Exhibit 4.2
NOTE NO. R-1 CUSIP N0. 641423BA5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO NEVADA POWER
COMPANY (THE "COMPANY") 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 DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A BOOK-ENTRY SECURITY AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED HEREIN, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
NEVADA POWER COMPANY
6% NOTES DUE SEPTEMBER 15, 2003
(THE "NOTE")
Nevada Power Company, a corporation duly organized and existing under the
laws of the State of Nevada (the "Company"), for value received, hereby promises
to pay to Cede & Co., as the nominee of The Depository Trust Company, or
registered assigns, the principal amount of $150,000,000 on September 15, 2003
(the "Maturity Date"), and to pay interest as set forth below on the outstanding
principal amount hereof from time to time from September 20, 2001 or from the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semi-annually in arrears on each March 15 and
September 15 and on the Maturity Date (each, an "Interest Payment Date"),
commencing March 15, 2002, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date shall, as provided herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the fifteenth calendar day preceding each Interest Payment
Date (each, a "Regular Record Date"); provided, however, that interest payable
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on the Maturity Date shall be payable to the person to whom the principal amount
of this Note is payable. Any interest payable on any Interest Payment Date other
than the Maturity Date and not so punctually paid or duly provided for shall
forthwith cease to be payable to the person in whose name this Note is
registered at the close of business on such Regular Record Date and shall
instead be payable to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a special record
date for the payment of such interest to be fixed by the Company, notice whereof
shall be given to the registered holder of this Note (or one or more predecessor
Notes) not less than 10 days prior to such special record date. Principal of
this Note shall be payable against surrender hereof at the corporate trust
office of the Fiscal Agent or at such other office or agency of the Company as
may be designated by it for such purpose in the Borough of Manhattan, The City
of New York.
Payment of the principal of and interest on this Note shall be made at the
corporate trust office of the Fiscal Agent or at such other office or agency of
the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts; provided, however, that, at the option of the Company,
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payments of interest may be made by check mailed to the address of the person
entitled thereto as such address shall appear in the Note Register (as defined
in Section 2 hereof); and provided further, however, that in the case of Notes
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held by a depository (as defined in Section 2 hereof) or its nominee, payments
of principal and interest shall be made by wire transfer of immediately
available funds to an account designated by such depository.
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If any Interest Payment Date for this Note (other than an Interest Payment
Date at the Maturity Date) would otherwise be a day that is not a Business Day
(as defined in Section 1 hereof), such Interest Payment Date shall be postponed
until the next succeeding Business Day. If the Maturity Date of this Note falls
on a day that is not a Business Day, the payment of principal and interest will
be made on the next succeeding Business Day, and no interest on such payment
shall accrue for the period from and after such Maturity Date, except as
otherwise expressly provided for herein.
This Note in the aggregate principal amount of $150,000,000, is the initial
issuance in a series of notes designated "6% Notes due September 15, 2003,"
issued under a Fiscal and Paying Agency Agreement, dated as of September 19,
2001, (the "Fiscal Agency Agreement"), duly executed and delivered by the
Company to Bankers Trust Company, as Fiscal and Paying Agent (the "Fiscal
Agent"). Such series of securities is not limited as to aggregate principal
amount. All terms that are used but not defined in this Note and that are
defined in the Fiscal Agency Agreement shall have the meanings set forth
therein.
1. Interest. The period beginning on, and including, September 20, 2001
and ending on, but excluding, the first Interest Payment Date and each
successive period beginning on, and including, an Interest Payment Date and
ending on, but excluding, the next succeeding Interest Payment Date is herein
called an "Interest Period". "Business Day" shall mean any day on which
commercial banks and foreign exchange markets are open for business, including
dealings in deposits in U.S. dollars in New York.
The Notes will bear interest at a rate of 6% per annum from and including
September 20, 2001, payable semi-annually in arrears on each Interest Payment
Date, commencing March 15, 2002, to the Noteholders in whose names the Notes are
registered at the close of business on the fifteenth calendar day preceding each
Interest Payment Date; provided, however, that interest payable at Maturity will
be payable to the registered Noteholder to whom principal is payable. Interest
on the Notes will be calculated on the basis of a 360-day year of twelve 30-day
months.
Notwithstanding anything herein to the contrary, the interest rate on the
Notes shall in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by United States law of general application.
Interest shall cease to accrue on this Note on the Maturity Date unless,
upon presentation of this Note, payment of principal is improperly withheld or
refused, in which case, interest shall continue to accrue.
2. Registration; Registration of Transfer and Exchange. The Company
shall cause to be kept at an office or agency to be maintained by the Company a
register (the register maintained in such office being herein referred to as the
"Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Fiscal Agent is hereby appointed "Note Registrar" for
the purpose of registering Notes and transfers of Notes as herein provided. The
Company may appoint co-registrars and may change any Note Registrar or
co-registrar without notice.
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Notes shall be exchangeable pursuant to this Section 2 for Notes registered
in the name of, and a transfer of a Note may be registered to, any person other
than DTC or its successor depository (DTC or such successor being referred to as
a "depository") for such Note or its nominee only if (i) such depository
notifies the Company that it is unwilling or unable to continue as depository
for such Note or if at any time such depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and a
successor depository is not appointed by the Company within 90 days, (ii) there
shall have occurred and be continuing an Event of Default (as defined below)
with respect to the Notes or (iii) the Company, in its sole discretion, elects
to terminate the book-entry system. Upon the occurrence of any one or more of
the conditions specified in clauses (i), (ii) or (iii) of the preceding
sentence, such Note shall be exchanged for Notes registered in the names of, and
the transfer of such Note shall be registered to, such persons (including
persons other than the depository with respect to such Notes and its nominee) as
such depository shall direct, in each case subject to Section 4 hereof.
Subject to the restrictions on transfer and delivery set forth in this
Note, Notes may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed) at the
office of the Fiscal Agent or at the office of any other transfer agent
designated by the Company for such purpose. Such transfer or exchange shall be
effected upon the Fiscal Agent's or such other transfer agent's, as the case may
be, being satisfied with the documents of title and identity of the person
making the request. The Company may at any time designate additional transfer
agents or rescind the designation of any transfer agent or approve a change in
the office through which any transfer agent acts; provided, however, that there
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shall at all times be a transfer agent in the Borough of Manhattan, The City of
New York.
The Notes and any certificates for Notes issued in exchange for Notes
or a beneficial interest therein will bear the third legend set forth in this
Note. The holder of a certificated Note may transfer such Note, subject to
compliance with the provisions of such legend, as provided in the preceding
paragraph. Upon the transfer, exchange or replacement of Notes bearing such
legend, or upon specific request for removal of such legend on a Note, the
Company will deliver only Notes bearing such legend, or will refuse to remove
such legend, as the case may be, unless there is delivered to the Company such
satisfactory evidence, which may include an opinion of counsel, as may
reasonably be required by the Company that neither such legend nor the
restrictions on transfer set forth therein are required to ensure compliance
with the provisions of the Securities Act.
3. Acts by Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Notes or the Fiscal Agency Agreement
to be given or taken by holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such holders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided in the Notes or the Fiscal Agency Agreement, such action
shall become effective when such instrument or instruments are delivered to
the Fiscal Agent and, where it is hereby expressly required, to the
Company.
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Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of the Notes and the Fiscal Agency Agreement and
conclusive in favor of the Fiscal Agent and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his or her individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his or her authority. The fact
and date of the execution of any such instrument or writing, or the
authority of the person executing the same, may also be proved in any other
manner which the Fiscal Agent deems sufficient.
(c) The Company may set any day as the record date for the purpose of
determining the holders of outstanding Notes entitled to make any request
or demand or give any authorization, direction, notice, consent or waiver
or take other action, provided or permitted by the Notes and the Fiscal
Agency Agreement to be made, given or taken by holders of the Notes.
With regard to any record date set pursuant to the immediately
preceding paragraph, the holders of outstanding Notes on such record date
(or their duly appointed agents), and only such persons, shall be entitled
to take relevant action, whether or not such holders remain holders after
such record date. With regard to any action that may be taken hereunder
only by holders of a requisite principal amount of outstanding Notes (or
their duly appointed agents) and for which a record date is set pursuant to
the immediately preceding paragraph, the Company, may at its option, set an
expiration date after which no such action purported to be taken by any
holder shall be effective unless taken on or prior to such expiration date
by holders of the requisite principal amount of outstanding Notes on such
record date (or their duly appointed agents). On or prior to any expiration
date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such expiration date to any later date.
Nothing in this paragraph shall prevent any holder (or any duly appointed
agent thereof) from taking, at any time, any action contrary to or
different from, any action previously taken, or purported to have been
taken hereunder by such holder, in which event the Company may set a record
date in respect thereof pursuant to this paragraph. Notwithstanding the
foregoing, the Company shall not set a record date for, and the provisions
to this paragraph shall not apply with respect to, any action to be taken
by holders pursuant to Section 7 hereof.
Upon receipt by the Fiscal Agent of notice of any default, any
declaration of acceleration, or any rescission and annulment of any such
declaration, or of any direction in accordance with Section 7 hereof, a
record date shall automatically and without any
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other action by any person be set for the purpose of determining the
holders of outstanding Notes entitled to join in such notice, declaration,
or rescission and annulment, or direction, as the case may be, which record
date shall be the close of business on the date the Fiscal Agent receives
such notice, declaration, rescission and annulment or direction, as the
case may be. The holders of outstanding Notes on such record date (or their
duly appointed agent), and only such persons, shall be entitled to join in
such notice, declaration, rescission and annulment, or direction, as the
case may be, whether or not such holders remain holders after such record
date; provided that, unless such notice, declaration, rescission and
annulment, or direction, as the case may be, shall have become effective by
virtue of holders of the requisite principal amount of outstanding Notes on
such record date (or their duly appointed agents) having joined therein on
or prior to the 90th day after such record date, such notice of default,
declaration, or rescission and annulment or direction given or made by the
holders, as the case may be, shall automatically and without any action by
any person be canceled and of no further effect. Nothing in this paragraph
shall prevent a holder (or a duly appointed agent thereof) from giving,
before or after the expiration of such 90-day period, a notice of default,
a declaration of acceleration, a rescission and annulment of a declaration
of acceleration or a direction, contrary to or different from, or, after
the expiration of such period, identical to, a previously given notice,
declaration, rescission and annulment, or direction, as the case may be,
that has been canceled pursuant to the proviso to the preceding sentence,
in which event a new record date in respect thereof shall be set pursuant
to this paragraph.
(d) The ownership of the Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the holder of any Note shall bind every future
holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Fiscal
Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Note.
4. Denominations. The Notes are issuable only in registered form without
coupons in denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
5. Persons Deemed Owners. The Company, the Fiscal Agent and any agent
of the Company or the Fiscal Agent may treat the person in whose name this Note
is registered as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes whatsoever, whether or not this Note shall
be overdue, and neither the Company, the Fiscal Agent nor any such agent shall
be affected by notice to the contrary.
6. Amendments and Waivers. Without the consent of any holders of the
Notes, the Company, when authorized by a resolution duly adopted by the Board of
Directors of the Company, and the Fiscal Agent, at any time and from time to
time, may amend the terms of the Notes and enter into one or more agreements
supplemental to the Fiscal Agency Agreement, in form satisfactory to the Fiscal
Agent, for any of the following purposes:
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(a) to evidence the succession of another person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Fiscal Agency Agreement; or
(b) to add to the covenants of the Company for the benefit of the
holders of the Notes; or
(e) to add any additional Events of Default; or
(d) to secure the Notes; or
(e) to evidence and provide for the acceptance of appointment by a
successor Fiscal Agent with respect to the Notes; or
(f) to amend the restrictions on transfer applicable to the Notes as
set forth on this Note; or
(g) to cure any ambiguity or to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
correct or supplement any defective provision contained herein or in the
Fiscal Agency Agreement, provided that such action pursuant to this clause
(g) shall not adversely affect the interests of the holders of the Notes.
With the consent of the holders of not less than 66 and 2/3% in principal
amount of the outstanding Notes, by act of said holders delivered to the Company
and the Fiscal Agent, the Company, when authorized by a resolution duly adopted
by the Board of Directors of the Company, and the Fiscal Agent, at any time and
from time to time, may amend the terms of the Notes and enter into an agreement
supplemental to the Fiscal Agency Agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Notes, or the Fiscal Agency Agreement as the same pertains to the Notes, or
of modifying in any manner the rights of the holders of the Notes: provided,
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however, that no such amendment or supplemental agreement shall, without the
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consent of the holder of each outstanding Note affected thereby,
(1) change the stated maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon, or change any place of payment
where, or the coin or currency in which, any Note or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the stated maturity thereof, or
(2) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose holders is required for any such amendment or
supplemental agreement or the consent of whose holders is required for any
waiver provided for herein or in the Fiscal Agency Agreement, or
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(3) modify any of the provisions of this Section or Section 8, except
to increase any such percentage or to provide that certain other provisions
of the Notes cannot be modified or waived without the consent of the holder
of each outstanding Note affected thereby.
It shall not be necessary for any act of holders under this Section 6 to
approve the particular form of any proposed amendment or supplemental agreement,
but it shall be sufficient if such act shall approve the substance thereof.
Upon the execution of any agreement supplement to the Fiscal Agency
Agreement as permitted by this Section 6, the Notes and the Fiscal Agency
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of the Notes and the Fiscal Agency Agreement, as the
same pertains to the Notes, for all purposes; and every holder of the Notes
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
7. Defaults and Remedies. The occurrence of any of the following events
shall constitute an Event of Default with respect to the Notes:
(a) default in the payment of the principal of any of the Notes when
the same becomes due and payable; or
(b) default in the payment of any installment of interest upon any of
the Notes when the same becomes due and payable, and continuance of such
default for a period of 30 days; or
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Notes for a period of 90 days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have been
given to the Company by the Fiscal Agent by registered or certified mail or
to the Company and the Fiscal Agent by the holders of at least 25% in
aggregate principal amount of the Notes, or
(d) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company under the Federal Bankruptcy Code or any other similar applicable
Federal or State law, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or a decree or order of
a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee in the bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such decree or
order shall have continued undischarged and unstayed for a period of 60
days; or
(e) the Company shall institute proceedings to be adjudicated
bankrupt, or shall consent to the filing of a bankruptcy proceeding against
it, or shall file a petition or answer or consent seeking reorganization
under the Federal Bankruptcy Code or any
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other similar Federal or State law, or shall consent to the filing of any
such petition or shall consent to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or of
its property, or shall make an assignment for the benefit of creditors or
shall admit in writing its inability to pay its debts generally as they
become due.
If an Event of Default occurs and is continuing, the holders of at least
25% in principal amount of the Notes then outstanding may declare all the Notes
to be due and payable immediately. Holders of a majority in principal amount of
the Notes may waive an Event of Default and rescind any related declaration
except as provided in Section 8(a) hereof. The Fiscal Agent may withhold from
holders of Notes notice of any continuing Event of Default, except in respect of
a default in the payment of principal of or interest on the Notes, if it
determines that withholding such notice is in their interest.
8. Waivers.
(a) The holders of not less than a majority in principal amount of
the outstanding Notes may on behalf of the holders of the Notes waive any
past default hereunder with respect to the Notes and its consequences,
except a default
(1) in the payment of the principal of or interest on any Note,
or
(2) in respect of a covenant or provision hereof which under
Section 6 cannot be modified or amended without the consent
of the holder of each outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Notes; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
(b) The Company may omit in any particular instance to comply with
any term, provision or condition set forth in the Notes or the
Fiscal Agency Agreement with respect to the Notes if before the
time for such compliance the holders of at least 66 and 2/3% in
principal amount of the outstanding Notes shall, by act of such
holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition, but (i) without the consent of the holder of each Note
affected thereby, no such waiver shall extend to or affect any
term, provision or condition which under Section 6 cannot be
modified or amended without the consent of the holder of each
outstanding Note affected, and (ii) no such waiver shall extend
to or affect any term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and any duties of the
Fiscal Agent in respect of any such term, provision or condition
shall remain in full force and effect.
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9. Company May Consolidate Etc., Only on Certain Terms. The Company
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any person, firm or
corporation, except that the Company may merge or consolidate with, or sell or
convey all or substantially all of its assets to, any other corporation,
provided that (i) either the Company shall be the continuing corporation, or the
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successor corporation (if other than the Company) shall be a corporation
organized and existing under the laws of the United States of America or a State
thereof and such corporation shall expressly assume the due and punctual payment
of the principal of and interest on all the Notes, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of this Note and the Fiscal Agency Agreement to be performed by the
Company, by supplemental agreement in form satisfactory to the Fiscal Agent,
executed and delivered to the Fiscal Agent by such corporation, and (ii) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger, consolidation, sale or conveyance, be in default
in the performance of any such covenant or condition.
Upon any consolidation of the Company with, or merger of the Company into,
any other person or any sale or conveyance of all or substantially all of the
assets of the Company in accordance with this Section 9, the successor person
formed by such consolidation or into which the Company is merged or to which
such sale or conveyance is made shall succeed to, and be substituted for, and
may exercise every right and power of the Company under this Note and the Fiscal
Agency Agreement with the same effect as if such successor person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor person shall be relieved of all obligations and covenants under the
Notes and the Fiscal Agency Agreement.
10. Unclaimed Amounts. Any money deposited with the Fiscal Agent in trust
for the payment of the principal of or interest on any Note and remaining
unclaimed for twelve months after such principal or interest has become due and
payable shall be paid to the Company upon its request; and the holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Fiscal Agent with respect
to such money shall thereupon cease.
11. Mutilated, Destroyed, Lost and Stolen Notes. If any Note becomes
mutilated or defaced or is apparently destroyed, lost or stolen, the Fiscal
Agent shall, subject to the provisions of this Section 11, authenticate and
deliver a new Note in exchange and substitution for the mutilated or defaced
Note or in lieu of or in substitution for the apparently destroyed, lost or
stolen Note.
Application for the authentication and delivery of a substitute Note
pursuant to this Section 11 may be made at the office of the Fiscal Agent. If
the applicant for any substitute Note shall furnish to the Company and the
Fiscal Agent (i) in the case of any such request in case of loss or theft, such
security or indemnity as may be required by the Company and the Fiscal Agent in
their sole discretion to indemnify and defend and to save each of them and any
agent of either of them harmless, and (ii) in the case of any request for a
substitute Note in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Fiscal Agent of the apparent destruction,
loss or theft of such Note and of the ownership thereof, then, in the absence
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of notice to the Company or the Fiscal Agent that such Note has been acquired by
a bona fide purchaser, the Company shall execute and the Fiscal Agent shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay such Note.
Upon the issuance of any substitute Note under this Section 11, the Company
may require the payment of a sum sufficient to cover any tax assessment or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Fiscal Agent) connected
therewith.
Every new Note issued pursuant to this Section in lieu of any destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of the Fiscal Agency Agreement equally and proportionately with any and
all other Notes.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
12. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or the Fiscal Agency Agreement, or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each holder (and each beneficial owner) of a Note by accepting such
Note (or acquisition of a beneficial interest therein) waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
THIS NOTE SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Fiscal Agent
under the Fiscal Agency Agreement.
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11
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in
its corporate name, manually or by facsimile, by an Authorized Representative
and a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon, attested by the manual or facsimile signature of its Secretary or one of
its Assistant Secretaries.
NEVADA POWER COMPANY
Attest:____________________________ By:____________________________
William E. Peterson Name: Richard K. Atkinson
Title: Treasurer and Investor
Relations Officer
Dated: September 20, 2001
FISCAL AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Fiscal Agency
Agreement.
BANKERS TRUST COMPANY, as
Fiscal Agent
By:_____________________________
Authorized Signer