Exhibit 10.3
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (this "Agreement"), is made and entered into
as of August 1, 2001, among SIERRA PACIFIC POWER COMPANY (the "Company"), MELLON
BANK, N.A. ("Mellon"), FIRST UNION NATIONAL BANK ("First Union"), XXXXX FARGO
BANK, N.A. ("Xxxxx Fargo"), and the other parties set forth on the signatures
pages hereto.
RECITALS
A. The Company, Mellon, in its capacity as administrative agent (the
"Administrative Agent"), First Union and Xxxxx Fargo, each in their capacity as
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").
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
used herein shall have the meanings given thereto in the Credit Agreement.
2. Effectiveness of this Agreement. This Agreement shall become
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
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 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
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
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 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, 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 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 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX
00000, facsimile (000) 000-0000, 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 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 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 its entirety and the following shall be substituted
therefor:
""Final Repayment Date" means the earliest
to occur of (a) the date that is one year after the
Term Loan Conversion Date, (b) August 27, 2002 and
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(c) the date on which the Obligations under this
Agreement terminate, whether by prepayment,
cancellation, acceleration or otherwise."
(iii) The following defined term shall be inserted
immediately after the definition of "GAAP":
""General and Refunding Mortgage Indenture"
means the 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 deleted in its entirety and the following shall be
substituted therefor:
""Revolving Termination Date" means the
earlier of (i) 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 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 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:
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"SECTION 6.04 Dispositions of Properties.
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 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 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 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 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 in Certain Events.
(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
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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
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) Xxxxx'x 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
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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
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
[See definitions of "Commitment" in Section 1.01]
LENDER COMMITMENT AMOUNT
Mellon Bank, N.A. $15,937,500
Xxxxx 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 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 references to "Loan Documents" shall, for purposes of this
paragraph, be deemed to include this Agreement.
5. Miscellaneous.
(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.
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(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.
(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:
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Name:
Title:
-Signature Page-
Amendment Agreement
MELLON BANK, N.A., as Administrative
Agent and as a Lender
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
XXXXX FARGO BANK, N.A., as Syndication
Agent and as a Lender
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Lender
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
BANK ONE, N.A. (Main Office-Chicago)
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
BNP PARIBAS
By:
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Name:
Title:
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
CREDIT SUISSE FIRST BOSTON
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
THE BANK OF NEW YORK
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
BAYERISCHE LANDESBANK GIROZENTRALE
By:
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Name:
Title:
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
THE INDUSTRIAL BANK OF JAPAN, LTD.
By:
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Name:
Title:
-Signature Page-
Amendment Agreement
