exhibit10-4.htm


    EXHIBIT 10.4

    
 

    THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT

     

    THIS THIRD AMENDMENT (this "Agreement") is made
and entered into as of this 10th day of February, 2009, with an effective date
as set forth in Section 3 hereof, by and among SIERRA PACIFIC POWER COMPANY
d/b/a NV Energy, a Nevada corporation (the "Borrower"), the
lenders party to the Credit Agreement referred to below (the “Lenders”) that have
executed a Lender Authorization in the form set forth as Exhibit A attached
hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the
Lenders (in such capacity, the “Administrative
Agent”).

     

    Statement of
Purpose

     

    The Lenders agreed to extend certain
credit facilities to the Borrower pursuant to the Amended and Restated Credit
Agreement, dated as of November 4, 2005 (as amended, modified and supplemented
by that certain Amendment and Consent dated as of April 19, 2006 and that
certain Second Amendment dated as of November 25, 2008, and as further amended,
restated, supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among the Borrower, the Lenders and the Administrative
Agent.

     

    The Borrower has requested, and the
Lenders and the Administrative Agent have agreed, subject to the terms and
conditions set forth herein, to amend the Credit Agreement as specifically set
forth herein.

     

    NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:

     

    SECTION
1.    Definitions.  All
capitalized, undefined terms used in this Agreement (including, without
limitation, in the Statement of Purpose hereto) shall have the meanings assigned
thereto in the Credit Agreement.

     

    SECTION
2.    Amendments.  Subject
to and in accordance with the terms and conditions set forth herein, the
Administrative Agent and the Lenders hereby agree to amend the Credit Agreement
as follows:

     

    (a)           Section
2.1(a) of the Credit Agreement is hereby amended by inserting the following
language in lieu of the period at the end of the first sentence of such
Section:

     

    "provided, that for
purposes of this Section 2.1(a) and all other provisions of this Agreement and
each other Loan Document, (i) the Available Commitment of a Defaulting Lender
shall be deemed to be zero and (ii) at any time there is a Defaulting Lender,
the aggregate Commitments shall be reduced by an amount equal to such Defaulting
Lender's Available Commitment (calculated without giving effect to the
immediately preceding clause
(i))."

     

    (b)           Section
2.3 of the Credit Agreement is hereby amended by adding the following as a new
clause (c) to
such Section and re-lettering current clauses (c), (d) and
(e) accordingly:

     

    “(c)           At
any time a Lender is a Defaulting Lender, the Borrower may terminate in full the
Commitment of such Defaulting Lender by giving notice to such Defaulting Lender
and the Administrative Agent; provided, that, (i)
at the time of such termination, (A) no Default or Event of Default has occurred
and is continuing (or the Required Lenders consent to such termination) and (B)
either (x) no Loans are outstanding or (y) such Defaulting Lender's Percentage
in respect of outstanding Loans is zero; (ii) concurrently with such
termination, the aggregate Commitments of all Lenders shall be reduced by the
Commitment of the Defaulting Lender (it being understood that the Borrower may
not terminate the Commitment of a Defaulting Lender if, after giving effect to
such termination, the aggregate principal amount of Loans outstanding plus the aggregate
amount of LC Outstandings hereunder would exceed the aggregate Commitments of
all Lenders); and (iii) concurrently with any subsequent payment of interest or
fees to the Lenders with respect to any period before the termination of the
Commitment of such Defaulting Lender, the Borrower shall pay to such Defaulting
Lender its ratable share (based on its ratable share before giving effect to
such termination) of such interest or fees, as
applicable.  Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, the Borrower shall not be
obligated to pay any interest or fees to a Defaulting Lender that accrue after
the date that the Borrower terminates the Commitment of such Defaulting Lender
pursuant to and in accordance with the terms of this Agreement."

     

    SECTION
3.    Effectiveness.  The amendments
set forth in Section 2 of this Agreement shall be deemed to be effective upon
receipt by the Administrative Agent of (a) counterparts of this Agreement
executed by the Borrower and the Administrative Agent and (b) Lender
Authorizations executed by the Required Lenders pursuant to Section 11.1 of the
Credit Agreement.

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    SECTION
4.    Effect of
Agreement.  Except as expressly provided herein, the Credit
Agreement (as amended hereby) and the other Loan Documents shall remain in full
force and effect.  This Agreement shall not be deemed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document, (b) to prejudice
any right or rights which the Administrative Agent or the Lenders may now have
or may have in the future under or in connection with the Credit Agreement or
the other Loan Documents or any of the instruments or agreements referred to
therein, as the same may be amended, restated, supplemented or modified from
time to time, or (c) to be a commitment or any other undertaking or expression
of any willingness to engage in any further discussion with the Borrower, any of
its Subsidiaries or any other Person with respect to any waiver, amendment,
modification or any other change to the Credit Agreement or the Loan Documents
or any rights or remedies arising in favor of the Lenders or the Administrative
Agent, or any of them, under or with respect to any such
documents.  References in the Credit Agreement to “this Agreement”
(and indirect references such as “hereunder”, “hereby”, “herein”, “hereof” or
other words of like import) and in any Loan Document to the “Credit Agreement”
shall be deemed to be references to the Credit Agreement as modified
hereby.

    


    SECTION
5.    Representations and
Warranties.  (a) By its execution hereof, the Borrower
certifies that (i) each of the representations and warranties set forth in the
Credit Agreement and the other Loan Documents (both before and after giving
effect to this Agreement and the transactions contemplated hereby) is true and
correct as of the date hereof as if fully set forth herein, except for any
representation and warranty made as of an earlier date, which representation and
warranty shall remain true and correct as of such earlier date; and (ii) no
Default or Event of Default has occurred and is continuing as of the date hereof
both before and after giving effect to this Agreement and the transactions
contemplated hereby.

    


    (b)           By
its execution hereof, the Borrower hereby represents and warrants that it has
the right, power and authority and has taken all necessary corporate and company
action to authorize the execution, delivery and performance of this Agreement
and each other document executed in connection herewith to which it is a party
in accordance with their respective terms.

    


    (c)           By
its execution hereof, the Borrower hereby represents and warrants that this
Agreement and each other document executed in connection herewith has been duly
executed and delivered by its duly authorized officers, and each such document
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar.

    


    SECTION
6.    Costs, Expenses and
Taxes.  The Borrower agrees to pay in accordance with the terms
of the Credit Agreement all reasonable costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery, administration of
this Agreement and the other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Administrative Agent with respect thereto and with
respect to advising the Administrative Agent as to its rights and
responsibilities hereunder and thereunder.

     

    SECTION 7.    Execution in
Counterparts.  This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.  Delivery of an executed signature page of this Agreement
or Lender Authorization by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    


    SECTION 8.    Governing
Law.  This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.

     

    SECTION 9.    Fax
Transmission.  A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more parties hereto, and an executed
copy of this Agreement may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes.  At the request of any party hereto, all parties hereto
agree to execute an original of this Agreement as well as any facsimilie,
telecopy or other reproduction hereof.

     

    SECTION
10.    Entire
Agreement.  This Agreement is the entire agreement, and
supersedes any prior agreements and contemporaneous oral agreements, of the
parties concerning its subject matter.

     

    SECTION
11.    Successors and
Assigns.  This Agreement shall be binding on and inure to the
benefit of the parties and their heirs, beneficiaries, successors and permitted
assigns.

     

    [Signature
Pages Follow]

     

     

    
      
        
        

      

      
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    IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed under seal by their duly authorized
officers, all as of the day and year first written above.

    


    


                            SIERRA PACIFIC POWER
COMPANY d/b/a NV 

                            Energy, as
Borrower    

    


    


                            By:
______________________________________________

                         
Name:

                         
Title:

    


    


    


    


    


    
      
        
        

      

      
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                            WACHOVIA BANK,
NATIONAL ASSOCIATION,

                            as Administrative
Agent and Lender

     

    


    


                            By:   ____________________________________________                                                                        

                         
Name:

                         
Title:

    


    


    
      
        
        

      

      
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    Exhibit
A

    


    Form of Lender
Authorization

    


     

    
      
        
        

      

      
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    LENDER
AUTHORIZATION

    


    Sierra
Pacific Power Company d/b/a NV Energy

    Amended
and Restated Credit Agreement

    


    


    February
__, 2009

    


    


    Wachovia
Bank, National Association

    1525 West
W.T. Harris Blvd.

    Charlotte,
North Carolina 28262

    Attention:  Syndication Agency Services

     

    


    


    
      	
               
      

            	
              Re:

            	
              Third
      Amendment to Amended and Restated Credit Agreement dated as of November 4,
      2005 (as amended, the “Credit
      Agreement”) by and among
      Sierra Pacific Power Company d/b/a NV Energy (the “Borrower”), the
      several banks and other financial institutions or entities from time to
      time party thereto, as lenders (the “Lenders”), and
      Wachovia Bank, National Association, as administrative agent (the “Administrative
      Agent”) (the “Third
      Amendment”)

            


    

    


    


    This
Authorization acknowledges our receipt and review of the execution copy of the
Third Amendment in the form posted on Sierra Pacific Power Company SyndTrak
Online workspace.  By executing this Authorization, we hereby approve
the Third Amendment and authorize the Administrative Agent to execute and
deliver the Third Amendment on our behalf.

    


    Each
financial institution executing this Authorization agrees or reaffirms that it
shall be a party to the Credit Agreement and the other Loan Documents (as
defined in the Credit Agreement) to which Lenders are parties and shall have the
rights and obligations of a Lender (as defined in the Credit Agreement), and
agrees to be bound by the terms and provisions applicable to a
“Lender”, under each such agreement.  In furtherance of the
foregoing, each financial institution executing this Authorization agrees to
execute any additional documents reasonably requested by the Administrative
Agent to evidence such financial institution’s rights and obligations under the
Credit Agreement.

    


    


    
                                                                ______________________________________________

                                    [Insert name of
applicable financial institution]

     

    
 

                                    By:   __________________________________________                                                       

                                    Name:                      

                                    Title:                      

    


     

    
      
        
        

      

      
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