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EXHIBIT 4.7
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REMARKETING AGREEMENT
BETWEEN
SIERRA PACIFIC RESOURCES
AND
LEHMAN BROTHERS INC., AS REMARKETING AGENT
------
DATED AS OF NOVEMBER 16, 2001
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TABLE OF CONTENTS
<Table>
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Page
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Section 1. Definitions.....................................................................................1
Section 2. Appointment and Obligations of the Remarketing Agent............................................5
Section 3. Representations, Warranties and Agreements of the Company.......................................9
Section 4. Reimbursement of Expenses......................................................................17
Section 5. Further Agreements of the Company..............................................................17
Section 6. Conditions to the Remarketing Agent's Obligations..............................................19
Section 7. Indemnification and Contribution...............................................................28
Section 8. Resignation and Removal of the Remarketing Agent...............................................31
Section 9. Dealing in the Remarketing Senior Notes........................................................32
Section 10. Remarketing Agent's Performance; Duty of Care..................................................32
Section 11. Merger Consolidation, Sale or Conveyance.......................................................33
Section 12. Termination....................................................................................34
Section 13. Notices........................................................................................34
Section 14. Persons Entitled to Benefit of Agreement.......................................................35
Section 15. Survival.......................................................................................35
Section 16. Governing Law..................................................................................35
Section 17. Counterparts...................................................................................35
Section 18. Headings.......................................................................................35
Section 19. Severability...................................................................................35
</Table>
-i-
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SIERRA PACIFIC RESOURCES
7.93% SENIOR NOTES DUE 2007
REMARKETING AGREEMENT
November 16, 2001
LEHMAN BROTHERS INC.
101 Hudson Street
Jersey City, New Jersey 07302
Ladies and Gentlemen:
Lehman Brothers Inc. is undertaking to remarket the 7.93%
Senior Notes due 2007 (the "Senior Notes") of Sierra Pacific Resources, a Nevada
corporation (the "Company"), pursuant to the Indenture, dated as of May 1, 2000
(the "Original Indenture"), and the Officers' Certificate, dated as of November
16, 2001, establishing the terms and the other provisions of the Senior Notes
(the "Indenture Officers' Certificate" and, together with the Original
Indenture, the "Indenture"), in each case, between the Company and The Bank of
New York, as Trustee (the "Trustee").
Section 1. DEFINITIONS.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Section have the meanings
assigned to them in this Section and include the plural as well as the singular;
(b) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subsection;
(c) capitalized terms used and not defined in this Agreement
shall have the meanings set forth in the Purchase Contract Agreement, dated as
of November 16, 2001 (the "Purchase Contract Agreement"), between the Company
and The Bank of New York, as Purchase Contract Agent (the "Purchase Contract
Agent"), or in the Indenture, as each of the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof; and
(d) as used in this Agreement, the following terms have the
following meanings:
"Agreement" means this Remarketing Agreement as the same may
be amended, modified or supplemented from time to time in accordance
with the terms hereof.
"Applicable Spread" means the spread corresponding to the
Prevailing Rating of the Senior Notes, as set forth below, in effect at
the close of business on the Business Day immediately preceding the
date of the Failed Remarketing, if applicable:
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2
Prevailing Rating Spread
----------------- ------
AA/Aa2.................................... 3.00%
A/A2...................................... 4.00%
BBB/Baa2.................................. 5.00%
Below BBB/Baa2............................ 7.00%
"Authorized Newspaper" means THE WALL STREET JOURNAL, another
daily newspaper in the English language of general circulation in New
York, New York that is acceptable to the Remarketing Agent or, at the
discretion of the Remarketing Agent after consultation with the
Company, a nationally recognized quotation system that would be an
effective medium of publicizing the event to be publicized.
"Blue Sky Application" has the meaning set forth in Section
7(a).
"Collateral Account" has the meaning set forth in Section 1 of
the Pledge Agreement.
"Commencement Date" has the meaning set forth in Section 3.
"Commission" has the meaning set forth in Section 3(b).
"Depositary Participant" has the meaning set forth in Section
2(d)(i).
"Effective Date" has the meaning set forth in Section 3(b).
"Effective Time" has the meaning set forth in Section 3(b).
"Exchange Act" has the meaning set forth in Section 3(b).
"Failed Remarketing" has the meaning set forth in Section
2(f).
"Final Remarketing" has the meaning set forth in Section 2(c).
"Final Remarketing Date" has the meaning set forth in Section
2(c).
"Initial Remarketing" has the meaning set forth in Section
2(b).
"Initial Remarketing Date" has the meaning set forth in
Section 2(b).
"Investment Company Act" has the meaning set forth in Section
3(dd).
"Material Adverse Effect" has the meaning set forth in Section
3(h).
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the Securities,
as the same may be amended, modified or supplemented from time to time
in accordance with the terms thereof.
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3
"Pledged Senior Notes" has the meaning set forth in Section 1
of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in
Section 1 of the Pledge Agreement.
"Preliminary Prospectus" has the meaning set forth in Section
3(b).
"Prevailing Rating," for the purposes of the definition of
Applicable Spread, means:
(a) AA/Aa2 if the Senior Notes have a credit rating of AA or
better by Standard & Poor's Ratings Services, Inc. ("S&P") AND Aa2 or
better by Moody's Investors Service, Inc. ("Moody's") or the equivalent
of such ratings by such agencies or a substitute rating agency or
substitute rating agencies selected by the Remarketing Agent;
(b) if not under clause (a) above, then A/A2 if the Senior
Notes have a credit rating of A or better by S&P AND A2 or better by
Moody's or the equivalent of such ratings by such agencies or a
substitute rating agency or substitute rating agencies selected by the
Remarketing Agent;
(c) if not under clauses (a) or (b) above, then BBB/Baa2 if
the Senior Notes have a credit rating of BBB or better by S&P AND Baa2
or better by Moody's or the equivalent of such ratings by such agencies
or a substitute rating agency or substitute rating agencies selected by
the Remarketing Agent; or
(d) if not under clauses (a), (b) or (c) above, then Below
BBB/Baa2.
Notwithstanding the foregoing, (A) if (i) the credit rating of
the Senior Notes by S&P shall be on the "Credit Watch" of S&P with a
designation of "negative implications" or "developing", or (ii) the
credit rating of the Senior Notes by Moody's shall be on the "Corporate
Credit Watch List" of Moody's with a designation of "downgrade" or
"uncertain", or, in each case, on any successor list of S&P or Moody's
with a comparable designation, the Prevailing Ratings of the Senior
Notes shall be deemed to be within a range one full level lower in the
table set forth in the definition of Applicable Spread than those
actually assigned to the Senior Notes by S&P and Moody's and (B) if the
Senior Notes are rated by only one rating agency prior to or on the
Remarketing Date, the Prevailing Rating shall at all times be
determined without reference to the rating of any other rating agency;
PROVIDED that, if no such rating agency shall have in effect a rating
for the Senior Notes and the Remarketing Agent is unable to identify a
substitute rating agency or rating agencies, the Prevailing Rating
shall be Below BBB/Baa2.
"Principal Amount" means the principal amount of a Senior
Note, or $50.
"Proceeds" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Prospectus" has the meaning set forth in Section 3(b).
"Registration Statement" has the meaning set forth in Section
3(b).
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4
"Remarketing" means the remarketing of the Remarketing Senior
Notes pursuant to the Remarketing Procedures.
"Remarketing Agent" has the meaning set forth in Section 2(a).
"Remarketing Date" has the meaning set forth in Section 2(d).
"Remarketing Materials" has the meaning set forth in Section
3(b).
"Remarketing Procedures" means, collectively, the procedures
and requirements relating to the Remarketing and the determination of
the Reset Rate as set forth in the Indenture Officers' Certificate, the
Purchase Contract Agreement, the Pledge Agreement and this Agreement.
"Remarketing Senior Notes" means collectively (1) the Pledged
Senior Notes that comprise part of Corporate PIES, other than those
Pledged Senior Notes of Holders that have elected not to participate in
the Remarketing pursuant to Section 5.3(e) of the Purchase Contract
Agreement, and (2) the Separated Senior Notes of holders that have
elected to participate in the Remarketing pursuant to paragraph 19(i)
of the Indenture Officers' Certificate and Section 5.7 of the Pledge
Agreement, in each case, which are subject to the Remarketing, as
identified to the Remarketing Agent by the Purchase Contract Agent
(with respect to the Pledged Senior Notes to be remarketed) and the
Collateral Agent (with respect to the Separated Senior Notes to be
remarketed) by 11:00 a.m. (New York City time), on the Business Day
preceding the Initial Remarketing Date and, if applicable, the Final
Remarketing Date, the Remarketing Agent having been notified of the
aggregate principal amount of such Remarketing Senior Notes by the
Purchase Contract Agent, the Collateral Agent or the Trustee, pursuant
to the Purchase Contract Agreement, Pledge Agreement or Indenture, as
the case may be.
"Remarketing Settlement Date" has the meaning set forth in
Section 2(d).
"Remarketing Value" has the meaning set forth in Section
1.1(d) of the Purchase Contract Agreement.
"Reset Rate" has the meaning set forth in the Indenture.
"Securities" has the meaning set forth in Section 3(j).
"Securities Act" has the meaning set forth in Section 3(b).
"Separated Senior Notes" has the meaning set forth in Section
1 of the Pledge Agreement.
"Significant Subsidiary" has the meaning set forth in Section
3(i).
"Subsequent Remarketing" has the meaning set forth in Section
2(c).
"Subsequent Remarketing Date" has the meaning set forth in
Section 2(c).
"Successful Remarketing" has the meaning set forth in Section
2(d).
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5
"Transaction" has the meaning set forth in Section 3(j).
"Transfer" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Two-Year Benchmark Rate" means the bid side rate displayed at
10:00 a.m., New York City time, on the third Business Day preceding the
Purchase Contract Settlement Date for direct obligations of the United
States having a maturity comparable to the remaining term to the Stated
Maturity of the Senior Notes, as agreed upon by the Company and the
Remarketing Agent as displayed in the Telerate system or, if the
Telerate system is no longer available or, in the judgment of the
Remarketing Agent (after consultation with the Company), no longer an
appropriate system from which to obtain such rate, such other
nationally recognized quotation system as, in the judgment of the
Remarketing Agent (after consultation with the Company) is appropriate.
If this rate is not so displayed, the Two-Year Benchmark Rate will be
calculated by the Remarketing Agent as the yield to maturity for direct
obligations of the United States having a maturity comparable to the
remaining term to the Stated Maturity of the Senior Notes, expressed as
a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis, and computed by taking the
arithmetic mean of the secondary market bid rates, as of 10:30 a.m.
(New York City time) on the third Business Day preceding the Purchase
Contract Settlement Date of three leading United States government
securities dealers selected by the Remarketing Agent (after
consultation with the Company) (which may include the Remarketing Agent
or an Affiliate thereof). However, if, in the judgment of the
Remarketing Agent, after consultation with the Company, direct
obligations of the United States are no longer appropriate benchmarks
for the purpose of setting the Reset Rate if a Failed Remarketing has
occurred, the Remarketing Agent and the Company will agree upon another
Two-Year Benchmark Rate.
Section 2. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING
AGENT.
(a) The Company hereby appoints Lehman Brothers Inc. as
exclusive remarketing agent (the "Remarketing Agent"), and, upon the terms and
subject to the conditions set forth in this Agreement, Lehman Brothers Inc.
hereby accepts such appointment. The Remarketing Agent agrees to (1) use its
commercially reasonable efforts to remarket the Remarketing Senior Notes
tendered to the Remarketing Agent, pursuant to the Indenture and the Purchase
Contract Agreement, in the Remarketing and, in connection therewith, to
determine the Reset Rate as set forth in this Agreement and the Indenture and
(2) carry out such other duties as are assigned to the Remarketing Agent herein,
in each case, in accordance with the Remarketing Procedures.
(b) On August 10, 2005 (the "Initial Remarketing Date"), the
Remarketing Agent shall use its commercially reasonable efforts to remarket (the
"Initial Remarketing"), at a price at least equal to the Remarketing Value, the
Remarketing Senior Notes tendered for purchase, pursuant to the Remarketing
Procedures upon notification of the aggregate principal amount of such
Remarketing Senior Notes by the Purchase Contract Agent and the Collateral Agent
pursuant to Section 5.3 of the Purchase Contract Agreement. If, as a result of
such efforts, the Remarketing Agent determines that it will be able to remarket
all of the Remarketing Senior Notes tendered or deemed tendered for purchase at
a price at least equal to the Remarketing Value prior to 4:00 p.m. (New York
City time) on the Initial Remarketing Date, the Remarketing Agent shall
determine the Reset Rate that will enable it to remarket all Remarketing Senior
Notes tendered or deemed
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6
tendered for Remarketing at an interest rate on the Initial Remarketing Date
sufficient to allow the Remarketing to occur at a price equal to the
Remarketing Value.
(c) If, despite the commercially reasonable efforts described
in the preceding paragraph, the Remarketing Agent cannot remarket the
Remarketing Senior Notes on the Initial Remarketing Date, the Remarketing Agent
will continue to use its commercially reasonable efforts to remarket the
Remarketing Senior Notes (i) on one or more subsequent occasions from the
Initial Remarketing Date to, and including, the ninth Business Day preceding the
Purchase Contract Settlement Date and (ii) if necessary, on the third Business
Day preceding the Purchase Contract Settlement Date, and in connection therewith
to determine the Reset Rate at an interest rate on the Remarketing Date, if any,
sufficient to allow the Remarketing at a price equal to the Remarketing Value as
set forth herein and (each such subsequent Remarketing up to and including the
ninth Business Day preceding the Purchase Contract Settlement Date being
referred to as a "Subsequent Remarketing," and each such date to be referred to
as, a "Subsequent Remarketing Date"; and the Remarketing on the third Business
Day preceding the Purchase Contract Settlement Date, being referred to as the
"Final Remarketing," and such date to be referred to as, the "Final Remarketing
Date;"), in each case in accordance with the Remarketing Procedures, PROVIDED
that, the Final Remarketing, if at all, must occur no later than on the third
Business Day immediately preceding the Purchase Contract Settlement Date.
(d) If any Remarketing is successful (a "Successful
Remarketing" and, such date to be referred to as the "Remarketing Date"), then:
(i) By approximately 4:30 p.m. (New York City time) on
such Remarketing Date, (A) the Remarketing Agent shall advise by
telephone the Company, the Purchase Contract Agent, the Collateral
Agent, the Securities Intermediary, the Depositary and the Trustee, of
the Reset Rate determined in the Remarketing, (B) the Remarketing Agent
shall advise each purchaser or DTC participant (the "Depositary
Participant") thereof purchasing Senior Notes sold in the Remarketing
of the Reset Rate and the number of Senior Notes such purchaser is to
purchase and (C) the Remarketing Agent shall request each purchaser to
give instructions to its Depositary Participant to pay the purchase
price on the third Business Day after the Remarketing Date (the
"Remarketing Settlement Date") in same day funds against delivery of
the remarketed Remarketing Senior Notes purchased through the
facilities of the Depositary.
In accordance with the Depositary's normal procedures, on the
Remarketing Settlement Date or the Purchase Contract Settlement Date,
as applicable, the transactions described above with respect to each
Senior Notes remarketed in the Remarketing shall be executed through
the Depositary, and the accounts of the respective Depositary
Participants shall be debited and credited, respectively, and such
Remarketing Senior Notes delivered by book-entry, as necessary to
effect purchases and sales of such Remarketing Senior Notes; PROVIDED
that, the settlement procedures set forth herein, including provisions
for payment by purchasers of the Remarketing Senior Notes in the
Remarketing, shall be subject to modification to the extent required by
the Depositary or if the book-entry system is no longer available for
the Remarketing Senior Notes at the time of the Remarketing, to
facilitate the remarketing of the Remarketing Senior Notes in
certificated form and the Remarketing Agent may modify such settlement
procedures in order to facilitate the settlement process.
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7
(ii) Upon receipt of the proceeds from a Successful
Remarketing, the Remarketing Agent shall:
(A) deduct and retain for itself an amount equal to
.25% of the principal amount of the remarketed Remarketing
Senior Notes as a fee for the performance of its services as
Remarketing Agent hereunder;
(B) (I) if the Successful Remarketing occurs prior to
the third Business Day preceding the Purchase Contract
Settlement Date, use the remaining proceeds with respect to
the Pledged Senior Notes from such Successful Remarketing to
purchase the Treasury Portfolio, in open market transactions
and/or at Treasury auctions, in the amount and types of
Treasury securities described in clauses (1)(i) and (2)(i) of
the definition of Remarketing Value related to the Pledged
Senior Notes, deliver such Treasury Portfolio, along with
notification thereof, to the Collateral Agent on the
Remarketing Settlement Date or as soon thereafter as is
practicable, or (II) if such Successful Remarketing occurs on
the Final Remarketing Date, remit to the Collateral Agent the
portion of the remaining proceeds with respect to the Pledged
Senior Notes from such Successful Remarketing to be delivered
to the Purchase Contract Agent in settlement of the Purchase
Contracts on the Purchase Contract Settlement Date;
(C) if any Separated Senior Notes were included in
such successful Remarketing, remit to the Collateral Agent,
along with notification thereof, for payment to the holders of
such Separated Senior Notes sold in such Successful
Remarketing the remaining proceeds with respect to such
remarketed Separated Senior Notes from the Remarketing, less
the remarketing fee, equal to the amounts described in clauses
(1)(ii) and (2)(ii) of the definition of Remarketing Value;
and
(D) remit, along with notification thereof, any
remaining balance of such proceeds after the application of
such proceeds as set forth in clauses (A) through (C) above,
if any, to the Purchase Contract Agent for the benefit of the
Holders of the remarketed Pledged Senior Notes and to the
Collateral Agent for the for the holders of any remarketed
Separated Senior Notes, on a pro rata basis;
PROVIDED, HOWEVER, that if such Successful Remarketing is consummated after 4:30
p.m. (New York City time) on such Remarketing Date and, despite using its
commercially reasonable efforts, the Remarketing Agent cannot cause the
applications of the proceeds specified above to occur on such Remarketing Date,
then the Remarketing Agent may make such applications and remittances on the
next succeeding Business Day. The Remarketing Agent may, in its discretion,
communicate with holders of the Senior Notes, and prospective purchasers of
Remarketing Senior Notes, in connection with its remarketing efforts in order to
facilitate the remarketing and the intent and purpose of this Agreement despite
the fact that such communication may not be expressly required herein.
(e) If, by 4:00 p.m. (New York City time) on the ninth
Business Day preceding the Purchase Contract Settlement Date, the Remarketing
Agent, despite using its commercially reasonable efforts, has been and is unable
to remarket all of the Remarketing Senior Notes tendered for purchase at a price
equal to at least the Remarketing Value, the Remarketing Agent shall Transfer to
the Collateral Agent, along with notification thereof, by the sixth Business Day
preceding the Purchase Contract Settlement Date, the Pledged Senior Notes that
were to be
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8
remarketed in the Initial Remarketing or Subsequent Remarketing, whereupon the
Collateral Agent shall, for the benefit of the Company, apply such Pledged
Senior Notes to secure the obligation of the related Holders of Corporate PIES
to purchase Common Stock under the related Purchase Contracts.
(f) If, (1) by 4:00 p.m. (New York City time), on the Final
Remarketing Date, the Remarketing Agent, despite using its commercially
reasonable efforts, has been and is unable to remarket all of the Remarketing
Senior Notes tendered for purchase at a price equal to at least the Remarketing
Value, or (2) the Remarketing Agent has determined that the Remarketing may not
be commenced or consummated as contemplated herein and by the Remarketing
Procedures under applicable law, a failed Remarketing (a "Failed Remarketing")
shall be deemed to have occurred. If a Failed Remarketing occurs, the
Remarketing Agent and the Company, as applicable, shall take the following
actions:
(i) The Remarketing Agent shall notify by telephone the
Company, the Depositary, Purchase Contract Agent, the Collateral Agent
and the Trustee, that a Failed Remarketing has occurred.
(ii) The Company shall cause a notice of the Failed
Remarketing to be sent to the holders of all Senior Notes and to be
published, in an Authorized Newspaper, in each case, no later than the
Business Day preceding the Purchase Contract Settlement Date.
(iii) The Remarketing Agent shall determine the Reset
Rate that will be equal to the Two Year Benchmark Treasury plus the
Applicable Spread in accordance to paragraph 19(ii) of the Indenture
Officers' Certificate.
(iv) The Remarketing Agent shall remit the Pledged Senior
Notes that were to be remarketed to the Purchase Contract Agent and the
Separated Senior Notes that were to be remarketed to the Collateral
Agent.
(g) If all of the holders of Corporate PIES elect not to
participate in the Remarketing and no holders of Separated Senior Notes elect to
participate in the Remarketing and deliver such Separated Senior Notes and a
notice of such election to the Collateral Agent by the Election Date, in
accordance with the Indenture Officers' Certificate, then:
(i) the Remarketing Agent shall, in its sole discretion,
determine the rate that, in its judgment, would have been established
had a Remarketing been held on the Final Remarketing Date, and such
rate shall be the Reset Rate;
(ii) the Remarketing Agent shall advise by telephone the
Company, the Depositary and the Trustee of such Reset Rate; and
(iii) the Company shall cause a notice of such Reset Rate
to be sent to the holders of all Senior Notes and to be published in an
Authorized Newspaper, in each case, no later than the Business Day
preceding the Purchase Contract Settlement Date.
(h) The Remarketing Agent shall notify the Company, by the
[tenth] Business Day prior to the Initial Remarketing Date, of the specific U.S.
Treasury security or securities (including the CUSIP number(s) and/or the
principal terms of such Treasury security for securities)
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9
that must be delivered by holders of Corporate PIES in connection with such
holders' creation of Treasury PIES pursuant to the Purchase Contract Agreement.
Section 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees (i) on and as of
the date hereof, (ii) on and as of the date of any Remarketing Materials (each
as defined in Section 3(a) below) are first distributed in connection with the
Remarketing (the "Commencement Date"), (iii) on and as of the Remarketing Date
and (iv) on and as of the Purchase Contract Settlement Date that:
(a) Registration statements on Form S-3 (File No.'s 333-80149
and 333-72160) and an amendment or amendments thereto with respect to
the initial offering of the Senior Notes and other securities of the
Company (together, the "Registration Statement") (i) have been prepared
by the Company in conformity with the requirements of the Securities
Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder
(collectively, the "Securities Act"), (ii) have been filed with the
Commission under the Securities Act and (iii) have become effective
under the Securities Act; and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"). In addition, a registration statement on Form S-3 of
the Company, if required to be filed in connection with the
Remarketing, will also be prepared by the Company in conformity with
the requirements of the Securities Act and filed with the Commission
under the Securities Act and be effective on or before the Initial
Remarketing Date and such registration statement shall be included in
the definition of "Registration Statement" herein. Copies of such
registration statements that have become effective, and the amendment
or amendments to such registration statements, have been delivered by
the Company to the Remarketing Agent, in the case of documents not
electronically available through the Commission's EDGAR filing system
and, in the case of documents that are so available, to the extent
requested by the Remarketing Agent.
As used in this Agreement, "Effective Time" means the date and
time as of which the last of such registration statements that have
become effective or may be filed, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time of such last
registration statement; "Preliminary Prospectus" means each prospectus
relating to the Remarketing Senior Notes included in such last
registration statement, or amendment thereto, before it became
effective under the Securities Act and any prospectus relating to the
Remarketing Senior Notes filed by the Company pursuant to Rule 424(a)
of the Securities Act; "Registration Statement" means such last
registration statement, as amended at its Effective Time, including
documents incorporated by reference therein at such time and, if
applicable, all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act,
including any information deemed to be part of such Registration
Statement as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Securities Act; and "Prospectus" means each final
prospectus relating to the Remarketing Senior Notes, as first filed
pursuant to Rule 424(b) of the Securities Act.
Reference made herein to any Preliminary Prospectus, the
Prospectus or any other information furnished by the Company to the
Remarketing Agent for distribution to investors in connection with the
Remarketing (such other information, the "Remarketing
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10
Materials") shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, or, in the case of Remarketing
Materials, referred to as incorporated by reference therein, and any
reference to any amendment or supplement to any Preliminary Prospectus,
the Prospectus or the Remarketing Materials shall be deemed to refer to
and include any document filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act"), after the date of such
Preliminary Prospectus or the Prospectus incorporated by reference
therein pursuant to Item 12 of Form S-3 or, if so incorporated, the
Remarketing Materials, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective Time
that is incorporated by reference in the Registration Statement.
(b) The Commission has not issued an order preventing or
suspending the use of the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Remarketing Materials.
(c) The Registration Statement conforms (and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all material respects
to the requirements of the Securities Act; and the Registration
Statement and the Prospectus do not and will not, as of the Effective
Date (as to the Registration Statement and any amendment thereto), as
of the applicable filing date (as to the Prospectus and any amendment
or supplement thereto) and (as to the Registration Statement and the
Prospectus) contain and will contain any 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; PROVIDED that
no representation and warranty is made as to the statement of
eligibility and qualification on Form T-1 of the Trustee under the
Trust Indenture Act, or as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Remarketing Agent specifically for inclusion therein; the Indenture
conforms in all material respects to the requirements of the Trust
Indenture Act.
(d) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(e) The documents incorporated by reference in the
Registration Statement or the Prospectus when they became effective or
were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
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11
(f) Each of the Company and its Significant Subsidiaries (as
defined below) has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Nevada, is
duly qualified to do business and is in good standing as a foreign
business entity in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification,
and has all corporate power and authority necessary to own, lease or
hold its properties and to conduct the businesses in which it is
engaged, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the business,
affairs, management, condition (financial or otherwise), stockholders'
equity or results of operations of the Company and its subsidiaries
considered as a whole (a "Material Adverse Effect"); and none of the
subsidiaries of the Company other than Nevada Power Company and Sierra
Pacific Power Company is a "significant subsidiary", as such term is
defined in Rule 405 of the Securities Act (each, a "Significant
Subsidiary").
(g) The Company has an authorized capitalization as set forth
in the Company's consolidated statement of capitalization as of
December 31, 2000 incorporated by reference in the Prospectus; all of
the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
all of the issued shares of capital stock or other ownership interests
of each subsidiary of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable; and all shares of the
issued and outstanding common stock of the Company's Significant
Subsidiaries are owned by the Company; and all shares of capital stock
or other ownership interests of each subsidiary of the Company which
are owned, directly or indirectly, by the Company are so owned free and
clear of all liens, encumbrances, equities, claims or adverse interests
of any nature. There has been no change in the outstanding capital
stock of the Company or any of its subsidiaries since September 30,
2001, except with respect to changes in outstanding Common Stock
resulting from transactions relating to employee benefit plans,
non-employee director plans or the common stock investment plan
existing on the date hereof.
(h) Except as described in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or such subsidiary, would be reasonably likely
to result in a Material Adverse Effect; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(i) Except circumstances which are not reasonably likely,
individually or in the aggregate, to result in a Material Adverse
Effect, neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
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12
permit, certificate, franchise or other governmental authorization or
permit relating to the ownership of its property or to the conduct of
its business.
(j) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person.
(k) Except as set forth in or contemplated by the Prospectus,
(i) neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in
the Prospectus, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree (a "Material Loss"); and, (ii) since such date,
there has not been any change in the capital stock, short-term debt or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development reasonably likely to result
in a material adverse change, in or affecting the business, general
affairs, management, consolidated financial position, stockholders'
equity, or results of operations of the Company and its subsidiaries
considered as a whole.
(l) The financial statements (including the related notes and
supporting schedules) incorporated by reference in the Prospectus (and
any supplement thereto) present fairly the financial condition, the
results of operations and the changes in financial position of the
Company and its consolidated subsidiaries on the basis stated therein
at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied, except as noted therein, throughout the periods
involved; the supporting schedules, if any, incorporated by reference
in the Prospectus present fairly in accordance with generally accepted
accounting principles the information required to be stated therein;
and the other financial and statistical information and data set forth
or incorporated by reference in the Prospectus (and any supplement
thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Company.
(m) The pro forma financial statements of the Company and its
consolidated subsidiaries and the related notes thereto in the
Prospectus (and any supplement thereto), if any, have been prepared on
a basis consistent with the historical financial statements of the
Company and its consolidated subsidiaries, give effect to the
assumptions used in the preparation thereof on a reasonable basis and
in good faith and present fairly the transactions purported to be
presented. Such pro forma financial statements have been prepared in
accordance with the applicable requirements of Rule 11-02 of Regulation
S-X promulgated by the Commission. The other pro forma financial and
statistical information and data incorporated by reference in the
Prospectus (and any supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with the pro
forma financial statements.
(n) Deloitte & Touche LLP (the "Accountants"), who have
certified the financial statements of the Company and whose report is
incorporated by reference in the Prospectus, are independent public
accountants as required by the Securities Act; and the
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13
Accountants were independent accountants as required by the Securities
Act during the periods covered by the financial statements on which
they reported.
(o) The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects, except such as
are (i) described or referred to in the Prospectus or (ii) do not,
individually or in the aggregate, affect the value of such property or
interfere with the use made and proposed to be made of such property to
such extent as might reasonably be expected to result in a Material
Adverse Effect; and all assets held under lease by the Company and its
Significant Subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material to the
Company and its subsidiaries considered as a whole, and such leases do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its Significant Subsidiaries
to such extent as would be reasonably likely to result in a Material
Adverse Effect.
(p) Each of the Company and its Significant Subsidiaries has
such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization") of, and
has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts
and other tribunals, including, without limitation, under any
applicable environmental law, ordinance, rule, regulation, order,
judgment, decree or permit, as are necessary to own, lease, license and
operate its respective properties and to conduct its business, except
where the failure to have any such Authorization or to make any such
filing or notice would not have a Material Adverse Effect. Except for
circumstances which are not reasonably likely to result in a Material
Adverse Effect, (i) each such Authorization is valid and in full force
and effect and each of the Company and its Significant Subsidiaries, as
the case may be, is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; (ii) no
event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or
lapse of time or both, would result in any other impairment of the
rights of the holder of any such Authorization; and (iii) except as
disclosed in the Prospectus, such Authorizations contain no
restrictions that are burdensome to the Company or any of its
Significant Subsidiaries.
(q) Since the date as of which information is given in the
Prospectus and except as otherwise disclosed in the Prospectus, (i)
neither the Company nor any of its Significant Subsidiaries has
incurred any liability or obligation, direct or contingent, or entered
into any transaction which liability, obligation or transaction is (A)
not in the ordinary course of business and (B) material with respect to
the Company and its subsidiaries considered as a whole, and (ii) the
Company has not declared or paid any dividend on any of its capital
stock except for dividends on the Common Stock in amounts per share
that are consistent with past practice.
(r) The Company has all power and authority necessary to
execute and deliver this Agreement and perform its obligations
hereunder; this Agreement and the transactions contemplated hereby have
been duly authorized by the Company; this Agreement has been
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14
duly executed and delivered by the Company, and this Agreement conforms
in all material respects to the description thereof contained in the
Prospectus.
(s) The Company has all power and authority necessary to
execute and deliver the Purchase Contract Agreement and perform its
obligations thereunder; the Purchase Contract Agreement and the
transactions contemplated thereby have been duly authorized by the
Company; the Purchase Contract Agreement has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Purchase Contract Agent, it constitutes a legally valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing; and the Purchase Contract Agreement conforms or will conform,
as the case may be, in all material respects to the description thereof
contained in the Prospectus.
(t) The Corporate PIES have been duly executed and delivered
by the Company (assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due authentication by
the Purchase Contract Agent), have been duly and validly issued and
outstanding and constitute legally valid and binding obligations of the
Company, entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and the Corporate
PIES conform or will conform, as the case may be, in all material
respects to the description thereof contained in the Prospectus.
(u) The Treasury PIES have been executed and delivered by the
Company (assuming due execution by the Purchase Contract Agent as
attorney-in-fact for the holders thereof and due authentication by the
Purchase Contract Agent) and, upon substitution of the requisite number
of Treasury Securities for the applicable Senior Notes as set forth in
the Prospectus, will be duly and validly issued and outstanding and
will constitute legally valid and binding obligations of the Company,
entitled to the benefits of the Purchase Contract Agreement and
enforceable against the Company in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Treasury PIES will
conform, when issued, to the description thereof contained in the
Prospectus.
(v) The Company had all necessary corporate power and
authority to execute and deliver the Indenture and had and continues to
have all necessary corporate power and authority to perform its
obligations thereunder; the Indenture and the transactions contemplated
thereby have been duly authorized by the Company; the Indenture has
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, it constitutes a
legally valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to the
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15
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Indenture conforms or
will conform, as the case may be, in all material respects to the
description thereof contained in the Prospectus.
(w) The Senior Notes have been duly executed, authenticated,
issued and delivered as contemplated by the Indenture against payment
of the agreed consideration therefor, have been duly and validly issued
and outstanding and constitute legally valid and binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Senior Notes conform
or will conform, as the case may be, in all material respects to the
description thereof contained in the Prospectus.
(x) The Company has all necessary power and authority to
execute and deliver the Pledge Agreement and perform its obligations
thereunder; the Pledge Agreement and the transactions contemplated
thereby have been duly authorized by the Company; the Pledge Agreement
has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Purchase Contract Agent,
the Securities Intermediary and the Collateral Agent, it constitutes a
legally valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing; and the Pledge Agreement conforms or will conform, as
the case may be, in all material respects to the description thereof
contained in the Prospectus.
(y) The provisions of the Pledge Agreement are effective to
create, in favor of the Collateral Agent for the benefit of the
Company, a valid security interest under the New York UCC in the
Pledged Senior Notes, the Pledged Treasury Portfolio Interest and the
Pledged Treasury Securities, as the case may be, from time to time
credited to the Collateral Account in accordance with the Pledge
Agreement. For purposes of this opinion, capitalized terms used in this
paragraph, which are not defined in this Agreement, shall have the
meanings ascribed to such terms in the Pledge Agreement.
(z) The Company has all necessary power and authority to
execute and deliver the Remarketing Agreement and perform its
obligations thereunder; the Remarketing Agreement and the transactions
contemplated thereby have been duly authorized by the Company and,
assuming due authorization, execution and delivery by the Remarketing
Agent, it constitutes a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing, and except with respect to the
rights of indemnification and contribution hereunder, where enforcement
hereof may be limited by federal or state securities laws or
<Page>
16
the policies underlying such laws; the Remarketing Agreement has been
duly executed and delivered by the Company; and the Remarketing
Agreement conforms or will conform, as the case may be, in all material
respects to the description thereof contained in the Prospectus.
(aa) The unissued shares of common stock to be issued and sold
by the Company upon settlement of the Purchase Contracts have been duly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly
and validly issued, fully paid and non-assessable and will conform in
all material respects to the description thereof contained in the
Prospectus.
(bb) Except as described in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor is
there any restriction on the voting or transfer of, any of the
Corporate PIES, the Treasury PIES, the Purchase Contracts, the Senior
Notes or any shares of Common Stock (collectively, the "Securities")
pursuant to the Company's articles of incorporation or by-laws or any
agreement or instrument, except such preemptive or other rights and/or
restrictions as relate to the transactions contemplated by the Purchase
Contract Agreement, the Pledge Agreement and the Indenture.
(cc) The execution, delivery and performance of this
Agreement, the Purchase Contract Agreement, the Indenture and the
Pledge Agreement (collectively, the "Transaction Agreements") and the
consummation by the Company of the transactions contemplated hereby and
thereby, including without limitation the Remarketing of the
Remarketing Senior Notes (collectively, the "Transactions"), did not
and will not, as the case may be, (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, which would be
reasonably likely to result in a Material Adverse Effect, (ii) result
in any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries, (iii) result in any violation of
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or assets,
which would be reasonably likely to result in a Material Adverse Effect
or (iv) require any material consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body for the consummation of the Transactions, except for (A)
the registration of the Remarketing Senior Notes in connection with the
Remarketing under the Securities Act, if applicable, (B) the
qualification of the Indenture under the Trust Indenture Act and (C)
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the Remarketing of the Senior
Notes, if applicable.
(dd) Neither the Company nor any subsidiary is an "investment
company" as defined, and subject to regulation, under the Investment
Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (the "Investment Company Act").
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17
(ee) The Company is a "holding company" under the Public
Utility Holding Company Act of 1935, as amended (the "Holding Company
Act"), but, pursuant to Section 3(a)(1) of the Holding Company Act, is
exempt from all provisions of the Holding Company Act except Section
9(a)(2) thereof.
Any certificate signed by any officer of the Company or any of
its subsidiaries and delivered to the Remarketing Agent or to counsel for the
Remarketing Agent in connection with the Remarketing shall be deemed a
representation and warranty by the Company to the Remarketing Agent as to the
matters covered thereby on the date of such certificate.
Section 4. REIMBURSEMENT OF EXPENSES.
The Company agrees to pay the following expenses, whether or
not the Remarketing is consummated or this Agreement is terminated, promptly
upon receipt of a request therefor:
(1) the costs incident to the preparation and printing
of the Registration Statement, Prospectus and any Remarketing
Materials and any amendments or supplements thereto, including
all related registration and filing fees;
(2) the costs of distributing the Registration
Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto;
(3) the fees and expenses of qualifying the Remarketing
Senior Notes under the securities laws of the several
jurisdictions as provided in Section 5(f) and of preparing,
printing and distributing a U.S. and, if necessary, a
Canadian, Blue Sky Memorandum (including related fees and
expenses of counsel to the Remarketing Agent);
(4) all other costs and expenses incident to the
performance of the obligations of the Company hereunder,
including the fees and expenses of the Company's counsel; and
(5) the fees and expenses of outside counsel to the
Remarketing Agent in connection with its duties hereunder.
Section 5. FURTHER AGREEMENTS OF THE COMPANY.
The Company covenants and agrees as follows:
(a) (1) To use its reasonable best efforts to file with and
cause to be declared effective by the Commission under the Securities
Act, prior to fifth Business Day preceding the Initial Remarketing
Date, an additional registration statement relating to the Remarketing
Senior Notes in connection with the Remarketing, in a form approved by
the Remarketing Agent, if in the opinion of counsel to the Remarketing
Agent such additional registration statement is required in connection
with the Remarketing under applicable law;
(2) to advise the Remarketing Agent, promptly after
it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus
has been filed, in each such case excluding any documents
filed under
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18
the Exchange Act and which are incorporated by reference
therein, and to furnish the Remarketing Agent with copies
thereof; PROVIDED, HOWEVER, that the Company shall not be
required to provide the Remarketing Agent with any such
reports or similar forms that have been filed with the
Commission by electronic transmission pursuant to EDGAR;
(3) to prepare the Prospectus for the Remarketing and
to timely file it with the Commission under the Securities Act
and to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Remarketing Senior Notes; and
(4) to advise the Remarketing Agent, promptly after
it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the
use of the Prospectus, of the suspension of the qualification
of any of the Remarketing Senior Notes for offering or sale in
any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal.
(b) To deliver to the Remarketing Agent in New York City such
number of the following documents as the Remarketing Agent shall
reasonably request at the times specified below: (i) conformed copies
of the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case excluding exhibits other than
this Agreement and the Indenture) promptly after such filing, (ii) the
Prospectus and any amended or supplemented Prospectus promptly after
the preparation and/or printing thereof, as applicable, but in no event
later than the third Business Day prior to the Initial Remarketing
Date, (iii) any document incorporated by reference in the Prospectus
(excluding exhibits thereto) promptly after their filing with the
Commission and (iv) any Remarketing Materials promptly after their
preparation, if at all; and, if the delivery of a prospectus is
required at any time in connection with the Remarketing and if, at such
time, any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or if for any other reason in the opinion of counsel to the Company or
the Remarketing Agent it shall be necessary during such same period to
amend or supplement the Registration Statement or Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the Exchange
Act, to notify the Remarketing Agent and to file such document and to
prepare and furnish without charge to the Remarketing Agent and to any
dealer in Senior Notes as many copies as the Remarketing Agent may from
time to time request of an
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19
amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance, promptly after their preparation
and/or filing, if at all.
(c) To file promptly with the Commission any amendment to the
Registration Statement, the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the
Commission.
(d) Prior to filing with the Commission (i) any amendment to
the Registration Statement or supplement to the Prospectus (excluding
documents filed under the Exchange Act incorporated by reference) or
(ii) any Prospectus pursuant to Rule 424 of the Securities Act, to
furnish a copy thereof to the Remarketing Agent and counsel to the
Remarketing Agent, and not to file any such amendment or supplement
which shall be reasonably disapproved by the Remarketing Agent promptly
after reasonable notice.
(e) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to
the Remarketing Agent an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act (including, at the option of the Company, Rule
158 of the Securities Act).
(f) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify any of the
Remarketing Senior Notes for offer and sale under the securities laws
of such jurisdictions as the Remarketing Agent may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the Remarketing; PROVIDED that, in connection therewith,
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction
in which it is not so qualified or to submit to any requirements which
it deems unduly burdensome.
(g) For a period of two years following the Effective Date or
so long as any of the Senior Notes shall remain outstanding, whichever
is shorter, to furnish to the Remarketing Agent copies of such
materials furnished by the Company to the holders of any class of its
capital stock and to furnish to the Remarketing Agent a copy of each
annual or other report it shall be required to file with the Commission
and such other information concerning the Company and its subsidiaries
as the Remarketing Agent may reasonably request; PROVIDED, HOWEVER,
that the Company shall not be required to provide the Remarketing Agent
with any such reports or similar forms that have been filed with the
Commission by electronic transmission pursuant to EDGAR.
(h) To request, not later than 15 calendar days nor more than
30 calendar days prior to the Initial Remarketing Date, that the
Depositary notify its Participants holding Corporate PIES or Separated
Senior Notes of the impending Initial Remarketing.
Section 6. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
The obligations of the Remarketing Agent hereunder are subject
to (i) the accuracy, on and as of the date when made, of the representations and
warranties of the Company contained herein or in any certificates of any officer
of the Company delivered pursuant hereto, (ii) the
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performance by the Company of the covenants set forth in Section 5 hereof and
its other obligations hereunder and (iii) each of the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof or
suspending the qualification of the Indenture, shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and
disclosed to the Company on or prior to the Remarketing Date that the
Registration Statement, the Prospectus or the Remarketing Materials or
any amendment or supplement thereto contains any untrue statement of a
fact which, in the opinion of counsel to the Remarketing Agent, is
material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading and the Company
shall not have filed an amendment or supplement to the Registration
Statement or otherwise acted to correct the matter so disclosed.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture, the Remarketing Senior Notes, the Prospectus, the
Registration Statement, the Remarketing Materials and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, including satisfaction of relevant conditions of applicable
law, shall be reasonably satisfactory in all material respects to
counsel to the Remarketing Agent, and the Company shall have furnished
to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) The Company, the Purchase Contract Agent, the Collateral
Agent and the Trustee shall have performed their respective obligations
in connection with the Initial Remarketing, any Subsequent Remarketing
or, if applicable, Final Remarketing, in each case pursuant to the
Stock Purchase Agreement, the Pledge Agreement, the Indenture and this
Agreement, including, without limitation, by providing the Remarketing
Agent with timely and accurate notice of the aggregate principal amount
of the Remarketing Senior Notes to be remarketed pursuant to the
Purchase Contract Agreement, the Pledge Agreement and the Indenture.
(e) Woodburn and Wedge, Nevada counsel to the Company, shall
have furnished to the Remarketing Agent its written opinion, addressed
to the Remarketing Agent and dated the Remarketing Settlement Date, in
form and substance satisfactory to the Remarketing Agent, to the effect
that:
(i) The Company and each of its Significant
Subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of
the State of Nevada, except where the failure to be in good
standing would not have a Material Adverse Effect.
(ii) The Company has all power and authority
necessary to execute and deliver each of the Transaction
Agreements, to perform its obligations thereunder
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21
and to issue the Securities; and the Company has duly
authorized, executed and delivered each of the Transaction
Agreements.
(iii) The execution, delivery and performance of the
Transaction Agreements and the consummation by the Company of
the Transactions, did not and will not, as the case may be,
(i) result in any violation of the provisions of the charter
or by-laws of the Company or any of its subsidiaries, (ii)
result in any violation of any Nevada statute or any order,
rule or regulation of any Nevada court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets,
which would be reasonably likely to result in a Material
Adverse Effect, or (iv) require any material consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body for the
consummation of the Transactions, except for such consents,
approvals, authorizations, registrations or qualifications as
may be required under Nevada securities laws in connection
with the Remarketing of the Senior Notes, if applicable.
(iv) The Corporate PIES have been duly executed and
delivered by the Company (assuming due execution by the
Purchase Contract Agent as attorney-in-fact for the holders
thereof and due authentication by the Purchase Contract Agent)
and have duly and validly issued and outstanding.
(v) The Treasury PIES have been duly executed and
delivered by the Company (assuming due execution by the
Purchase Contract Agent as attorney-in-fact for the holders
thereof and due authentication by the Purchase Contract Agent)
and, upon substitution of the requisite number of Treasury
Securities for the applicable Senior Notes as set forth in the
Purchase Contract Agreement, and will be duly and validly
issued and outstanding.
(vi) The Senior Notes have been duly executed and
delivered and have been duly and validly issued and
outstanding.
(vii) The unissued shares of Common Stock to be
issued and sold by the Company upon settlement of the Purchase
Contracts have been duly authorized and reserved for issuance
and, when issued, sold and delivered, against payment, in
accordance with the provisions of the Purchase Contracts, will
be duly and validly issued, fully paid and non-assessable and
will conform to the description thereof contained in the
Prospectus.
The opinion of such counsel may be limited to the
extent the matters set forth therein are governed by or relate to the
law of the State of Nevada or instruments governed thereby, or relate
to the State of Nevada or agencies thereof.
(f) Choate, Hall and Stewart, counsel to the Company, shall
have furnished to the Remarketing Agent a written opinion, addressed to
the Remarketing Agent and dated the Remarketing Settlement Date, in
form and substance satisfactory to the Remarketing Agent, to the effect
that:
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22
(i) The Company and each of its Significant
Subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of
the State of Nevada, are duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction
in which their respective ownership or lease of property or
the conduct of their respective businesses requires such
qualification and have all corporate power and authority
necessary to own or hold their respective properties and
conduct the businesses in which they are engaged, except where
the failure to so qualify or to be in good standing would not
have a Material Adverse Effect.
(ii) The Company has all power and authority
necessary to execute and deliver each of the Transaction
Agreements, to perform its obligations thereunder and to issue
the Securities; and the Company has duly authorized, executed
and delivered each of the Transaction Agreements.
(iii) The execution, delivery and performance of the
Transaction Agreements and the consummation by the Company of
the Transactions, did not and will not, as the case may be,
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or
assets of the Company or any of its subsidiaries is subject,
which would be reasonably likely to result in a Material
Adverse Effect, (ii) result in any violation of the provisions
of the charter or by-laws of the Company or any of its
subsidiaries, (iii) result in any violation of any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties or
assets, which would be reasonably likely to result in a
Material Adverse Effect or (iv) require any material consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body for the
consummation of the Transactions, except for such consents,
approvals, authorizations, registrations or qualifications
which have been obtained and are in full force and effect.
(iv) Assuming due authorization, execution and
delivery of the Purchase Contract Agreement by the Purchase
Contract Agent, the Purchase Contract Agreement constitutes a
legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing; the Purchase Contract Agreement is not required
to be qualified as an indenture under the Trust Indenture Act;
and the Purchase Contract Agreement conforms or will conform,
as the case may be, in all material respects to the
description thereof contained in the Prospectus.
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23
(v) The Corporate PIES have been duly executed and
delivered by the Company (assuming due execution by the
Purchase Contract Agent as attorney-in-fact for the holders
thereof and due authentication by the Purchase Contract
Agent), have duly and validly issued and outstanding, and
constitute valid and binding obligations of the Company,
entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Corporate PIES conform or
will conform, as the case may be, in all material respects to
the description thereof contained in the Prospectus.
(vi) The Treasury PIES have been duly executed and
delivered by the Company (assuming due execution by the
Purchase Contract Agent as attorney-in-fact for the holders
thereof and due authentication by the Purchase Contract Agent)
and, upon substitution of the requisite number of Treasury
Securities for the applicable Senior Notes as set forth in the
Purchase Contract Agreement, will be duly and validly issued
and outstanding, and will constitute valid and binding
obligations of the Company, entitled to the benefits of the
Purchase Contract Agreement and enforceable against the
Company in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
and the Treasury PIES conform or will conform, as the case may
be, if issued, in all material respects to the description
thereof contained in the Prospectus.
(vii) Assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture
constitutes a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture
conforms or will conform, as the case may be, in all material
respects to the description thereof contained in the
Prospectus.
(viii) The Senior Notes have been duly executed,
authenticated, issued and delivered as contemplated by the
Indenture against payment of the agreed consideration
therefor, have been duly and validly issued and outstanding
and constitute legally valid and binding obligations of the
Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the
<Page>
24
Senior Notes conform or will conform, as the case may be, in
all material respects with the description thereof contained
in the Prospectus.
(ix) Assuming due authorization, execution and
delivery of the Pledge Agreement by the Purchase Contract
Agent, the Securities Intermediary and the Collateral Agent,
the Pledge Agreement constitutes a legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and the
Pledge Agreement conforms or will conform, as the case may be,
in all material respects to the description thereof contained
in the Prospectus.
(x) Assuming due authorization, execution and
delivery of the Remarketing Agreement by the Remarketing
Agent, the Remarketing Agreement constitutes a legally valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing,
and except with respect to the rights of indemnification and
contribution under the Remarketing Agreement, where
enforcement hereof may be limited by federal or state
securities laws or the policies underlying such laws; and the
Remarketing Agreement conforms or will conform, as the case
may be, in all material respects to the description thereof
contained in the Prospectus.
(xi) The provisions of the Pledge Agreement are
effective to create, in favor of the Collateral Agent for the
benefit of the Company, a valid security interest under the
Uniform Commercial Code as in effect on the date of such
opinion in the State of New York (the "New York UCC") in the
Pledged Senior Notes, the Pledged Treasury Portfolio Interest
and the Pledged Treasury Securities, as the case may be, from
time to time credited to the Collateral Account in accordance
with the Pledge Agreement. For purposes of this opinion,
capitalized terms used in this paragraph, which are not
defined in this Agreement, shall have the meanings ascribed to
such terms in the Pledge Agreement.
(xii) The unissued shares of Common Stock to be
issued and sold by the Company upon settlement of the Purchase
Contracts have been duly authorized and reserved for issuance
and, when issued, sold and delivered, against payment, in
accordance with the provisions of the Purchase Contracts, will
be duly and validly issued, fully paid and non-assessable and
will conform to the description thereof contained in the
Prospectus.
(xiii) Except as described in the Prospectus, there
are no preemptive or other rights to subscribe for or to
purchase, nor is there any restriction on the voting or
transfer of, any of the Securities pursuant to the Company's
articles of incorporation or by-laws or any agreement or
instrument, except such preemptive or
<Page>
25
other rights and/or restrictions as relate to the transactions
contemplated by the Purchase Contract Agreement, the Pledge
Agreement and the Indenture.
(xiv) The Registration Statement on Form S-3 (File
No. 333-72160) was declared effective under the Securities Act
at 10:00 a.m. on November 7, 2001, and the Indenture was
qualified under the Trust Indenture Act at May 3, 2000 at
10:00 a.m. (Washington, D.C. time) and the Prospectus was
filed with the Commission pursuant to Rule 424(b)(1) under
the Securities Act on the date specified in such opinion on
the date specified therein; and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the best knowledge of such counsel, no proceeding
for that purpose is pending or threatened by the Commission.
(xv) The Registration Statement, the Prospectus
and the documents incorporated by reference therein (other
than the financial statements and related schedules therein,
as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the Trust Indenture Act; and the Indenture
conforms in all material respects to the requirements of the
Trust Indenture Act.
(xvi) The statements made in the Prospectus under the
captions "Description of Debt Securities," "Description of the
Common Stock," "Description of Stock Purchase Contracts and
Stock Purchase Units," "Prospectus Supplement Summary--The
Offering," "Description of the PIES, "Description of the
Purchase Contracts," "Certain Provisions of the Purchase
Contracts, the Purchase Contract Agreement and the Pledge
Agreement," and "Description of the Senior Notes", insofar as
they purpose to constitute summaries of certain terms of
documents referred to therein, and considered together,
constitute accurate summaries of the terms of such documents
in all material respects.
(xvii) The statements in the Prospectus Supplement
under the captions "United States Federal Income Tax
Consequences" and "Certain ERISA Considerations", insofar as
they purport to constitute summaries of matters of United
States federal statutes or regulations or legal conclusions
with respect thereto, constitute accurate summaries of the
matters described therein in all material respects.
(xviii) The Company is not an "investment company"
within the meaning of, and subject to regulation, under the
Investment Company Act.
(xix) The Company is a "holding company" under the
Holding Company Act, but, pursuant to Section (3)(a)(1) of the
Holding Company Act, is exempt from all provisions of the
Holding Company Act except Section 9(a)(2) thereof.
(xx) To the best knowledge of such counsel, there are
no contracts or other documents which are required by the
Securities Act to be described in the Prospectus or filed as
exhibits to the Registration Statement which have not been so
described or filed as required.
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26
(xxi) To the best knowledge of such counsel and
except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or such
subsidiary, would be reasonably likely to result in a Material
Adverse Effect; and, to the best knowledge of such counsel,
no such proceedings are overtly threatened or contemplated by
governmental authorities or threatened by others.
(xxii) To the best knowledge of such counsel and
except as set forth in the Prospectus, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right to require the Company
to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
In addition, the opinion of such counsel shall state that
nothing has come to the attention of such counsel which lead such
counsel to believe that the Registration Statement (except for the
financial statements and financial data included or incorporated by
reference therein, as to which such counsel need express no belief), as
of the Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or
that the Prospectus (except as stated above), as of the Remarketing
Settlement Date, includes any untrue statement of a material fact or
omits to state 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.
The opinion of such counsel may rely, as to all matters of law
of the State of Nevada, on the opinion of Woodburn and Wedge.
(g) On the Remarketing Settlement Date, the Company shall have
caused to be furnished to the Remarketing Agent a letter addressed to
the Remarketing Agent and dated such date, in form and substance
satisfactory to the Remarketing Agent, of Deloitte & Touche LLP or such
other firm of nationally recognized independent public accountants
satisfactory to the Remarketing Agent, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to certain financial information contained in the
Prospectus and the Remarketing Materials.
(h) The Company shall have furnished to the Remarketing Agent
a certificate, dated the Remarketing Settlement Date, of its President
or any Vice President and a principal financial or accounting officer
of the Company, stating that:
(i) the representations and warranties of the Company
contained in this Agreement are true and correct as of the
Remarketing Settlement Date, and the Company performed all
covenants and obligations and satisfied all conditions
required of it under this Agreement;
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27
(ii) no stop order suspending the effectiveness of
the Registration Statement or of any part thereof shall have
been issued, and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company, shall be
contemplated by the Commission;
(iii) since the respective dates as of which
information is given in the Prospectus other than as set forth
in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), (A) there
has not occurred any change or any development that might have
a Material Adverse Effect, (B) there has not been any change
in the capital stock, the short-term debt, or the long-term
debt of the Company or any of its subsidiaries that might have
a Material Adverse Effect, (C) neither the Company nor any of
its subsidiaries has incurred any material liability or
obligation, direct or contingent and (D) a Material Loss has
not occurred; and
(iv) they have examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did
not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus and
which has not been so set forth.
(i) Without the prior written consent of the Remarketing
Agent, the Indenture shall not have been amended in any manner, that,
in the reasonable judgment of the Remarketing Agent, materially changes
the nature of the Remarketing Senior Notes or the Remarketing
Procedures.
(j) Except as disclosed in the Prospectus (exclusive of any
amendment or supplements thereto subsequent to the date of this
Agreement), neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
incorporated by reference into the Prospectus (A) any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court and/or governmental action, order or decree and (B)
since such date there shall not have been any change or any development
reasonably likely to result in a change in of affecting the business,
general affairs, management, condition (financial or otherwise),
stockholders' equity or results of operations of the Company and its
subsidiaries, the effect of which, in any such case described in clause
(A) or (B), is, in the judgment of the Remarketing Agent, so material
(with respect to the Company and its subsidiaries taken as a whole) and
adverse as to make it impracticable or inadvisable to proceed with the
Remarketing on the terms and in the manner contemplated in the
Prospectus, the Remarketing Materials, the Indenture and this
Agreement.
(k) Between the Remarketing Date to, and including, the
Remarketing Settlement Date, (i) no downgrading shall have occurred in
the rating accorded the Company's or any of the Company's subsidiaries'
debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Securities Act and
(ii) no such
<Page>
28
organization shall have publicly announced, or privately informed the
Company, that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's or any of the
Company's subsidiaries' debt securities or preferred stock.
(l) Between the Remarketing Date to, and including, the
Remarketing Settlement Date, there shall not have occurred any of the
following: (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the NASDAQ or the
over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been
suspended or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on
any such exchange or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by
Federal or state authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United
States, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States, there shall have been a declaration of a
national emergency or war by the United States, or an act of terrorism
shall have been committed against the United States or any of its
nationals or properties or (iv) there shall have occurred a calamity or
crisis or such a material adverse change in general domestic or
international economic, political or financial conditions, including
without limitation as a result of terrorist activities, or the effect
of international conditions on the financial markets in the United
States shall be such, as to make it, in the judgment of the Remarketing
Agent, impracticable or inadvisable to proceed with the Remarketing on
the terms and in the manner contemplated in the Prospectus, the
Remarketing Materials, the Indenture and this Agreement.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Remarketing Agent.
Section 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless the
Remarketing Agent, its officers, employees and each of its directors and each
person, if any, who controls the Remarketing Agent within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to the Remarketing), to which
the Remarketing Agent, officer, employee or controlling person may become
subject, under the Securities Act 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 (A) the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (B) any blue sky application or other document prepared or executed
by the Company (or based upon any written information furnished by the Company)
filed in any jurisdiction specifically for the purpose of qualifying any or all
of the Remarketing Senior Notes under the securities laws of any state or other
jurisdiction (such application, document or information being hereinafter called
a "Blue Sky Application"), (ii) the omission or alleged omission to state in the
Registration Statement, the Prospectus, or in any amendment or supplement
thereto or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by the Remarketing
Agent in connection with, or relating
<Page>
29
in any manner to, the Remarketing Senior Notes, and which is included as part of
or referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (PROVIDED that, the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failure to act undertaken or omitted to be taken by the Remarketing Agent
through its gross negligence or willful misconduct), and shall reimburse the
Remarketing Agent and each such officer, employee, director or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Remarketing Agent, officer, employee, director or controlling person in
connection with investigating or defending or preparing to defend against 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, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Prospectus or in any
Remarketing Materials, or in any such amendment or supplement, in reliance upon
and in conformity with the written information concerning the Remarketing Agent
furnished to the Company by the Remarketing Agent specifically for inclusion
therein which information is specifically identified to the Company in a letter
sent by the Remarketing Agent, and PROVIDED, FURTHER, that the Company shall not
be liable to indemnify the Remarketing Agent or any person who controls the
Remarketing Agent on account of any such loss, liability, claim, damage or
expense arising out of any such defect or alleged defect in any Prospectus if a
copy of the Prospectus (exclusive of any documents incorporated by reference
therein) shall not have been given or sent by the Remarketing Agent with or
prior to the written confirmation of the sale in connection with the Remarketing
involved to the extent that (i) the Prospectus would have cured such defect or
alleged defect and (ii) sufficient quantities of the Prospectus were timely made
available to the Remarketing Agent. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to the
Remarketing Agent or to any officer, employee or controlling person of the
Remarketing Agent.
(b) The Remarketing Agent shall indemnify and hold harmless
the Company, its officers and employees, each of its directors, and each person,
if any, who controls the Company within the meaning of the Securities Act from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act 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 the Registration Statement or the Prospectus or in any
amendment or supplement thereto, in any Blue Sky Application or in the
Remarketing Materials or (ii) the omission or alleged omission to state in the
Registration Statement, the Prospectus or in any amendment or supplement
thereto, in any Blue Sky Application or in the Remarketing Materials, any
material fact required to be stated therein or necessary to make the statements
therein 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 the written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the
<Page>
30
Remarketing Agent may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 under this Section 7, 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 7 except to the extent it has
been materially prejudiced by such failure and, PROVIDED, FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
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 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 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that,
if the defendants (including impleaded parties) in any such action include both
the indemnified party and the indemnifying party (or parties) and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party (or parties),
the indemnified party shall have the right to select separate counsel to assert
such legal defenses and to participate otherwise in the defense of such action
on behalf of such indemnified party. The indemnifying party shall bear the
reasonable fees and expenses of outside counsel retained by the indemnified
party if (i) the indemnified party shall have retained such counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel (in
addition to one local counsel), representing the indemnified parties under
Section 7(a) or 7(b), as the case may be, who are parties to such action), (ii)
the indemnifying party shall have elected not to assume the defense of such
action, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the commencement of the action, or (iv) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Notwithstanding the foregoing
sentence, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent (such consent not to be
unreasonably withheld), but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) 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 of the plaintiff in any
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such action, the indemnifying party shall indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, 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, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Remarketing Agent on the other
from the Remarketing 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 the Remarketing Agent on the
other with respect to the statements or omissions which 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 the Remarketing Agent on the other with respect to the
Remarketing shall be deemed to be in the same proportion as the total proceeds
from the Remarketing (before deducting expenses) bear to the total fees received
by the Remarketing Agent with respect to the Remarketing. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Remarketing Agent,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Remarketing Agent agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation or by any other method of allocation which 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 shall be deemed to
include, for purposes of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), the Remarketing Agent shall not be required to contribute any
amount in excess of its fees under Section 5 exceeds the amount of any damages
which the Remarketing Agent 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.
Section 8. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT.
The Remarketing Agent may resign and be discharged from its
duties and obligations hereunder by giving 60 days' prior written notice to the
Company, the Depositary and the Trustee. The Company may remove the Remarketing
Agent by giving 60 days' prior written notice to the removed Remarketing Agent,
the Depositary and the Trustee upon any of the following events:
(i) the Remarketing Agent becomes involved as a debtor in a
bankruptcy, insolvency or similar proceeding;
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(ii) the Remarketing Agent shall not be among the ten
underwriters with the largest volume underwritten in dollars, on a lead
managed basis, of U.S. domestic debt securities during the twelve-month
period ended as of the last calendar quarter preceding the Remarketing
Date;
(iii) the Remarketing Agent shall be subject to one or more
legal restrictions preventing the performance of its obligations
hereunder;
(iv) the Remarketing Agent shall determine that, because there
has occurred an event of the kind described under Section 6(k), 6(l) or
6(m) using its commercially reasonable efforts, the Remarketing Agent
would be unable to consummate the Remarketing on the terms and in the
manner contemplated in the Prospectus and the Remarketing Materials; or
(v) the Company shall determine in its sole discretion that
the Remarketing Agent, using its commercially reasonable efforts, would
be unable to consummate the Remarketing on the terms and in the manner
contemplated herein and in the Indenture and the Stock Purchase
Agreement.
If any Remarketing Agent resigns or is removed, the Company shall use its best
efforts to appoint a successor Remarketing Agent and enter into a remarketing
agreement, as described in the preceding sentence, as soon as reasonably
practicable. The provisions of Sections 4, 7 and 8 shall survive the resignation
or removal of any Remarketing Agent pursuant to this Agreement.
Section 9. DEALING IN THE REMARKETING SENIOR NOTES.
The Remarketing Agent, when acting as a Remarketing Agent or
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold and deal in any of the Remarketing Senior Notes, including in
connection with the Remarketing. The Remarketing Agent may exercise any vote or
join in any action which any beneficial owner of Remarketing Senior Notes may be
entitled to exercise or take pursuant to the Indenture with like effect as if it
did not act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or have an interest
in any financial or other transaction with the Company as freely as if it did
not act in any capacity hereunder.
Section 10. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
(a) The duties and obligations of the Remarketing Agent shall
be determined solely by the express provisions of this Agreement, and, to the
extent the Remarketing Procedures are set forth elsewhere, in the Indenture and
the Purchase Contract Agreement. No implied covenants or obligations of or
against the Remarketing Agent shall be read into this Agreement, the Indenture
or the Purchase Contract Agreement.
(b) In the absence of bad faith on the part of the Remarketing
Agent, the Remarketing Agent may conclusively rely upon any document furnished
to it, which purports to conform to the requirements of this Agreement, the
Indenture or the Purchase Contract Agreement as to the truth of the statements
expressed in any of such documents. The Remarketing Agent shall be protected in
acting upon any document or communication reasonably believed by it to have been
signed, presented or made by the proper party or parties. The Remarketing Agent,
acting under this
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Agreement, shall incur no liability to the Company or to any holder of
Remarketing Senior Notes in its individual capacity or as Remarketing Agent for
any action or failure to act, on its part in connection with a Remarketing or
otherwise (including, but not limited to, in respect of the settlement of any
Successful Remarketing that is delayed, incomplete or abandoned for any reason),
except if such liability is judicially determined to have resulted from the
gross negligence or willful misconduct on its part.
(c) If at any time during the term of this Agreement, any
Event of Default (as defined in the Indenture) under the Indenture, or any event
that with the passage of time or the giving of notice or both would become on
Event of Default under the Indenture, has occurred and is continuing under the
Indenture, then the obligations and duties of the Remarketing Agent under this
Agreement shall be suspended until such default or event has been cured. The
Company will cause the Trustee and the Purchase Contract Agent to give the
Remarketing Agent notice of all such defaults and events of which such Trustee,
agent or administrator is aware.
(d) The Remarketing Agent may purchase Remarketing Senior
Notes for its own account. However, under no circumstances, shall the
Remarketing Agent or the Company be obligated to purchase any Senior Notes in
connection with a Remarketing.
(e) The right of each Holder of Senior Notes to have its
Senior Notes remarketed, pursuant to the Indenture, will be limited, however, to
the extent that (i) the Remarketing Agent conducts a Remarketing pursuant to the
terms of this Agreement, (ii) the Remarketing Agent is able to find a purchaser
or purchasers for the tendered Senior Notes, (iii) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent and (iv) the
Remarketing may not commence or be consummated pursuant to applicable law.
Section 11. MERGER CONSOLIDATION, SALE OR CONVEYANCE.
(a) The Company shall not consolidate with or merge into, or
sell, lease (for a term extending beyond the last stated maturity of the PIES
and the Senior Notes then Outstanding) or convey all or substantially all of its
assets to, any Person or group of Affiliated Persons in one transaction or a
series of related transactions, unless the Company shall be the continuing
corporation, or the successor or transferee Person expressly assumes by one or
more supplemental agreements, in form satisfactory to the Remarketing Agent, all
the obligations of the Company with respect to this Agreement, and the Company
or the successor or transferee Person, as the case may be, (i) shall be a
Corporation organized and existing under the laws of one of the states in the
United States and (ii) shall not, immediately after such consolidation or merger
or sale, lease or conveyance, be in default in the performance or any covenant
or condition hereunder. The Company shall deliver to the Remarketing Agent an
Officers' Certificate (as defined in the Original Indenture) and an Opinion of
Counsel (as defined in the Original Indenture), each stating that such
consolidation, merger sale, lease or conveyance and such supplemental agreement
comply with this Agreement and that all conditions precedent to the consummation
of any such consolidation, or merger, or any sale, lease or conveyance have been
met.
(b) Upon any consolidation or merger, or any sale, lease or
conveyance of all or substantially all of the assets of the Company in
accordance with Section 11(a), the successor corporation or the transferee
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made shall succeed to, and be substituted for, and may
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exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation had been named as the Company
herein.
Such successor or transferee Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Sierra Pacific
Resources, any or all of the Certificates evidencing PIES issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Purchase Contract Agent; and, upon the order of such successor or such
transferee Person, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing PIES which such successor corporation
or transferee corporation thereafter shall cause to be signed and delivered to
the Purchase Contract Agent for that purpose. All the Certificates issued shall
in all respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such merger, consolidation, share exchange,
sale, assignment, transfer, lease or conveyance, such change in phraseology and
form (but not in substance) may be made in the Certificates evidencing PIES
thereafter to be issued as may be appropriate.
(c) Nothing in this Agreement shall be deemed to prevent or
restrict; (a) any consolidation or merger after the consummation of which the
Company would be the surviving or resulting entity or any conveyance or other
transfer or lease of any part of the properties of the Company which does not
constitute the entirety, or substantially the entirety, thereof; or (b) the
approval by the Company of, or the consent by the Company to, any consolidation
or merger to which any Restricted Subsidiary (as defined in the Original
Indenture) or any other subsidiary or affiliate of the Company may be a party or
any conveyance, transfer or lease by any Subsidiary (as defined in the Original
Indenture) or any such other subsidiary or affiliate of any of its assets.
Section 12. TERMINATION.
This Agreement shall terminate as to the Remarketing Agent on
the effective date of the resignation or removal of the Remarketing Agent
pursuant to Section 10. In addition, the obligations of the Remarketing Agent
hereunder may be terminated by it by notice given to the Company prior to 10:00
a.m. (New York City time) on the Remarketing Date if, prior to that time, any of
the events described in Section 6(k), 6(l) or 6(m) shall have occurred.
Section 13. NOTICES.
All requests and notices hereunder shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, or facsimile transmission to Lehman Brothers Inc., 101 Hudson
St., Jersey City, New Jersey 07302, Attention: Syndicate Department
(Fax: (201) 545-2618), with copy to, in the case of any notice pursuant
to Section 7(c), to Lehman Brothers Inc., 101 Hudson St., Jersey City,
New Jersey 07302, General Counsel's Office (Fax: (201-321-2207);
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with a copy to Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, New York 10017, Attention: John D. Lobrano, Esq.
(Fax: (212) 455-2502);
(b) if to the Company shall be delivered or sent by mail or
facsimile transmission to Sierra Pacific Resources, 6100 Neil Road,
Reno, Nevada 89511, Attention: Mr. Richard K. Atkinson (Fax: (775)
834-5462).
with a copy to Choate, Hall and Stewart, Exchange Place, 53
State Street, Boston, Massachusetts 02109, Attention: William C.
Rogers, Esq. (Fax: (617) 248-4000);
or such other address and fax number as specified in writing by one party hereto
to another. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
Section 14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding
upon the Remarketing Agent, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (x) the representations, warranties, indemnity and
contribution agreements and other agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the Securities
Act and (y) the indemnity and contribution agreements of the Remarketing Agent
contained in Section 7 of this Agreement shall be deemed to be for the benefit
of directors, officers and employees of the Company and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing
contained in this Agreement is intended or shall be construed to give any
person, other than the persons referred to herein, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
Section 15. SURVIVAL.
The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the Remarketing and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
Section 16. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
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Section 18. HEADINGS.
The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
Section 19. SEVERABILITY.
If any provision in this Agreement is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions of this Agreement shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not in any way affect the validity or enforceability of such
provision in any other jurisdiction.
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If the foregoing correctly sets forth the agreement between
the Company and the Remarketing Agent, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
SIERRA PACIFIC RESOURCES
By:
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Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
BY:
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AUTHORIZED REPRESENTATIVE