably
incurred by that Holder in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon,
<PAGE>
13
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Holders' Information; and PROVIDED, FURTHER, that with respect to any such
untrue statement in or omission from any related preliminary prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim,
damage, liability or action received Series A Notes, Exchange Notes or Private
Exchange Notes to the extent that such loss, claim, damage, liability or action
of or with respect to such Holder results from the fact that both (A) a copy of
the final prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Series A Notes, Exchange Notes or
Private Exchange Notes to such person and (B) the untrue statement in or
omission from the related preliminary prospectus was corrected in the final
prospectus unless such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Company and its respective affiliates, officers,
directors, employees, representatives and agents, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 6(b) and Section 7 as
the Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any Holders' Information furnished to the Company by such
Holder, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Series A Notes, Exchange Notes or
Private Exchange Notes pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and PROVIDED, FURTHER, that the failure to
notify the indemnifying party shall not relieve it from any
<PAGE>
14
liability which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than the reasonable costs of investigation;
PROVIDED, HOWEVER, that an indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (iii) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (iv)
the indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or reasonably could be expected to be a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
7. CONTRIBUTION. If the indemnification provided for in Section 6
is unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b) otherwise than as a result of the limitations therein
contained, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof,
<PAGE>
15
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Series A Notes, on the
one hand, and a Holder with respect to the sale by such Holder of Series A
Notes, Exchange Notes or Private Exchange Notes, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and such Holder, on the other, with respect to the actions,
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and a Holder, on the other, with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Series A Notes (before deducting expenses) received by or on behalf of
the Company as set forth in the table on the cover of the Offering Memorandum,
on the one hand, bear to the total proceeds received by such Holder with respect
to its sale of Series A Notes, Exchange Notes or Private Exchange Notes, on the
other. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Company or
information supplied by the Company, on the one hand, or to any Holders'
Information supplied by such Holder, on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by PRO RATA allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Series A Notes, Exchange Notes or Private
Exchange Notes shall not be required to contribute any amount in excess of the
amount by which the total price at which the Series A Notes, Exchange Notes or
Private Exchange Notes sold by such indemnifying party to any purchaser exceeds
the amount of any damages which such indemnifying party has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. RULES 144 AND 144A. The Company shall use its reasonable efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the written request of any Holder of
Transfer Restricted Notes, make publicly available other information required to
be made available by Rule 144 or 144A so long as necessary to permit sales of
such Holder's securities pursuant to Rules 144 and 144A. The Company covenants
that it will take such further action as any Holder of Transfer Restricted Notes
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions
<PAGE>
16
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer
Restricted Notes, the Company shall deliver to such Holder a written statement
as to whether they have complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Notes covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Notes
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company so agrees and has obtained the written consent of Holders of a majority
in aggregate principal amount of the Series A Notes, the Exchange Notes and the
Private Exchange Notes, taken as a single class. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Series A Notes,
Exchange Notes or Private Exchange Notes are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Series A Notes, the Exchange Notes and the Private
Exchange Notes being sold by such Holders pursuant to such Registration
Statement.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to each of the Initial Purchasers;
(2) if to an Initial Purchaser, initially at its address set forth in
the Purchase Agreement; and
<PAGE>
17
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
facsimile machine, if sent by facsimile.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its respective successors and assigns.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by facsimile) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) DEFINITION OF TERMS. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW.
(1) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF.
(2) Any legal action or proceeding relating in any way to this
Agreement, may be brought and enforced in the federal courts of the United
States for the Southern District of New York, and the Company accepts for
itself and in respect of its property, generally, irrevocably and
unconditionally, the jurisdiction of each such court in respect of any such
action or proceeding but only such action or proceeding; PROVIDED that, if
for whatever reason the federal courts of the United States for the
Southern District of New York will not or cannot hear such action or
proceeding, it may be brought and enforced in the courts of the State of
New York in The City of New York, Borough of Manhattan. The Company agrees
that a judgment, after exhaustion of all available appeals, in any such
action or proceeding shall be conclusive and binding upon, and may be
enforced in any other jurisdiction by a suit upon such judgment, a
certified copy of which shall be conclusive evidence of the judgment. The
Company further irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
<PAGE>
18
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to such party, at its address as set forth in the
Purchase Agreement, such service to become effective 30 days after such
mailing. Nothing herein shall affect the right of any Initial Purchaser to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company in any other
jurisdiction.
(h) REMEDIES. In the event of a breach by the Company or by any
Holder of any of its obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of its obligations under Sections 1 or 2
hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by each such
person of any of the provisions of this Agreement and hereby further agree that,
in the event of any action for specific performance in respect of such breach,
each such person shall waive the defense that a remedy at law would be adequate.
(i) NO INCONSISTENT AGREEMENTS. The Company represents, warrants and
agrees that, except as described in the Offering Memorandum, (i) it has not
entered into, shall not, on or after the date of this Agreement, enter into any
agreement that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof, (ii) it has not
previously entered into any agreement which remains in effect granting any
registration rights with respect to any of its debt securities to any person and
(iii) (with respect to the Company) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount of the then outstanding Transfer Restricted Notes, it shall not
grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of this Agreement.
(j) NO PIGGYBACK ON REGISTRATIONS. Except as described in the
Offering Memorandum, neither the Company nor any of its security holders (other
than the Holders of Transfer Restricted Notes in such capacity) shall have the
right to include any securities of the Company in any Shelf Registration or
Registered Exchange Offer other than Transfer Restricted Notes.
(k) SEVERABILITY. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that
<PAGE>
19
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
[Remainder of this page is intentionally left blank]
<PAGE>
20
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Initial Purchasers.
Very truly yours,
NEVADA POWER COMPANY
By:
---------------------------
Name:
Title:
Accepted:
PRUDENTIAL SECURITIES INCORPORATED
PAINEWEBBER INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: Prudential Securities Incorporated
By:
---------------------------
Authorized Signatory
<PAGE>
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. See "Plan of
Distribution."
<PAGE>
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Series A Notes, where such Series A Notes were acquired by the
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
<PAGE>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Series A
Notes where such Series A Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. [In addition, until [ ] 199[ ], all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.]
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Series A Notes) other than commissions or concessions of
any broker-dealers and will indemnify the Holders of the Series A Notes
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
<PAGE>
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Series A Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
<PAGE>
[LETTERHEAD]
File No.
April 29, 1999
Ladies & Gentlemen:
We have acted as counsel to Nevada Power Company, a Nevada corporation
(the "Company"), in connection with the proposed exchange (the "Exchange") by
the Company of the 6.20% Senior Unsecured Notes, Series B due April 15, 2004
(the "Exchange Notes") for an equal principal amount of its outstanding 6.20%
Senior Unsecured Notes, Series A due April 15, 2004 (the "Old Notes").
In connection with the proposed Exchange, we have examined the
Company's Articles of Incorporation and Bylaws, as presently in effect, the
company's relevant corporate proceedings, the draft Registration Statement on
Form S-4 covering the proposed Exchange (the "Registration Statement"),
including the Prospects filed as a part of the Registration Statement, the
Indenture dated March 1, 1999, as supplemented, in respect of the Old Notes and
the Exchange Notes (the "Indenture"), and such other documents, records,
certificates or public officials, statutes and decisions as we considered
necessary to express the opinions contained herein. In the examination of such
documents, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as certified or
photostatic copies.
We understand that the Exchange Notes are to be issued to the holders
of the Old Notes in the Exchange and are to be available for resale by such
holders, all in the manner described in the Prospectus, which is a part of the
Registration Statement and in the Indenture.
Based on the foregoing, we are of the opinion that:
<PAGE>
1. The issuance of the Exchange Notes to the holders of the Old Notes
pursuant to the terms of the Exchange and the Indenture have been duly
authorized by proper corporate action of the Company.
2. When the Registration Statement shall have been declared effective by
order of the Securities and Exchange Commission and the Exchange Notes
have been duly issued to and exchanged for the Old Notes, all in
accordance with the terms of the Exchange, the Indenture and the
Registration Statement, such Exchange Notes will be validly issued and
will constitute binding obligations of the Company, subject, as to
enforcement (i) to any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws relating to or
affecting creditors' rights and remedies generally and (ii) to general
principals of judicial discretion and equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity or
in a bankruptcy proceeding and except that (i) rights to contribution
or indemnification may be limited by the laws, rules or regulations of
any governmental authority or agency thereof or by public policy and
(ii) waivers as to usury, stay or extension laws may be
unenforceable).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to any reference to us in the Prospectus which is a
part hereof.
Sincerely yours,
BEST BEST & KRIEGER LLP
KAS:dfd
<PAGE>
Exhibit 12.1
Nevada Power Company
Computation of Ratios of Earnings to Fixed Charges
(in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------------------
1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
EARNINGS:
Net income $ 83,673 $ 83,216 $ 78,868 $ 76,971 $ 81,870
Taxes on Income 45,471 45,224 44,970 37,790 44,716
-------- -------- -------- -------- --------
Net Income Before Income Taxes 129,144 128,440 123,838 114,761 126,586
Fixed Charges 86,937 72,780 64,509 62,273 60,042
-------- -------- -------- -------- --------
Total $216,081 $201,220 $188,347 $177,034 $186,628
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
FIXED CHARGES:
Interest Charges $ 85,805 $ 71,798 $ 63,548 $ 61,466 $ 58,839
One-third Annual Rentals 1,132 982 961 807 1,203
-------- -------- -------- -------- --------
Total $ 86,937 $ 72,780 $ 64,509 $ 62,273 $ 60,042
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
12 MONTHS RATIO OF EARNINGS
TO FIXED CHARGES 2.49 2.76 2.92 2.84 3.11
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF COUNSEL
I hereby consent to the use of my name as Vice President, Secretary and
General Counsel of the Company wherever it appears in the Registration
Statement, including the Prospectus constituting a part thereof, and all
amendments thereto.
RICHARD L. HINCKLEY, ESQ.
Las Vegas, Nevada
April 29, 1999
<PAGE>
Exhibit 23.2
CONSENT OF COUNSEL
We hereby consent to all references to our Firm included in or made a
part of this Registration Statement, including the Prospectus constituting a
part thereof, and all amendments thereof.
BEST BEST & KRIEGER LLP
Riverside, California
April 29, 1999
<PAGE>
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Nevada Power Company on Form S-4 of our reports dated March 1, 1998
appearing in and incorporated by reference in the Annual Report on Form
10-K of Nevada Power Company for the year ended December 31, 1998 and to the
reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
DELOITTE & TOUCHE LLP
Las Vegas, Nevada
April 29, 1999
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2).
-----------
IBJ WHITEHALL BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
Nevada Power Company
(Exact name of Registrant as specified in its charter)
Nevada 88-0045330
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
6226 West Sahara Avenue
Las Vegas, NV
89146
(Zip code)
(Address of principal executive offices)
$130,000,000
6.20% Senior Unsecured Notes, Series B Due April 15, 2004
------------------
(Title of indenture securities)
<PAGE>
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking
Department
Two Rector Street
New York, New York
Federal Deposit Insurance
Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of
any such default.
None
2
<PAGE>
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligors are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether
there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this statement of
eligibility.
*1. A copy of the Charter of IBJ Whitehall Bank & Trust Company
as amended to date. (See Exhibit 1A to Form T-1, Securities
and Exchange Commission File No 22-18460 and Exhibit 25.1 to
Form T-1, Securities and Exchange Commission File No.
333-46849).
*2. A copy of the Certificate of Authority of the trustee to
Commence Business (Included in Exhibit 1 above).
*3. A copy of the Authorization of the trustee to exercise
corporate trust powers, as amended to date (See Exhibit 4 to
Form T-1, Securities and Exchange Commission File No.
22-19146).
*4. A copy of the existing By-Laws of the trustee, as amended to
date (See Exhibit 25.1 to Form T-1, Securities and Exchange
Commission File No. 333-46849).
5. Not Applicable
6. The consent of United States institutional trustee required
by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a
reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
3
<PAGE>
NOTE
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor and its directors or
officers, the trustee has relied upon information furnished to it by the
obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Item 2, the
answer to said Item is based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to Items 1, 2
and 16 of this form since to the best knowledge of the trustee as indicated
in Item 13, the obligor is not in default under any indenture under which
the applicant is trustee.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, IBJ Whitehall Bank & Trust Company, a corporation organized
and existing under the laws of the State of New York, has duly caused this
statement of eligibility & qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and
State of New York, on the 20th day of April, 1999.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ Luis Perez
-------------------------------------
Luis Perez
Assistant Vice President
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, as amended, in connection with the issuance by Nevada Power Company, of
its 6.20% Senior Unsecured Notes Due 2004, we hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ Luis Perez
-------------------------------------
Luis Perez
Assistant Vice President
Dated: April 20, 1999
<PAGE>
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
OF NEW YORK, NEW YORK
AND FOREIGN AND DOMESTIC SUBSIDIARIES
REPORT AS OF DECEMBER 31, 1998
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
---------------
ASSETS
------
<S> <C> <C>
1. Cash and balance due from depository institutions:
a. Non-interest-bearing balances and currency and coin. . . . . . . . . . . . . . . . . . . $ 26,852
b. Interest-bearing balances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 17,489
2. Securities:
a. Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
b. Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 207,069
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs
Federal Funds sold and Securities purchased under agreements to resell. . . . . . . . . . . . $ 80,389
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . $ 2,033,599
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . $ 62,853
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . $ -0-
d. Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . $ 1,970,746
5. Trading assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 848
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . . . . . . . . $ 1,583
7. Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
8. Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . $ -0-
9. Customers' liability to this bank on acceptances outstanding. . . . . . . . . . . . . . . . . $ 340
10. Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 11,840
11. Other assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 66,691
12. TOTAL ASSETS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,383,847
<PAGE>
LIABILITIES
-----------
13. Deposits:
a. In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
(1) Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 168,822
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 635,740
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs. . . . . . . . . . . . . . $
(1) Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 16,554
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 868,522
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased and Securities sold under agreements to repurchase. . . . . . . . . . $
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . $
b. Trading Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
16. Other borrowed money:
a. With a remaining maturity of one year or less. . . . . . . . . . . . . . . . . . . . . . $
b. With a remaining maturity of more than one year. . . . . . . . . . . . . . . . . . . . . $
c. With a remaining maturity of more than three years . . . . . . . . . . . . . . . . . . . $
17. Not applicable.
18. Bank's liability on acceptances executed and outstanding. . . . . . . . . . . . . . . . . . . $
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
20. Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
21. TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
22. Limited-life preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . . $
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . $
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
25. Surplus (exclude all surplus related to preferred stock). . . . . . . . . . . . . . . . . . . $
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . $
b. Net unrealized gains (losses) on available-for-sale securities . . . . . . . . . . . . . $
27. Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . $
28. TOTAL EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
29. TOTAL LIABILITIES AND EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
</TABLE>
