EXHIBIT 4.1
FISCAL AND PAYING AGENCY AGREEMENT
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THIS AGREEMENT dated as of September 19, 2001 between Nevada
Power Company, a corporation organized under the laws of the State of Nevada
(the "Company"), and Bankers Trust Company, a New York banking corporation as
fiscal and paying agent (the "Agent").
Section 1. Appointment of Agent. The Company proposes to issue
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from time to time its unsecured, unsubordinated Notes (individually, a "Note"
and collectively, the "Notes"). The Company hereby appoints the Agent to act, on
the terms and conditions specified herein, as fiscal and paying agent for the
Notes.
Section 2. Amount Unlimited; Execution.
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(a) The Notes shall be issuable in series. The
aggregate principal amount of Notes which may be issued hereunder is unlimited.
(b) Each Note shall be executed on behalf of the Company
by the manual or facsimile signature of an Authorized Representative (as defined
in Section 3 hereof) of the Company.
Section 3. Authorized Representatives. From time to time the
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Company will furnish the Agent with a certificate or similar form of evidence of
the Company demonstrating the incumbency of officers authorized to execute Notes
and Authentication Orders (as defined in Section 4 hereof) on behalf of the
Company (an "Authorized Representative"). Until the Agent receives a subsequent
incumbency certificate or similar form of evidence of the Company, the Agent
shall be entitled to rely on the last such certificate or similar form of
evidence delivered to it for purposes of determining the Authorized
Representatives. Any Note bearing the manual or facsimile signature of a person
who is an Authorized Representative on the date such signature is affixed shall
bind the Company after the completion and registration thereof by the Agent,
notwithstanding that such person shall have ceased to hold office on the date
such Note is authenticated and delivered by the Agent.
Section 4. Authentication Orders; Completion, Authentication
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and Delivery of Notes.
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(a) The Notes shall be issued by the Agent only upon receipt
from the Company of an order (an "Authentication Order") with respect to a
series of Notes, which shall be accompanied by the proposed form of the Notes of
such series and, to the extent not set forth in such proposed form of Note,
shall include:
(i) the designation of the Notes of the series
(which may be part of a series of Notes previously
issued);
(ii) any limit on the aggregate principal amount of
the Notes of the series that may be authenticated and
delivered hereunder (except for Notes authenticated
and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of the
series);
(iii) any date or dates on which the principal of
the Notes of the series is payable;
(iv) the method by which the rate or rates at which
the Notes shall bear interest shall be determined;
the date or dates from which such interest shall be
payable (each an "Interest Payment Date") and the
record dates for the determination of holders to whom
interest is payable; and the basis on which interest
is to be calculated;
(v) the place or places where the principal of
and any interest on the Notes shall be payable;
(vi) the price or prices at which, the period or
periods within which and the terms and conditions
upon which Notes of the series may be redeemed, in
whole or in part;
(vii) the obligation, if any, of the Company to
redeem, purchase or repay Notes of the series
pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a holder
thereof and the price or prices at which and the
period or periods within which and the terms and
conditions upon which Notes shall be redeemed,
purchased or repaid, in whole or in part, pursuant to
such obligation;
(viii) the denominations in which Notes shall be
issuable;
(ix) if other than the principal amount thereof,
the portion of the principal amount of Notes which
shall be payable upon declaration of acceleration of
the maturity thereof;
(x) any restrictions on sale, resale, pledge or
any other transfer of the Notes; and
(xi) whether the Notes will be in the form of a
global security.
(b) Upon receipt of such Authentication Order with
respect to the Notes, the Agent shall prepare, or cause to be prepared, the
necessary Notes in the form attached thereto as Exhibit A and, in accordance
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with the Authentication Order, shall:
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(i) complete each Note as to its Registered Holder
and principal amount;
(ii) record each Note in a Note Register to be
maintained by the Agent hereunder;
(iii) cause each Note to be manually authenticated by
any one of the officers or employees of the Agent
duly authorized and designated by it for such
purpose; and
(iv) deliver each Note.
Section 5. Reliance on an Authentication Order. The Agent
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shall incur no liability to the Company in acting hereunder on instructions
which the recipient believed in good faith to have been given by an Authorized
Representative.
Section 6. Company's Representations and Warranties. The
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Authentication Order given to the Agent in accordance with Section 4 hereof
shall constitute a continuing representation and warranty to the Agent by the
Company that the issuance and delivery of the Notes which are the subject
thereof have been duly and validly authorized by the Company and that the Notes,
when completed, authenticated and delivered pursuant hereto, will constitute the
legal, valid and binding obligations of the Company.
Section 7. Payment of Note Interest; Interest Payment Dates;
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Record Dates. All interest payments in respect of the Notes will be made by the
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Agent to the Registered Holders in whose names Notes are registered at the close
of business on the record date specified in the Notes of such series (whether or
not a New York City Business Day) next preceding each Interest Payment Date
(each a "Record Date"). Notwithstanding the foregoing, if so specified in the
Notes of such series, if the original issue date or date of transfer of any Note
occurs either on an Interest Payment Date or between a Record Date and the next
succeeding Interest Payment Date, the first payment of interest on any such Note
will be made on the Interest Payment Date following the next succeeding Record
Date. Unless otherwise specified in an Authentication Order with respect to a
particular series of Notes or in the proposed form of Notes of that series, all
interest payments on the Notes will be made at the office of the Agent located
at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxx
Xxxxxxxxxxxx, or, at the option of the Agent may be made by check of the Agent
mailed to the Registered Holders, as such Registered Holders appear on the
Record Date in the Note Register referred to in Section 12 hereof, or to such
other address in the United States as any Registered Holder shall designate to
the Agent in writing not later than the relevant Record Date; provided, however,
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that in the case of Notes held by a depository 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.
Section 8. Payment of Note Principal. The Agent will pay the
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principal amount of each Note at maturity, together with accrued interest due at
maturity (unless the maturity date is an Interest Payment Date), if any, only
upon presentation and surrender of such Note on or after the maturity date
thereof. The Agent will forthwith cancel and destroy each such Note. If the
maturity date is an Interest Payment Date, interest will be paid in the usual
manner.
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Section 9. Information Regarding Amounts Due. Promptly
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following each Record Date, the Agent will advise the Company of the amount of
interest due on the following Interest Payment Date. The Agent will advise the
Company by the fifteenth day prior to each payment date of the principal of and
accrued interest to be paid on Notes maturing on the next succeeding payment
date.
Section 10. Availability of Funds. The Company shall assure
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that funds are available to the Agent not later than 11:00 a.m. New York City
time on each Interest Payment Date and on each maturity date of any Note, in
immediately available funds sufficient to pay all accrued interest on, and/or
the principal of any such Note, as the case may be.
Section 11. Amendments and Waivers. This Agreement and the
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provisions of Notes of one or more series issued pursuant hereto may be amended
or waived in the manner and with the effect as may be specified in the terms of
Notes of such series.
Section 12. Registration, Transfer, Exchange, Persons Deemed
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Owners.
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(a) The term "Note Register" shall mean the definitive record
in which shall be recorded the names, addresses and taxpayer identifying numbers
of Registered Holders of the Notes, the Note numbers and original issue dates
thereof and details with respect to the transfers and exchange of Notes.
(b) The Agent shall register the transfer of any Note and/or
effect the exchange of any Note or Notes for Notes of other authorized
denominations only in accordance with the terms and conditions of such Note.
Section 13. Application of Funds; Return of Unclaimed Funds.
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Until used or applied as herein provided and except as otherwise provided in the
terms of the Notes, all funds made available to the Agent hereunder shall be
held for the purposes for which they were received but need not be segregated
from other funds except to the extent required by law.
Section 14. Liability. Neither the Agent nor its officers or
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employees shall be liable for any act or omission hereunder except in the case
of gross negligence or willful misconduct. The duties and obligations of the
Agent, its officers and employees shall be determined by the express provisions
of this Agreement and they shall not be liable except for the performance of
such duties and obligations as are specifically set forth herein and no implied
covenants shall be read into this Agreement against them. The Agent may consult
with counsel and shall be fully protected in any action taken in good faith in
accordance with the advice of counsel. Neither the Agent nor its officers or
employees shall be required to ascertain whether any issuance or sale of Notes
(or any amendment or termination of this Agreement) has been duly authorized or
is in compliance with any other agreement to which the Company is a party
(whether or not the Agent is also a party of such other agreement). In acting
under this Agreement or in connection with the Notes, the Agent is acting solely
as agent of the Company and shall not assume any relationship of agency of trust
for or with any Noteholder, except that all funds held by the Agent for payment
of principal of or interest on the Notes shall be held in
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trust by it and applied to payments or the Notes subject to the limitations set
forth herein and in the terms of the Note.
Section 15. Indemnification. The Company agrees to indemnify
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and hold harmless the Agent, its directors, officers, employees and agents from
and against any and all liabilities (including liability for penalties), losses,
claims, damages, actions, suits, judgments, demands, costs and expenses
(including reasonable legal fees and expenses) relating to or arising out of or
in connection with its or their performance under this Agreement, except to the
extent that they are caused by the gross negligence or willful misconduct of the
Agent. The foregoing indemnity includes, but is not limited to, any action taken
or omitted in good faith within the scope of this Agreement upon telephone,
telecopier or other electronically transmitted instructions, if authorized
herein, received from or believed by the Agent in good faith to have been given
by, an Authorized Representative. This indemnity shall survive the resignation
of removal of the Agent and the satisfaction or termination of this Agreement.
Section 16. Compensation of the Agent. The Company agrees to
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pay the compensation of the Agent at such rates as shall be agreed upon from
time to time and to reimburse the Agent for its out-of-pocket expenses
(including costs of preparation of the Notes and reasonable legal fees and
expenses), disbursements and advances incurred or made in accordance with any
provisions of this Agreement. The obligations of the Company to the Agent
pursuant to this Section shall survive the resignation or removal of the Agent
and the satisfaction or termination of the Agreement.
Section 17. Notices.
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(a) All communications by or on behalf of the Company relating
to the issuance, transfer, exchange or payment of Notes or interest thereon
shall be directed to the Agent at its address set forth in subsection (b)(ii)
hereof (or such other address as the Agent shall specify in writing to the
Company).
(b) Notices and other communications hereunder shall except to
the extent otherwise expressly provided, be in writing and shall be addressed as
follows, or to such other addresses as the parties hereto shall specify from
time to time:
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(i) if to the Company:
Nevada Power Company
0000 X. Xxxxxx Xxxxxx
X.X. Xxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Treasurer and Investor Relations
Officer
(ii) if to the Agent in connection with the issuance,
transfer, exchange or payment of Notes or
interest thereon:
Bankers Trust Company
Corporate Trust and Agency Services
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxxxx
Section 18. Resignation or Removal of Agent. The Agent may at
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any time resign as such agent by giving written notice to the Company of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall be not less than
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three months after the giving of such notice by the Agent to the Company. The
Agent may be removed at any time by the filing with it of any instrument in
writing signed by a duly authorized officer of the Company and specifying such
removal and the date upon which it is intended to become effective. Such
resignation or removal shall take effect on the date of the appointment by the
Company of a successor agent and the acceptance of such appointment by such
successor Agent. In the event of resignation by the Agent, if a successor Agent
has not been appointed by the Company within three months after the giving of
notice by the Agent of its intention to resign, the Agent may, at the expense of
the Company, petition any court of competent jurisdiction for appointment of a
successor Agent.
Section 19. Benefit of Agreement. This Agreement is solely for
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the benefit of the parties hereto, their successors and assigns, and no other
person shall acquire or have any right under or by virtue hereof.
Section 20. Notes Held by the Agent. The Agent, in its
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individual or other capacity, may become the owner or pledgee of the Notes with
the same rights it would have if it were not acting as fiscal and paying agent
hereunder.
Section 21. Governing Law. This Agreement is to be delivered
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and performed in, and shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the State of New
York.
Section 22. Counterparts. This Agreement may be executed by
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the parties hereto in any number of counterparts, and by each of the parties
hereto in separate counterparts, each such counterpart, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, all as of the date and year first above written.
NEVADA POWER COMPANY
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer and Investor
Relations Officer
BANKERS TRUST COMPANY,
as Fiscal and Paying Agent
By:
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Name:
Title:
