EXHIBIT 4.4
SIERRA PACIFIC POWER COMPANY
OFFICER'S CERTIFICATE
March 23, 2006
I, the undersigned officer of Sierra Pacific Power Company (the
"Company"), do hereby certify that I am an Authorized Officer of the Company as
such term is defined in the Indenture (as defined herein). I am delivering this
certificate pursuant to the authority granted in the Board Resolutions of the
Company dated November 3, 2005, and Sections 1.04, 2.01, 3.01, 4.01(a) and
4.03(b)(i) of the General and Refunding Mortgage Indenture dated as of May 1,
2001, as heretofore supplemented to the date hereof (as heretofore supplemented,
the "Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee"). Section 1(u)(ix) of this Officer's Certificate sets forth
definitions of capitalized terms used herein. Terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture. Based upon the foregoing, I hereby certify on behalf of the Company
as follows:
1. The terms and conditions of the Securities described in this Officer's
Certificate are as follows (the lettered subdivisions set forth in this Section
1 corresponding to the lettered subdivisions of Section 3.01 of the Indenture):
(a) The Securities of the twelfth series to be issued under the Indenture
shall be designated "6% General and Refunding Mortgage Notes, Series M,
due 2016" (the "Series M Notes").
(b) There shall be no limit upon the aggregate principal amount of the
Series M Notes that may be authenticated and delivered under the
Indenture. The Series M Notes shall be initially authenticated and
delivered in the aggregate principal amount of $300,000,000.
(c) Interest on the Series M Notes shall be payable to the Persons in
whose names such Securities are registered at the close of business on the
Regular Record Date for such interest, except as otherwise expressly
provided in the form of such Securities attached hereto as Exhibit A.
(d) The Series M Notes shall mature and the principal thereof shall be due
and payable together with all accrued and unpaid interest thereon on May
15, 2016.
(e) The Series M Notes shall bear interest as provided in the form of such
Securities attached hereto as Exhibit A.
(f) If a Holder of Series M Notes has given wire transfer instructions to
the Company prior to the fifth day preceding the related record date (or,
in the case of principal or premium, the fifth day preceding the date such
principal or premium is due), the Company shall pay all principal,
interest and premium and Liquidated Damages (as such
term is defined herein), if any, on that Holder's Series M Notes in
accordance with such instructions. The Corporate Trust Office of The Bank
of New York in New York, New York shall be the place at which (i) the
principal, interest and premium and Liquidated Damages, if any, on the
Series M Notes shall be payable (other than payments made in accordance
with the first sentence of this paragraph (f)), (ii) registration of
transfer of the Series M Notes may be effected, (iii) exchanges of the
Series M Notes may be effected and (iv) notices and demands to or upon the
Company in respect of the Series M Notes and the Indenture may be served;
and The Bank of New York shall be the Security Registrar for the Series M
Notes; provided, however, that the Company reserves the right to change,
by one or more Officer's Certificates, any such place or the Security
Registrar; and provided, further, that the Company reserves the right to
designate, by one or more Officer's Certificates, its principal office in
Reno, Nevada as any such place or itself or any of its Subsidiaries as the
Security Registrar; provided, however, that there shall be only a single
Security Registrar for the Series M Notes.
(g) Optional Redemption.
(i) Optional Redemption. The Company may redeem the Series M Notes
at any time, either in whole or in part at a redemption price equal to the
greater of (1) 100% of the principal amount of the Series M Notes being
redeemed and (2) the sum of the present values of the remaining scheduled
payments of principal and interest on the Series M Notes being redeemed
(excluding the portion of any such interest accrued to the date of
redemption) discounted (for purposes of determining present value) to the
redemption date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate (as defined below) plus 30
basis points, plus, in each case, accrued interest thereon to the date of
redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Series M Notes that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the
Series M Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (1) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
redemption date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (2) if such release (or any successor
release) is not published or does not contain such prices on such
third business day, the Reference Treasury Dealer Quotation for such
redemption date.
2
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means a primary U.S. Government
Securities Dealer selected by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any redemption date, the average,
as determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to
the Independent Investment Banker by such Reference Treasury Dealer
at or before 5:00 p.m., New York City time, on the third business
day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date,
the rate per year equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
(ii) Notice of Redemption. Notices of redemption shall be mailed by
first class mail at least 30 but not more than 60 days before the
Redemption Date to each Holder of Series M Notes to be redeemed at its
registered address, except that redemption notices may be mailed more than
60 days prior to a Redemption Date if the notice is issued in connection
with a defeasance of the Series M Notes or a satisfaction and discharge of
the Series M Notes under the Indenture. Notices of redemption may not be
conditional.
(iii) Selection of Series M Notes to be Redeemed. In accordance with
Section 5.03 of the Indenture, the following method is provided for the
selection of Series M Notes to be redeemed and these procedures shall be
followed by the Security Registrar in the event of a redemption of the
Series M Notes pursuant to the provisions of this Officer's Certificate.
If less than all of the Series M Notes are to be redeemed at any time, the
Security Registrar shall select Series M Notes for redemption as follows:
(A) if the Series M Notes are listed on any national securities
exchange, in compliance with the requirements of the principal
national securities exchange on which the Series M Notes are
listed; or
(B) if the Series M Notes are not listed on any national
securities exchange, on a pro rata basis, by lot or by such
method as the Trustee deems fair and appropriate.
No Series M Notes of $1,000 principal amount or less can be redeemed
in part.
3
(h) Mandatory Redemption/Redemption at Option of Holders/Offers to
Purchase.
(i) Mandatory Redemption.
(A) Except as provided in Section 1(h)(i)(B) below or Section
1(h)(ii) below, the Company is not required to make mandatory redemption
or sinking fund payments with respect to the Series M Notes.
(B) Upon the occurrence of the events described below in clauses (1)
or (2) of this Section 1(h)(i)(B), the Company shall be required to redeem
the Series M Notes immediately, at a Redemption Price equal to 100% of the
aggregate principal amount of the Series M Notes plus accrued and unpaid
interest and Liquidated Damages, if any, on the Series M Notes to the date
of redemption, without further action or notice on the part of the Trustee
or the Holders of the Series M Notes:
(1) the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary pursuant to or
within the meaning of Bankruptcy Law:
(I) commences a voluntary case,
(II) consents to the entry of an order for relief against it
in an involuntary case,
(III) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(IV) makes a general assignment for the benefit of its
creditors, or
(V) admits in writing of its inability to pay its debts
generally as they become due; or
(2) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(I) is for relief against the Company or any of its
Subsidiaries that is a Significant Subsidiary or any
group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary
case;
(II) appoints a custodian of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any
group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any
of its Subsidiaries that is a Significant Subsidiary or
any group of
4
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or
(III) orders the liquidation of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any
group of Restricted
Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
(ii) Redemption at the Option of the Holders.
(A) Upon the occurrence of any of the following events (each a
"Triggering Event"):
(1) failure for 30 days to pay when due interest on, or Liquidated
Damages with respect to, the Series M Notes;
(2) failure to pay when due the principal of, or premium, if any,
on the Series M Notes;
(3) failure by the Company or any of its Restricted Subsidiaries
to comply with the provisions described in Sections 1(u)(ii)
of this Officer's Certificate (under the heading "Certain
Covenants and Definitions -- Merger, Consolidation or Sale of
Assets");
(4) failure by the Company or any of its Restricted Subsidiaries
for 30 days after notice to comply with the provisions
described in Section 1(h)(iii) of this Officer's Certificate
(under the heading "Offer to Purchase Upon Change of
Control");
(5) failure by the Company or any of its Restricted Subsidiaries
for 60 days after notice to comply with any of the other
agreements in this Officer's Certificate or the Series M
Notes;
(6) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the original issue date of the
Series M Notes, if that default:
(I) is caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness prior to the
expiration of the grace
5
period provided in such Indebtedness on the date of such
default (a "Payment Default"); or
(II) results in the acceleration of such Indebtedness prior
to its express maturity,
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$15.0 million or more;
(7) failure by the Company or any of its Subsidiaries to pay final
judgments aggregating in excess of $15.0 million, which
judgments are not paid, discharged or stayed for a period of
60 days; or
(8) an event of default under the First Mortgage Indenture (other
than any such matured event of default which (i) is of similar
kind or character to the Triggering Event described in (3) or
(5) above and (ii) has not resulted in the acceleration of the
securities outstanding under the First Mortgage Indenture);
provided, however, that, anything in this Officer's
Certificate to the contrary notwithstanding, the waiver or
cure of such event of default under the First Mortgage
Indenture and the rescission and annulment of the consequences
thereof under the First Mortgage Indenture shall constitute a
cure of the corresponding Triggering Event and a rescission
and annulment of the consequences thereof,
the Holders of Series M Notes of at least 25% in principal amount of the
Series M Notes then Outstanding may deliver a notice to the Company
requiring the Company to redeem the Series M Notes immediately at a
Redemption Price equal to 100% of the aggregate principal amount of the
Series M Notes plus accrued and unpaid interest and Liquidated Damages, if
any, on the Series M Notes to the Redemption Date.
(B) The Holders of a majority in aggregate principal amount of the
Series M Notes then outstanding by notice to the Company and the Trustee
may on behalf of the Holders of all of the Series M Notes waive any
existing Triggering Event and its consequences except a continuing
Triggering Event related to the payment of interest or Liquidated Damages
on, or the principal of, the Series M Notes.
(C) In the case of any Triggering Event by reason of any willful
action or inaction taken or not taken by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Series M
Notes pursuant to the provisions of Section 1(g)(i), an equivalent premium
equal to the premium payable under Section 1(g)(i) shall also become and
be immediately due and payable to the extent permitted by law upon the
redemption of the Series M Notes at the option of the Holders thereof.
6
(D) Upon becoming aware of any Triggering Event, the Company shall
deliver to the Trustee a statement specifying such Triggering Event.
(iii) Offer to Purchase Upon Change of Control.
(A) Upon the occurrence of a Change of Control, each Holder of
Series M Notes shall have the right to require the Company to repurchase
all or any part (equal to $1,000 or an integral multiple of $1,000) of
that Holder's Series M Notes pursuant to the offer described below (the
"Change of Control Offer") on the terms set forth in this Officer's
Certificate. In the Change of Control Offer, the Company shall offer an
amount in cash (the "Change of Control Payment") equal to 101% of the
aggregate principal amount of Series M Notes repurchased plus accrued and
unpaid interest and Liquidated Damages, if any, on the Series M Notes
repurchased, to Change of Control Payment Date (as defined below).
(B) Within ten days following any Change of Control, the Company
shall mail a notice to each Holder of Series M Notes stating:
(1) the description of the transaction or transactions that
constitute the Change of Control, that the Change of Control
Offer is being made pursuant to this Section 1(h)(iii), and
that all Series M Notes validly tendered and not withdrawn
shall be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date");
(3) that any Series M Note not tendered or accepted for payment
shall continue to accrue interest and Liquidated Damages, if
any;
(4) that, unless the Company defaults in the payment of the Change
of Control Payment, all Series M Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue
interest and Liquidated Damages, if any, after the Change of
Control Payment Date;
(5) that Holders of Series M Notes electing to have any Series M
Notes purchased pursuant to a Change of Control Offer shall be
required to surrender the Series M Notes properly endorsed,
with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Series M Notes properly completed, together
with other customary documents as the Company may reasonably
request, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business
Day preceding the Change of Control Payment Date;
(6) that Holders of Series M Notes shall be entitled to withdraw
their election if the Paying Agent receives, not later than
the close of business on the
7
second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of
Series M Notes delivered for purchase, and a statement that
such Holder of Series M Notes is withdrawing its election to
have the Series M Notes purchased; and
(7) that Holders of Series M Notes whose Series M Notes are being
purchased only in part shall be issued new Series M Notes
equal in principal amount to the unpurchased portion of the
Series M Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple
thereof.
(C) If any of the Series M Notes subject to a Change of Control
Offer are in the form of a Global Note, then the Company shall modify such
notice to the extent necessary to accord with the Applicable Procedures of
the Depositary applicable to offers to purchase.
(D) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Series M Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (2)
deposit with the Paying Agent in immediately available funds an amount
equal to the Change of Control Payment in respect of all Series M Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to
the Trustee the Series M Notes so accepted together with an Officer's
Certificate stating the aggregate principal amount of Series M Notes or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Series M Notes so tendered the Change of
Control Payment for such Series M Notes, and the Trustee shall promptly
authenticate and make available for delivery to each Holder of Series M
Notes a new Series M Note equal in principal amount to any unpurchased
portion of the Series M Notes surrendered, if any; provided that each such
new Series M Note shall be in a principal amount of $1,000 or an integral
multiple thereof. Any Series M Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.
(E) The Change of Control provisions described above that require
the Company to make a Change of Control Offer following a Change of
Control shall be applicable whether or not any other provisions of this
Officer's Certificate are applicable.
(F) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth herein applicable to a Change of Control Offer
made by the Company and purchases all Series M Notes validly tendered and
not withdrawn under such Change of Control Offer.
(iv) Offers to Purchase - General.
8
(A) If the Change of Control Payment Date is on or after a Regular
Record Date and on or before the related Interest Payment Date, any
accrued and unpaid interest and Liquidated Damages, if any, shall be paid
to the Person in whose name a Series M Note is registered at the close of
business on such Regular Record Date, and no additional interest or
Liquidated Damages shall be payable to Holders of Series M Notes who
tender Series M Notes pursuant to the Change of Control Offer.
(B) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Change
of Control Offer provisions of this Officer's Certificate, the Company
shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under the Change of Control
Offer provisions of this Officer's Certificate by virtue of such conflict.
(i) The Series M Notes are issuable only in denominations of $1,000 and
integral multiples of $1,000 in excess thereof.
(j) Not applicable.
(k) Not applicable.
(l) Not applicable.
(m) See subsection (e) above.
(n) Not applicable.
(o) Not applicable. (p) Not applicable.
(q) Book-entry; Delivery and Form.
(i) Form and Dating.
The Series M Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Series M Notes
may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Series M Note shall be dated the date of its
authentication. The Series M Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Series M Notes shall
constitute, and are hereby expressly made, a part of this Officer's
Certificate, and the Company, by its execution and delivery of this
Officer's Certificate, expressly agrees to such terms and
9
provisions and to be bound thereby. However, to the extent any provision
of any Series M Note conflicts with the express provisions of this
Officer's Certificate or the Indenture, the provisions of this Officer's
Certificate or the Indenture, as applicable, shall govern and be
controlling.
Series M Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend and
the "Schedule of Exchanges in the Global Note" attached thereto). Series M
Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend and without
the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such aggregate principal amount
of the outstanding Series M Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Series M Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Series M Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the aggregate principal
amount of outstanding Series M Notes represented thereby shall be made by
the Trustee, the Depositary or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 1(q)(v) of this Officer's Certificate.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream Bank" and "Customer Handbook" of
Clearstream shall be applicable to transfers of beneficial interests in
the Regulation S Global Notes that are held by members of, or
Participants, in DTC through Euroclear or Clearstream.
(ii) Authentication.
The Trustee or an Authenticating Agent shall authenticate by
delivery and execution of a Trustee's Certificate of Authentication in the
form set forth in Section 2.02 of the Indenture (A) the Series M Notes for
original issue on the Issue Date in the aggregate principal amount of
$300,000,000 (the "Original Notes"), (B) additional Series M Notes for
original issue from time to time after the Issue Date in such principal
amounts as may be set forth in a Company Order (such additional Series M
Notes, together with the Original Notes, the "Initial Notes") and (C) any
Exchange Notes from time to time for issue only in exchange for a like
principal amount of Initial Notes, in each case, upon a Company Order,
which Company Order shall specify (x) the amount of Series M Notes to be
authenticated and the date of original issue thereof, (y) whether the
Series M Notes are Initial Notes or Exchange Notes and (z) the amount of
Series M Notes to be issued in global form or definitive form. The
aggregate principal amount of Series M Notes outstanding at any time may
not exceed $300,000,000 plus such additional principal amounts as may be
issued and authenticated pursuant to clause (B) of this paragraph, except
as provided in Section 1(q)(vi) of this Officer's Certificate.
10
(iii) Security Registrar, Paying Agent and Depositary.
The Company initially appoints the Trustee to act as the Security
Registrar and Paying Agent for the Series M Notes. Upon the occurrence of
an event set forth under Sections 1(h)(i)(B)(1) or 1(h)(i)(B)(2) herein or
an Event of Default set forth in Sections 10.01(d) or 10.01(e) of the
Indenture, the Trustee shall serve as Paying Agent for the Series M Notes.
Pursuant to Section 6.02 of the Indenture, the Company hereby designates
the Corporate Trust Office of the Trustee as its office or agency in the
City and State of New York where payment of the Series M Notes shall be
made, where the registration of transfer or exchange of the Series M Notes
may be effected and where notices and demands to or upon the Company in
respect of the Series M Notes and the Indenture may be served. The Company
may also from time to time designate one or more other offices or agencies
with respect to the Series M Notes and may from time to time rescind any
of these designations in accordance with the terms provided in Section
6.02 of the Indenture.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes. The Trustee has
been appointed by DTC to act as Note Custodian with respect to the Global
Notes.
(iv) Liquidated Damages, if any, to be Held in Trust.
Payments of Liquidated Damages, if any, shall be subject to the
provisions of Section 6.03 of the Indenture to the same extent as any
payments of principal of or premium or interest on the Series M Notes.
(v) Transfer and Exchange.
(A) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes shall be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as
Depositary for the Global Notes or that it is no longer a
clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the
Depositary or
(2) the Company in its sole discretion notifies the Trustee in
writing that it elects to cause issuance of the Series M Notes
in certificated form; or
11
(3) there has occurred and is continuing a Default or Event of
Default with respect to the Series M Notes.
Upon the occurrence of either of the preceding events in (1), (2) or
(3) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections
3.06 and 3.09 of the Indenture. Every Series M Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to Sections 3.06 and 3.09 of the
Indenture, shall be authenticated and delivered in the form of, and
shall be, a Global Note. A Global Note may not be exchanged for
another Series M Note other than as provided in this Section
1(q)(v)(A), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 1(q)(v)(B), (C) or
(F) of this Officer's Certificate.
(B) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Officer's Certificate and the Applicable Procedures.
Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. Transfers of beneficial interests
in the Global Notes also shall require compliance with either subparagraph
(1) or (2) below, as applicable, as well as one or more of the other
following subparagraphs as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period transfers of beneficial interests in the
Regulation S Global Note by a Distributor may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global
Note may be transferred only to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to
the Security Registrar to effect the transfers described in this
Section 1(q)(v)(B)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests (other than a transfer of a beneficial interest
in a Global Note to a Person who takes delivery thereof in the form
of a beneficial interest in the same Global Note), the transferor of
such beneficial interest must deliver to the Security Registrar
either:
12
(a) both (i) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged and (ii) instructions
given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase or
(b) both (i) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (ii)
instructions given by the Depositary to the Security Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or
exchange referred to in (i) above.
Upon an Exchange Offer by the Company in accordance with Section
1(q)(v)(F) of this Officer's Certificate, the requirements of this
Section 1(q)(v)(B)(2) shall be deemed to have been satisfied upon
receipt by the Security Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon notification from the
Security Registrar that all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Officer's Certificate, the Series M Notes and otherwise applicable
under the Securities Act have been satisfied, the Trustee shall
adjust the principal amount of the relevant Global Notes pursuant to
Section 1(q)(v)(H) of this Officer's Certificate.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of
a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of clause (2) above and the
Security Registrar receives the following:
(a) if the transferee shall take delivery in the form of
a beneficial interest in the Rule 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in Item (1) thereof; or
(b) if the transferee shall take delivery in the form of
a beneficial interest in the Regulation S Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in Item (2)
thereof.
13
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with
the requirements of clause (2) above and:
(a) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, is not (i) a broker-dealer, (ii) a
Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(b) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(c) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(d) the Security Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in Item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in Item (4) thereof;
and, in each such case set forth in this subparagraph (d), an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (b) or (d)
above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an authentication order in
accordance with Section 1(q)(ii) of this Officer's Certificate, the
Trustee shall authenticate one or more Unrestricted Global
14
Notes in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraph (b) or (d)
above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(C) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon receipt by
the Security Registrar of the following documentation:
(a) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in Item
(2)(a) thereof;
(b) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in Item (1) thereof;
(c) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in Item (2) thereof;
(d) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in Item (3)(a) thereof;
(e) if such beneficial interest is being transferred to an
Institutional Accredited Investor or in reliance on any other
exemption from the registration requirements of the Securities Act,
in either case other than those listed in subparagraphs (b) through
(d) above, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications, certificates
and any Opinion of Counsel required by Item (3) thereof, if
applicable;
15
(f) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in Item
(3)(b) thereof; or
(g) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in Item (3)(c) thereof,
the Trustee, upon notice of receipt of such documentation by the Security
Registrar, shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 1(q)(v)(H) of
this Officer's Certificate, and the Company shall execute and the Trustee
shall authenticate and make available for delivery to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 1(q)(v)(C)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Security Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
make available for delivery such Definitive Notes to the Persons in whose
names such Series M Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 1(q)(v)(C)(1) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
Notwithstanding Sections 1(q)(v)(C)(1)(a) and (c) hereof, a
beneficial interest in the Regulation S Global Note may not be (a)
exchanged for a Definitive Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Security Registrar of any
certificates required pursuant to Rule 903(c)(3)(B) under the Securities
Act or (b) transferred to a Person who takes delivery thereof in the form
of a Definitive Note prior to the conditions set forth in clause (a) above
or unless the transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(2) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. Notwithstanding Section 1(q)(v)(C)(1)
hereof, a holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted
Definitive Note or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive
Note only if:
(a) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, is not (i) a
broker-dealer, (ii) a Person
16
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(b) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(c) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(d) the Security Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Definitive Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in Item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a
Definitive Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in Item (4) thereof;
and, in each such case set forth in this subparagraph (d), an Opinion of
Counsel in form reasonably acceptable to the Company, to the effect that
such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon notice by the Security
Registrar of satisfaction of the conditions set forth in Section
1(q)(v)(B)(2) of this Officer's Certificate, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 1(q)(v)(H) of this Officer's
Certificate, and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 1(q)(v)(C)(3) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Security Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee
shall make available for delivery such Definitive Notes to the
Persons in whose names such Series M Notes are so registered. Any
17
Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 1(q)(v)(C)(3) shall not bear the Private
Placement Legend. A beneficial interest in an Unrestricted Global
Note cannot be exchanged for a Definitive Note bearing the Private
Placement Legend or transferred to a Person who takes delivery
thereof in the form of a Definitive Note bearing the Private
Placement Legend.
(D) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Series M Note for a beneficial
interest in a Restricted Global Note or to transfer such Definitive
Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt
by the Security Registrar of the following documentation:
(a) if the Holder of such Restricted Definitive Note
proposes to exchange such Series M Note for a beneficial
interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in Item (2)(b) thereof;
(b) if such Definitive Note is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in Item (1) thereof;
(c) if such Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in Item (2) thereof;
(d) if such Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in Item (3)(a)
thereof;
(e) if such Definitive Note is being transferred to an
Institutional Accredited Investor or in reliance on any other
exemption from the registration requirements of the Securities
Act, in either case, other than those listed in subparagraphs
(b) through (d) above, a certificate in the form of Exhibit B
hereto, including certifications, certificates, and any
Opinion of Counsel required by Item (3) thereof, if
applicable;
18
(f) if such Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in Item (3)(b) thereof; or
(g) if such Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in Item (3)(c)
thereof,
the Trustee, upon notice of receipt of such documentation by
the Security Registrar, shall cancel the Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of subparagraph (a) above, the
appropriate Restricted Global Note and, in the case of
subparagraph (b) above, the Rule 144A Global Note, and, in the
case of subparagraph (c) above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Series M Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(a) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, is not (i) a
broker-dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(b) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(c) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(d) the Security Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to
exchange such Series M Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in Item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes proposes to
transfer such Series M Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in Item (4) thereof;
19
and, in each such case set forth in this subparagraph (d), an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the Securities Act, that
the restrictions on transfer contained herein and in the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act, and such Definitive Notes are being exchanged or
transferred in compliance with any applicable blue sky securities laws of
any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 1(q)(v)(D)(2), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Series M Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of
a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to Sections
1(q)(v)(D)(2)(b) or (d) or the first paragraph of this Section
1(q)(v)(D)(3) at a time when an Unrestricted Global Note has not yet
been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 1(q)(ii) of this
Officer's Certificate, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of beneficial interests transferred pursuant to
Sections 1(q)(v)(D)(2)(b) or (d) or the first paragraph of this
Section 1(q)(v)(D)(3).
(E) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 1(q)(v)(E), the Security Registrar
shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present
or surrender to the Security Registrar the Definitive Notes duly endorsed
or accompanied by a written instruction of transfer in form satisfactory
to the Security Registrar duly executed by such Holder or by his attorney,
duly authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information, as
applicable, pursuant to the provisions of this Section 1(q)(v)(E).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Restricted Definitive Notes may be transferred to and
registered in the name of Persons who take delivery thereof if the
Security Registrar receives the following:
20
(a) if the transfer shall be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in Item (1) thereof;
(b) if the transfer shall be made pursuant to Rule 903
or Rule 904 of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in Item (2) thereof; and
(c) if the transfer shall be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by Item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(a) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder of such Series M Notes, in the case
of an exchange, or the transferee, in the case of a transfer,
is not (i) a broker-dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(b) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(c) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(d) the Security Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Series M Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in Item (1)(b)
thereof; or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Series M Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in Item (4) thereof;
21
and, in each such case set forth in this subparagraph (d), an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the Securities Act, that
the restrictions on transfer contained herein and in the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act, and such Restricted Definitive Note is being exchanged or
transferred in compliance with any applicable blue sky securities laws of
any State of the United States.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Series M Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note. Upon receipt of a request for such
a transfer, the Security Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder
thereof. Unrestricted Definitive Notes cannot be exchanged for or
transferred to Persons who take delivery thereof in the form of a
Restricted Definitive Note.
(F) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of (a) an authentication order in accordance with
Section 1(q)(ii) of this Officer's Certificate and (b) an Opinion of
Counsel opining as to the enforceability of the Exchange Notes and the
guarantees thereof, if any, the Trustee shall authenticate (1) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global
Notes tendered for acceptance by Persons that are not (i) broker-dealers,
(ii) Persons participating in the distribution of the Exchange Notes or
(iii) Persons who are affiliates (as defined in Rule 144) of the Company
and accepted for exchange in such Exchange Offer and (2) Definitive Notes
in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in such Exchange Offer,
unless the Holders of such Restricted Definitive Notes shall request the
receipt of Definitive Notes, in which case the Company shall execute and
the Trustee shall authenticate and deliver to the Persons designated by
the Holders of such Restricted Definitive Notes one or more Definitive
Notes without the Private Placement Legend in the appropriate principal
amount. Concurrent with the issuance of such Unrestricted Global Notes,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall authenticate and make available for delivery
to the Persons designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
(G) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this
Officer's Certificate.
(1) Private Placement Legend.
22
(a) Except as permitted by subparagraph (b) below, each Global
Note and each Definitive Note (and all Series M Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR
904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT SHALL NOT
PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
(OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES AND, IN
THE CASE OF AN OFFER OR SALE BY A DISTRIBUTOR OR AN AFFILIATE THEREOF (OR
A PERSON ACTING ON BEHALF THEREOF) DURING THE APPLICABLE DISTRIBUTION
COMPLIANCE PERIOD, ONLY TO NON-U.S. PERSONS OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT THE COMPANY, THE TRUSTEE AND THE SECURITY REGISTRAR SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT
23
TO CLAUSE (C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS
LEGEND SHALL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "DISTRIBUTION
COMPLIANCE PERIOD," "DISTRIBUTOR," "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT."
(b) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraph (B)(4), (C)(2),
(D)(2), (D)(3), (E)(2), (E)(3) or (F) of this Section 1(q)(v) (and
all Series M Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE OFFICER'S
CERTIFICATE UNDER THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
ARTICLE III OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 1(q)(v)(A) OF THE OFFICER'S
CERTIFICATE UNDER THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.09 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY OR ANY SUCCESSOR THERETO."
Additionally, for so long as DTC is the Depositary with respect to
any Global Note, each such Global Note shall also bear a legend in
substantially the following form:
"UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY, TO THE COMPANY OR ANY SUCCESSOR THERETO OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN
24
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(H) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance
with Section 3.09 of the Indenture. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
or transferred to a Person who shall take delivery thereof in the form of
a beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Series M Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such Global
Note, by the Trustee, the Note Custodian or the Depositary at the
direction of the Trustee, to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who shall take
delivery thereof in the form of a beneficial interest in another Global
Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note, by the Trustee, the Note
Custodian or by the Depositary at the direction of the Trustee, to reflect
such increase.
(I) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, subject to
Section 1(q)(v) of this Officer's Certificate, the Company shall execute
and, upon the Company's order, the Trustee or an Authenticating Agent
shall authenticate Global Notes and Definitive Notes at the Security
Registrar's request.
(2) All certifications, certificates and Opinions of Counsel
required to be submitted to the Security Registrar pursuant to this
Section 1(q)(v) to effect a transfer or exchange may be submitted by
facsimile.
(3) The Trustee and the Security Registrar shall have no obligation
or duty to monitor, determine or inquire as to whether any Person is or is
not a Person described in clauses (i), (ii) and (iii) of each of Sections
1(q)(v)(B)(4)(a), 1(q)(v)(C)(2)(a), 1(q)(v)(D)(2)(a), 1(q)(v)(E)(2)(a) and
1(q)(v)(F) of this Officer's Certificate or under applicable law (other
than the Trust Indenture Act) with respect to any transfer of any interest
in any Series M Note (including any transfers between or among
Participants or beneficial owners of interests in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
(vi) Outstanding Series M Notes.
25
Notwithstanding the definition of "Outstanding" in Section 1.01 of
the Indenture, Series M Notes that the Company, a Subsidiary of the
Company or an Affiliate of the Company offers to purchase or acquires
pursuant to an offer, exchange offer, tender offer or otherwise shall not
be deemed to be owned by the Company, such Subsidiary or such Affiliate
until legal title to such Series M Notes passes to the Company, such
Subsidiary or such Affiliate, as the case may be.
(r) Not applicable.
(s) The Series M Notes have not been registered under the Securities Act
and may not be offered, sold or otherwise transferred in the absence of
such registration or an applicable exemption therefrom. No service charge
shall be made for the registration of transfer or exchange of the Series M
Notes; provided, however, that the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection with the exchange or transfer (other than any such transfer
taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 1.06(f), 3.04, 5.06 or 14.06 of the Indenture and
Section 1(h)(iii) of this Officer's Certificate not involving any
transfer).
(t) For purposes of the Series M Notes, "Business Day" shall mean any day,
other than Saturday or Sunday, on which commercial banks are open for
business, including dealings in deposits in U.S. dollars, in New York.
(u) Certain Covenants and Definitions.
(i) Series M Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or
otherwise cause or suffer to exist or become effective any Series M Lien
of any kind securing Indebtedness, Attributable Debt or trade payables on
any of their property or assets, now owned or hereafter acquired, except
Series M Permitted Liens.
(ii) Merger, Consolidation or Sale of Assets.
(A) The Company shall not, directly or indirectly: (1) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one or more
related transactions, to another Person; unless:
(1) either: (a) the Company is the surviving corporation; or (b)
the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been
made is a corporation organized or existing
26
under the laws of the United States, any state of the United
States or the District of Columbia;
(2) (a) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which
such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of the
Company under the Series M Notes, the Indenture and the
Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee; and (b) such Person
executes and delivers to the Trustee a supplemental indenture
that contains a grant, conveyance, transfer and mortgage by
such Person confirming the lien of the Indenture on the
property subject to such lien and subjecting to such lien all
property thereafter acquired by such Person that shall
constitute an improvement, extension or addition to the
property subject to the lien of the Indenture or renewal,
replacement or substitution of or for any part thereof and, at
the election of such Person, subjecting to the lien of the
Indenture such other property then owned or thereafter
acquired by such Person as such Person shall specify;
(3) immediately after such transaction no Default or Event of
Default exists; and
(4) the Company, or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, conveyance or other
disposition has been made, shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that such transaction and any supplemental indenture
entered into in connection therewith complies with all of the
terms of this Section 1(u)(ii) and that all conditions
precedent provided for in this Section 1(u)(ii) relating to
such transaction or series of transactions have been complied
with.
(B) In addition, the Company may not, directly or indirectly, lease
all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. Clause (4) under Section
1(u)(ii)(A) shall not apply to a sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and any of its
Restricted Subsidiaries.
(C) In addition, the Company shall not effect any consolidation,
merger, sale, assignment, transfer, conveyance or other disposition as is
contemplated in this Section 1(u)(ii), unless the Company also complies
with Sections 13.01 and 13.02 of the Indenture and the Person formed by or
surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, conveyance or other disposition
has been made, shall be deemed a Successor Corporation under the
Indenture.
(iii) Future Subsidiary Guarantees.
27
(A) The Company shall not permit any Restricted Subsidiary to
guarantee the payment of any Indebtedness of the Company unless:
(1) such Restricted Subsidiary simultaneously executes and
delivers to the Trustee a Subsidiary Guarantee of such
Restricted Subsidiary except that with respect to a Guarantee
of Indebtedness of the Company if such Indebtedness is by its
express terms subordinated in right of payment to the Series M
Notes, any such Guarantee of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of
payment to such Restricted Subsidiary's Subsidiary Guarantee
with respect to the Series M Notes substantially to the same
extent as such Indebtedness is subordinated to the Series M
Notes;
(2) such Restricted Subsidiary waives and shall not in any manner
whatsoever claim or take the benefit or advantage of, any
rights or reimbursement, indemnity or subrogation or any other
rights against the Company or any other Restricted Subsidiary
as a result of any payment by such Restricted Subsidiary under
its Subsidiary Guarantee of the Series M Notes; and
(3) such Restricted Subsidiary shall deliver to the Trustee an
Opinion of Counsel to the effect that (a) such Subsidiary
Guarantee has been duly executed and authorized and (b) such
Subsidiary Guarantee constitutes a valid, binding and
enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy,
insolvency or similar laws (including, without limitation, all
laws relating to fraudulent transfers) and except insofar as
enforcement thereof is subject to general principles of
equity; provided that this Section 1(u)(iii)(A) shall not be
applicable to any Guarantee of any Restricted Subsidiary that
(x) existed at the time such Person became a Restricted
Subsidiary of the Company and (y) was not incurred in
connection with, or in contemplation of, such Person becoming
a Restricted Subsidiary of the Company.
(B) Notwithstanding the foregoing and the other provisions of this
Officer's Certificate, in the event a Subsidiary Guarantor is sold or
disposed of (whether by merger, consolidation, the sale of its Capital
Stock or the sale of all or substantially all of its assets (other than by
lease) and whether or not the Subsidiary Guarantor is the surviving
corporation in such transaction) to a Person which is not the Company or a
Restricted Subsidiary of the Company (other than a Receivables Entity),
such Subsidiary Guarantor shall be released from its obligations under its
Subsidiary Guarantee if:
(1) the sale or other disposition is in compliance with the
applicable provisions of this Officer's Certificate; and
(2) the Subsidiary Guarantor is also released or discharged from
its obligations under the Guarantee which resulted in the
creation of such
28
Subsidiary Guarantee, except by or as a result of payment
under such Guarantee.
(iv) Sale and Leaseback Transactions.
(A) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company or any Restricted Subsidiary may enter into a
sale and leaseback transaction if the gross cash proceeds of that sale and
leaseback transaction are at least equal to the fair market value, as
determined in good faith by the Board of Directors and set forth in an
Officer's Certificate delivered to the Trustee, of the property that is
the subject of that sale and leaseback transaction.
(v) Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to
or for the benefit of any Holder of Series M Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of
this Officer's Certificate or the Series M Notes unless such consideration
is offered to be paid and is paid to all Holders of the Series M Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
(vi) Covenant Defeasance.
(A) Option to Effect Covenant Defeasance. The Company may, at the
option of the Board of Directors evidenced by a resolution set forth in an
Officers' Certificate, at any time, elect to have Section 1(u)(vi)(B)
hereof be applied to all outstanding Series M Notes upon compliance with
the conditions set forth below in Section 1(u)(vi)(C) hereof.
(B) Exercise of Covenant Defeasance. Upon the Company's exercise
under Section 1(u)(vi)(A) hereof of the option applicable to this Section
1(u)(vi)(B), the Company shall, subject to the satisfaction of the
conditions set forth in Section 1(u)(vi)(C) hereof, be released from each
of its obligations under the covenants contained in Section 1(h)(iii),
Section 1(u)(i), Section 1(u)(iii), Section 1(u)(iv), Section 1(u)(v)
hereof (under the headings: "Mandatory Redemption/Redemption at Option of
Holders/Offers to Purchase -- Offer to Purchase Upon Change of Control,"
"Certain Covenants and Definitions -- Liens," "Certain Covenants and
Definitions -- Future Subsidiary Guarantees," "Certain Covenants and
Definitions -- Sale and Leaseback Transactions," and "Certain Covenants
and Definitions -- Payment for Consents") hereof with respect to the
Outstanding Series M Notes on and after the date the conditions set forth
in Section 1(u)(vi)(C) hereof are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Series M Notes shall thereafter be deemed not
Outstanding for the purposes of any direction, waiver, consent or
declaration or act of Holders of Securities, including but not limited to,
Holders of Series M Notes (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed Outstanding
for all other
29
purposes hereunder. For this purpose, Covenant Defeasance means that, with
respect to the Outstanding Series M Notes, the Company may omit to comply
with and will have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a
Triggering Event under Section 1(h)(ii) hereof or a Default or an Event of
Default under Section 10.01 of the Indenture, but, except as specified
above, the remainder of the Indenture, this Officer's Certificate and such
Series M Notes will be unaffected thereby. In addition, upon the Company's
exercise under Section 1(u)(vi)(A) hereof of the option applicable to
Section 1(u)(vi)(B) hereof, subject to the satisfaction of the conditions
set forth in Section 1(u)(vi)(C) hereof, Sections 1(h)(ii)(A)(3) through
1(h)(ii)(A)(7) hereof will not constitute Triggering Events.
(C) Conditions to Covenant Defeasance. In order to exercise Covenant
Defeasance under this Section 1(u)(vi):
(1) the Company must irrevocably deposit with the Trustee or any
Paying Agent (other than the Company), in trust for the
benefit of the Holders of the Series M Notes:
(a) money (including Funded Cash not otherwise applied
pursuant to the Indenture) in an amount which will be
sufficient, or
(b) Eligible Obligations which do not contain provisions
permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and
the interest on which when due, without any regard to
reinvestment thereof, will provide monies which,
together with the money, if any, deposited with or held
by the Trustee or such Paying Agent, will be sufficient,
or
(c) a combination of (a) and (b) which will be sufficient,
to pay when due the principal of and premium, if any,
and interest, if any, and Liquidated Damages, if any,
due and to become due on the Series M Notes or portions
thereof provided, that the Company shall have delivered
to the Trustee and such Paying Agent: (I) a Company
Order stating that the money and Eligible Obligations
deposited in accordance with this Section 1(u)(vi)(C)
shall be held in trust, as provided in Section 9.03 of
the Indenture; and (II) if Eligible Obligations shall
have been deposited, an Opinion of Counsel to the effect
that such obligations constitute Eligible Obligations
and do not contain provisions permitting the redemption
or other prepayment thereof at the option of the issuer
thereof, and an opinion of an Independent public
Accountant of nationally recognized standing, selected
by the Company, to the effect that
30
the other requirements set forth in Section
1(u)(vi)(C)(1)(b) above have been satisfied;
(2) the Company shall have delivered to the Trustee an Opinion of
Counsel confirming that the Holders of the Outstanding Series
M Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(3) no Triggering Event shall have occurred and be continuing on
the date of such deposit (other than a Triggering Event
arising from the breach of a covenant under this Officer's
Certificate resulting from the borrowing of funds to be
applied to such deposit);
(4) such Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material
agreement or instrument (other than this Officer's
Certificate) to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries
is bound;
(5) the Company must deliver to the Trustee an Officer's
Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Series M
Notes over the other creditors of the Company with the intent
of defeating, hindering, delaying or defrauding creditors of
the Company or others; and
(6) the Company must deliver to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Covenant Defeasance have
been complied with.
(vii) Additional Conditions to Section 9.01 of Indenture.
Notwithstanding the provisions of Section 9.01 of the Indenture, no Series
M Note shall be deemed to have been paid pursuant to such provisions
unless the Company shall have delivered to the Trustee either: (a) an
Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (ii) since the
date of this Officer's Certificate, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the Outstanding Series M Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such satisfaction and discharge
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
satisfaction and discharge had not occurred; or (b) (i) an instrument
wherein the Company, notwithstanding the satisfaction and discharge of the
Company's Indebtedness in respect of the Series M Notes, shall assume the
obligation (which shall be absolute and unconditional) to irrevocably
deposit
31
with the Trustee such additional sums of money, if any, or additional
Eligible Obligations, if any, or any combination thereof, at such time or
times, as shall be necessary, together with the money and/or Eligible
Obligations theretofore so deposited, to pay when due the principal of and
premium, if any, and interest due and to become due on such Series M Notes
or portions thereof; provided, however, that such instrument may state
that the Company's obligation to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an Independent
public Accountant of nationally recognized standing showing the
calculation thereof; and (ii) an Opinion of Counsel of tax counsel in the
United States reasonably acceptable to the Trustee to the effect that the
Holders of the Outstanding Series M Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such satisfaction
and discharge and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such satisfaction and discharge had not occurred.
(viii) Modifications Requiring Consent.
In addition to the provisions of Section 14.02 of the Indenture, no
supplemental indenture shall alter or waive any of the provisions with
respect to the redemption of the Series M Notes set forth in Section 1(g)
hereof without the consent of each Holder of Series M Notes affected
thereby.
(ix) Certain Definitions.
Set forth below are certain defined terms used in this Officer's
Certificate. Reference is made to the Indenture for the definitions of any
other capitalized terms used herein for which no definition is provided
herein.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this
definition, "control," as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through
the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of a Person
shall be deemed to be control. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have
correlative meanings.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation
of the lessee for net rental payments during the remaining term of the
lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the
32
option of the lessor, be extended. Such present value shall be calculated
using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular "person" (as that term is used
in Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to
have beneficial ownership of all securities that such "person" has the
right to acquire by conversion or exercise of other securities, whether
such right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee of such board of directors duly
authorized to act for the corporation;
(2) with respect to a partnership, the board of directors of the
general partner of the partnership; and
(3) with respect to any other Person, the board or committee of
such Person serving a similar function.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
33
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or
substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole to any
"person" (as that term is used in Section 13(d)(3) of the
Exchange Act, including any "group" with the meaning of the
Exchange Act);
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which
is that any "person" (as defined above) becomes the Beneficial
Owner, directly or indirectly, of more than 30% of the Voting
Stock of the Company or Sierra Pacific Resources, measured by
voting power rather than number of shares; or
(4) the first day on which a majority of the members of the Board
of Directors of the Company or the Board of Directors of
Sierra Pacific Resources are not Continuing Directors.
"Change of Control Offer" has the meaning assigned to it in Section
1(h)(iii)(A) of this Officer's Certificate.
"Change of Control Payment" has the meaning assigned to it in
Section 1(h)(iii)(A) of this Officer's Certificate.
"Change of Control Payment Date" has the meaning assigned to it in
Section 1(h)(iii)(B)(2) of this Officer's Certificate.
"Clearstream" means Clearstream Banking, societe anonyme.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of the Board of Directors of the Company on the
original issue date of the Series M Notes; or
(2) was nominated for election or elected to the Board of
Directors of the Company with the approval of a majority of
the Continuing Directors who
34
were members of the Board of Directors at the time of such
nomination or election.
"Credit Facilities" means one or more debt facilities or commercial
paper facilities, in each case with banks or other institutional lenders
providing for revolving credit loans, term loans or letters of credit, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time, and includes any
securities issued pursuant to the Indenture in order to secure any amounts
outstanding under a Credit Facility from time to time; provided that the
obligation of the Company to make any payment on any such securities shall
be:
(1) no greater than the amount required to be paid under such
Credit Facility that is secured by such payment obligation;
(2) payable no earlier than such amount is required to be paid
under such Credit Facility; and
(3) deemed to have been paid or otherwise satisfied and discharged
to the extent that the Company has paid such amount under such
Credit Facility.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default as defined in
the Indenture.
"Definitive Note" means a certificated Series M Note registered in
the name of the Holder thereof and issued in accordance with Section
1(q)(v) of this Officer's Certificate, in the form of Exhibit A hereto
except that such Series M Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Depositary" means, with respect to the Series M Notes issuable or
issued in whole or in part in global form, the Person specified in Section
1(q)(iii) of this Officer's Certificate as the Depositary with respect to
the Series M Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Officer's Certificate or the Indenture.
"DTC" has the meaning assigned to it in Section 1(q)(iii) of this
Officer's Certificate.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Euroclear Bank S.A./N.V.
"Event of Default" means an Event of Default as defined in the
Indenture.
35
"Exchange Notes" means if and when issued, each series of the Series
M Notes issued in exchange for any Initial Notes in an Exchange Offer or
upon transfer pursuant to a Shelf Registration Statement.
"Exchange Offer" has the meaning set forth in a corresponding
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"First Mortgage Indenture" means the Indenture of Mortgage, dated as
of December 1, 1940 by and between the Company and U.S. Bank National
Association and Gerald R. Wheeler, as successor trustees, as modified,
amended or supplemented at any time or from time to time by supplemental
indentures.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect on
the original issue date of the Series M Notes.
"Global Note Legend" means the legend set forth in Section
1(q)(v)(G)(2) of this Officer's Certificate, which is required to be
placed on all Global Notes issued under this Officer's Certificate.
"Global Notes" means, individually and collectively, each of the
Series M Notes (which may be either Restricted Global Notes or
Unrestricted Global Notes) issued or issuable in the global form of
Exhibit A hereto issued in accordance with Sections 1(q)(i),
1(q)(v)(B)(4), 1(q)(v)(D)(4) or 1(q)(v)(F) of this Officer's Certificate.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of
a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person incurred in the normal course of business
and consistent with past practices and not for speculative purposes under:
(1) interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements designed to protect the
person or entity entering into the agreement against
fluctuations in interest rates with respect to Indebtedness
incurred and not for purposes of speculation;
36
(2) foreign exchange contracts and currency protection agreements
entered into with one of more financial institutions designed
to protect the person or entity entering into the agreement
against fluctuations in currency exchange rates with respect
to Indebtedness incurred and not for purposes of speculation;
(3) any commodity futures contract, commodity option or other
similar agreement or arrangement designed to protect against
fluctuations in the price of commodities used by that entity
at the time; and
(4) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency
exchange rates.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that
constitutes an accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others
secured by a Series M Lien on any asset of the specified Person (whether
or not such Indebtedness is assumed by the specified Person) and, to the
extent not otherwise included, the Guarantee by the specified Person of
any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount; and
37
(2) the principal amount of the Indebtedness, together with any
interest on the Indebtedness that is more than 30 days past
due, in the case of any other Indebtedness.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" has the meaning set forth in Section 1(q)(ii) of
this Officer's Certificate.
"Initial Purchaser" has the meaning set forth in the Purchase
Agreement.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Issue Date" means the first date on which any Series M Notes are
issued, authenticated and delivered under the Indenture and this Officer's
Certificate.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of Initial Notes for use
by such Holders in connection with an Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable
as a guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights that
the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder of any other
Indebtedness (other than the Series M Notes) of the Company or
any of its Restricted Subsidiaries to declare a default on
38
such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its stated
maturity; and
(3) as to which the lenders have been notified in writing that
they shall not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian for the Depositary
with respect to the Series M Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Offering" means the offering of the Original Notes by the Company
on the Issue Date.
"Original Notes" has the meaning set forth in Section 1(q)(ii) of
this Officer's Certificate.
"Participant" means, with respect to DTC, Euroclear or Clearstream,
a Person who has an account with DTC, Euroclear or Clearstream,
respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Payment Default" has the meaning assigned to it in Section
1(h)(ii)(A)(6)(I) of this Officer's Certificate.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided
that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued and unpaid interest on the
Indebtedness and the amount of all expenses and premiums
incurred in connection therewith);
(2) if such Permitted Refinancing Indebtedness is issued on or
after the first anniversary of the original issue date of the
Series M Notes, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or
39
greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(3) if such Permitted Refinancing Indebtedness is issued on or
after the first anniversary of the original issue date of the
Series M Notes, and the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is
contractually subordinated in right of payment to the Series M
Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Series M Notes on
terms at least as favorable to the Holders of Series M Notes
as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by the
Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.
"Private Placement Legend" means the legend set forth in Section
1(q)(v)(G)(1) of this Officer's Certificate to be placed on all Series M
Notes issued under the Indenture and this Officer's Certificate except
where otherwise permitted by the provisions of the Indenture and this
Officer's Certificate.
"Purchase Agreement" means the Purchase Agreement dated March 20,
2006 among the Company and each Initial Purchaser relating to the
Offering.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Receivables Transaction" means any transaction or series
of transactions that may be entered into by the Company or any of its
Restricted Subsidiaries pursuant to which the Company or any of its
Restricted Subsidiaries may sell, convey or otherwise transfer to (1) a
Receivables Entity (in the case of a transfer by the Company or any of its
Restricted Subsidiaries) and (2) any other Person (in the case of a
transfer by a Receivables Entity), or may grant a security interest in,
any accounts receivable (whether now existing or arising in the future) of
the Company or any of its Restricted Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such
accounts receivable, all contracts and all guarantees or other obligations
in respect of such accounts receivable, the proceeds of such receivables
and other assets which are customarily transferred, or in respect of which
security interests are customarily granted in connection with asset
securitization involving accounts receivable.
40
"Receivables Entity" means a wholly-owned Subsidiary of the Company
or Sierra Pacific Resources (or another Person in which the Company or any
Restricted Subsidiary of the Company makes an Investment and to which the
Company or any Restricted Subsidiary of the Company transfers accounts
receivable and related assets) which engages in no activities other than
in connection with the financing of accounts receivable and which is
designated by the Board of Directors (as provided below) as a Receivables
Entity:
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(a) is guaranteed by the Company or any Restricted
Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitization
Undertakings);
(b) is recourse to or obligates the Company or any
Restricted Subsidiary of the Company in any way other
than pursuant to Standard Securitization Undertakings;
or
(c) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard
Securitization Undertakings;
(2) which is not party to any agreement, contract, arrangement or
understanding (except in connection with a Purchase Money Note
or Qualified Receivables Transaction) with the Company or any
Restricted Subsidiary of the Company other than on terms no
less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons
that are not Affiliates of the Company, other than fees
payable in the ordinary course of business in connection with
servicing accounts receivable; and
(3) to which neither the Company nor any Restricted Subsidiary of
the Company has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain
or preserve such entity's financial condition or cause such
entity to achieve certain levels of operating results.
Any such designation by the Board of Directors shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board
Resolution giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing conditions.
41
"Registration Rights Agreement" means (i) the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the
other parties named on the signature pages thereof relating to the
Original Notes and (ii) any similar agreement that the Company and other
parties may enter into in relation to any other Initial Notes, in each
case as such agreement may be amended, modified or supplemented from time
to time.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of
the Depositary or its nominee, issued in an initial denomination equal to
the outstanding principal amount of the Notes initially sold by the
Initial Purchasers in reliance on Rule 903 of Regulation S.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the applicable distribution compliance
period as set forth in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its
nominee, issued in an initial denomination equal to the outstanding
principal amount of the Notes initially sold by the Initial Purchasers in
reliance on Rule 144A.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Securities Act" means the Security Act of 1933, as amended.
"Series M Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional
42
sale or other title retention agreement, any lease in the nature thereof,
any option or other agreement to sell or give a security interest in and
any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Series M Permitted Liens" means:
(1) Series M Liens securing any Indebtedness under a Credit
Facility and all Obligations and Hedging Obligations relating
to such Indebtedness;
(2) Series M Liens in favor of the Company or any Subsidiary
Guarantors;
(3) Series M Liens on property of a Person existing at the time
such Person is merged with or into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided
that such Series M Liens were in existence prior to the
contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged
into or consolidated with the Company or the Restricted
Subsidiary;
(4) Series M Liens on property existing at the time of acquisition
of the property by the Company or any Restricted Subsidiary of
the Company, provided that such Series M Liens were in
existence prior to the contemplation of such acquisition;
(5) Series M Liens to secure the performance of statutory or
regulatory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the
ordinary course of business;
(6) Series M Liens existing on the original issue date of the
Series M Notes (including the Series M Lien of the First
Mortgage Indenture and the Series M Lien of the Indenture);
(7) Series M Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve
or other appropriate provision as is required in conformity
with GAAP has been made therefor;
(8) Series M Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary with respect to
obligations (including Hedging Obligations) that do not exceed
$35.0 million at any one time outstanding;
(9) Series M Liens securing Permitted Refinancing Indebtedness
incurred to refinance Indebtedness that was previously so
secured; provided that any such Series M Lien is limited to
all or part of the same property or assets
43
(plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the
written arrangements under which the original Series M Lien
arose, could secure) the Indebtedness being refinanced or is
in respect of property that is the security for a Series M
Permitted Lien hereunder;
(10) Series M Liens on assets transferred to a Receivables Entity
or on assets of a Receivables Entity, in either case, incurred
in connection with a Qualified Receivables Transaction; and
(11) Series M Liens, including pledges, rights of offset and
bankers' liens, on deposit accounts, instruments, investment
accounts and investment property (including cash, cash
equivalents and marketable securities) from time to time
maintained with or held by any financial and/or depository
institutions, in each case solely to secure any and all
obligations now or hereafter existing of the Company or any of
its Subsidiaries in connection with any deposit account,
investment account or cash management service (including ACH,
Fedwire, CHIPS, concentration and zero balance accounts, and
controlled disbursement, lockbox or restricted accounts) now
or hereafter provided by any financial and/or depository
institutions to or for the benefit of the Company, any of its
Subsidiaries or any special purpose entity directly or
indirectly providing loans to or making receivables purchases
from the Company or any of its Subsidiaries.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in
effect on the date hereof.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary of the Company which are reasonably customary in
securitization of accounts receivable transactions.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
44
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that
Person or one or more Subsidiaries of that Person (or any
combination thereof).
"Subsidiary Guarantee" means any Guarantee of the Series M Notes to
be executed by any Subsidiary of the Company pursuant to Section 1(u)(iii)
of this Officer's Certificate (under the heading "Future Subsidiary
Guarantees").
"Subsidiary Guarantors" means any Subsidiary of the Company that
executes a Subsidiary Guarantee in accordance with the provisions of the
Indenture, and their respective successors and assigns.
"Triggering Event" has the meaning assigned to it in Section 1(h) of
this Officer's Certificate.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent Global Note in the form
of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the
name of the Depositary, representing a series of Notes that do not bear
the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that
is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of
the Company;
(3) is a Person with respect to which neither the Company nor any
of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or
(b) to maintain or preserve such Person's financial condition
or to cause such Person to achieve any specified levels of
operating results;
45
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or
any of its Restricted Subsidiaries; and
(5) has at least one director on its Board that is not a director
or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is
not a director or executive officer of the Company or any of
its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation
and an Officer's Certificate certifying that such designation complied
with the preceding conditions. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
the Company as of such date.
"U.S." means the United States of America.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness, by
(b) the number of years (calculated to the nearest
one-twelfth) that shall elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
(v) The Series M Notes shall have such other terms and provisions as are
provided in the form thereof attached hereto as Exhibit A, and shall be
issued in substantially such form.
2. The undersigned has read all of the covenants and conditions contained
in the Indenture, and the definitions in the Indenture relating thereto,
relating to the issuance of the Series M Notes and in respect of compliance with
which this certificate is made.
46
The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents accompanying
this certificate, and upon discussions by the undersigned with officers and
employees of the Company familiar with the matters set forth herein.
In the opinion of the undersigned, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenants and conditions have been complied with.
In the opinion of the undersigned, such conditions and covenants have been
complied with.
47
IN WITNESS WHEREOF, the undersigned has executed this Officer's
Certificate as of the date first written above.
By:
---------------------------------------
Michael W. Yackira
Executive Vice President and
Chief Financial Officer
Acknowledged and Received on
March ___, 2006
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------
Name:
Title:
Signature Page to Officer's Certificate (Terms of Note)
EXHIBIT A
FORM OF SERIES M NOTES
[Insert the Global Note Legend, if applicable, pursuant to the provisions
of the Indenture and the Officer's Certificate]
[Insert the Private Placement Legend, if applicable, pursuant to the
provisions of the Indenture and the Officer's Certificate]
SIERRA PACIFIC POWER COMPANY
6% General and Refunding Mortgage Notes, Series M, due 2016
Original Interest Accrual Date: March 23, 2006 Redeemable: Yes [ ] No [ ]
Stated Maturity: May 15, 2016 Redemption Date: See Below
Interest Rate: 6% Redemption Price: See Below
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
The Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
---------------
CUSIP No. _____________
6% General and Refunding Mortgage Notes, Series M, due 2016
No. R- $__________
promises to pay to Cede & Co. or registered assigns, the principal sum of
__________________ Dollars on May 15, 2016.
1. Interest. Sierra Pacific Power Company, a Nevada corporation (the
"company"), promises to pay interest on the principal amount of this Series M
Note at 6% per annum, from March 23, 2006 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company shall pay interest and Liquidated
Damages, if any, semi-annually in arrears on May 15 and November 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Series M Notes shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from Original Interest Accrual Date specified above;
provided that if there is no existing Default in the payment of interest, and if
this Series M Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date, except in the case of the
original issuance of Series M Notes, in which case interest shall accrue from
the Original Interest Accrual Date specified above; provided, further,
A-1
that the first Interest Payment Date shall be November 15, 2006. The Company
shall pay interest (including postpetition interest in any proceeding under the
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate borne on the Series M Notes; it shall pay interest (including
post-petition interest in any proceeding under the Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Series M Notes
(except Defaulted Interest) and Liquidated Damages to the Persons who are
registered Holders of Series M Notes at the close of business on the May 1 and
November 1 next preceding the Interest Payment Date, even if such Series M Notes
are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 3.07 of the Indenture with respect to Defaulted
Interest. The Series M Notes shall be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office or agency of the Company
maintained for such purpose within the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages may be made by
check mailed to the Holders of Series M Notes at their addresses set forth in
the register of Holders, and provided that payment by wire transfer of
immediately available funds shall be required with respect to principal of, and
interest, premium and Liquidated Damages on, all Global Notes and all other
Series M Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. Paying Agent and Security Registrar. Initially, The Bank of New York,
the Trustee under the Indenture, shall act as Paying Agent and Security
Registrar. The Company may change any Paying Agent or Security Registrar without
notice to any Holder of Series M Notes. The Company or any of its Subsidiaries
may act in any such capacity.
4. Indenture; Security. This Series M Note is one of a duly authorized
issue of Securities of the Company, issued and issuable in one or more series
under and equally secured by a General and Refunding Mortgage Indenture, dated
as of May 1, 2001 (such Indenture as originally executed and delivered and as
supplemented or amended from time to time thereafter, together with any
constituent instruments establishing the terms of particular Securities, being
herein called the "Indenture"), between the Company and The Bank of New York,
Trustee (herein called the "Trustee," which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the property mortgaged, pledged
and held in trust, the nature and extent of the security and the respective
rights, limitations of rights, duties and immunities of the Company, the Trustee
and the Holders of the Securities thereunder and of the terms and conditions
upon which the Securities are, and are to be, authenticated and delivered and
secured. The acceptance of this Series M Note shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms and provisions of
the Indenture. This Series M Note is one of the series designated above. The
terms of the Series M Notes include those stated in the Indenture, the Officer's
Certificate dated March 23, 2006 (the "Officer's Certificate") and those made
part of
A - 2
the Indenture by reference to the Trust Indenture Act. The Series M Notes are
subject to all such terms, and Holders of Series M Notes are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Series M Note conflicts with the express provisions of the
Indenture or the Officer's Certificate, the provisions of the Indenture and the
Officer's Certificate shall govern and be controlling. The Series M Notes are
general obligations of the Company initially limited to $300,000,000 aggregate
principal amount in the case of Series M Notes issued on the Issue Date.
All Outstanding Securities, including the Series M Notes, issued under the
Indenture are secured by the lien of the Indenture on the properties of the
Company described in the Indenture. The lien of the Indenture is junior, subject
and subordinate to the prior lien of the Indenture of Mortgage dated as of
December 1, 1940 by and between the Company and U.S. Bank National Association
and Gerald R. Wheeler, as successor trustees.
5. Optional Redemption.
(a) The Company may redeem the notes at any time, either in whole or in
part at a redemption price equal to the greater of (1) 100% of the principal
amount of the Series M Notes being redeemed and (2) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Series M Notes being redeemed (excluding the portion of any such interest
accrued to the date of redemption) discounted (for purposes of determining
present value) to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined below)
plus 30 basis points, plus, in each case, accrued interest thereon to the date
of redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Series M Notes that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Series M Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, (1) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third business day preceding such redemption date, as set
forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (2) if
such release (or any successor release) is not published or does not
contain such prices on such third business day, the Reference Treasury
Dealer Quotation for such redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company.
"Reference Treasury Dealer" means a primary U.S. Government
Securities Dealer selected by the Company.
A - 3
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Independent
Investment Banker by such Reference Treasury Dealer at or before 5:00
p.m., New York City time, on the third business day preceding such
redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
6. Notice of Optional Redemption. Notice of optional redemption shall be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder whose Series M Notes are to be redeemed at its registered address.
Series M Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Series M Notes held by a
Holder are to be redeemed. Notices of redemption may not be conditional. On and
after the redemption date, interest and Liquidated Damages, if any, cease to
accrue on Series M Notes or portions thereof called for redemption.
7. Mandatory Redemption.
(a) Other than in connection with clause (b) below or in connection
with a redemption at the option of the Holders of the Series M Notes in Section
8 below, the Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Series M Notes.
(b) Upon the occurrence of the events described below in clauses (1)
or (2) of this paragraph 7(b), the Company shall be required to redeem the
Series M Notes immediately, at a Redemption Price equal to 100% of the aggregate
principal amount of the Series M Notes plus accrued and unpaid interest and
Liquidated Damages, if any, on the Series M Notes to the date of redemption,
without further action or notice on the part of the Trustee or the Holders of
the Series M Notes:
(1) the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary pursuant to
or within the meaning of Bankruptcy Law:
(I) commences a voluntary case,
(II) consents to the entry of an order for relief against it
in an involuntary case,
A - 4
(III) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(IV) makes a general assignment for the benefit of its
creditors, or
(V) admits in writing of its inability to pay its debts
generally as they become due; or
(2) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(I) is for relief against the Company or any of its
Subsidiaries that is a Significant Subsidiary or any
group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary
case;
(II) appoints a custodian of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any
group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any
of its Subsidiaries that is a Significant Subsidiary or
any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or
(III) orders the liquidation of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
8. Redemption at the Option of Holders. Upon the occurrence of any of the
following Triggering Events: (a) failure for 30 days to pay when due interest
on, or Liquidated Damages with respect to, the Series M Notes; (b) failure to
pay when due the principal of, or premium, if any, on the Series M Notes; (c)
failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described in Section 1(u)(ii) of the Officer's Certificate; (d)
failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to comply with the provisions described in Section 1(h)(iii) of the
Officer's Certificate; (e) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to comply with any of the other agreements
in the Officer's Certificate or the Series M Notes; (f) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the original issue
date of the Series M Notes, if that default (i) is caused by a failure to pay
principal of, or interest or premium, if any, on such Indebtedness prior to the
expiration of the
A - 5
grace period provided in such Indebtedness on the date of such
default (a "PAYMENT DEFAULT") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $15.0 million or more; (g) failure
by the Company or any of its Subsidiaries to pay final judgments aggregating in
excess of $15.0 million, which judgments are not paid, discharged or stayed for
a period of 60 days; or (h) an event of default under the First Mortgage
Indenture (other than any such matured event of default which (i) is of similar
kind or character to the Triggering Event described in (c) or (e) above and (ii)
has not resulted in the acceleration of the securities outstanding under the
First Mortgage Indenture); PROVIDED, HOWEVER, that, anything in the Officer's
Certificate to the contrary notwithstanding, the waiver or cure of such event of
default under the First Mortgage Indenture and the rescission and annulment of
the consequences thereof under the First Mortgage Indenture shall constitute a
cure of the corresponding Triggering Event and a rescission and annulment of the
consequences thereof, the Holders of at least 25% in principal amount of the
Series M Notes then Outstanding may deliver a notice to the Company requiring
the Company to redeem the Series M Notes immediately at a Redemption Price equal
to 100% of the aggregate principal amount of the Series M Notes plus accrued and
unpaid interest and Liquidated Damages, if any, on the Series M Notes to the
Redemption Date. The Holders of a majority in aggregate principal amount of the
Series M Notes then Outstanding by notice to the Company and the Trustee may on
behalf of the Holders of all of the Series M Notes waive any existing Triggering
Event and its consequences except a continuing Triggering Event related to the
payment of interest or Liquidated Damages on, or the principal of, the Series M
Notes. In the case of any Triggering Event by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Series M Notes pursuant to the provisions
of Section 1(g)(i) of the Officer's Certificate relating to redemption at the
option of the Company, an equivalent premium equal to the premium payable under
Section 1(g)(i) shall also become and be immediately due and payable to the
extent permitted by law upon the redemption of the Series M Notes at the option
of the Holders thereof.
9. Denominations, Transfer, Exchange. The Series M Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Series M Notes may be registered and Series M Notes may
be exchanged as provided in the Indenture and the Officer's Certificate. The
Security Registrar and the Trustee may require a Holder of Series M Notes, among
other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder of Series M Notes to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange or
register the transfer of any Series M Note or portion of a Series M Note
selected for redemption, except for the unredeemed portion of any Series M Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Series M Notes for a period of 15 days before a selection of
Series M Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Series M Note may be
treated as its owner for all purposes.
A - 6
11. Amendment, Supplement and Waiver. The Indenture permits, with certain
exceptions as therein provided, the Trustee to enter into one or more
supplemental indentures for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, the Indenture with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Securities of all series then Outstanding under the Indenture, considered
as one class; provided, however, that if there shall be Securities of more than
one series Outstanding under the Indenture and if a proposed supplemental
indenture shall directly affect the rights of the Holders of Securities of one
or more, but less than all, of such series, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be required; and
provided, further, that if the Securities of any series shall have been issued
in more than one Tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less
than all, of such Tranches, then the consent only of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required; and provided,
further, that the Indenture permits the Trustee to enter into one or more
supplemental indentures for limited purposes without the consent of any Holders
of Securities. The Indenture also contains provisions permitting the Holders of
a majority in principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Series M
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Series M Note and of any Series M Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Series M
Note.
12. Events of Default. If an Event of Default shall occur and be
continuing, the principal of this Series M Note may be declared due and payable
in the manner and with the effect provided in the Indenture.
13. No Recourse Against Others. As provided in the Indenture, no recourse
shall be had for the payment of the principal of or premium, if any, or interest
on any Securities, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under the Indenture, against, and no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, as such, past, present or future
of the Company or of any predecessor or successor corporation (either directly
or through the Company or a predecessor or successor corporation), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that the Indenture and all the Securities are solely corporate
obligations and that any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of the Indenture and the issuance of the Securities.
14. Authentication. Unless the certificate of authentication hereon has
been executed by the Trustee or an Authenticating Agent by manual signature,
this Series M Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
A - 7
15. Transfer and Exchange.
(a) As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Series M Note is registrable in the
Security Register, upon surrender of this Series M Note for registration of
transfer at the Corporate Trust Office of The Bank of New York in New York, New
York or such other office or agency as may be designated by the Company from
time to time, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series M Notes of this series of authorized
denominations and of like tenor and aggregate principal amount, will be issued
to the designated transferee or transferees.
(b) No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(c) Prior to due presentment of this Series M Note for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Series M Note is registered as
the absolute owner hereof for all purposes, whether or not this Series M Note be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
16. Governing Law. THE SERIES M NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Definition of "Business Day" and Other Terms. As used herein,
"BUSINESS DAY" shall mean any day, other than Saturday or Sunday, on which
commercial banks are open for business, including dealings in deposits in U.S.
dollars, in New York. All other terms used in this Series M Note which are
defined in the Indenture or the Officer's Certificate shall have the meanings
assigned to them in the Indenture or the Officer's Certificate, as applicable,
unless otherwise indicated.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder of Series M Notes or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Series M
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of March 23, 2006 between Sierra Pacific Power Company and
the parties named on the signature pages thereof (the "Registration Rights
Agreement").
20. Cusip Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Series M Notes and the Trustee may use CUSIP
numbers in notices of redemption a
A - 8
as a convenience to Holders of Series M Notes. No representation is made as to
the accuracy of such numbers either as printed on the Series M Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder of Series M Notes upon written
request and without charge a copy of the Indenture and/or the Registration
Rights Agreement. Requests may be made to:
Sierra Pacific Power Company
6100 Neil Road
P.O. Box 10100
Reno, Nevada 89520-0400
Attention: Chief Financial Officer
A - 9
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
SIERRA PACIFIC POWER COMPANY
By:
----------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _____________, _____
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------
Authorized Signatory
A - 10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE* **
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
PRINCIPAL AMOUNT OF
THIS GLOBAL NOTE SIGNATURE OF
AMOUNT OF DECREASE AMOUNT OF INCREASE FOLLOWING SUCH AUTHORIZED SIGNATORY
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT DECREASE (OR OF TRUSTEE OR NOTE
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) CUSTODIAN
- ---------------- ------------------- ------------------- ------------------- ---------------------
- -------------
*** This should be included only if the Note is issued in global form.
A - 11
ASSIGNMENT FORM
To assign this Series M Note, fill in the form below: (I) or (we) assign and
transfer this Series M Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Series M Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:
Your Signature:_______________________________________________________________
(Sign exactly as your name appears on the face of this Series M Note)
SIGNATURE GUARANTEE
________________________________________________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Security Registrar,
which requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Security Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
A - 12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Series M Note purchased by the Company
pursuant to Section 1(h)(iii) (Offer to Purchase upon Change of Control) of the
Officer's Certificate, check the box below:
[ ] Section 1(h)(iii) (Offer to Purchase upon
Change of Control)
If you want to elect to have only part of the Series M Note purchased by
the Company pursuant to Section 1(h)(iii) (Offer to Purchase upon Change of
Control) of the Indenture, state the amount you elect to have purchased:
$______________________________
Date:
Your Signature:_______________________________________________________________
(Sign exactly as your name appears on the face of the Series M Note)
Tax Identification No.:________________________________________________________
SIGNATURE GUARANTEE
________________________________________________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Security Registrar,
which requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Security Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
A - 13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sierra Pacific Power Company
6100 Neil Road
P.O. Box 10100
Reno, Nevada 89520-0400
Attention: Treasurer
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attention: Corporate Trust Division - Corporate Finance Unit
Re: Sierra Pacific Power Company 6% General and Refunding Mortgage
Notes, Series M, due 2016
Reference is hereby made to the General and Refunding Mortgage Indenture,
dated as of May 1, 2001, as supplemented (the "Indenture"), between Sierra
Pacific Power Company, as issuer (the "Company") and The Bank of New York, as
trustee and the Officer's Certificate dated March 23, 2006 governing the Note[s]
(the "Officer's Certificate"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture and the Officer's
Certificate.
____________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such in such Note[s] specified in Annex A hereto, in the
principal amount of $__________ in such Note[s] or interests (the "Transfer"),
to ____________________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions
B - 1
on transfer enumerated in the Private Placement Legend printed on the 144A
Global Note and/or the Definitive Note and in the Officer's Certificate and the
Securities Act.
2. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act and (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made by a
"distributor" (within the meaning of Regulation S) prior to the expiration of
the Restricted Period, the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture and the Officer's Certificate, the transferred beneficial interest or
Definitive Note shall be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note and/or the
Definitive Note and in the Officer's Certificate and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE SHALL TAKE DELIVERY OF A
DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE
144A OR REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act; or
B - 2
(d) [ ] such Transfer is being effected to an accredited investor
within the meaning of Rule (501)(a)(1), (2), (3) or (7) under the Securities Act
("Institutional Accredited Investor") or pursuant to another exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) if the Transfer is to an
Institutional Accredited Investor, a certificate executed by the Transferee in
the form of Exhibit D to the Officer's Certificate and (2) an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor has
attached to this certificate) to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture and the Officer's Certificate, the
transferred beneficial interest or Definitive Note shall be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Global Note and/or the Definitive Notes and in the Officer's Certificate and
the Securities Act.
4. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture, the
Officer's Certificate and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture and the
Officer's Certificate, the transferred beneficial interest or Definitive Note
shall no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Officer's Certificate.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and the Officer's Certificate and any applicable blue
sky securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Officer's Certificate and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture and the Officer's Certificate, the transferred
beneficial interest or Definitive Note shall no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the Officer's
Certificate.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance
B - 3
with the transfer restrictions contained in the Indenture and the Officer's
Certificate and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Officer's Certificate and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture and the
Officer's Certificate, the transferred beneficial interest or Definitive Note
shall not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted Definitive
Notes and in the Officer's Certificate.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________________
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
------------------------------------
B - 4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(ii) [ ] 144A Global Note (CUSIP ___________), or
(ii) [ ] Regulation S Global Note (CUSIP ___________);
or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ___________), or
(ii) [ ] Regulation S Global Note (CUSIP ___________), or
(iii) [ ] Unrestricted Global Note (CUSIP ___________); or
(b) [ ] a Restricted Definitive Note.
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture and the Officer's Certificate.
B - 5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sierra Pacific Power Company
6100 Neil Road
P.O. Box 10100
Reno, Nevada 89520-0400
Attention: Treasurer
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attention: Corporate Trust Division - Corporate Finance Unit
Re: Sierra Pacific Power Company 6% General and Refunding Mortgage
Notes, Series M, due 2016
(CUSIP ____________)
Reference is hereby made to the General and Refunding Mortgage Indenture,
dated as of May 1, 2001, as supplemented (the "Indenture"), between Sierra
Pacific Power Company, as issuer (the "Company") and The Bank of New York, as
trustee, and the Officer's Certificate dated March 23, 2006 governing the
Note[s] (the "Officer's Certificate"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture and the Officer's
Certificate.
____________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$______________ in such Note[s] or interests (the "Exchange"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture, the Officer's Certificate and the Private
Placement Legend are not required in order to maintain
C - 1
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture, the Officer's Certificate and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficiary interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture, the Officer's Certificate and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture, the Officer's Certificate and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial
C - 2
interest in a Restricted Global Note for a Restricted Definitive Note with an
equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner's own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture and the Officer's Certificate, the Restricted Definitive Note issued
shall continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Note and in the
Officer's Certificate and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE]
[ ] 144A Global Note [ ] Regulation S Global Note
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture and the Officer's
Certificate, the beneficial interest issued shall be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Officer's Certificate and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_____________________________
[Insert Name of Owner]
By:
------------------------------
Name:
Title:
Dated:
------------------------------
C - 3
EXHIBIT D
FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Sierra Pacific Power Company
6100 Neil Road
P.O. Box 10100
Reno, Nevada 89520-0400
Attention: Treasurer
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attention: Corporate Trust Division - Corporate Finance Unit
Re: Sierra Pacific Power Company 6% General and Refunding Mortgage
Notes, Series M, due 2016
Reference is hereby made to the General and Refunding Mortgage Indenture,
dated as of May 1, 2001, as supplemented (the "Indenture"), among Sierra Pacific
Power Company, as issuer (the "Company") and The Bank of New York, as trustee,
and the Officer's Certificate dated March 23, 2006 governing the Notes (the
"Officer's Certificate"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture and the Officer's Certificate.
In connection with our proposed purchase of $______________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. we are an "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), or an entity in which all of the equity owners are accredited
investors within the meaning of Rule (501)(a)(1), (2), (3) or (7) under
the Securities Act (an "Institutional Accredited Investor");
2. (i)(A) any purchase of the Notes by us shall be for our own account or for
the account of one or more other institutional accredited investors or as
fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion or (B) we are a "bank," within the meaning of Section 3(a)(2)
of the Securities Act, or a "savings and loan association" or other
institution described in Section
D - 1
3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for
the account of one or more institutions for which we exercise sole
investment discretion;
3. in the event that we purchase any Notes, we shall acquire Notes having a
minimum purchase price of not less than $250,000 for our own account and
for each separate account for which we are acting;
4. we have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of purchasing
Notes;
5. we are not acquiring the Notes with a view to any distribution thereof in
a transaction that would violate the Securities Act or the securities laws
of any State of the United States or any other applicable jurisdictions,
provided that the disposition of our property and the property of any
accounts for which we are acting as fiduciary shall remain at all times
within our control;
6. we have received a copy of the Offering Memorandum relating to the
offering of the Notes and acknowledge that we have had access to such
financial and other information, and have been afforded the opportunity to
ask such questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to purchase
the Notes; and
7. (vii)(a) we are not an employee benefit plan or other arrangement that is
subject to the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended,
or an entity whose underlying assets include assets of such a plan or
arrangement (pursuant to 29 C.F.R. Section 2510.3-101 or otherwise), and
we are not purchasing (and shall not hold) the Notes on behalf of, or with
the assets of, any such plan, arrangement or entity; or (b) our purchase
and holding of the Notes are completely covered by the full exemptive
relief provided by U.S. Department of Labor Prohibited Transaction Class
Exemption 96-23, 95-60, 91-38, 90-1 or 84-14.
We understand that the Notes were offered in a transaction not
involving any public offering in the United States within the meaning of the
Securities Act and that the Notes have not been registered under the Securities
Act or any state securities laws, and they were offered for resale in
transactions not requiring registration under the Securities Act. We agree on
our own behalf and on behalf of any investor account for which we are purchasing
the Notes, and each subsequent holder of the Notes by its acceptance of the
Notes will agree, to offer, sell or otherwise transfer such notes prior to (x)
the date which is two years (or such shorter period of time as permitted by Rule
144(k) under the Securities Act or any successor provision thereunder) after the
later of the date of the original issue of the Notes and the last date on which
the Company or any of its affiliates were the owner of such Notes (or any
predecessor thereto) or (y) such later date, if any, as may be required by
applicable law (the "RESALE RESTRICTION TERMINATION DATE") only: (1) to the
Company; (2) pursuant to a registration statement which has been declared
effective under the Securities Act; (3) for so long as the Notes are eligible
for resale pursuant to Rule 144A, to a person it reasonably believes is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the transfer is being made
D - 2
in reliance on Rule 144A; (4) pursuant to offers and sales to Non-U.S. Persons
that occur outside the United States within the meaning of Regulation S under
the Securities Act; or (5) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of its property
or the property of such investor account or accounts be at all times within its
or their control and in compliance with any applicable state securities laws.
Subject to the procedures set forth under Section 1(q)(v) of the Officer's
Certificate, prior to any proposed transfer of the Notes (otherwise than
pursuant to an effective registration statement) within the period referred to
in Rule 144(k) under the Securities Act with respect to such transfer, the
Holder of the Notes must check the appropriate box set forth on the reverse of
its Notes relating to the manner of such transfer and submit the Notes to the
trustee. The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date. We acknowledge that the Company, the
trustee and the transfer agent and security registrar reserve the right prior to
any offer, sale or other transfer pursuant this paragraph, prior to the end of
the restrictive periods described in clauses (x) and (y) above, to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company, the trustee and the security registrar. We further
understand that any Notes we receive shall be in the form of definitive physical
certificates and that such certificates shall bear a legend reflecting the
substance of this paragraph.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
We acknowledge that you and the Company shall rely upon the truth
and accuracy of our acknowledgments, confirmations and agreements in this
letter. Further, we acknowledge and agree that you and the Company are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or, official inquiry with
respect to the matters covered hereby.
--------------------------------------
[Insert Name of Accredited Investor]
By:
-----------------------------------
Name:
Title:
Dated:
----------------------------------
D - 3