Exhibit 10.5
AMENDMENT AGREEMENT
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This AMENDMENT AGREEMENT (this "Agreement"), is made and entered into
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as of August 1, 2001, among SIERRA PACIFIC POWER COMPANY (the "Company"), MELLON
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BANK, N.A. ("Mellon"), FIRST UNION NATIONAL BANK ("First Union"), WELLS FARGO
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BANK, N.A. ("Wells Fargo"), and the other parties set forth on the signatures
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pages hereto.
RECITALS
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A. The Company, Mellon, in its capacity as administrative agent (the
"Administrative Agent"), First Union and Wells Fargo, each in their capacity as
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syndication agent, and the Lenders have entered into a Credit Agreement, dated
as of June 24, 1999 (as amended, modified and supplemented through the date
hereof, the "Credit Agreement").
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B. The Company desires, and the Administrative Agent and the Required
Lenders are willing, to amend the Credit Agreement upon the terms set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the premises and
mutual covenants contained herein and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
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used herein shall have the meanings given thereto in the Credit Agreement.
2. Effectiveness of this Agreement. This Agreement shall become
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effective and the amendments described in Section 3 below shall become effective
at the time (the "Effective Time") on the first date (the "Effective Date") on
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which each of the following conditions shall be satisfied or waived by the
Administrative Agent and the Required Lenders:
(a) Execution of Agreement. The Company and the Required Lenders
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shall have executed a copy of this Agreement (whether the same or different
copies) and shall have delivered the same to the Administrative Agent.
(b) No Litigation. The Administrative Agent and the Required
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Lenders shall be satisfied that, immediately prior to the Effective Time,
no judgment, order, injunction or other restraint shall have been issued or
filed which restrains, and no hearing seeking injunctive relief or other
restraint is pending or has been noticed which seeks to restrain, the
Company from consummating the transactions described in the Loan Documents
or this Agreement.
(c) No Default; Representations and Warranties. The
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Administrative Agent and the Required Lenders shall be satisfied that,
immediately prior to the Effective Time and after giving effect to this
Agreement, (i) there shall exist no Default or Event of Default and (ii)
the representations and warranties of the Company contained in the Loan
Documents to which the Company is a party are true and correct in all
material respects as of the Effective Time with the same effect as though
such representations and warranties had been made on and as of the
Effective Time (except for such
representations and warranties made as of a specified date, which shall be
true and correct in all material respects as of such specified date).
(d) Corporate Proceedings. All corporate and legal proceedings and all
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instruments and agreements in connection with the transactions contemplated
in this Agreement and the other Loan Documents shall be satisfactory in
form and substance to the Administrative Agent and the Required Lenders,
and the Administrative Agent shall have received all information and copies
of all documents and papers, including records of corporate proceedings and
governmental approvals, if any, which any Lender reasonably may have
requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental
authorities.
(e) Fee. For consenting to the amendments contained in this Agreement,
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each Lender that executes and delivers this Agreement prior to 5:00 p.m.,
Pacific Time, on July 31, 2001 shall have received on or before the
Effective Date a fee in immediately available funds equal to the product of
(i) 0.25% and (ii) the aggregate amount of such Lender's Commitments.
(f) Payments. The Administrative Agent and each Lender shall have
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received all amounts, if any, owing from the Company to such Person through
and including the Effective Date.
All the certificates and other documents and papers referred to in this Section
2, unless otherwise specified, shall be delivered to the Administrative Agent's
counsel, White & Case LLP, at 633 West Fifth Street, 19/th/ Floor, Los Angeles,
CA 90071, facsimile (213) 687-0758, for the account of each of the Lenders and
in sufficient counterparts for each of the Lenders and shall be satisfactory in
form and substance to the Administrative Agent and the Required Lenders.
3. Amendments. At and from the Effective Time, the Credit Agreement shall
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be amended as follows:
(a) The cover page to the Credit Agreement shall be amended by
deleting the text "$150,000,000" and inserting the text "$120,000,000" in
its place.
(b) Section 1.01 of the Credit Agreement shall be amended as follows:
(i) The defined term "Commitment" shall be amended by deleting
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the text "$150,000,000" in the last sentence thereof and inserting the
text "$120,000,000" in its place.
(ii) The defined term "Final Repayment Date" shall be deleted in
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its entirety and the following shall be substituted therefor:
""Final Repayment Date" means the earliest to occur of (a) the
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date that is one year after the Term Loan Conversion Date, (b)
August 27, 2002 and (c) the date on which the Obligations under
this Agreement terminate, whether by prepayment, cancellation,
acceleration or otherwise."
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(iii) The following defined term shall be inserted immediately
after the definition of "GAAP":
""General and Refunding Mortgage Indenture" means the
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General and Refunding Mortgage Indenture, dated as of May 1,
2001, between the Borrower and The Bank of New York, as trustee,
as the same may be amended, modified or supplemented from time to
time."
(iv) The defined term "Revolving Termination Date" shall be
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deleted in its entirety and the following shall be substituted
therefor:
""Revolving Termination Date" means the earlier of (i)
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November 30, 2001, or such date after November 30, 2001 to which
the Commitments are extended in accordance with Section 2.06(e),
and (ii) the date the Obligations and Commitments under this
Agreement terminate, whether by prepayment, cancellation,
acceleration or otherwise."
(v) The following defined term shall be inserted immediately
after the definition of "Total Indebtedness":
""Triggering Event" has the meaning assigned to such term in
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Section 6.09(b)."
(c) Section 6.01(a) of the Credit Agreement shall be amended by
deleting the text "0.58 to 1" and inserting the text "0.60 to 1" in its
place.
(d) Section 6.02(b) of the Credit Agreement shall be deleted in its
entirety and the following shall be substituted therefor:
"(b) Liens securing obligations issued under and pursuant to the
terms and conditions of either (i) the First Mortgage Indenture or
(ii) the General and Refunding Mortgage Indenture; provided that the
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aggregate amount of Indebtedness issued by the Company under and
pursuant to the terms and conditions of the First Mortgage Indenture
and the General and Refunding Mortgage Indenture shall not exceed
$983.82 million, except that such Indebtedness may exceed $983.82
million to the extent, and only to the extent, required to secure
Loans pursuant to Section 6.09(b) of this Agreement, and any similar
provision of any future short-term credit facility in a principal
amount not to exceed $175,000,000 among the Borrower, the
Administrative Agent, as agent, and the other financial institutions
party thereto."
(e) Section 6.04 of the Credit Agreement shall be amended by deleting
it in its entirety and replacing it with the following:
"SECTION 6.04 Dispositions of Properties.
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The Borrower shall not, and shall not permit any of its
Subsidiaries to, sell, convey, assign, lease, sale-leaseback,
transfer, abandon or otherwise dispose of, voluntarily or
involuntarily (collectively, "Dispose"), any of its Properties, or
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agree, become or remain liable contingently or otherwise to do any of
the foregoing, except that, so long as no Default or Event of Default
shall have occurred and be continuing or shall exist at such time or
after giving effect to such transaction, the Borrower and its
Subsidiaries may Dispose of Property (a) in transactions in the
ordinary course of business consistent with past practice, (b) that is
obsolete, (c) comprising accounts receivable transferred to a
commercial paper conduit, special purpose subsidiary or similar
entity; provided that (i) the aggregate face amount of such accounts
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receivable, when added to the aggregate face amount of all other
accounts receivable Disposed of in reliance on this clause (c), does
not exceed $125,000,000 and (ii) the net cash proceeds from the
Disposition of such accounts receivable, (A) when added to the net
cash proceeds of all other Dispositions of accounts receivable made in
reliance on this clause (c), are not less than 80% of the aggregate
face amount of all accounts receivable Disposed of in reliance on this
clause (c) and (B) at the time of such Disposition, do not exceed the
sum of (I) the balance of the Borrower's deferred energy accrual
account at such time and (II) the Borrower's deferred energy costs
actually incurred but not yet reflected in the Borrower's deferred
energy accrual account, in each case as set forth in the Borrower's
books and records; provided, further, that each Disposition made by
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the Borrower in reliance on this clause (c) shall constitute a
representation and warranty of the Borrower, made at the time of such
Disposition, that the conditions set forth in clauses (i) and (ii)
above are satisfied at such time and (d) in transactions other than as
provided in Section 6.04 (a), (b) and (c); provided that the aggregate
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book value of all Property Disposed of pursuant to this Section
6.04(d) from and after the date hereof shall not exceed $50,000,000."
(f) Section 6.09 of the Credit Agreement shall be amended by deleting
it in its entirety and replacing it with the following:
"SECTION 6.09 Equal and Ratable Lien; Grant of Security Interest
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in Certain Events.
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(a) If, notwithstanding the prohibition contained in Section
6.02, the Borrower or any of its Subsidiaries is subjected to any Lien
upon any of its Property, other than those permitted by the provisions
of Section 6.02, the Borrower will, and will cause its Subsidiaries
to, make or cause to be made effective provisions whereby the
Borrowings will be secured equally and ratably with any and all other
obligations thereby secured, such security to be pursuant to
agreements reasonably satisfactory to the Administrative Agent and, in
any such case, the Borrowings shall have the benefit, to the fullest
extent that, and with such priority as, the Lenders may be entitled
under applicable law, of an equitable Lien on such Property. Such
violation of Section 6.02 will constitute an Event of Default, whether
or not provision is made for an equal and ratable Lien pursuant to
this Section 6.09, and no such Lien or agreements with respect thereto
shall be deemed
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to be a waiver of or consent to such Event of Default by the
Administrative Agent or any Lender.
(b) If any of the following (each, a "Triggering Event") shall
occur:
(x) Sierra Pacific Resources shall not complete an
underwritten public offering of its common stock with minimum net
proceeds to Sierra Pacific Resources of $200,000,000 by September
30, 2001;
(y) Moody's shall rate (1) the Index Debt or the senior,
unsecured, long-term indebtedness for borrowed money of NPC as
Baa3 or lower, or (2) the commercial paper of the Borrower or NPC
below Prime-2; or
(z) S&P shall rate (1) the Index Debt or the senior,
unsecured, long-term indebtedness for borrowed money of NPC as
BB+ or lower, or (2) the commercial paper of the Borrower or NPC
below A-2;
then,
the Borrower shall issue or cause to be issued, not later than 5
Business Days after the date on which the Triggering Event first
occurs, for the ratable benefit of the Lenders, General and Refunding
Mortgage Bonds (as defined in the General and Refunding Mortgage
Indenture), to the full extent permitted under applicable orders of
the Public Utilities Commission of Nevada and the General and
Refunding Mortgage Indenture, in an aggregate principal amount not to
exceed the amount of principal of the Loans then outstanding, with
interest and other terms and conditions substantially similar to the
Loans, and the Borrower shall perform or cause to be performed all
acts, and execute or cause to be executed all resolutions, orders,
instruments, certificates, agreements and other documents, required
under the General and Refunding Mortgage Indenture (including the
documents referred to in Section 6.09(c)) to give effect to the
foregoing within such 5-Business Day period.
(c) On or before September 30, 2001, the Borrower shall deliver
or cause to be delivered to the Administrative Agent substantially
final versions of the following documents (all as defined in the
General and Refunding Mortgage Indenture) which, upon execution,
delivery and filing, shall be sufficient for the issuance of the
General and Refunding Mortgage Bonds required by Section 6.09(b): a
Supplemental Indenture, an Officer's Certificate setting forth the
terms of the General and Refunding Mortgage Bonds, a Company Order
requesting authentication of the General and Refunding Mortgage Bonds
by the trustee under the General and Refunding Mortgage Indenture, a
form of the General and Refunding Mortgage Bonds to be issued and
forms of all legal opinions required to issue the General and
Refunding Mortgage Bonds under the General and Refunding Mortgage
Indenture. The forms of such documents, prior to their delivery to
the
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Administrative Agent, shall have been approved by the trustee under
the General and Refunding Mortgage Indenture and its counsel, but
shall not be executed and delivered unless and until execution and
delivery is required by Section 6.09(b)."
(g) Schedule I to the Credit Agreement shall be amended by deleting it
in its entirety and replacing it with the following:
"Commitments
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[See definitions of "Commitment" in Section 1.01]
LENDER COMMITMENT AMOUNT
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Mellon Bank, N.A. $ 15,937,500
Wells Fargo Bank, N.A. $ 16,875,000
First Union National Bank $ 12,187,500
Bank One $ 11,250,000
BNP Paribas $ 11,250,000
Credit Suisse First Boston $ 11,250,000
The Bank of New York $ 11,250,000
Union Bank of California, N.A. $ 11,250,000
Bayerische Landesbank Girozentrale $ 9,375,000
The Industrial Bank of Japan $ 9,375,000
Total $ 120,000,000"
4. Representations and Warranties. The Company makes, as of the Effective
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Date, each of the representations and warranties set forth in Article V of the
Credit Agreement and such representations and warranties are, by this reference,
incorporated herein as if set forth herein in their entirety; provided that
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references to "Loan Documents" shall, for purposes of this paragraph, be deemed
to include this Agreement.
5. Miscellaneous.
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(a) Except as expressly modified by this Agreement, the Credit Agreement
shall continue to be and remain in full force and effect in accordance with its
terms. Any future reference to the Credit Agreement shall, from and after the
Effective Time, be deemed to be a reference to the Credit Agreement as amended
by Section 3 of this Agreement.
(b) This Agreement may be executed in any number of counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute but one instrument.
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(c) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAW RULES.
(d) This Agreement may be executed by facsimile signature and each such
signature shall be treated in all respects as having the same effect as an
original signature.
(e) The rules of construction set forth in Section 1.03 of the Credit
Agreement are, by this reference, incorporated herein as if set forth in their
entirety, provided that references to "this Agreement" in such section shall
mean references to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SIERRA PACIFIC POWER COMPANY
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
MELLON BANK, N.A., as Administrative
Agent and as a Lender
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
WELLS FARGO BANK, N.A., as Syndication
Agent and as a Lender
By:___________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Lender
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
BANK ONE, N.A. (Main Office-Chicago)
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
BNP PARIBAS
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
CREDIT SUISSE FIRST BOSTON
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
THE BANK OF NEW YORK
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
UNION BANK OF CALIFORNIA, N.A.
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
BAYERISCHE LANDESBANK GIROZENTRALE
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement
THE INDUSTRIAL BANK OF JAPAN, LTD.
By:_________________________________
Name:
Title:
-Signature Page-
Amendment Agreement