Exhibit 1.2
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SIERRA PACIFIC RESOURCES
(a Nevada corporation)
Senior Notes
PURCHASE AGREEMENT
Dated: April 15, 2005
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TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties................................ 3
SECTION 2. Sale and Delivery to Underwriters; Closing.................... 10
SECTION 3. Covenants of the Company...................................... 11
SECTION 4. Payment of Expenses........................................... 13
SECTION 5. Conditions of Underwriters' Obligations....................... 14
SECTION 6. Indemnification............................................... 17
SECTION 7. Contribution.................................................. 19
SECTION 8. Representations, Warranties and Agreements to Survive......... 20
SECTION 9. Termination of Agreement...................................... 20
SECTION 10. Default by One or More of the Underwriters.................... 21
SECTION 11. Notices....................................................... 22
SECTION 12. Parties....................................................... 22
SECTION 13. Governing Law................................................. 22
SECTION 14. Waiver of Trial by Jury....................................... 22
SECTION 15. Time.......................................................... 22
SECTION 16. Counterparts.................................................. 22
SECTION 17. Effect of Headings............................................ 22
Schedule A - Underwriters
Schedule B - Purchase Price
Schedule C - Opinion of Xxxxxxxx and Wedge
Schedule D - Opinion of Xxxxxx, Hall & Xxxxxxx LLP
SIERRA PACIFIC RESOURCES
(a Nevada corporation)
Senior Notes
PURCHASE AGREEMENT
April 15, 2005
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXX BROTHERS INC.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sierra Pacific Resources, a Nevada corporation (the "COMPANY") confirms
its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("XXXXXXX XXXXX") and Xxxxxx Brothers Inc. ("XXXXXX BROTHERS")
(together, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), with respect to the
remarketing by the Remarketing Agents (as hereinafter defined) and the offer to
purchase by the Underwriters, acting severally and not jointly, of up to
$235,218,000 in aggregate principal amount of the Company's Senior Notes (the
"SECURITIES"). The Securities are to be issued under an indenture, dated as of
May 1, 2000 (the "ORIGINAL INDENTURE"), between the Company and The Bank of New
York, as trustee (the "TRUSTEE"), as supplemented by an officer's certificate
establishing the form, terms and provisions of the Securities, as originally
issued, and as further supplemented by an officer's certificate containing
modifications thereto effective as of the date of the consummation of the
aforesaid remarketing of the Securities (each of such officer's certificates an
"OFFICER'S CERTIFICATE" and the Original Indenture, as so supplemented, the
"INDENTURE").
The Company understands that, if the Underwriters purchase Securities as
contemplated herein, the Underwriters may make a public offering of such
Securities.
The Securities are to be originally issued and delivered as a component of
the Company's Premium Income Equity Securities ("NEW PIES"). The Company has
filed with the Securities and Exchange Commission ("THE COMMISSION") a
registration statement on Form S-4 (No. 333-_______) for the registration of the
New PIES (including the various components thereof) under the Securities Act of
1933, as amended (the "1933 ACT"), and the qualification of the Indenture
(excluding the second Officer's Certificate) under the Trust Indenture Act of
1939, as amended (the "1939 ACT"). Such registration has not yet been declared
effective by the Commission. Such registration statement, including the exhibits
and schedules thereto, at the time it becomes
effective, is referred to herein as the "S-4 REGISTRATION STATEMENT"; and each
preliminary prospectus and the final prospectus used in connection with the
Exchange Offer (as hereinafter defined) are hereinafter referred to,
collectively, as the "EXCHANGE OFFER PROSPECTUS".
The New PIES are being offered in exchange for outstanding securities of
the Company (the "EXCHANGE OFFER"), as set forth in the S-4 Registration
Statement. As further described in the S-4 Registration Statement, the
Securities are to be subject to a remarketing procedure conducted by Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Brothers Inc., as joint
remarketing agents (the "REMARKETING AGENTS"), pursuant to a remarketing
agreement (the "REMARKETING AGREEMENT") to be entered into among the Company and
the Remarketing Agents.
The Company has filed with the Commission a registration statement on Form
S-3 (No. 333-123835), for the registration of various securities, including the
Securities, under the 1933 Act, and the offer and sale thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 ACT REGULATIONS"), and for the qualification of the
Indenture under the 1939 Act. Such registration statement has not yet been
declared effective by the Commission. Such registration statement, including the
exhibits and schedules thereto, at the time it becomes effective, is referred to
herein as the "REGISTRATION STATEMENT"; the final prospectus and the final
prospectus supplement relating to the remarketing of the Securities by the
Remarketing Agents, in the forms first furnished to the Remarketing Agents by
the Company for use in connection with the remarketing of the Securities by the
Remarketing Agents, are collectively referred to herein as the "REMARKETING
PROSPECTUS"; and the final prospectus and the final prospectus supplement
relating to the offering of the Securities by the Underwriters, in the forms
first furnished to the Underwriters by the Company for use in connection with
the offering of the Securities by the Underwriters, are collectively referred to
herein as the "PROSPECTUS".
Notwithstanding the foregoing, all references herein to the "S-4
Registration Statement" and the "Registration Statement" shall also be deemed to
include all documents filed pursuant to the Securities Exchange Act of 1934 (the
"1934 ACT") at the respective times such registration statements become
effective, and all references herein to the Prospectus and the Exchange Offer
Prospectus shall also be deemed to include all documents filed pursuant to the
1934 Act prior to the date thereof or, in the case of a prospectus filed
pursuant to Rule 424(b) of the 1933 Act Regulations, prior to the time of such
filing, and, in any case which are incorporated therein by reference pursuant to
Item 12 of Form S-3 under the 1933 Act. A "preliminary prospectus" shall be
deemed to refer to (i) any prospectus used before the related registration
statement becomes effective and (ii) any prospectus that omits information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations and is used after the registration
statement becomes effective and prior to the filing of the related Prospectus
pursuant to Rule 424(b) by the Company. For purposes of this Purchase Agreement,
all references to any registration statement, prospectus or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include the copy of such document filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in any
registration statement, prospectus or the preliminary prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in such registration statement, prospectus or preliminary
prospectus, as the case may
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be; and all references in this Agreement to amendments or supplements to any
registration statement, prospectus or preliminary prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is
incorporated by reference in such registration statement, prospectus or
preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date of this Agreement,
the Remarketing Commencement Date (as defined in Section 5(d)), the Remarketing
Date (as defined in Section 5(h)) and the Closing Time (as defined in Section
2(c)) (unless a particular date, or another date, is specifically referenced in
which case such specific date), and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. (A) The Company
meets the requirements for use of Form S-3 under the 0000 Xxx. Prior to
the Remarketing Commencement Date, the Registration Statement will have
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement will have been issued under
the 1933 Act and no proceedings for that purpose will have been instituted
or be pending or, to the knowledge of the Company, be contemplated by the
Commission, and any request on the part of the Commission for additional
information will have been complied with.
At the time the Registration Statement becomes effective and at the
Closing Time, the Registration Statement will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 ACT REGULATIONS"), and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. Neither the Remarketing Prospectus nor any
amendments or supplements thereto, at the time the Remarketing Prospectus
or any such amendment or supplement is first furnished to the Remarketing
Agents or at the Closing Time, will include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued or at the Closing Time, will include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, the Remarketing Prospectus or
the Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for
use with respect to such documents.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto will comply when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering of
the Securities by the Underwriters will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
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(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement becomes effective, at the time the Prospectus is
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) Independent Auditors. Deloitte & Touche LLP, which certified
certain of the financial statements and supporting schedules included in
the Registration Statement and the Prospectus (i) is a registered public
accounting firm and is independent with respect to the Company and its
subsidiaries, each within the meaning of the 1934 Act and (ii) is in
compliance with its obligations under the 1934 Act with respect to the
Company and its subsidiaries.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present and will present fairly the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for the periods
specified; such financial statements have been and will be prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis, except as noted therein, throughout the periods
involved. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present and will present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Registration Statement and the Prospectus present and will present fairly
the information shown therein and have been and will be compiled on a
basis consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. The financial statements
included in the Registration Statement and the Prospectus do not and will
not contain non-GAAP financial measures within the meaning of Regulation G
or Item 10 of Regulation S-K of the Commission. Except as disclosed in the
Registration Statement and the Prospectus, neither the Company nor any of
its subsidiaries has or will have any off-balance sheet arrangements of
the character contemplated by Item 303 of Regulation S-K or otherwise by
Section 13(j) of the 1934 Act, or has any other contingent obligation or
liability, which, in any case, is material, or is reasonably likely to be
material, to the Company and its consolidated subsidiaries considered as
one enterprise.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (i) there has been or
will have been no material adverse change, or any development which is
reasonably likely to result in a material adverse change, in the
condition, financial or otherwise, results of operations or business
affairs of the Company and its subsidiaries considered as one enterprise
(any such change or development, a "MATERIAL ADVERSE CHANGE"), (ii) there
have been or will have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (iii) there has been or will
have been no
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dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Nevada and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not have a material adverse effect, and would not
result in any development which is reasonably likely to have a material
adverse effect, on the condition, financial or otherwise, results of
operations or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (any such effect or development, a "MATERIAL ADVERSE
EFFECT").
(vii) Good Standing of Subsidiaries. Each Significant Subsidiary (as
defined below) of the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of organization, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus; and each Significant
Subsidiary is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect. The shares
of issued and outstanding capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the issued and outstanding shares of capital stock
of either Significant Subsidiary was issued in violation of any preemptive
or other similar rights of any securityholder of such Significant
Subsidiary; and all shares of common stock of each Significant Subsidiary
are owned by the Company, free and clear of any security interests and
other liens and encumbrances and of any equities, claims and other adverse
interests. Nevada Power Company and Sierra Pacific Power Company, each a
Nevada corporation (and each a "SIGNIFICANT SUBSIDIARY"), are each a
"significant subsidiary" within the meaning of Rule 405 under the 1933
Act, and the Company has no other such significant subsidiary.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Registration Statement
and the Prospectus. The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the issued and outstanding shares of
capital stock of the Company was issued in violation of any preemptive or
other similar rights of any securityholder of the Company.
(ix) Authorization of this Agreement. The Company has all corporate
power and authority necessary to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company.
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(x) Authorization and Description of Indenture. The Indenture and
the transactions contemplated thereby have been duly authorized by the
Company; the Indenture (excluding the Officer's Certificates) has been
duly executed and delivered by the Company; at the Closing Time, the
Indenture will have been duly executed and delivered by the Company and
will constitute a legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Indenture (excluding the Officer's
Certificates) has been and, at the Closing Time, the Indenture will have
been duly qualified under the 1939 Act and the 1939 Act Regulations; and
the Indenture conforms and will conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(xi) Authorization of the Securities. The Securities have been duly
authorized; and, at the Exchange Date, the Notes will have been duly
executed and delivered by the Company and when authenticated by the
Trustee and incorporated into the New PIES, and further upon the issuance
and delivery of the New PIES against the securities to be surrendered in
exchange therefor, as contemplated in the S-4 Registration Statement and
the Exchange Offer Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of mortgagees' and other creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(xii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Registration
Statement and the Prospectus and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
any of its Significant Subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which any of them may be bound, or to which
any of the property or assets of the Company or any of its Significant
Subsidiaries is subject (collectively, "AGREEMENTS AND INSTRUMENTS")
except for such defaults as would not result in a Material Adverse Effect.
The execution, delivery and performance by the Company of this Agreement,
the Indenture and the Securities, and the consummation by the Company of
the transactions contemplated herein and in the Registration Statement and
compliance by the Company with its obligations hereunder and under the
Indenture and the Securities have been authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or a Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any
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property or assets of the Company or any of its Significant Subsidiaries
pursuant to, the Agreements and Instruments except for such conflicts,
breaches or defaults or liens, charges or encumbrances that, singly or in
the aggregate, would not result in a Material Adverse Effect, nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or any of its Significant Subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries
or any of their assets, properties or operations. As used herein, a
"REPAYMENT EVENT" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any of its Significant Subsidiaries.
(xiv) Labor. No labor disturbance by the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company or any
of its Significant Subsidiaries, is imminent, which might be expected to
have a Material Adverse Effect.
(xv) ERISA. The Company is in compliance in all material respects
with all applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any material liability; the
Company has not incurred and the Company does not expect to incur material
liability; the Company has not incurred and the Company does not expect to
incur material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections
412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "CODE"); and
each "pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and to the Company's knowledge nothing has
occurred, whether by action or by failure to act, which might reasonably
be expected to cause the loss of such qualification.
(xvi) Tax. Each of the Company and its Significant Subsidiaries has
filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the
Company or any of its Significant Subsidiaries which has had, nor does the
Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its Significant Subsidiaries, might
have, a Material Adverse Effect.
(xvii) Insurance. The Company and its Significant Subsidiaries
carry, or are covered by, insurance in such amounts and covering such
risks that the Company reasonably believes is adequate for the conduct of
its business and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries.
(xviii) Absence of Proceedings. Except as disclosed in the
Registration Statement and the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the
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Company or any of its Significant Subsidiaries which, singly or in the
aggregate, might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated by this Agreement
or the performance by the Company of its obligations hereunder.
(xix) Possession of Licenses and Permits. The Company and its
Significant Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "GOVERNMENTAL LICENSES")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them
except where the failure to possess such Governmental Licenses would not
have a Material Adverse Effect; the Company and its Significant
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
Significant Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xx) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery or
performance of the Indenture by the Company, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and except for the qualification of
the Indenture under the 1939 Act.
(xxi) Title to Property. The Company and its Significant
Subsidiaries have good title to all real property and personal property
owned by them, in each case free and clear of all liens, encumbrances,
equities or claims except such as are described or contemplated in the
Registration Statement and Prospectus or would not, individually or in the
aggregate, have a Material Adverse Effect and do not materially interfere
with the use made or to be made of such property by the Company and its
Significant Subsidiaries.
(xxii) Leases. All of the leases and subleases material to the
business of the Company and each of its Significant Subsidiaries and under
which the Company or any of its Significant Subsidiaries holds properties
described in the Registration Statement and the Prospectus, are in full
force and effect, and neither the Company nor any of its Significant
Subsidiaries has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such Company or any subsidiary
thereof to the continued possession of the leased or subleased premises
under any such lease or sublease.
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(xxiii) Environmental Laws. Except as described in the Registration
Statement and the Prospectus and except such matters as would not, singly
or in the aggregate, result in a Material Adverse Effect, (i) neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (ii) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries.
(xxiv) Investment Company Act. The Company is not required, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be required, to register as, an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 ACT").
(xxv) Holding Company Act. The Company is a "holding company" under
the Public Utility Holding Company Act of 1935, as amended (the "1935
ACT"), but the Company and all of its subsidiaries are exempt from all
provisions of the 1935 Act (except Section 9(a)(2) thereof) by virtue of
the exemption set forth in Section 3(a)(1) thereof.
(xxvi) Internal Controls. (i) The Company has devised and
established and maintains the following, among other, internal controls
(without duplication):
(A) a system of "internal accounting controls" as
contemplated in Section 13(b)(2)(B) of the 1934 Act;
(B) "disclosure controls and procedures" as such term is
defined in Rule 13a-15(e) under the 1934 Act; and
(C) "internal control over financial reporting" (as such
term is defined in Rule 13a-15(f) under the 1934 Act (the internal
controls referred to in clauses (A) an (B) above and this clause (C)
being hereinafter called, collectively, the "INTERNAL CONTROLS").
(ii) The Internal Controls are evaluated by the Company's
senior management periodically as appropriate and, in any event, as
required by law.
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(iii) The Internal Controls are, individually and in the
aggregate, effective in all material respects to perform the functions for
which they were established.
(iv) Based on the most recent evaluations of the Internal
Controls, all material weaknesses, if any, and significant deficiencies,
if any, in the design or operation of the Internal Controls which could
adversely affect the Company's ability to timely record, process,
summarize and report financial information and any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Internal Controls have been identified and
reported to the Company's independent auditors and the audit committee of
the Company's board of directors; and all such weaknesses, if any, have
been rectified; and all deficiencies which, individually or in the
aggregate, could constitute significant deficiencies and which have not
yet been rectified (A) are in the process of being rectified and (B) have
not had and will not have, individually or in the aggregate, a material
adverse effect on the effectiveness of the Internal Controls. (For
purposes of clarification, the Company further represents and warrants,
that, as of the date of this Agreement, no such weaknesses in the design
or operation of the Internal Controls had been identified.)
(xxvii) Compliance with Sarbanes Oxley. The Company is in
compliance in all material respects with the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations of the Commission and the New York Stock
Exchange that have been adopted thereunder, all to the extent that such
Act and such rules and regulations are in effect and applicable to the
Company.
(b) Other. The representations and warranties of the Company contained
in the Dealer Manager Agreement, dated the date of this Agreement (the "DEALER
MANAGER AGREEMENT"), among the Company and Xxxxxxx Xxxxx and Xxxxxx Brothers, as
dealer managers, and to be contained in the Remarketing Agreement were, are
and/or will be true and correct when made and as of the applicable dates
referred to in subsection (a) of this Section.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Remarketing. As contemplated in the S-4 Registration Statement, and
as to be contemplated in the Remarketing Prospectus and provided for in the
Remarketing Agreement, the Remarketing Agents are to use commercially reasonable
efforts to remarket the Securities (except Securities which are held by holders
who elect not to have their Securities remarketed) to new investors.
(b) Sale to Underwriters. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, each Underwriter agrees, severally and not jointly, that if the
Remarketing Agents, despite their commercially reasonable efforts, shall be
unable to remarket to new investors all the Securities which are to be so
remarketed, the Underwriters shall purchase, at the purchase price set forth on
Schedule B, all such Securities which have not been so remarketed, each
Underwriter being obligated to purchase such principal amount of such
unremarketed New Notes as shall bear the same ratio to the
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aggregate principal amount of such unremarketed New Notes as the principal
amount of New Notes set forth in Schedule A opposite the name of such
Underwriter bears to $235,218,000, plus any additional principal amount of
Securities which such Underwriters may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities to be purchased as provided in subsection (b)
above shall be made at the offices of Xxxxx Xxxxxxxxxx LLP in New York, N.Y., or
at such other place as shall be mutually agreed upon by the parties, at 9:00
A.M. (Eastern time) on the business day (i) which is designated by the
Remarketing Agents as the "REMARKETING SETTLEMENT DATE", (ii) which is no later
than the thirtieth day following the Exchange Date (as defined below) and (iii)
of which the Underwriters shall have been notified on the third prior business
day by the Remarketing Agents (such notice to include the aggregate principal
amount of Securities which the Remarketing Agents have been unable to remarket
to new investors) (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company, but in no event later
than the date provided in (c)(ii) above (such time and date of payment and
delivery being herein called "CLOSING TIME").
Payment shall be made by wire transfer of immediately available funds to a
bank account designated by the Company and the Remarketing Agents, against
delivery to the Underwriters of certificates for the Securities to be purchased
by them. It is understood that each Underwriter has authorized Xxxxxxx Xxxxx,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Securities shall
be in such denominations ($1,000 or integral multiples thereof) and registered
in such names as the Underwriters may request in writing at least one full
business day before the Closing Time. The Securities will be made available for
examination and packaging by the Underwriters in The City of New York on the
business day prior to the Closing Time.
(e) Delivery of Global Securities. In lieu of the delivery to the
Underwriters of certificates representing the Securities at the Closing Time, as
contemplated above, the Company, with the approval of the Underwriters, may
deliver one or more global Notes to a custodian for The Depository Trust Company
("DTC"), to be held by DTC initially for the accounts of the several
Underwriters.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify the Underwriters promptly, (i)
when the Registration Statement and any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the
11
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make commercially reasonable efforts to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriters notice
of its intention to file or prepare any amendment to the Registration Statement
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company will deliver to the
Underwriters and counsel for the Underwriters, without charge, signed copies of
the Registration Statement as originally filed and of each amendment thereto and
signed copies of all consents and certificates of experts, and will also deliver
to the Underwriters, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requests, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare
12
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its reasonable best
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or so subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will also supply the Underwriters with such information as
is necessary for the determination of the legality of the Securities for
investment under the laws of such jurisdictions as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Listing. The Company will use its reasonable best efforts to effect
the listing of the Securities on the New York Stock Exchange ("NYSE").
(i) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus, the Company will not, without the prior written
consent of Xxxxxxx Xxxxx, directly or indirectly, issue, sell, offer or contract
to sell, grant any option for the sale of, or otherwise transfer or dispose of,
any debt securities of the Company substantially similar to the Securities,
except that this paragraph (j) shall not prevent any remarketings of the debt
component of the Company's Premium Income Equity Securities.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) Other. The Company shall perform all of the obligations under the
Dealer Manager Agreement (except to the extent the obligation of the Company is
waived under such agreement) and the Remarketing Agreement (except to the extent
that (i) the obligation is waived under such agreement and (ii) the Underwriters
and the Remarketing Agents shall be the same entities).
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under, or otherwise relating to the transactions
contemplated by, this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
agreement among Underwriters,
13
the Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and expenses of the Company's counsel, accountants
and other advisors, (v) the fees and expenses of counsel for the Underwriters,
(vi) the printing and delivery to the Underwriters of copies of each preliminary
prospectus and of the Prospectus and any amendments or supplements thereto,
(vii) the qualification of the Securities under securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees and the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of the Trustee,
including the fees and expenses of counsel for the Trustee in connection with
the Indenture and the Securities, (ix) the costs and expenses relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the Securities, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, (x) any fees payable in connection with the
rating of the Securities and (xi) the fees and expenses incurred in connection
with the listing of the Securities on the NYSE.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their out of
pocket expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Consummation of Exchange Offer. The Exchange Offer shall have been
consummated as contemplated in the S-4 Registration Statement and the Exchange
Offer Prospectus (the date of such consummation, the "EXCHANGE DATE";
(c) Operative Documents. The operative documents relating to the New
PIES, as described in the S-4 Registration Statement and the Exchange Offer
Prospectus, including the Remarketing Agreement (collectively the "OPERATIVE
DOCUMENTS"), shall have been executed and delivered in form and substance
reasonably satisfactory to Xxxxxxx Xxxxx and Xxxxxx Brothers;
(d) Commencement of Remarketing. By the business day following the
Exchange Date (or such later business day as shall be reasonably approved by the
Remarketing Agents after consultation with the Company), (i) the Company shall
have taken such action or actions as shall
14
be required under the Operative Documents to commence the process for the
remarketing of the Securities as contemplated in the S-4 Registration Statement
and the Exchange Offer Prospectus and (ii) the preliminary prospectus relating
to such remarketing shall have been furnished to the Remarketing Agents (such
business day, the "REMARKETING COMMENCEMENT DATE");
(e) Actions by the Company. The taking by the Company of all actions
reasonably required, by the Operative Documents or otherwise, for the
remarketing of the Securities, including, without limitation
(i) the preparation and delivery to the Remarketing Agents of a
preliminary prospectus relating to the remarketing of the Securities and
the Remarketing Prospectus, each in such quantities as the Remarketing
Agents shall reasonably request;
(ii) the participation by the Company in such "road shows" or other
investor presentations or marketing efforts as the Remarketing Agents
shall reasonably recommend;
(iii) continuing discussions with Xxxxx'x Investors Service and
Standard & Poor's regarding the Company's securities and its business and
affairs, all consistent with the Company's current practice and to the
extent necessary or appropriate for such rating agencies to establish a
rating for the Securities;
(iv) the cooperation by the Company with the Underwriters in, and
the facilitation by the Company of, the performance by the Underwriters of
their due diligence responsibilities, including without limitation
providing such access to officers and other employees, and to books and
records, of the Company and its subsidiaries as the Underwriters shall
reasonably request;
(v) the compliance by the Company with all applicable requirements
of federal and state securities laws in connection with the remarketing of
the Securities; and
(vi) without duplication, the performance by the Company of all its
obligations under the Remarketing Agreement.
(f) Modification of Terms of Securities.
(i) The Remarketing Agreement shall provide that:
(A) all covenants and mandatory redemption and/or repurchase
provisions to be applicable to the Securities to be effective as of
the Remarketing Settlement Date shall be established as set forth in
an exhibit to the Remarketing Agreement;
(B) the stated maturity, optional redemption provisions,
interest payment dates and all other terms of the Securities to be
effective as of the Remarketing Settlement Date (other than the
interest rate) shall be determined by the Company in consultation
with the Remarketing Agents and, as so established, shall be
satisfactory to the Remarketing Agents;
(C) the interest rate on the Securities to be effective as
of the Remarketing Settlement Date shall be determined by the
Remarketing Agents as
15
the rate necessary to enable the Remarketing Agents to sell the
Securities being remarketed at a price equal to the "remarketing
value", during the "period for early remarketing", or the sum of the
aggregate principal amount of such Securities and the applicable
remarketing fee, during the "final remarketing period", all as
contemplated in the S-4 Registration Statement as originally filed;
and
(D) in making their determinations as outlined above, the
Remarketing Agents shall take into account, among other things,
prevailing financial market conditions and the creditworthiness and
prospects of the Company and shall consult prospective investors,
including the Underwriters, with respect thereto; and
(ii) the terms of the Securities to be effective as of the
Remarketing Settlement Date shall have been determined and established as
contemplated in clause (i) above.
(g) Terms of Securities. The terms of the Securities which shall be in
effect commencing as of the Remarketing Settlement Date shall be satisfactory to
the Underwriters and contracts for the sale of Securities remarketed to new
investors have been entered into and/or the Underwriters shall have been
notified pursuant to Section 2(c) of the aggregate principal amount of
Securities to be purchased by the Underwriters (the date of such establishment
of such terms, such contracts and such notification, the "REMARKETING DATE"); it
being understood, however, that (i) if the Remarketing Agents and the
Underwriters shall be the same entities and (ii) such terms of the Securities
shall have been determined fully in accordance with the provisions of the
Remarketing Agreement as outlined above, then such terms shall be deemed to be
satisfactory to the Underwriters.
(h) Listing of Securities. The Securities shall have been authorized for
listing, upon official notice of the consummation of the remarketing thereof, on
the NYSE.
(i) Opinion of Counsel for Company. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of each of
Xxxxxxxx and Wedge and Xxxxxx, Hall & Xxxxxxx LLP, counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to the effect
set forth in Schedules C and D, respectively, and to such further effect as
counsel to the Underwriters may reasonably request.
(j) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, with respect to
such matters as the Underwriters shall reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Underwriters. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(k) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any Material Adverse Change and the Underwriters shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
16
Company, dated as of Closing Time, to the effect that (i) there has been no such
Material Adverse Change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to their knowledge, contemplated
by the Commission.
(l) Accountant's Comfort Letter. On the Remarketing Commencement Date,
the Underwriters shall have received from Deloitte & Touche LLP a letter dated
such date, in form and substance satisfactory to the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(m) Bring-down Comfort Letter. At Closing Time, the Underwriters shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (m) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time, and to such further effect as the Underwriters shall reasonably request.
(n) Maintenance of Rating. Since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the debt securities of
the Company or any of its subsidiaries by any "nationally recognized statistical
rating agency", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under credit watch, surveillance or review, with negative
implications, its rating of any of the Company's or any of its subsidiaries'
debt securities, after such organization did not have such security under credit
watch, surveillance or review, as the case may be.
(o) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(p) Other. All conditions to the obligations of the Remarketing Agents
under the Remarketing Agreement shall have been satisfied (except to the extent
that (i) the condition is waived under such agreement and (ii) the Underwriters
and the Remarketing Agents shall be the same entities).
(q) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
17
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, as such term is defined in Rule
501(b) under the 1933 Act (each, an "AFFILIATE"), its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the S-4 Registration Statement (or any amendment to either
thereof), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus, the Exchange Offer Prospectus or the Remarketing
Prospectus (or any amendment or supplement to any thereof), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided, however, that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the document containing such defect or alleged
defect;
(b) Indemnification of Company. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
18
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefit received by the Company in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be the
total purchase price paid by the Underwriters for the Securities pursuant to
this Agreement. The relative benefit received by the
19
Underwriters shall be the aggregate amount paid to the Underwriters for the
Securities by subsequent purchasers less the aggregate amount paid for such
Securities by the Underwriters.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company, and (ii) delivery
of and payment for the Securities.
SECTION 9. Termination of Agreement.
20
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus (exclusive of any
supplement thereto), any Material Adverse Change or (ii) if there has occurred
any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriters, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or NYSE, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (v) if a banking
moratorium has been declared by either Federal or New York authorities, or (vi)
the Remarketing Settlement Date shall not have occurred on or prior to the
earlier of (A) the thirtieth day following the Exchange Date and (B) November
15, 2005; provided however, that if an event or circumstance described in clause
(i), (iii), (iv) or (v) shall have occurred prior to the Remarketing Date, the
Underwriters may terminate this Agreement pursuant to any such clause only if
(x) such event or circumstance shall be continuing on the Remarketing Date or
(y) such event or circumstance, shall be such that, in the judgment of the
Underwriters, it will be impracticable or inadvisable to market the Securities
or to enforce contracts for the sale of the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof; and provided, further, that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "DEFAULTED
SECURITIES"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the Securities to be purchased
hereunder, each of the non defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any non
defaulting Underwriter.
21
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx & Co. at 0 Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X. Xxxxxxx and to Xxxxxx
Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx
X. Xxxxxxxx; and notices to the Company shall be directed to it at Sierra
Pacific Resources, P.O. Box 10100 (6100 Xxxx Xxxx), Xxxx, Xxxxxx 00000,
attention of the General Counsel.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. WAIVER OF TRIAL BY JURY. THE UNDERWRITERS AND THE COMPANY EACH
WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT OR PROCEEDING
ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 15. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 17. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
SIERRA PACIFIC RESOURCES
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
-----------------------------------
Name:
Title:
23
SCHEDULE A
UNDERWRITERS
Principal
Amount of
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $141,130,800
Incorporated..................................
Xxxxxx Brothers Inc. ....................................... 94,087,200
============
Total....................................................... $235,218,000
============
Sch A-1
SCHEDULE B
PURCHASE PRICE
The aggregate purchase price to be paid by the Underwriters for the
Securities to be purchased under this Agreement shall be the "remarketing value"
with respect to such Securities (as such term is defined under the heading
"Description of the Purchase Contracts" in the S-4 Registration Statement, as
originally filed).
Sch B-1
SCHEDULE C
[XXXXXXXX AND WEDGE]
[LETTERHEAD]
__________________, 2005
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Brothers Inc.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sierra Pacific Resources, a Nevada corporation (the "Company");
% Senior Notes due 20 in the aggregate principal amount of up
to $235,218,000.00
Ladies and Gentlemen:
We have acted as special Nevada counsel to the Company in connection with
(i) the issue and sale by the Company of up to $235,218,000 in aggregate
principal amount of its Senior Notes due 20 (the "Notes"). The Notes will be
issued pursuant to an Indenture dated May 1, 2000 between the Company and the
Bank of New York, as Trustee, as supplemented by an Officer's Certificate (the
"Officer's Certificate") thereto establishing the terms of the Senior Notes, as
supplemented and amended from time to time (the "Indenture"). This opinion is
delivered to you pursuant to Section 5(a) of the Purchase Agreement, dated April
15, 2005 (the "Purchase Agreement") between the Company, Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Brothers Inc.
(each an "Underwriter", and collectively, the "Underwriters") relating to the
purchase by the Underwriters from the Company of the Notes. Capitalized terms
used herein without definition have the same meaning as in the Purchase
Agreement.
We have examined such matters of fact and questions of law as we have
considered appropriate for purposes of rendering the opinions expressed below,
except where a statement is qualified as to knowledge or awareness, in which
case we have made no or limited inquiry as specified below.
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 2
In our examinations, we have assumed the genuineness of all signatures
(other than of officers of the Company), the legal capacity of all persons
executing documents, the authenticity of all documents submitted to us as
originals and the conformity to authentic original documents of all documents
submitted to us as copies.
We have reviewed the following documents for purposes of this opinion:
(i) the Company's Restated Articles of Incorporation, and all amendments
thereto (the "Articles of Incorporation");
(ii) the Company's By-laws as now in effect (the "Bylaws");
(iii) resolutions duly adopted by the Board of Directors of the Company on
February 8, 2005 relating to the authorization, issuance and sale of
the Notes and matters related thereto;
(iv) Certificates of Existence for the Company, Sierra Pacific Power
Company and Nevada Power Company, dated , 2005, issued by the
Secretary of State of Nevada confirming the corporate existence and
good standing thereof as Nevada corporations;
(v) the Purchase Agreement;
(vi) the Restated Articles of Incorporation of each of Sierra Pacific Power
Company and Nevada Power Company, and all amendments thereto;
(vii) the By-Laws of each of Sierra Pacific Power Company and Nevada Power
Company as now in effect;
(viii) the Registration Statement on Form S-3 as filed with the Securities
and Exchange Commission (the "Commission") on April 5, 2005, File No.
333-123835, as amended from time to time (the "Registration
Statement");
(ix) the Remarketing Prospectus Supplement dated ________ __, 2005 (the
"Prospectus") relating to the remarketing of the Notes
(ix) the Indenture; and
(x) the global certificate evidencing the Notes;
We note that the Purchase Agreement and Indenture, (collectively, the
"Transaction Agreements") and the Notes each provide that they shall be governed
by
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 3
and construed in accordance with the laws of the State of New York. Therefore,
except to the extent expressly set forth in our opinion paragraph 6 below, we
assume that the Transaction Agreements and Notes are each enforceable under the
laws of the State of New York.
The opinions expressed herein are limited to the effect on the subject
transactions of the internal laws of the State of Nevada (without giving effect
to conflicts of law principles), and we express no opinion with respect to the
applicability thereon of the laws of any other jurisdiction.
Whenever a statement is qualified by "to our knowledge" or a similar
phrase, it is intended to indicate that those attorneys in this firm who have
rendered legal services in connection with the transactions contemplated by the
Purchase Agreement do not have current actual knowledge of the inaccuracy of
such statement. However, except as otherwise expressly indicated, we have not
undertaken any independent investigation to determine the accuracy of any such
statement, and no inference that we have any knowledge of any matters pertaining
to such statement should be drawn from our representation of the Company.
Based upon the foregoing and the examination of such legal authorities as
we have deemed relevant, and subject to the limitations, qualifications and
further assumptions set forth below, we are of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Nevada and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
2. Each Significant Subsidiary of the Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Nevada, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus. The shares of issued and outstanding capital stock
of each Significant Subsidiary have been duly authorized and validly issued and
are fully paid and non-assessable; none of the issued and outstanding shares of
capital stock of either Significant Subsidiary was issued in violation of any
preemptive or other similar rights of any securityholder of such Significant
Subsidiary.
3. The Company has all corporate power and authority necessary to execute
and deliver the Purchase Agreement, to perform its obligations thereunder and to
consummate the transactions contemplated thereby. The Purchase Agreement has
been duly authorized, executed and delivered by the Company.
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 4
4. The Indenture has been duly authorized by the Company; the Indenture
(excluding the Officer's Certificate) has been, to the extent that Nevada law
governs such issues, duly executed and delivered by the Company; when the
Officer's Certificate has been duly executed and delivered by the Company, the
Indenture will, to the extent that Nevada law governs such issues, constitute a
legally valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
5. The Notes are in the form contemplated by the Indenture, have been
duly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in the manner provided in the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the Trustee)
and issued and delivered against payment of the purchase price therefor in
accordance with the Purchase Agreement will, to the extent that Nevada law
governs such issues, constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
6. The execution, delivery and performance by the Company of the Purchase
Agreement, the Notes and the Indenture, the consummation by the Company of the
transactions contemplated in the Purchase Agreement and in the Registration
Statement and Prospectus and the performance by the Company of its obligations
under the Purchase Agreement, the Notes and the Indenture, do not and will not,
whether with or without the giving of notice or lapse of time or both, result in
any violation of the provisions of the Articles of Incorporation or Bylaws of
the Company or the restated articles of incorporation or bylaws of its
Significant Subsidiaries or any applicable Nevada law, statute, rule,
regulation, judgment, order, writ or decree of any Nevada government, government
instrumentality or court having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their respective properties, assets or
operations.
7. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Nevada court or Nevada
governmental authority or agency, is necessary or required in connection with
the due authorization, execution and delivery by the Company of the Purchase
Agreement, the performance by the Company of its obligations thereunder or the
consummation by the Company of the transactions contemplated thereby including,
without limitation, the execution and delivery by the Company of the Indenture
and the performance by the Company of its obligations thereunder, the offering,
sale, issuance or delivery by the Company of the Notes, or for the consummation
by the Company of all other transactions contemplated by the Registration
Statement and the Prospectus, except such as (A) have been obtained, or (B) may
be required under state securities laws, as to which we offer no opinion.
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 5
The foregoing opinions are subject to the following additional assumptions,
qualifications and limitations:
To the extent that the obligations of the Company under the Transaction
Agreements or Notes may be dependent upon such matters, we assume for purposes
of this opinion (other than with respect to the Company) that: all parties to
the Transaction Agreements or Notes are duly organized, validly existing and in
good standing under the laws of their respective jurisdictions of organization;
all parties to the Transaction Agreements or Notes have the requisite
organizational power and authority to own their properties, to conduct their
business as presently conducted, and to execute, deliver and perform their
respective obligations under, the Transaction Agreements or Notes to which they
are party; all parties to the Transaction Agreements or Notes are duly qualified
to do business and are in good standing under the laws of each jurisdiction to
the extent that such qualification and good standing is or shall be necessary to
protect the validity and enforceability of the Transaction Agreements or Notes
to which they are party and each other instrument or agreement necessary or
appropriate to the proper administration of the Transaction Agreements or Notes
and the transactions contemplated thereby; that the Notes will conform, when
issued, in all material respects to the descriptions thereof contained in the
Offering Memorandum; and the Notes will be issued as provided in the Offering
Memorandum and Indenture and in compliance with all applicable federal and/or
state securities law, rules and regulations. Additionally, we assume that the
Transaction Agreements and Notes, except to the extent our opinion in paragraph
6 above may be applicable, constitute the legally valid and binding obligations
of the parties thereto, enforceable against them in accordance with their terms.
Our opinion in paragraph 5 with the respect to the validity of the Notes is
further subject to the following qualifications and limitations:
(i) bankruptcy, insolvency, reorganization, arrangement, suretyship,
moratorium, fraudulent transfers or other similar laws or doctrines of general
application now or hereafter in effect relating to creditors' rights and
remedies generally;
(ii) statutory, legal and equitable principles relating to, limiting or
affecting the enforceability of creditors' rights generally, including without
limitation the following:
(a) the availability of specific enforcement, injunctive relief,
appointment of a receiver or other equitable remedies, and
(b) the enforceability of provisions respecting various summary
remedies without notice or opportunity for hearing or cure, or purporting
to waive or affect rights of the Company to assert claims or defenses, or
exercise rights (such as rights to cure defaults), as may be available by
existing or future statutes, common law or equitable principles;
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 6
(iii) We advise you that we have not reviewed any documents evidencing this
transaction for the purposes of this opinion other than the documents
specifically referred to above;
(iv) We express no opinion as to the validity or enforceability of any
provision in the Notes requiring that any consent, modification, amendment or
waiver be in writing;
(v) We express no opinion as to the enforceability of any provision
contained in the Notes releasing any person prospectively from liability for its
own wrongful or negligent acts or providing for rights of indemnity and/or
contribution to a party against liability for such acts or where or to the
extent rights of indemnity and/or contribution are contrary to applicable law or
public policy; and
(vi) We express no opinion as to the enforceability of any provision
contained in the Transaction Documents or Securities purporting to waive (or
having the effect of waiving) any rights under the Constitution or laws of the
United States of America or any state;
(vii) We express no opinion as to the enforceability of any provision
contained in the Transaction Agreements or Securities respecting self-help or
summary remedies without notice or opportunity for hearing or correction; and
(viii) We express no opinion as to the enforceability of any provision
contained in the Transaction Documents or Securities specifying the jurisdiction
the laws of which shall be applicable thereto or specifying or limiting the
jurisdictions before the courts of which cases relating to such agreement may be
brought.
Except as otherwise expressly stated, we express no opinion as to any of
the following legal issues: (a) Federal securities laws and regulations
administered by the Securities and Exchange Commission, state "Blue Sky" laws
and regulations, and laws and regulations relating to commodity (and other)
futures and indices and other similar instruments; (b) Federal Reserve Board
margin regulations; (c) pension and employee benefit laws and regulations (e.g.,
ERISA); (d) Federal and state antitrust and unfair competition laws and
regulations; (e) Federal and state laws and regulations concerning filing and
notice requirements (e.g., Xxxx-Xxxxx-Xxxxxx and Exon-Xxxxxx); (f) compliance
with fiduciary duty requirements; (g) statutes and ordinances, administrative
decisions and rules and regulations of counties, towns, municipalities and
special political subdivisions (whether created or enabled through legislative
action at the Federal, state or regional level) and judicial decisions to the
extent that they deal with any of the foregoing; (h) the characterization of a
transaction as one involving the creation of a lien on real property or a
security interest in personal property, the characterization of a contract as
one in form sufficient to create a lien or a security interest, the creation,
attachment, perfection, priority or enforcement of a lien on real property or a
security
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 7
interest in personal property and the nature or extent of any party's right
title and interest in and to any asset; (i) fraudulent transfer and fraudulent
conveyance laws; (j) Federal and state environmental laws and regulations; (k)
Federal and state land use and subdivision laws and regulations; (l) Federal and
state tax laws and regulations; (m) Federal patent, copyright and trademark,
state trademark, and other Federal and state intellectual property laws and
regulations; (n) Federal and state racketeering laws and regulations (e.g.,
RICO); (o) Federal and state health and safety laws and regulations (e.g., OSHA,
laws governing food, drugs and medical devices); (p) Federal and state labor
laws and regulations; (q) Federal and state laws, regulations and policies
concerning (i) national and local emergency, (ii) possible judicial deference to
acts of sovereign states, and (iii) criminal and civil forfeiture laws; and (r)
other Federal and state statutes of general application to the extent they
provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); and
our opinion in paragraph 9 (ii) above, is limited to any Nevada statute or
regulation that a lawyer in Nevada exercising customary professional diligence
would reasonably recognize as being directly applicable to the Company, the
transactions described herein, or both.
The foregoing opinion is limited to the matters expressly set forth herein
and no opinion may be implied or inferred beyond the matters expressly stated.
This opinion is based upon our knowledge of the law and facts as of the date
hereof. We disclaim any obligation to update this letter or communicate with you
with respect to events occurring after the date of this letter, or as a result
of knowledge acquired by us after that date, including changes in any of the
statutory or decisional law after the date of this letter which may affect the
opinions set forth herein.
You have further requested our analysis with respect to the effect a Nevada
court or federal court applying Nevada choice of law principles might give the
parties choice of law as set forth in the Transaction Agreements and Notes.
Under applicable Nevada law, a Nevada court, or a federal court applying Nevada
choice of law principles, will uphold a choice of law of the parties to an
agreement, provided that the choice of law satisfies the following conditions:
(1) it was bargained for by and between the parties, (2) it is expressly set
forth in the applicable agreement, (3) such law chosen by the parties has a
substantial relationship to the transaction and (4) such agreement does not
violate any public policy of the State of Nevada. With respect to the first of
these factors, as applied to the transaction which is the subject of this
letter, we note that each of the Company, the Underwriters and the Indenture
Trustee are sophisticated institutional parties which have negotiated the
specific provisions of the Transaction Agreements and Notes and that each party
is receiving a benefit (in the form of proceeds or fees) from the subject
transaction. We therefore believe that a Nevada court, or a federal court
applying Nevada choice of law principles, in a properly presented case, is more
likely than not to conclude that the choice of law provisions in the Transaction
Agreements and Notes were bargained for by and between the parties. With respect
to the second of the above factors, we note that the choice of law is expressly
set forth in the Transaction
Sch X-0
Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
________________, 2005
Page 8
Agreements and Notes, which, in our opinion, would satisfy the requirement that
the choice of law be expressly set forth in the applicable agreement. With
respect to the third of the above factors, we note that the Underwriters and the
Trustee are located in the State of New York, that the global Note will be
physically deposited in New York City and that payments with respect to the
Notes will be made in New York City. We therefore believe that a Nevada court,
or a federal court applying Nevada choice of law principles, in a properly
presented case, is more likely than not to conclude that the law of the State of
New York has a substantial relationship to the subject transaction. Finally,
with respect to the fourth of the above factors, we are not aware of any public
policy set forth in any Nevada statute or enunciated by any Nevada court to date
that would be violated by the Transaction Agreements and the Notes which would
dictate a change in governing law; provided, however, (a) to the extent that the
Notes are "securities" as defined in Nevada Revised Statutes Section 104.8101
through 104.8408, inclusive, Nevada law will govern issues related to their
validity as set forth in Nevada Revised Statutes Section 104.8110; and (b) we
offer no advice as to the law governing perfection, the effect of perfection or
nonperfection or priority of the security interest described in the Control
Agreement.
This opinion is rendered only to you and is solely for your benefit in
connection with the transaction covered hereby; provided, that the law firms of
Xxxxxx, Xxxx & Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP may rely on this opinion in
connection with the opinions to be rendered by them as contemplated in the
Purchase Agreement. This opinion may not be relied upon by you for any other
purpose, or furnished to, quoted to or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent.
Very truly yours,
XXXXXXXX AND WEDGE
By:_____________________________________
Xxxxx X. Xxxxxxx
Sch C-8
SCHEDULE D
[LETTERHEAD OF XXXXXX, XXXX AND XXXXXXX LLP]
_________ __, 2005
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Brothers Inc.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sierra Pacific Resources (the "Company")
% Senior Notes Due 20
Ladies and Gentlemen:
This opinion is delivered to you pursuant to Section 5(j) of the Purchase
Agreement dated April 15, 2005 (the "Purchase Agreement") between the Company,
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
Xxxxxx Brothers Inc. (each an "Underwriter", and collectively, the
"Underwriters") relating to the purchase by the Underwriters from the Company of
up to $235,218,000 in aggregate principal amount of the Company's ___% Senior
Notes due 20__ (the "Notes") to be issued under an Indenture (the "Indenture")
dated as of May 1, 2000, between the Company and the Bank of New York.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
In connection with rendering this opinion, we have examined such corporate
records, certificates and other documents as we have considered necessary for
the purposes of this opinion, including:
(i) certificate of recent date of the Secretary of State of Nevada as to
the corporate existence and good standing of the Company as a Nevada
corporation;
(ii) the Restated Articles of Incorporation of the Company, and all
amendments thereto;
(iii) the By-Laws of the Company as now in effect;
(iv) resolutions adopted by the Board of Directors of the Company on
February 8, 2005 and resolutions adopted by the Pricing Committee of the
Board
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of Directors on ______, __ 2005 relating to the issuance and sale of the
Notes and matters relating thereto;
(v) certificates of a recent date of the Secretary of State of Nevada as
to the corporate existence and good standing of each Significant Subsidiary
as Nevada corporations; and certificates of recent date of the Secretaries
of State of Utah, Arizona and California as the qualification and good
standing of the applicable Significant Subsidiaries in those respective
states;
(vi) the Restated Articles of Incorporation of each Significant Subsidiary,
and all amendments thereto;
(vii) the By-Laws of each Significant Subsidiary as now in effect;
(viii) the Purchase Agreement;
(ix) the Indenture and an Officer's Certificate establishing the terms of
the Notes;
(x) the global certificate evidencing the Notes;
(xi) the Company's listing application to the New York Stock Exchange with
respect to the Notes;
(xii) the Registration Statement on Form S-3 as filed with the Securities
and Exchange Commission (the "Commission") on April 5, 2005, File No.
333-123835, as amended from time to time (the "Registration Statement");
(xiii) the Remarketing Prospectus Supplement dated ________ __, 2005 (the
"Prospectus") relating to the remarketing of the Notes; and
(xiv) such other documents as are to be delivered at the Closing Time,
including certificates of officers of the Company.
In such examination, we have assumed the genuineness of all signatures
other than the signatures of the officials of the Company, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the authenticity of the
originals of such latter documents. As to any facts material to our opinion, we
have, when relevant facts were not independently established, relied upon the
aforesaid records, certificates and documents.
We note that the Indenture and the Notes provide that they shall be
governed by and construed in accordance with the laws of the State of New York,
and that the Company is organized under the laws of the State of Nevada. The
opinions expressed
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herein are limited to the effect on the subject transactions of the federal laws
of the United States, the internal laws of the State of Nevada (as to the
matters covered by the opinion of Xxxxxxxx and Wedge referred to below) and
solely with respect to the enforceability opinions expressed in paragraphs (4)
and (5) below, the internal laws of the State of New York (without giving effect
to conflict of law principles). We express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction. With your permission, we have relied as to all matters governed by
the laws of the State of Nevada upon a letter of even date herewith addressed to
you by Xxxxxxxx and Wedge. Our opinions as to such matters are based on the
assumptions and subject to the qualifications and limitations set forth in such
opinion letter.
As to matters of fact relevant to this opinion, we have relied upon and
have assumed the truthfulness of the representations contained in the Purchase
Agreement and have made no independent investigation with respect thereto.
Whenever a statement herein is qualified by "to the best of our knowledge"
or a similar phrase, it is intended to indicate that those attorneys in this
firm who have rendered legal services in connection with the transactions
contemplated by the Purchase Agreement do not have current actual knowledge of
the inaccuracy of such statement. However, except as otherwise expressly
indicated, we have not undertaken any independent investigation to determine the
accuracy of any such statement, and no inference that we have any knowledge of
any matters pertaining to such statement should be drawn from our representation
of the Company.
With respect to matters set forth in clause (c) of the paragraph following
the numbered paragraphs below, with your permission we have not examined the
docket of any court or governmental agency.
Based on the foregoing and, to the extent indicated above on said opinion
of other counsel for the Company, and subject to the assumptions and
qualifications contained herein, we are of the opinion that:
(1) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Nevada and has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not have a Material Adverse
Effect, and would not result in any development which is reasonably likely
to have a Material Adverse Effect.
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(2) Each Significant Subsidiary of the Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Nevada, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus; and each Significant Subsidiary
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect. The shares of issued and
outstanding capital stock of each Significant Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable; none
of the issued and outstanding shares of capital stock of either Significant
Subsidiary was issued in violation of any preemptive or other similar
rights of any securityholder of such Significant Subsidiary; and all shares
of common stock of each Significant Subsidiary are owned by the Company,
free and clear of any security interests and other liens and encumbrances
and of any equities, claims and other adverse interests.
(3) The Company has all corporate power and authority necessary to execute
and deliver the Purchase Agreement, to perform its obligations thereunder
and to consummate the transactions contemplated thereby. The Purchase
Agreement has been duly authorized, executed and delivered by the Company.
(4) The Indenture has been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery thereof
by the Trustee) constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms; the Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder.
(5) The Notes are in the form contemplated by the Indenture, have been
duly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in the manner provided in the Indenture
(assuming the due authorization, execution and delivery of the Indenture by
the Trustee) and issued and delivered against payment of the purchase price
therefor in accordance with the Purchase Agreement, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
(6) The execution, delivery and performance of the Purchase Agreement, the
Notes and the Indenture, the consummation of the transactions contemplated
in the Purchase Agreement and in the Registration Statement and the
Prospectus, and the performance by the Company of its obligations under the
Purchase Agreement, the Indenture or with respect to the Notes do not and
will not,
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whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(xiii) of the Purchase Agreement) under or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary thereof
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known
to us, to which the Company or any of its Significant Subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any Significant Subsidiary thereof is
subject (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would, singly or in the aggregate, not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the Charter or by-laws of the Company or the charter or
by-laws of any of its Significant Subsidiaries, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree known to us of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its Significant Subsidiaries
or any of their respective properties, assets or operations.
(7) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required in
connection with the due authorization, execution and delivery by the
Company of the Purchase Agreement, the performance by the Company of its
obligations thereunder or the consummation by the Company of the
transactions contemplated thereby including, without limitation, the
execution and delivery by the Company of the Indenture, and the performance
by the Company of its obligations thereunder, the offering, sale, issuance
or delivery by the Company of the Notes or for the consummation by the
Company of all other transactions contemplated by the Registration
Statement and the Prospectus, except such as (A) have been obtained and (B)
may be required under state securities laws.
(8) The Company is not an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(9) The Company is a "holding company" under the 1935 Act, but the Company
and all of its subsidiaries are exempt from all provisions of the 1935 Act
(except Section 9(a)(2) thereof) by virtue of the exemption set forth in
Section 3(a)(1) thereof.
(10) The statements made in the Registration Statement under the caption
"Description of Debt Securities" and the statements made in the Prospectus
under
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the captions "Description of the Notes" and "Certain United States Federal
Income Tax Considerations" insofar as they purport to constitute summaries
of certain terms of documents referred to therein, and considered together,
constitute accurate summaries of the terms of such documents in all
material respects.
In addition to the opinions provided above, we confirm to you as follows.
In the course of acting as counsel for the Company in connection with the
preparation of the Registration Statement and the Prospectus, we have
participated in conferences with officers and other representatives of the
Company, representatives of the counsel for the Underwriters and representatives
of the independent public accountants of the Company, during which the contents
of the Registration Statement and the Prospectus were discussed. While the
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are such that
we are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, we advise you that, subject to the foregoing and
based on such participation, inquiries and discussions:
(a) In our opinion, the Registration Statement, the Prospectus and
the Incorporated Documents (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to
which we express no opinion), when they became effective or were filed
with the Commission, as the case may be, appeared on their face to be
appropriately responsive in all material respects to the requirements
of the 1933 Act and the 1934 Act, as applicable.
(b) To the best of our knowledge after due inquiry, there are no
contracts or other documents which are required by the 1933 Act to be
described in the Prospectus or filed as exhibits to the Registration
Statement which have not been so described or filed as required.
(c) To the best of our knowledge after due inquiry, except as
disclosed in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property or assets of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or such subsidiaries, would be reasonably likely to result in
a Material Adverse Effect; and to the best of our knowledge, no such
proceedings are overtly threatened or contemplated by governmental
authorities or threatened by others.
(d) Nothing has come to our attention that have caused us to believe
that (i) the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state
a material fact
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required to be stated therein or necessary in order to make the
statements therein not misleading (except that we express no such
belief with respect to the financial statements, including the notes
and schedules thereto, or any other financial or accounting data or
information included or incorporated by reference therein) or (ii)
that the Prospectus, as of the date hereof, contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (except that we express no such belief with
respect to the financial statements, including the notes and schedules
thereto, or any other financial or accounting data or information
included or incorporated by reference therein); provided, however,
that we do not express any belief as to any statements contained in
the Form T-1 of the Trustee under the 1939 Act and filed as an exhibit
to the Registration Statement.
The opinions expressed above are subject to the following limitations,
qualifications and exceptions:
(i) the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, equitable subordination, marshaling or other similar
laws or doctrines now or hereafter in effect relating to mortgagees' and
other creditors' rights and remedies generally;
(ii) the effect of statutory, legal and equitable principles relating
to, limiting or affecting the enforceability of mortgagees' and other
creditors' rights and remedies generally, including without limitation the
following:
(a) the availability of specific enforcement, injunctive relief,
appointment of a receiver or other equitable remedies;
(b) the enforceability of provisions respecting various summary
remedies without notice or opportunity for hearing or cure, or
purporting to waive or affect rights of the Company to assert claims
or defenses, or exercise rights (such as rights to cure defaults or
redeem foreclosed property), as may be available by existing or future
statute, common law or equity;
(c) the enforceability of provisions purporting to grant a
creditor the right of self-help, or the right to act on behalf of or
perform covenants for a debtor, or the right to collect and receive
rents or otherwise act with respect to, or operate or manage property
serving as
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security for, a debt, or the right to direct the operation or
management thereof, without perfecting such rights through appropriate
statutory, legal or equitable proceedings, without taking possession
of the property, without regard to the possession of such property by
another party, or without assuming the duties of a
mortgagee-in-possession; and
(d) existing or future statutory, legal and equitable principles
requiring the Trustee to follow certain procedures and give certain
notices under the Indenture;
(iii) the unenforceability under certain circumstances of provisions
to the effect that rights or remedies are not exclusive, that every right
or remedy is cumulative and may be exercised in addition to or with any
other right or remedy, that election of a particular remedy or remedies
does not preclude recourse to one or more other remedies, that any right or
remedy may be exercised without notice, or that failure to exercise or
delay in exercising rights or remedies will not operate as a waiver of any
such right or remedy;
(iv) the unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent
acts or failure to act where such indemnification is contrary to public
policy or prohibited by law;
(v) purporting to waive (or having the effect of waiving) any rights
under the Constitution or laws of the United States of America or any
state;
(vi) the unenforceability under certain circumstances of contractual
provisions respecting self-help or summary remedies without notice or
opportunity for hearing or correction; and
(vii) the unenforceability under certain circumstances of contractual
provisions specifying the jurisdiction the laws of which shall be
applicable thereto or specifying or limiting the jurisdictions before the
courts of which cases relating to such agreement may be brought.
However, the inclusion of such provisions in such documents and instruments
does not render the Indenture or the Notes invalid, and such documents contain
adequate provisions for the practical realization of the principal rights and
benefits purported to be afforded thereby, except for the economic consequences
of any delay that may arise from the unenforceability of any particulars of any
such provision.
In rendering this opinion, we have assumed that no party will exercise any
right or remedy except in an equitable and commercially reasonable manner and in
good faith,
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and that each party to the transactions referenced herein has received the
agreed upon consideration and that such consideration is legally sufficient.
We direct your attention to the fact that the opinions expressed in
paragraph 14 of this letter are limited in scope consistent with the Legal
Opinion Principles issued by the Committee on Legal Opinions of the American Bar
Association's Business Law Section as published in 53 Business Lawyers 831 (May,
1998).
This opinion is based upon our knowledge of the law and facts as of the
date hereof and assumes no event will take place in the future which would
affect the opinions set forth herein. We assume no duty to communicate with you
with respect to any change in law or facts which comes to our attention
hereafter.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
XXXXXX, XXXX & XXXXXXX XXX
Xxx X-0
