exv4wxcy



 






Exhibit 4(C)




Registration Rights Agreement




Dated November 16, 2004




among




Nevada Power Company




and




Merrill Lynch, Pierce, Fenner & Smith

Incorporated,




As Representative of the




Initial Purchasers










 









 








REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this 16th day of
November, 2004, by and between Nevada Power Company, a Nevada corporation (the “Company”), and
Merrill Lynch, Pierce, Fenner & Smith Incorporated as representative of the Initial Purchasers (the
“Initial Purchasers”), as contemplated by the Purchase Agreement, dated November 9, 2004 (the
“Purchase Agreement”), by and between the Company and the Initial Purchasers, which provides for
the sale by the Company to the Initial Purchasers of an aggregate of $250,000,000 in principal
amount of the Company’s 5 7/8% General and Refunding Mortgage Notes, Series L, due 2015 (the
“Securities”). In order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.



          The Company agrees with the Representative, for the benefit of the Initial Purchasers and for
the benefit of the beneficial owners (including the Initial Purchasers) from time to time of the
Registrable Securities (as hereinafter defined), as follows:



          1. Definitions.



          As used in this Agreement, the following terms shall have the following meanings:



          “1933 Act” means the Securities Act of 1933, as amended from time to time.



          “1934 Act” means the Securities Exchange Act of l934, as amended from time to time.



          “Closing Date” means the Closing Time as defined in the Purchase Agreement.



          “Company” has the meaning set forth in the preamble and shall also include the
Company’s successors.



          “Depositary” means The Depository Trust Company, or any other depositary appointed by
the Company; provided, however, that such depositary must have an address in the Borough of
Manhattan, in the City of New York.



          “Exchange Offer” means the exchange offer by the Company of Exchange Securities for
Registrable Securities pursuant to Section 2.1 hereof.



          “Exchange Offer Registration” means a registration under the 1933 Act effected
pursuant to Section 2.1 hereof.



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          “Exchange Offer Registration Statement” means an exchange offer registration statement
on Form S-4 (or, if applicable, on another appropriate form), and all amendments and supplements to
such registration statement, including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.



          “Exchange Period” has the meaning set forth in Section 2.1 hereof.



          “Exchange Securities” means the notes issued by the Company under the Indenture
containing terms identical to the Securities in all material respects (except for references to
provisions relating to liquidated damages, restrictions on transfers and restrictive legends), to
be offered to Holders of Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.



          “Holder” means an Initial Purchaser, for so long as it owns any Registrable
Securities, and any other beneficial owner of Registrable Securities.



          “Indenture” means the General and Refunding Mortgage Indenture, dated as of May 1,
2001, between the Company and the Trustee, as amended and supplemented from time to time in
accordance with the terms thereof.



          “Initial Purchaser” or “Initial Purchasers” has the meaning set forth in the
preamble.



          “Majority Holders” means the Holders of a majority in aggregate principal amount of
Outstanding (as defined in the Indenture) Registrable Securities; provided, however, that whenever
the consent or approval of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on the Securities or any
Affiliate (as defined in the Indenture) of the Company or of such other obligor (unless the
Company, such obligor or such Affiliate owns all Registrable Securities then Outstanding) shall be
disregarded in determining whether such consent or approval was given by the Holders of such
required percentage.



          “Participating Broker-Dealer” means any of the Initial Purchasers and any other
broker-dealer which makes a market in the Securities and exchanges Registrable Securities in the
Exchange Offer for Exchange Securities.



          “Person” means an individual, partnership (general or limited), corporation, limited
liability company, trust or unincorporated organization, or a government or agency or political
subdivision thereof.



          “Private Exchange” has the meaning set forth in Section 2.1 hereof.



          “Private Exchange Securities” has the meaning set forth in Section 2.1 hereof.



          “Prospectus” means the prospectus included in a Registration Statement, including,
without limitation, a prospectus that discloses information previously omitted



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from a prospectus filed as part of an effective registration statement in reliance upon Rule
415 under the 1933 Act), as amended or supplemented, including all documents incorporated by
reference therein.




          “Purchase Agreement” has the meaning set forth in the preamble.



          “Registrable Securities” means the Securities and, if issued, the Private Exchange
Securities; provided, however, that Securities and, if issued, the Private Exchange Securities,
shall cease to be Registrable Securities when (i) (except in the case of Securities purchased from
the Company and continued to be held by the Initial Purchasers) the Exchange Offer is consummated,
(ii) a Registration Statement with respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed of pursuant to such Registration
Statement, (iii) such Securities have been sold to the public pursuant to Rule 144 under the 1933
Act, (iv) the applicable holding period under rule 144(k) under the 1933 Act shall have expired or
(v) such Securities shall have ceased to be outstanding.



          “Registration Expenses” means any and all expenses incident to performance of or
compliance by the Company with this Agreement, including, without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the “NASD”) registration and filing
fees, including, if applicable, the fees and expenses of any “qualified independent underwriter”
(and its counsel) that is required to be retained by any holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with blue sky qualification
of any of the Exchange Securities or Registrable Securities), (iii) all printing and other expenses
in preparing, and distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v)
all fees and disbursements of counsel for the Company and of the independent public accountants of
the Company, (vi) the fees and expenses of the Trustee and its counsel (vii) the reasonable fees
and expenses, if any, of the Initial Purchasers in connection with the Exchange Offer, including
the reasonable fees and expenses, if any, of not more than one counsel to the Initial Purchasers in
connection therewith, which shall be Dewey Ballantine LLP, (viii) the reasonable fees and
disbursements of not more than one counsel representing the Holders of Registrable Securities which
shall be Dewey Ballantine LLP, unless another firm shall be chosen by the Majority Holders and (ix)
any fees and disbursements of the underwriters customarily required to be paid by issuers or
sellers of securities, but excluding underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a Holder.



          “Registration Statement” means any registration statement of the Company which covers
any of the Exchange Securities or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the



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Prospectus contained therein, all exhibits thereto and all documents incorporated by reference
therein.




          “SEC” means the Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United States Securities and
Exchange Commission.



          “Securities” has the meaning set forth in the preamble.



          “Shelf Registration” means a registration effected pursuant to Section 2.2 hereof.



          “Shelf Registration Statement” means a “shelf” registration statement of the Company
pursuant to the provisions of Section 2.2 of this Agreement which covers all of the Registrable
Securities or all of the Private Exchange Securities on an appropriate form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein.



          “Trustee” means the trustee with respect to the Securities under the Indenture.



          2. Registration Under the 1933 Act.



          2.1 Exchange Offer. The Company shall, for the benefit of the Holders, at the
Company’s cost,




                    (A) prepare and, as soon as reasonably practicable but not later than the 180th day
after the Closing Date, file with the SEC an Exchange Offer Registration Statement on an
appropriate form under the 1933 Act with respect to a proposed Exchange Offer and the
issuance and delivery to the Holders, in exchange for the Registrable Securities (other
than Private Exchange Securities), of a like principal amount of Exchange Securities,




                    (B) use all commercially reasonable efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act on or prior to the 270th day after
the Closing Date,




                    (C) to commence the Exchange Offer as promptly as reasonably practicable after the
effective date of the Exchange Offer Registration Statement,




                    (D) use all commercially reasonable efforts to keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer, and



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                    (E) use all commercially reasonable efforts to cause the Exchange Offer to be
consummated not later than the 40th day after such effective date. It is the objective of
the Exchange Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of
the Company within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer
tendering Registrable Securities acquired directly from the Company for its own account,
(c) acquired the Exchange Securities in the ordinary course of such Holder’s business and
(d) has no arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions under the
1933 Act or under state securities or blue sky laws.



          In connection with the Exchange Offer, the Company shall:




          (a) mail as promptly as reasonably practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;




          (b) keep the Exchange Offer open for acceptance for a period of not less than 30
calendar days after the date notice thereof is mailed to the Holders (or longer if required
by applicable law) (such period referred to herein as the “Exchange Period”);




          (c) utilize the services of the Depositary for the Exchange Offer;




          (d) permit Holders to withdraw tendered Registrable Securities at any time prior to
5:00 p.m. (Eastern Time), on the last business day of the Exchange Period, by sending to
the institution specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of Registrable
Securities delivered for exchange, and a statement that such Holder is withdrawing such
Holder’s election to have such Securities exchanged;




          (e) notify each Holder that any Registrable Security not tendered will remain
Outstanding and continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers,
as provided herein); and




          (f) otherwise comply in all respects with all applicable laws relating to the Exchange
Offer.



          If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities
acquired by them and having the status of an unsold allotment in the initial distribution, the
Company upon the request of any Initial Purchaser shall,



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simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Securities held by
such Initial Purchaser, a like principal amount of debt securities (the “Private Exchange
Securities”) of the Company issued under the Indenture and identical (except that such securities
shall bear appropriate transfer restrictions) to the Exchange Securities.




          The Company shall use all commercially reasonable efforts to have the Private Exchange
Securities bear the same CUSIP number as the Exchange Securities; provided, however, that the
Company shall not have any liability under this Agreement solely as a result of the Private
Exchange Securities not bearing the same CUSIP number as the Exchange Securities.



          As soon as practicable after the consummation of the Exchange Offer and/or the Private
Exchange, as the case may be, the Company shall:




          (ii) accept for exchange all Registrable Securities duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the terms of
the Exchange Offer Registration Statement and the letter of transmittal which shall
be an exhibit thereto;




          (iii) accept for exchange all Securities properly tendered pursuant to the
Private Exchange;




          (iv) deliver to the Trustee for cancellation all Registrable Securities so
accepted for exchange; and




          (v) cause the Trustee promptly to authenticate and deliver Exchange Securities
or Private Exchange Securities, as the case may be, to each Holder of Registrable
Securities so accepted for exchange in a principal amount equal to the principal
amount of the Registrable Securities of such Holder so accepted for exchange.



          Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in exchange therefor or,
if no interest has been paid on the Registrable Securities, from the date as of which interest on
such Registrable Securities commenced to accrue, all as provided in the Indenture. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other than the following:




          (i) the Exchange Offer or the Private Exchange, or the making of any exchange
by a Holder, shall not be in violation of applicable law or any applicable
interpretation of the staff of the SEC,




          (ii) the Registrable Securities to be exchanged shall have been duly tendered
in accordance with the Exchange Offer and the Private Exchange,



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          (iii) each Holder of Registrable Securities to be exchanged in the Exchange
Offer shall have represented that all Exchange Securities to be received by it
shall be acquired in the ordinary course of its business and that at the time of
the consummation of the Exchange Offer it shall have no arrangement or
understanding with any person to participate in the distribution (within the
meaning of the 1933 Act) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other appropriate
form under the 1933 Act available, and




          (iv) no action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency with respect to the Exchange Offer or
the Private Exchange which, in the Company’s judgment, would reasonably be expected
to impair the ability of the Company to proceed with the Exchange Offer or the
Private Exchange. The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right (but shall have no obligation hereunder) to contact
such Holders and otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.



          2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any other
reason the Exchange Offer Registration Statement is not declared effective on or prior to the 270th
day after the Closing Date or the Exchange Offer is not consummated on or prior to the 40th day
after the effective date of the Exchange Offer Registration Statement, or (iii) if any Holder is
not permitted to participate in the Exchange Offer or does not receive fully tradeable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i) through (iii) the
Company shall, at its cost:




          (a) File with the SEC, as promptly as reasonably practicable but no later than the
30th day after such filing obligation arises, a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Holders participating in the
Shelf Registration and set forth in such Shelf Registration Statement, and shall use all
commercially reasonable efforts to cause the Shelf Registration Statement to be declared
effective as promptly as reasonably practicable but no later than the 90th day after the
filing thereof.




          (b) Use all commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof to be usable
by Holders for a period of two years from the date the Shelf Registration Statement is
declared effective by the SEC, or for such shorter period as will terminate when all
Registrable Securities covered by the



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Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be Outstanding or otherwise to be Registrable Securities (the
“Effectiveness Period”); provided, however, that the Effectiveness Period in respect of
the Shelf Registration Statement shall be extended to the extent required to permit dealers
to comply with the applicable prospectus delivery requirements of Rule 174 under the 1933
Act and as otherwise provided herein.




          (c) Notwithstanding any other provisions hereof, use its best efforts to ensure that
(i) any Shelf Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, 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 and (iii) any Prospectus forming part of any
Shelf Registration Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.



          The Company shall not permit any securities other than Registrable Securities to be included
in the Shelf Registration Statement. The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, and to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment promptly after its
being used or filed with the SEC.



          2.3 Expenses. The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.



          2.4 Effectiveness. (a) The Company will be deemed not to have used all commercially
reasonable efforts to cause the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain, effective during the requisite period if
the Company voluntarily takes any action that would, or omits to take any action the omission of
which would, result in any such Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period as and to the extent contemplated hereby, unless such
action is required or prohibited, as the case may be, by applicable law.



          (b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC;



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provided, however, that if, after it has been declared effective, the offering of Registrable
Securities pursuant to an Exchange Offer Registration Statement or a Shelf Registration Statement
is interfered with by any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, such Registration Statement will be deemed not to have become
effective during the period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.




          2.5 Liquidated Damages. In the event that either (a) the Exchange Offer Registration
Statement is not filed with the SEC at or prior to the deadline therefor specified in Section 2.1,
(b) the Exchange Offer Registration Statement has not been declared effective at or prior to the
deadline therefor specified in Section 2.1, (c) the Exchange Offer is not consummated at or prior
to the deadline therefor specified in Section 2.1, (d) the Shelf Registration Statement is not
filed with the SEC at or prior to the deadline therefor specified in Section 2.2 or (e) the Shelf
Registration Statement has not been declared effective at or prior to the deadline therefor
specified in Section 2.2 (each such event referred to in clauses (a) through (e) above, a
“Registration Default”), then the Company shall pay to each Holder of Registrable Securities
affected thereby liquidated damages in an amount equal to $0.05 per $1,000 in principal amount of
Registrable Securities held by such Holder for each week (or portion thereof) in the first 90-day
period immediately following the occurrence of such Registration Default. The amount of such
liquidated damages payable per week shall increase by $0.05 per $1,000 in principal amount of such
Registrable Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $0.50 per week per $1,000
in principal amount of Registrable Securities; provided that the Company shall in no event be
required to pay liquidated damages for more than one Registration Default at any given time.
Following the cure of all Registration Defaults liquidated damages will cease to accrue.



          If the Shelf Registration Statement is unusable by the Holders for any reason (other than by
reason of a prohibition, condition or other requirement (not relating to information contained
therein or omitted therefrom) not in effect at the date hereof imposed by any statute or
governmental regulation), and the aggregate number of days in any consecutive twelve-month period
for which the Shelf Registration Statement shall not be usable exceeds 30 days in the aggregate,
then the Company shall pay to each Holder of Registrable Securities affected thereby liquidated
damages in an amount equal to $0.05 per $1,000 in principal amount of Registrable Securities held
by such Holder for each week (or portion thereof) in the first 90-day period beginning on the 31st
day on which the Shelf Registration Statement ceases to be usable. The amount of such liquidated
damages shall increase by $0.05 per $1,000 in principal amount of such Registrable Securities with
respect to each subsequent 90-day period in which the Shelf Registration Statement is not usable,
up to a maximum amount of liquidated damages of $0.50 per week per $1,000 in principal amount of
Registrable Securities. Upon the Shelf Registration Statement once again becoming usable,
liquidated damages will cease to accrue.



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          Liquidated damages shall be computed based on the actual number of days elapsed in each 90-day
period in which a Registration Default is continuing or in which the Shelf Registration Statement
is unusable, as the case may be.



          All accrued liquidated damages shall be paid to the Holders entitled thereto, in the manner
provided in the Indenture for the payment of interest, on each interest payment date, as more fully
set forth in the Indenture and the Securities. Notwithstanding the fact that any Securities in
respect of which liquidated damages are due cease to be Registrable Securities, all obligations of
the Company to pay such liquidated damages shall survive until such time as such obligations in
respect of such Securities shall have been satisfied in full.



          3. Registration Procedures.



          In connection with the obligations of the Company with respect to Registration Statements
pursuant to Sections 2.1 and 2.2 hereof, the Company shall:




          (a) prepare and file with the SEC a Registration Statement, within the relevant time
period specified in Section 2, on the appropriate form under the 1933 Act, which form (i)
shall be selected by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders thereof, and
(iii) shall comply as to form in all material respects with the requirements of the 1933
Act and the Trust Indenture Act of 1939, as amended, and the rules and regulation of the
SEC thereunder, and use all commercially reasonable efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2 hereof;




          (b) prepare and file with the SEC such amendments and post-effective amendments to
each Registration Statement as may be necessary under applicable law to keep such
Registration Statement effective for the applicable period; and cause each Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act and comply with the provisions of the 1933 Act, the
1934 Act and the rules and regulations thereunder applicable to them with respect to the
disposition of all securities covered by each Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer);




          (c) in the case of a Shelf Registration, (i) notify each Holder of Registrable
Securities, at least five business days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and advise such Holders
that the distribution of Registrable Securities will be made in accordance with the methods
selected by the Holders of a majority in principal amount of the Registrable Securities the
Holders of which are participating in such Shelf Registration, (ii) furnish to each Holder
of Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary



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Prospectus, and any amendment or supplement thereto and such other documents as such
Holder or underwriter may reasonably request, and, if the Holder so requests, all exhibits
in order to facilitate the public sale or other disposition of the Registrable Securities
and (iii) be deemed to have consented to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;




          (d) use all commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or “blue sky” laws of such jurisdictions
as any Holder of Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall reasonably request
by the time the applicable Registration Statement is declared effective by the SEC, and do
any and all other acts and things which may be reasonably necessary or advisable to enable
each such Holder and such underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided, however, that
the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d) or (ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction where it is not then so subject;




          (e) notify promptly each Holder of Registrable Securities under a Shelf Registration
or any Participating Broker-Dealer who has notified the Company that it is utilizing the
Exchange Offer Registration Statement as provided in paragraph (f) below and, if requested
in writing by such Holder or Participating Broker-Dealer, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when any post-effective
amendments thereto become effective and any supplements thereto are filed, (ii) of any
request by the SEC or any state securities authority for post-effective amendments to a
Registration Statement and supplements to a Prospectus or for additional information after
the Registration Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration Statement and the
closing of any sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering cease to be true and
correct in all material respects, (v) of the happening of any event or the discovery of any
facts during any period in which a Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any change in such Registration Statement
or Prospectus in order to make the statements therein not misleading, (vi) of the receipt
by the Company of any



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notification with respect to the suspension of the qualification of the Registrable
Securities or the Exchange Securities, as the case may be, for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (vii) of any
determination by the Company that a post-effective amendment to such Registration Statement
would be appropriate;




          (f) (A) in the case of the Exchange Offer Registration Statement, (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution” which
section shall be reasonably acceptable to Merrill Lynch, Pierce, Fenner & Smith
Incorporated (“Merrill Lynch”), on behalf of the Participating Broker-Dealers, and which
shall contain a summary statement of the positions taken or policies made by the staff of
the SEC with respect to the potential “underwriter” status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of market-making activities
or other trading activities and that will be the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the reasonable judgment of Merrill Lynch
on behalf of the Participating Broker-Dealers and its counsel, represent the prevailing
views of the staff of the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer may
be deemed a statutory underwriter and must deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Securities, (ii) furnish to
each Participating Broker-Dealer who has delivered to the Company the written notice
referred to in Section 3(e), without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) be deemed to have consented to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement thereto, by any Person
subject to the prospectus delivery requirements of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Securities covered
by the Prospectus or any amendment or supplement thereto and to have agreed to keep the
Exchange Offer Registration Statement effective during the period of such use (up to a
maximum of 180 days after the consummation of the Exchange Offer) and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange offeree in order
to participate in the Exchange Offer (x) a statement to the following effect:




“If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities received in
respect of such Registrable Securities pursuant to the Exchange
Offer.” and



12









 






(y) a statement to the effect that by a broker-dealer making the acknowledgment described
in clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it is an underwriter within
the meaning of the 1933 Act; and




               (B) in the case of any Exchange Offer Registration Statement and solely upon the
written request of the Representative, deliver to the Initial Purchasers on behalf of the
Participating Broker-Dealers, prior to the commencement of the Exchange Offer (i) an
opinion of counsel or opinions of counsel substantially to the effect set forth in Exhibit
A, (ii) officers’ certificates substantially in the form customarily delivered in a public
offering of debt securities and (iii) a comfort letter or comfort letters in customary
form to the extent permitted by Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (or if such a comfort letter is not permitted,
an agreed upon procedures letter in customary form) from the Company’s independent
certified public accountants (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the Company
for which financial statements are, or are required to be, included in the Registration
Statement) at least as broad in scope and coverage as the comfort letter or comfort
letters delivered to the Initial Purchasers in connection with the initial sale of the
Securities to the Initial Purchasers;




          (g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers
and (ii) in the case of a Shelf Registration, furnish counsel for the Holders of
Registrable Securities copies of any comment letters received from the SEC or any other
request by the SEC or any state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;




          (h) make all commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest possible moment;




          (i) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, and each underwriter, if any, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);




          (j) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may



13









 






reasonably request at least five business days prior to the closing of any sale of
Registrable Securities;




          (k) upon the occurrence of any event or the discovery of any facts, each as
contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after the
occurrence of such an event, use all commercially reasonable efforts to prepare a
post-effective amendment to the Registration Statement, a supplement to the related
Prospectus or an amendment to any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of the
Registrable Securities or Participating Broker-Dealers, the Prospectus will not contain at
the time of such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. At such time as such public disclosure is otherwise
made or the Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material fact, the
Company agrees promptly to notify each Holder of such determination and to furnish each
Holder such number of copies of the Prospectus as amended or supplemented, as such Holder
may reasonably request;




          (l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus (excluding, in any case, any document which is to
be incorporated by reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement), provide copies of such document to the Holders
participating in such Shelf Registration and make such representatives of the Company as
shall be reasonably requested by the Holders a majority in principal amount of the
Registrable Securities, the Holders of which are participating in such Shelf Registration,
available for discussion of such document;




          (m) obtain a CUSIP number for all Exchange Securities, Private Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates for the Exchange
Securities, Private Exchange Securities or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depositary;




          (n) (i) use all commercially reasonable efforts to cause the Indenture to be
qualified under the TIA in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the Trustee and the Holders
to effect such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute, and use all
commercially reasonable efforts to cause the Trustee to execute, all documents which may be
required to effect such changes, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;



14









 






          (o) in the case of a Shelf Registration and at the request of the Holders of a
majority in principal amount of the Registrable Securities, the Holders of which are
participating in such Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such connection whether or
not an underwriting agreement is entered into and whether or not the registration is an
underwritten registration:




          (i) make such representations and warranties to such Holders and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may be reasonably
requested by them;




          (ii) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the holders of a majority in
principal amount of the Registrable Securities being sold) addressed to each
selling Holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten offerings and
such other matters as may be reasonably requested by such Holders and underwriters;




          (iii) obtain “cold comfort” letters and updates thereof from the Company’s
independent certified public accountants (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements are, or are required to be,
included in the Registration Statement) addressed to the underwriters, if any, and
use reasonable efforts to have such letter addressed to the selling Holders of
Registrable Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified Public Accounts), such
letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters to underwriters in connection with similar
underwritten offerings;




          (iv) enter into a securities sales agreement with the Holders and an agent of
the Holders providing for, among other things, the appointment of such agent for
the selling Holders for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and scope customary for
similar offerings;




          (v) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to
said Section or, at the request of any



15









 






underwriters, in the form customarily provided to such underwriters in similar
types of transactions; and




          (vi) deliver such documents and certificates as may be reasonably requested
and as are customarily delivered in similar offerings to the Holders of the
Registrable Securities being sold and the managing underwriters, if any.




The above shall be done at (i) the effectiveness of such Registration Statement (and each
post-effective amendment thereto) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;




          (p) in the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make available for
inspection by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf Registration Statement,
any Participating Broker-Dealer and any counsel or accountant retained by any of the
foregoing, all financial and other records, pertinent corporate documents and properties of
the Company reasonably requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, special counsel or accountant
in connection with a Registration Statement, and make such representatives of the Company
available for discussion of such documents as shall be reasonably requested by the Initial
Purchasers;




          (q) (i) in the case of an Exchange Offer Registration Statement and upon the written
request of the Representative, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to an Exchange
Offer Registration Statement or amendment or supplement to such Prospectus, provide copies
of such document to the Representative and counsel to the Initial Purchasers and make such
changes in any such document prior to the filing thereof as the Representative or such
counsel may reasonably request and, except as otherwise required by applicable law, not
file any such document in a form to which the Representative or counsel to the Initial
Purchasers shall not have previously been advised and furnished a copy of or to which the
Representative or such counsel shall reasonably object, and make the representatives of the
Company available for discussion of such documents as shall be reasonably requested by the
Representative; and




          (ii) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide copies of
such document to the Representative, the Holders of Registrable Securities, to counsel for
the Holders and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to the filing



16









 






thereof as the Initial Purchasers, the counsel to the Holders of Registrable
Securities or the underwriter or underwriters shall reasonably request and not file any
such document in a form to which the Representative, the Majority Holders, counsel for the
Holders of Registrable Securities or any underwriter shall not have previously been advised
and furnished a copy of or to which the Representative, the Majority Holders, counsel to
the Holders of Registrable Securities or any underwriter shall reasonably object, and make
the representatives of the Company available for discussion of such document as shall be
reasonably requested by the Representative, the Majority Holders, counsel for the Holders
of Registrable Securities or any underwriter;




          (r) in the case of a Shelf Registration, use all commercially reasonable efforts to
cause all Registrable Securities to be listed on any securities exchange on which similar
debt securities issued by the Company are then listed if requested by the Majority Holders,
or if requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;




          (s) in the case of a Shelf Registration, use all commercially reasonable efforts to
cause the Registrable Securities to be rated by the appropriate rating agencies, if so
requested by the Majority Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;




          (t) otherwise comply with all applicable rules and regulations of the SEC and make
available to its security holders, as soon as reasonably practicable, an earning statement
covering at least 12 months which shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder; and




          (u) cooperate and assist in any filings required to be made with the NASD and, in the
case of a Shelf Registration, in the performance of any due diligence investigation by any
underwriter and its counsel (including any “qualified independent underwriter” that is
required to be retained in accordance with the rules and regulations of the NASD).



          Each Holder will be deemed to have agreed that, upon receipt of any notice from the Company of
the happening of any event or the discovery of any facts, each of the kind described in Section
3(e)(v) or 3(e)(vi) (in the event that such notice pursuant to 3(e)(vi) relates to the jurisdiction
in which such Holder plans to dispose of Registrable Securities and that such event requires the
company to supplement and/or amend the Prospectus contemplated by Section 3(k)) hereof, such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such Holder will deliver
to the Company (at its expense) all copies in such Holder’s possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.





17










 






          In the event that the Company fails to effect the Exchange Offer or file any Shelf
Registration Statement and maintain the effectiveness of any Shelf Registration Statement as
provided herein (other than by reason of a prohibition, condition or other requirement not in
effect at the date hereof imposed by any statute or governmental regulation), the Company shall not
file any Registration Statement with respect to any securities (within the meaning of Section 2(1)
of the 1933 Act) of the Company other than Registrable Securities.



          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that will
manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be reasonably acceptable to the Company. No Holder of
Registrable Securities may participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder’s Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.



          In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company, and update, such information regarding such
Holder and the proposed distribution by such Holder as the Company may from time to time reasonably
request. Such information may include such Holder’s name and address and any relationships between
such Holder and the Company, any of the Initial Purchasers or any underwriter proposing to
participate in such proposed distribution. In order to obtain such information, the Company shall,
at least fifteen business days prior to the filing of such Shelf Registration Statement, commence
commercially reasonable efforts, in cooperation with the Depositary and the Initial Purchasers, (a)
to inform the Holders of Registrable Securities that a Shelf Registration Statement is being filed
and (b) to specify the information regarding such Holders which the Company requires in connection
with the preparation thereof.



          Anything in this Agreement to the contrary notwithstanding, any Holder of Registrable
Securities which shall not have timely furnished to the Company the information so requested with
respect to any Shelf Registration Statement:




          (a) shall not be entitled to have the Registrable Securities held by it covered by
such Shelf Registration Statement or to receive copies of such Shelf Registration Statement
or the Prospectus relating thereto;




          (b) shall not be entitled to any liquidated damages contemplated in clause (d) or (e)
of the first sentence in the first paragraph, or in the second paragraph, of Section 2.5
hereof;




          (c) shall not be entitled to receive any notices from the Company as provided in this
Section 3 or elsewhere in this Agreement; and



18









 






          (d) shall not otherwise be deemed a Holder of Registrable Securities for purposes of
this Agreement with respect to such Shelf Registration Statement.



          All Holders of Registrable Securities, by their payment for and acceptance of such Securities,
shall be deemed to have consented and agreed to the terms and provisions of this Agreement
including, without limitation, the terms and provisions of this Section 3.



          4. Indemnification; Contribution.



          (a) The Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder,
each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person
being an “Underwriter”) and each Person, if any, who controls any Holder or 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 any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange Securities or Registrable Securities
were registered under the 1933 Act, including all documents incorporated therein by
reference, 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 Prospectus (or any amendment or supplement thereto)
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 that (subject to Section 4(d) below) any such settlement is effected with
the written consent of the Company; and




          (iii) against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by any indemnified party), 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



19









 






such alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (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 the Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto); and provided,
further, that this indemnity agreement shall not inure to the benefit of any Underwriter or any
person who controls such Underwriter on account of any such loss, liability, claim, damage or
expense arising out of any such defect or alleged defect in any preliminary prospectus if a copy of
the Prospectus (exclusive of the documents incorporated by reference therein) shall not have been
given or sent by such Underwriter with or prior to the written confirmation of the sale involved to
the extent that (i) the Prospectus would have cured such defect or alleged defect and (ii)
sufficient quantities of the Prospectus were timely made available to such Underwriter.




          (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company,
the Initial Purchasers, each Underwriter and the other selling Holders, and each of their
respective directors and officers, and each Person, if any, who controls the Company, the Initial
Purchasers, any Underwriter or any other selling Holder 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 Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any
amendment or supplement thereto) in reliance upon and in conformity with written information with
respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.



          (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure so to 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. An indemnifying party may participate at its own
expense in the defense of 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 party or parties be liable for the 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



20









 







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 4 (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) 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 4(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.



          (e) If the indemnification provided for in this Section 4 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, in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and the Holders and the Initial Purchasers 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 fault of the Company on the one hand and the Holders and the Initial Purchasers
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, the Holders or the Initial Purchasers and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.



          The Company, the Holders and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata allocation (even
if the Initial Purchasers 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 4. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 4 shall be deemed to include any legal or
other expenses



21









 







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 4, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities sold
by it were offered exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of 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
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.



          For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser or
Holder 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 such Initial Purchaser or Holder, and each director of the
Company, 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 Initial Purchasers’ 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 to the Purchase Agreement and not joint.



          5. Miscellaneous.



          5.1 Rule 144 and Rule 144A. For so long as the Company is subject to the reporting
requirements of Section 13 or 15 of the 1934 Act, the Company covenants that it will file the
reports required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (b) deliver such information to a prospective purchaser as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act and it will take such further
action as any Holder of Registrable Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent required from time to
time to enable such Holder to sell its Registrable Securities without registration under the 1933
Act within the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as such
Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.



22









 





          5.2 No Inconsistent Agreements. The Company has not entered into and the Company will
not after the date of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the Company’s other
issued and outstanding securities under any such agreements.



          5.3 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or departure.



          5.4 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase Agreement with
respect to the Initial Purchasers; and (b) if to the Company, initially at the Company’s address
set forth in the Purchase Agreement, and thereafter at such other address of which notice is given
in accordance with the provisions of this Section 5.4.



          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.



          Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in such
Indenture.



          5.5 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided, however,
that nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if



23









 







applicable, the Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.



          5.6 Third Party Beneficiaries. The Initial Purchasers (even if the Initial Purchasers
are not Holders of Registrable Securities) shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the Holders, on the other hand, and shall
have the right to enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders hereunder. Each Holder of
Registrable Securities shall be a third party beneficiary to the agreements made hereunder between
the Company, on the one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.



          5.7 Specific Enforcement. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Sections 2.1 through 2.4 hereof may result in material irreparable injury to
the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it would
not be possible to measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company’s obligations under Sections 2.1 through 2.4 hereof.



          5.8 Restriction on Resales. Until the expiration of two years after the Closing Date,

the Company will not, and will cause its “affiliates” (as such term is defined in Rule 144(a)(1)
under the 1933 Act) not to, resell any Securities which are “restricted securities” (as such term
is defined under Rule 144(a)(3) under the 1933 Act) that have been reacquired by any of them and
shall immediately upon any purchase of any such Securities submit such Securities to the Trustee
for cancellation.



          5.9 Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.



          5.10 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



          5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.



          5.12 Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every



24









 







other respect and of the remaining provisions contained herein shall not be affected or impaired
thereby.



25









 





          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.


	 	 	 	 	 
	 	NEVADA POWER COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	Kelly S. Langley 	 
	 	 	Title:  	Assistant Treasurer 	 
	 




Confirmed and accepted as

  of the date first above written:




	 	 	 
	MERRILL LYNCH, PIERCE, FENNER & SMITH
	 	 
	INCORPORATED,

	 	 






As Representative of the Initial Purchasers




	 	 	 	 	 
	By:
	 	 	 	 
	

	 	 	 	 
	

	 	Name:
	 	 
	

	 	Title:
	 	 






Signature Page to Registration Rights Agreement




26









 








Exhibit A




Contents of Opinion of Counsel




          1. The Exchange Offer Registration Statement and the Prospectus (other than the financial
statements, notes or schedules thereto and other financial data and supplemental schedules included
or incorporated by reference therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), comply as to form in all material respects with the requirements
of the 1933 Act and the applicable rules and regulations promulgated under the 1933 Act.



          2. Nothing has come to our attention that would lead us to believe that the Exchange Offer
Registration Statement (except for financial statements and schedules and other financial data
included therein as to which we make no statement), when it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus, as amended or
supplemented (except for financial statements and schedules and other financial data included
therein, as to which such counsel need make no statement), at the date of such opinion includes an
untrue statement of a material fact or omits 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.



A-1