EXHIBIT 10.2


 


$250,000,000



CREDIT AGREEMENT



Dated as of March 23, 2012




among



SIERRA PACIFIC POWER COMPANY d/b/a


NV
ENERGY,

as Borrower



and



THE LENDERS PARTY HERETO

and



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swingline Lender and an Issuing Bank




WELLS FARGO SECURITIES, LLC,


J.P.
MORGAN SECURITIES LLC


and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED 


as Joint
Lead Arrangers and Joint Bookrunners


 




BANK OF AMERICA, N.A.


and


JPMORGAN
CHASE BANK, N.A.

each as a Syndication Agent



and



THE BANK OF NOVA SCOTIA


and


UNION
BANK, N.A.

each as a Documentation Agent


 


 
















 










 








 








Table of Contents


 


	
   

  	
  Page

  
	
  ARTICLE I.  DEFINITIONS AND ACCOUNTING
  TERMS

  	
  1

  
	
   

  	
  Section 1.1

  	
  Certain Defined Terms

  	
  1

  
	
   

  	
  Section 1.2

  	
  Computation of Time Periods;
  Construction

  	
  20

  
	
   

  	
  Section 1.3

  	
  Accounting Matters

  	
  21

  
	
   

  	
  Section 1.4

  	
  Letter of Credit Amounts

  	
  21

  
	
  ARTICLE II.  COMMITMENTS

  	
  21

  
	
   

  	
  Section 2.1

  	
  Commitments

  	
  21

  
	
   

  	
  Section 2.2

  	
  Fees

  	
  22

  
	
   

  	
  Section 2.3

  	
  Reduction of the Commitments

  	
  22

  
	
   

  	
  Section 2.4

  	
  Computations of Outstandings

  	
  23

  
	
   

  	
  Section 2.5

  	
  Optional Increase of the Commitments

  	
  23

  
	
  ARTICLE III.  LOANS

  	
  25

  
	
   

  	
  Section 3.1

  	
  Revolving Loans

  	
  25

  
	
   

  	
  Section 3.2

  	
  Conversion of Loans

  	
  26

  
	
   

  	
  Section 3.3

  	
  Interest Periods

  	
  26

  
	
   

  	
  Section 3.4

  	
  Other Terms Relating to the Making and
  Conversion of Loans

  	
  27

  
	
   

  	
  Section 3.5

  	
  Repayment of Loans; Interest

  	
  29

  
	
   

  	
  Section 3.6

  	
  Additional Interest on LIBOR Rate
  Loans

  	
  30

  
	
   

  	
  Section 3.7

  	
  Default Rate

  	
  30

  
	
   

  	
  Section 3.8

  	
  Swingline Loans

  	
  30

  
	
  ARTICLE IV.  LETTERS OF CREDIT

  	
  33

  
	
   

  	
  Section 4.1

  	
  The Letter of Credit Commitment

  	
  33

  
	
   

  	
  Section 4.2

  	
  Procedures for Issuance and Amendment
  of Letters of Credit;

  	
   

  
	
   

  	
   

  	
  Evergreen Letters of Credit

  	
  35

  
	
   

  	
  Section 4.3

  	
  Drawings and Reimbursements; Funding
  of Participants

  	
  36

  
	
   

  	
  Section 4.4

  	
  Repayment of Participations

  	
  38

  
	
   

  	
  Section 4.5

  	
  Obligations Absolute

  	
  38

  
	
   

  	
  Section 4.6

  	
  Role of Issuing Banks

  	
  39

  
	
   

  	
  Section 4.7

  	
  Applicability of ISP and UCP

  	
  39

  
	
   

  	
  Section 4.8

  	
  Letter of Credit Fees

  	
  40

  
	
   

  	
  Section 4.9

  	
  Fronting Fee and Processing Charges
  Payable to Issuing Banks

  	
  40

  
	
   

  	
  Section 4.10

  	
  Conflict with Issuing Bank Agreements

  	
  40

  
	
   

  	
  Section 4.11

  	
  Letters of Credit Issued for
  Subsidiaries

  	
  40

  
	
  ARTICLE V.  PAYMENTS, COMPUTATIONS AND
  YIELD PROTECTION

  	
  41

  
	
   

  	
  Section 5.1

  	
  Payments and Computations

  	
  41

  
	
   

  	
  Section 5.2

  	
  Interest Rate Determination 

  	
  42

  
	
   

  	
  Section 5.3

  	
  Prepayments

  	
  42

  
	
   

  	
  Section 5.4

  	
  Yield Protection

  	
  43

  
	
   

  	
  Section 5.5

  	
  Sharing of Payments, Etc.

  	
  45

  
	
   

  	
  Section 5.6

  	
  Taxes

  	
  45

  
	
  ARTICLE VI.  CONDITIONS PRECEDENT

  	
  48

  
	
   

  	
  Section 6.1

  	
  Conditions Precedent to Effectiveness
  of this Agreement

  	
  48

  
	
   

  	
  Section 6.2

  	
  Conditions Precedent to Each Extension
  of Credit

  	
  50

  
	
   

  	
  Section 6.4

  	
  Reliance on Certificates

  	
  50

  
	
  ARTICLE VII.  REPRESENTATIONS AND
  WARRANTIES

  	
  51

  
	
   

  	
  Section 7.1

  	
  Representations and Warranties of the
  Borrower

  	
  51

  
	
  ARTICLE VIII.  COVENANTS OF THE
  BORROWER

  	
  57

  
	
   

  	
  Section 8.1

  	
  Affirmative Covenants

  	
  57

  
	
   

  	
  Section 8.2

  	
  Negative Covenants

  	
  61

  
	
   

  	
  Section 8.3

  	
  Financial Covenant

  	
  67

  
	
  ARTICLE IX.  DEFAULTS

  	
  68

  




 












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  Page

  
	
   

  	
  Section 9.1

  	
  Events of Default

  	
  68

  
	
   

  	
  Section 9.2

  	
  Remedies

  	
  70

  
	
   

  	
  Section 9.3

  	
  Rights and Remedies Cumulative;
  Non-Waiver; etc.

  	
  71

  
	
   

  	
  Section 9.4

  	
  Crediting of Payments and Proceeds

  	
  71

  
	
   

  	
  Section 9.5 

  	
  Administrative Agent May File Proofs
  of Claim

  	
  72

  
	
  ARTICLE X.  THE ADMINISTRATIVE AGENT

  	
  73

  
	
   

  	
  Section 10.1

  	
  Appointment and Authority

  	
  73

  
	
   

  	
  Section 10.2

  	
  Rights as a Lender

  	
  73

  
	
   

  	
  Section 10.3

  	
  Exculpatory Provisions

  	
  73

  
	
   

  	
  Section 10.4

  	
  Reliance by the Administrative Agent

  	
  74

  
	
   

  	
  Section 10.5

  	
  Delegation of Duties

  	
  74

  
	
   

  	
  Section 10.6

  	
  Resignation of Administrative Agent

  	
  74

  
	
   

  	
  Section 10.7

  	
  Non-Reliance on Administrative Agent
  and Other Lenders

  	
  75

  
	
   

  	
  Section 10.8

  	
  No Other Duties, etc.

  	
  76

  
	
   

  	
  Section 10.9

  	
  Collateral and Guaranty Matters

  	
  76

  
	
  ARTICLE XI.  MISCELLANEOUS

  	
  76

  
	
   

  	
  Section 11.1

  	
  Amendments, Etc.

  	
  76

  
	
   

  	
  Section 11.2

  	
  Notices, Etc.

  	
  77

  
	
   

  	
  Section 11.3

  	
  No Waiver of Remedies

  	
  77

  
	
   

  	
  Section 11.4

  	
  Costs, Expenses and Indemnification

  	
  78

  
	
   

  	
  Section 11.5

  	
  Right of Set-Off; Payments Set Aside

  	
  79

  
	
   

  	
  Section 11.6

  	
  Binding Effect

  	
  80

  
	
   

  	
  Section 11.7

  	
  Successors and Assigns; Participations

  	
  80

  
	
   

  	
  Section 11.8

  	
  Confidentiality

  	
  84

  
	
   

  	
  Section 11.9

  	
  Waiver of Jury Trial

  	
  85

  
	
   

  	
  Section 11.10

  	
  Governing Law; Submission to
  Jurisdiction

  	
  85

  
	
   

  	
  Section 11.11

  	
  Relation of the Parties; No
  Beneficiary

  	
  85

  
	
   

  	
  Section 11.12

  	
  Execution in Counterparts

  	
  86

  
	
   

  	
  Section 11.13

  	
  Survival of Agreement

  	
  86

  
	
   

  	
  Section 11.14

  	
  Survival of Indemnities

  	
  86

  
	
   

  	
  Section 11.15

  	
  Patriot Act Notice

  	
  86

  
	
   

  	
  Section 11.16

  	
  Severability

  	
  86

  
	
   

  	
  Section 11.17

  	
  Electronic Execution of Assignments
  and Certain Other Documents

  	
  86

  
	
   

  	
  Section 11.18

  	
  Defaulting Lenders

  	
  87

  
	
   

  	
  Section 11.19

  	
  Cash Collateral

  	
  89

  
	
   

  	
  Section 11.20

  	
  Press Releases and Related Matters

  	
  89

  




 












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  Exhibits

  	
   

  
	
   

  	
   

  
	
   

  	
  EXHIBIT A-1

  	
  Form of Revolving Note

  	
   

  
	
   

  	
  EXHIBIT A-2

  	
  Form of Swingline Note 

  	
   

  
	
   

  	
  EXHIBIT A-3

  	
  Form of Notice of Revolving Borrowing

  	
   

  
	
   

  	
  EXHIBIT A-4

  	
  Form of Notice of Swingline Borrowing

  	
   

  
	
   

  	
  EXHIBIT B

  	
  Form of Notice of Conversion

  	
   

  
	
   

  	
  EXHIBIT C

  	
  Form of Assignment and Assumption

  	
   

  
	
   

  	
  EXHIBIT D

  	
  Form of Officer’s Certificate

  	
   

  
	
   

  	
  EXHIBIT E

  	
  Form of Secretary’s Certificate

  	
   

  
	
   

  	
  EXHIBIT F

  	
  Form of Mark-to-Market Exposure
  Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  
	
   

  	
   

  
	
   

  	
  SCHEDULE 1.1(A)

  	
  Existing Letters of Credit

  	
   

  
	
   

  	
  SCHEDULE 1.1(B)

  	
  Commitments and Percentages

  	
   

  
	
   

  	
  SCHEDULE 7.1(c)

  	
  Legal Name, Etc.

  	
   

  
	
   

  	
  SCHEDULE 7.1(d)

  	
  Consents, Authorizations, Filings and
  Notices

  	
   

  
	
   

  	
  SCHEDULE 7.1(f)

  	
  Material Litigation

  	
   

  
	
   

  	
  SCHEDULE 7.1(p)

  	
  Subsidiaries

  	
   

  
	
   

  	
  SCHEDULE 8.1(d)

  	
  Contractual Obligations; Compliance
  with Law

  	
   

  
	
   

  	
  SCHEDULE 8.2(b)(vi)

  	
  Existing Liens

  	
   

  
	
   

  	
  SCHEDULE 8.2(g)

  	
  Affiliate Transactions

  	
   

  
	
   

  	
  SCHEDULE 11.2

  	
  Certain Addresses for Notices;
  Applicable Lending Offices

  	
   

  


















iii




 










 








 








 


THIS
CREDIT AGREEMENT, dated as of March
23, 2012 is made by and among:


 


(i)             Sierra
Pacific Power Company d/b/a NV Energy, a Nevada corporation (the “Borrower”), 


 


(ii)           the banks and
other financial institutions listed on the signature pages of this Agreement
and the other Lenders (as hereinafter defined) and Issuing Banks (as
hereinafter defined) from time to time party hereto, and


 


(iii)          Wells Fargo
Bank, National Association, as administrative agent (in such capacity, together
with its successors and assigns in such capacity, the “Administrative Agent”)
for the Lenders hereunder, as Swingline Lender and as an Issuing Bank.


 


PRELIMINARY STATEMENTS


The Borrower has requested
that the Lenders provide credit facilities for the purposes set forth herein,
and the Lenders are willing to do so on the terms and conditions set forth
herein.


 


NOW THEREFORE, in consideration of the premises and
mutual covenants herein contained, the parties hereto covenant and agree as
follows:


 


ARTICLE I.



DEFINITIONS
AND ACCOUNTING TERMS


 


Section 1.1           
Certain
Defined Terms. 
As used in this Agreement, the following
terms shall have the following meanings:


 


“Acquired
Debt” means, with respect to any specified Person, (a) Indebtedness of any
other Person existing at the time such other Person is merged with or into or
became a Subsidiary of such specified Person, whether or not such Indebtedness
is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified Person and
(b) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.


 


“Administrative
Agent” has the meaning assigned to that term in the preamble hereto.


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account, as set forth on Schedule 11.2 or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.


 


“Administrative
Questionnaire” means an administrative questionnaire in a form supplied by
the Administrative Agent.


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. 
For purposes of this definition, “control” of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.












1




 










 








 








 


 


“Aggregate
Negative Mark-to-Market Exposure” means, as of any date of determination,
an amount equal to the sum of the Negative Mark-to-Market Exposure existing on
such date of determination under each Hedge Agreement without giving effect to
any netting other than netting as between two or more Hedge Agreements each by
and between the Borrower or any Subsidiary, on the one hand, and the same legal
entity (or any Affiliate thereof), on the other hand, that is contractually
available to the Borrower or such Subsidiary.


 


“Agreement”
means this Credit Agreement, as amended, modified, restated, supplemented or
replaced from time to time in accordance with the terms hereof.


 


“Applicable
Lending Office” means, with respect to each Lender, (a) such Lender’s
Domestic Lending Office, in the case of a Base Rate Loan, and (b) such Lender’s
Eurodollar Lending Office, in the case of a LIBOR Rate Loan.


 


“Applicable Margin” means, with respect to
Loans, Letters of Credit and the Commitment Fee, the corresponding percentages
per annum as set forth below based on the applicable Secured Debt Ratings:


 




	
   Level

   	
   Secured
   Debt Rating

   	
   Applicable
   LIBOR Rate and LIBOR Market Index Rate Margin

   	
   Applicable
   Base Rate Margin

   	
   Commitment
   Fee

   	
   Letter
   of Credit Fee

   
	
  I

  	
  A- or higher from
  S&P/A3 or higher from Moody’s

  	
  1.125%

  	
  0.125%

  	
  0.125%

  	
  1.125%

  
	
  II

  	
  BBB+ from
  S&P/Baa1 from Moody’s

  	
  1.25%

  	
  0.25%

  	
  0.175%

  	
  1.25%

  
	
  III

  	
  BBB from S&P/Baa2
  from Moody’s

  	
  1.50%

  	
  0.50%

  	
  0.225%

  	
  1.50%

  
	
  IV

  	
  BBB- from
  S&P/Baa3 from Moody’s

  	
  1.75%

  	
  0.75%

  	
  0.275%

  	
  1.75%

  
	
  V

  	
  BB+ or lower from
  S&P/Ba1 or lower from Moody’s/unrated by S&P and Moody’s

  	
  2.00%

  	
  1.00%

  	
  0.325%

  	
  2.00%

  






 


In all cases in
determining the Applicable Margin, the Commitment Fee and the Letter of Credit
Fee, if the Secured Debt Ratings established by the Rating Agencies shall fall
within different levels, the applicable Secured Debt Rating shall be based on
the higher of the two applicable Secured Debt Ratings unless one of the two
applicable Secured Debt Ratings is two or more levels lower than the other, in
which case the applicable Secured Debt Rating shall be determined by reference
to the level one lower than the higher of the two applicable Secured Debt
Ratings.  The Applicable Margins, Commitment Fee and Letter of Credit Fee shall
be increased or decreased in accordance with this definition upon any change in
the applicable Secured Debt Rating, and such increased or decreased Applicable
Margins, Commitment Fee and Letter of Credit Fee shall be effective from the
date of announcement of any such new Secured Debt Rating until the next such
change.  The Borrower agrees to notify the Administrative Agent promptly after
each change in any Secured Debt Rating.  If the rating system of any Rating
Agency shall change, or if any such Rating Agency shall cease to be in the
business of rating corporate debt obligations, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to reflect 


 












2




 










 








 








 


 


such changed rating
system or the non-availability of Secured Debt Ratings from such Rating Agency
and, pending the effectiveness of any such amendment, the Applicable Margin,
the Commitment Fee and the Letter of Credit Fee shall be determined by reference
to the Secured Debt Rating most recently in effect prior to such change or
cessation.


 


“Applicable Rate” means:


 


(a)               
in the case of each Base Rate
Loan, a rate per annum equal at all times to the sum of the Base Rate in effect
from time to time plus the Applicable Margin in effect from time to time; 


 


(b)               
in the case of each LIBOR
Rate Loan comprising part of the same Borrowing, a rate per annum during each
Interest Period equal at all times to the sum of the LIBOR Rate for such
Interest Period plus the Applicable Margin in effect from time to time during
such Interest Period; and


 


(c)               
in the case of each LIBOR
Market Index Rate Loan, a rate per annum equal at all times to the sum of the
LIBOR Market Index Rate in effect from time to time plus the Applicable Margin
in effect from time to time.


 


“Approved
Fund” means any Person (other than a natural Person), including, without
limitation, any special purpose entity, that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business; provided,
that such Approved Fund must be administered, managed or underwritten by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.


 


 “Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 11.7), and accepted by the Administrative Agent, in
substantially the form of Exhibit C or any other form approved by the
Administrative Agent.


 


“Bank
of America” means Bank of America, N.A., a national banking association.


 


“Base
Rate” means, at any time, the highest of (a) the Prime Rate, (b) the
Federal Funds Rate plus  1/2 of 1% and (c) the LIBOR Base Rate plus 
1.0%.  Any change in the Base Rate due to a change in any of the foregoing will
become effective on the effective date of such change in the Federal Funds
Rate, the Prime Rate or the LIBOR Base Rate.


 


“Base
Rate Loan” means any Loan bearing interest at a rate based upon the Base
Rate as provided in Section 3.5(b)(i). 


 


“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America (or any successor).


 


“Board
of Directors” means (a) with respect to a corporation, the board of
directors of the corporation, (b) with respect to a partnership, the Board of
Directors of the general partner of the partnership and (c) with respect to any
other Person, the board or committee of such Person serving a similar function.












3




 










 








 








 


“Borrower”
has the meaning assigned to that term in the preamble hereto, subject to Section
8.2(c)(iv). 


 


“Borrower Materials” has the meaning assigned
to that term in Section 8.1(g). 


 


“Borrowing”
means a borrowing consisting of Loans of the same Type and in the case of LIBOR
Rate Loans, having the same Interest Period, and made or Converted on the same
day by the Lenders, ratably in accordance with their respective Percentages. 
Any Borrowing consisting of Loans of a particular Type may be referred to as
being a Borrowing of such “Type”.  All Loans of the same Type and, in
the case of LIBOR Rate Loans, having the same Interest Period and made or
Converted on the same day shall be deemed a single Borrowing hereunder until
repaid or next Converted.


 


“Borrowing
Limit” means, as of any date of determination, the lesser of (a) the
Commitments and (b) an amount equal to (i) the Commitments minus  (ii)
Aggregate Negative Mark-to-Market Exposure as of the last day of the calendar
month most recently ended as set forth in the certificate of a Responsible Officer
of the Borrower delivered pursuant to Section 8.1(b)(iii); provided,
that, (i) in no event shall the amount calculated in clause (b) above be
less than 50% of the Commitments then in effect and (ii) with respect to the
determination of the Borrowing Limit on the Closing Date, Aggregate Negative
Mark-to-Market Exposure, if any, shall be as set forth in the certificate of a
Responsible Officer of the Borrower delivered pursuant to Section 6.1(i). 
For the avoidance of doubt, the Borrowing Limit shall be re-calculated as of
each calendar month. 


 


“Business
Day” means (a) for all purposes other than as covered by clause (b) below,
a day other than a Saturday, Sunday or other day on which commercial banks in
New York, New York, Charlotte, North Carolina or Dallas, Texas are authorized
or required by law to close and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
LIBOR Rate Loans, any day which is a Business Day described in clause (a) and
which is also a day for trading by and between banks in Dollar deposits in the
interbank eurodollar market.


 


“Capital
Lease Obligations” means, with respect to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
for the purposes of this Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time determined in accordance
with GAAP.


 


“Capital
Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.


 


“Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, an Issuing
Bank, the Swingline Lender (as applicable) and the Lenders, as collateral for
LC Obligations, Obligations in respect of Swingline Loans or obligations of
Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if an Issuing Bank or Swingline
Lender benefitting from such collateral shall agree in its sole discretion,
other credit support, in each case pursuant to documentation in form and
substance satisfactory to (a) the Administrative Agent and (b) an Issuing Bank
or the Swingline Lender (as applicable).  “Cash Collateral” shall have a
meaning correlative to the foregoing and shall include the proceeds of such
cash collateral and other credit support.












4




 










 








 








 


“Cash
Equivalents” means (a) United States dollars, (b) securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality of the United States government (provided  that
the full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than one year from the date of
acquisition, (c) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any commercial bank having capital and surplus in
excess of $500,000,000 and a Thomson Bank Watch Rating of “B” or better, (d)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) above entered into
with any financial institution meeting the qualifications specified in clause
(c) above, (e) commercial paper having the highest rating obtainable from
Moody’s or S&P and in each case maturing within 270 days after the date of
acquisition and (f) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (a) through (e)
of this definition.


 


“Change
in Law” means the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule,
guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the
contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and
all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (ii) all requests, rules, guidelines or directives promulgated by
the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or
foreign regulatory authorities, in each case pursuant to Basel III, shall in
each case be deemed to be a “Change in Law”, regardless of the date enacted,
adopted or issued. 


 


“Change
of Control” means the occurrence of any of the following events:  (a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) shall
become, or obtain rights (whether by means or warrants, options or otherwise)
to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of more than 20% of the
outstanding common stock of NV Energy, Inc.; or (b) NV Energy, Inc. shall cease
to own and control, of record and beneficially, directly, 100% of each class of
outstanding Capital Stock of the Borrower (other than non-voting preferred
Capital Stock of the Borrower in an amount not to exceed 10% of all Capital
Stock of the Borrower; provided that such preferred Capital Stock may become
voting upon an event of default with respect to such preferred stock) free and
clear of all Liens.


 


“Closing
Date” means the date of this Agreement.


 


“Code”
means the Internal Revenue Code of 1986, and the rules and regulations
thereunder, each as amended or modified from time to time.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Revolving Loans to the
Borrower pursuant to Section 2.1, (b) purchase participations in LC
Obligations and (c) purchase participations in Swingline Loans, in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 1.1(B) or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.


 


“Commitment
Fee” has the meaning assigned to that term in Section 2.2(a). 












5




 










 








 








 


“Commitments”
mean the Commitments of all the Lenders.  The aggregate principal amount of all
the Commitments in effect on the Closing Date is TWO HUNDRED FIFTY MILLION
DOLLARS ($250,000,000).


 


“Commonly
Controlled Entity” means an entity, whether or not incorporated, that is
under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group that includes the Borrower and that is treated as a
single employer under Section 414 of the Code.


 


“Consolidated”
means, when used with reference to financial statements or financial statement
items of any Person, such statements or items on a consolidated basis in
accordance with applicable principles of consolidation under GAAP.


 


“Consolidated
Assets” means, at any date of
determination, the total amount of consolidated assets of the Borrower and its
Subsidiaries, as determined in accordance with GAAP. 


 


“Consolidated
Capital” means, at any date of determination, the sum of (a) Consolidated
Indebtedness plus  (b) Consolidated equity of the common stockholders of
the Borrower and its Subsidiaries plus  (c) trust-originated or
partnership-originated preferred securities of the Borrower and its
Consolidated Subsidiaries plus  (d) Consolidated equity of the preference
stockholders of the Borrower and its Subsidiaries plus  (e) Consolidated
equity of the preferred stockholders of the Borrower and its Subsidiaries,
calculated as of such date, in the case of clauses (b) through (e) above, in
accordance with GAAP.


 


“Consolidated
Indebtedness” means, at any date of determination, without duplication, the
aggregate Indebtedness of the Borrower and its Consolidated Subsidiaries; provided,
however, that Consolidated Indebtedness shall not include junior subordinated
debentures issued by the Borrower in connection with the issuance of (a)
preferred trust securities or trust-issued preferred securities by any Trust
Preferred Vehicle and (b) other similar trust-originated preferred securities
by any Subsidiary of the Borrower; provided, that  (i) the issuer
of such preferred securities lends substantially all of the proceeds from such
issuance to the Borrower in exchange for such junior subordinated debentures
and (ii) substantially all of the assets of such issuer consist solely of such
junior subordinated debentures and payments made from time to time in respect
thereof.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its Property is bound.


 


“Conversion”,
“Convert” or “Converted” refers to a conversion of Loans of one
Type into Loans of another Type, or to the selection of a new, or the
continuation of the same, Interest Period for Loans, as the case may be,
pursuant to Section 3.2. 


 


“Debt
Ratings Trigger” means the date which the Borrower shall have obtained a
Secured Debt Rating of (a) BBB- or higher from S&P and (b) Baa3 or higher
from Moody’s, in each case with a stable or better outlook.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.












6




 










 








 








 


“Default”
means any of the events specified in Section 9.1, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.


 


“Defaulting
Lender” means, subject to Section 11.18(b), any Lender that (a) has
failed to (i) fund all or any portion of the Loans or participations in respect
of Letters of Credit or Swingline Loans required to be funded by it hereunder
within two Business Days of the date such Loans or participations were required
to be funded hereunder unless such Lender notifies the Administrative Agent and
the Borrower in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which
conditions precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied, or (ii) pay to
the Administrative Agent, an Issuing Bank, the Swingline Lender or any other
Lender any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit or Swingline Loans) within
two Business Days of the date when due, (b) has notified the Borrower,the
Administrative Agent, an Issuing Bank or the Swingline Lender in writing that
it does not intend to comply with its funding obligations hereunder or has made
a public statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder and states that
such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement)
cannot be satisfied, (c) has failed, within three Business Days after written
request by the Administrative Agent or the Borrower, to confirm in writing to
the Administrative Agent that it will comply with its prospective funding
obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by
the Administrative Agent and the Borrower), or (d) has, or has a direct or
indirect parent company that has, (i) become the subject of a proceeding under
any Debtor Relief Law or (ii) had appointed for it a
receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a
capacity; provided that a Lender shall not be a Defaulting Lender solely by
virtue of the ownership or acquisition of any equity interest in that Lender or
any direct or indirect parent company thereof by a Governmental Authority so
long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender.  Any determination
by the Administrative Agent that a Lender is a Defaulting Lender under clauses
(a) through (d) above shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section
11.18(b)) upon delivery of written notice of such determination to the
Borrower, the Issuing Banks, the Swingline Lender and each Lender.


 


 “Disposition”
means, with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose”
and “Disposed of” shall have correlative meanings.


 


“Dollars”
and the sign “$” each means lawful money of the United States.


 


“Domestic
Lending Office” means, with respect to any Lender, the office of such
Lender or Affiliate of such Lender specified as its “Domestic Lending Office”
opposite its name on Schedule 11.2 hereto or in the Assignment and
Assumption pursuant to which it became a Lender, or such other office of such
Lender or Affiliate of such Lender as such Lender may from time to time specify
in writing to the Borrower and the Administrative Agent.


 


“Eligible
Assignee” means any Person that meets the requirements to be an assignee
under Sections 11.7(b)(iii), (v), (vi)  and (vii) 
(subject to such consents, if any, as may be required under Section
11.7(b)(iii)). 












7




 










 








 








 


“Environmental
Laws” means any and all laws, rules, orders, regulations, statutes,
ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international
authority, foreign government, the United States, or any state, local,
municipal or other governmental authority, regulating, relating to or imposing
liability or standards of conduct concerning protection of the environment or
of human health, or employee health and safety, as has been, is now, or may at
any time hereafter be, in effect.  For the avoidance of doubt, the Nevada
Renewable Energy Portfolio Standard shall not constitute an Environmental Law.


 


“Environmental
Liability” means, with respect to any Person, any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of such Person or any of its
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Materials of Environmental Concern, (c)
exposure to any Materials of Environmental Concern, (d) the release or
threatened release of any Materials of Environmental Concern into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.


 


“Environmental
Permits” means any and all permits, licenses, approvals, registrations,
notifications, exemptions and other authorizations required under any
Environmental Law.


 


“Equity
Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the
Board, as in effect from time to time.


   


“Eurodollar
Lending Office” means, with respect to any Lender, the office of such
Lender or Affiliate of such Lender specified as its “Eurodollar Lending Office”
opposite its name on Schedule 11.2 hereto or in the Assignment and
Assumption pursuant to which it became a Lender (or, if no such office or
Affiliate is specified, its Domestic Lending Office), or such other office of
such Lender or Affiliate of such Lender as such Lender may from time to time
specify in writing to the Borrower and the Administrative Agent.


  


“Eurodollar
Reserve Percentage” means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%)
which is in effect for such day as prescribed by the Board of Governors of the
Federal Reserve system (or any successor) for determining the maximum reserve
requirement (including, without limitation, any basic, supplemental or
emergency reserves) in respect of eurocurrency liabilities or any similar
category of liabilities for a member bank of the Federal Reserve System in New
York City. 


 


“Event
of Default” means any of the events specified in Section 9.1, provided 
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.


 


“Evergreen
Letter of Credit” means any Letter of Credit that, by its terms, provides
that it shall be automatically renewed or extended for a stated period of time
at the end of its then scheduled expiration date unless the applicable Issuing
Bank notifies the beneficiary thereof prior to such expiration date that such
Issuing Bank elects not to renew or extend such Letter of Credit.


 


“Excess
Net Proceeds” has the meaning set forth in Section 8.2(d). 


 


“Existing
Letters of Credit” means each of the letters of credit set forth on Schedule
1.1(A). 


 


“Existing
SPPC Credit Agreement” means that certain Credit Agreement dated as of
April 28, 2010 by and among Sierra Pacific Power Company, as the borrower, Bank
of America, N.A. as the 


 












8




 










 








 








administrative agent, an issuing bank and a lender and the other lenders
from time to time party thereto, as amended or otherwise modified from time to
time.


 


“Extension
of Credit” means, as to any Lender at any time, (a) an amount equal to the
sum of (i) the Outstanding Amount of all Revolving Loans made by such Lender plus 
(ii) such Lender’s Percentage of the Outstanding Amount of all LC Obligations plus 
(iii) such Lender’s Percentage of the Outstanding Amount of all Swingline Loans
or (b) the making of any Loan by such Lender or the issuance, extension or
renewal of, or participation in, a Letter of Credit by such Lender.


 


“Federal
Funds Rate” means, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day (or, if such day
is not a Business Day, for the immediately preceding Business Day), as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.  


 


“Fee
Letters” means (a) that certain letter agreement, dated February 24, 2012,
among the Borrower, NPC, Wells Fargo Bank and WFS, as amended from time to
time, (b) that certain letter agreement, dated February 24, 2012, among the
Borrower, NPC, Bank of America and MLPFS, as amended from time to time and (c)
that certain letter agreement, dated as of February 24, 2012, among the
Borrower, NPC, JPMorgan and JPM Securities, as amended from time to time.


 


 “Foreign
Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located.  For purposes of this
definition, the United States of America, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.


 


“Fronting
Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to an Issuing Bank, such Defaulting Lender’s Percentage of the outstanding LC
Obligations other than LC Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to the
Swingline Lender, such Defaulting Lender’s Percentage of Swingline Loans other
than Swingline Loans as to which such Defaulting Lender’s participation obligation
has been reallocated to other Lenders or Cash Collateralized in accordance with
the terms hereof.


 


“GAAP”
means generally accepted accounting principles in the United States of America
as in effect from time to time.


 


“General
and Refunding Mortgage Bonds” means, collectively, (a) the Borrower’s
General and Refunding Mortgage Bonds, Series R, due on the Maturity Date,
issued as of the Closing Date to the Administrative Agent under the General and
Refunding Mortgage Indenture and any supplemental indenture or Officer’s
Certificate related thereto, in the aggregate principal amount of $250,000,000,
and (b) any additional General and Refunding Mortgage Bonds issued by the
Borrower to the Administrative Agent under the General and Refunding Mortgage
Indenture and any supplemental indentures or Officer’s Certificate related
thereto in connection with any increase in the Commitments pursuant to Section
2.5, in each case as collateral securing the Obligations.


 


“General
and Refunding Mortgage Indenture” means the General and Refunding Mortgage
Indenture, dated as of May 1, 2001, between the Borrower and The Bank of New
York Mellon Trust Company, N.A. (successor to The Bank of New York Mellon), as
trustee, as the same may be amended, modified or supplemented from time to
time.


 


“Governmental
Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, bureau, instrumentality, regulatory body, court, tribunal,
central bank or other entity exercising executive, 












9




 










 








 








legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government, including any supra-national bodies
such as the European Union or the European Central Bank) and any group or body
charged with setting financial accounting or regulatory capital rules or
standards (including, without limitation, the Financial Accounting Standards
Board, the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing).


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner, including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.


 


“Hedge
Agreements” means, with respect to any Person, the collective reference to
any of the following: (a) interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and any other agreements designed
to protect such Person against fluctuations in interest rates with respect to
Indebtedness incurred and not for purposes of speculation, (b) foreign exchange
contracts and currency protection agreements entered into with one of more
financial institutions designed to protect such Person against fluctuations in
currency exchange rates with respect to Indebtedness incurred and not for
purposes of speculation, (c) any commodity futures contract, commodity option
or other similar agreement or arrangement designed to protect against
fluctuations in the price of commodities used by such Person at the time and
(d) other agreements or arrangements designed to protect such Person against
fluctuations in interest rates or currency exchange rates.  The term “Hedge
Agreements”, for the avoidance of doubt, shall exclude any forward energy
purchase or sale contracts or similar arrangements entered into by the Borrower
or its Subsidiaries.


 


“Hedging
Obligations” means, with respect to any Person, all existing or future
payment and other obligations owing by such Person under any Hedge Agreement
(which such Hedge Agreement is permitted hereunder) with any Person that (i) is
a current Lender or Affiliate of any current Lender or (ii) was a Lender or an
Affiliate of any Lender at the time such Hedge Agreement was executed.


 


 “Honor
Date” has the meaning assigned to that term in Section 4.3(a). 


 


“Indebtedness”
means, with respect to any Person, any indebtedness of such Person, whether or
not contingent (a) in respect of borrowed money, (b) evidenced by notes, bonds,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof), (c) in respect of banker’s acceptances, (d)
representing Capital Lease Obligations, (e) representing the balance deferred
and unpaid of the purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable arising in the ordinary course
of business that is (i) less than $1,000,000 or (ii) not more than one hundred
twenty (120) days past due or (f) representing any Net Hedging Obligations, if
and to the extent any of the preceding items (other than letters of credit and
Net Hedging Obligations) would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP.  In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of such
Person (whether or not such Indebtedness is assumed by such Person) and, to the
extent not otherwise included, the Guarantee by such Person of any indebtedness
of any other Person.  The amount of any Indebtedness outstanding as of any date
will be (x) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount, and (y) the principal amount
of the Indebtedness, together with any interest on the Indebtedness that is
more than 30 days past due, in the case of any other Indebtedness.


 


“Indemnitee”
has the meaning assigned to that term in Section 11.4(b). 


 


“Ineligible
Lender” means any Person other than (a) a Lender or an Affiliate thereof,
(b) an Approved Fund or (c) any U.S. or foreign bank that accepts deposits in
the ordinary course of business.












10




 










 








 








 


 


 “Information”
has the meaning assigned to that term in Section 11.8. 


 


“Insolvency”
means, with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA; and the term “Insolvent”
shall have a correlative meaning (pertaining to a condition of Insolvency).


 


“Intellectual
Property” means the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including, without
limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.


 


“Interest
Period” has the meaning assigned to that term in Section 3.3. 


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), or purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP.  If the Borrower or any Subsidiary of
the Borrower sells or otherwise disposes of any Equity Interests of any direct
or indirect Subsidiary of the Borrower such that, after giving effect to any
such sale or disposition, such Person is no longer a Subsidiary of the
Borrower, the Borrower will be deemed to have made an Investment on the date of
any such sale or disposition.  The acquisition by the Borrower or any
Subsidiary of the Borrower of a Person that holds an Investment in a third
Person will be deemed to be an Investment by the Borrower or such Subsidiary in
such third Person.


 


“ISP98”
means the International Standby Practices (1998 Revision, effective January 1,
1999), International Chamber of Commerce Publication No. 590 (or such later
version thereof as may be in effect at the time of issuance of any Letter of
Credit.


 


“Issuing
Banks” means, collectively, Wells Fargo Bank, Bank of America and JPMorgan,
in their respective capacities as issuers of Letters of Credit under this
Agreement (or any successors thereto) and “Issuing Bank” means any one
of them.  Notwithstanding the foregoing, Bank of America shall be the Issuing
Bank with respect to the Existing Letters of Credit, as more specifically set
forth on Schedule 1.1(A). 


 


“Issuing Bank Agreement” means, with respect to any Letter of Credit, the
collective reference to (a) an agreement between an Issuing Bank and the
Borrower, providing for the issuance of one or more Letters of Credit, in
support of (i) the Borrower’s obligations owing to gas, electric power or other
energy suppliers or (ii) other general corporate activities of the Borrower and
(b) any other document, agreement and instrument entered into by such Issuing
Bank and the Borrower (or any Subsidiary) or in favor of such Issuing Bank and
relating to any such Letter of Credit.  In the event of any conflict between
the terms of this Agreement and the terms of any Issuing Bank Agreement, the
terms of this Agreement shall control and such conflicting terms under such
Issuing Bank Agreement shall be of no force or effect.


 


“Joint
Lead Arrangers” means the collective
reference to Wells Fargo Securities, JPM Securities and MLPFS in their
respective capacities as joint lead arrangers and joint bookrunners.


 


“JPMorgan”
means JPMorgan Chase Bank, N.A.


 


“JPM
Securities” means J.P. Morgan Securities LLC.


 


“LC
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any LC Borrowing in accordance with its Percentage.












11




 










 








 








 


 


“LC
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing of Revolving Loans.


 


“LC
Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


 


“LC
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus  the
aggregate of all Unreimbursed Amounts, including all LC Borrowings.  For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.4.  For all purposes
of this Agreement, if on any date of determination a Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP98, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn. 


 


“Lenders”
means the banks and other financial institutions listed on the signature pages
hereof as lenders (including, without limitation, any Issuing Bank), each
Eligible Assignee that shall become a party hereto pursuant to Section 11.7
and, as the context requires, the Swingline Lender.


 


“Letter
of Credit” means (a) any letter of credit issued hereunder and (b) any
Existing Letter of Credit.  A Letter of Credit may be a commercial or direct
pay letter of credit or a standby letter of credit.


 


“Letter
of Credit Application” means an application and agreement for the issuance
or amendment of a letter of credit in the form from time to time in use by the
applicable Issuing Bank.


 


“Letter
of Credit Expiration Date” means with respect to any Letter of Credit the
earlier of (a) one (1) year after the date of issuance of such Letter of Credit
and (b) five (5) Business Days prior to the Maturity Date.


 


“Letter
of Credit Fee” has the meaning assigned to that term in Section 4.8. 


 


“Letter
of Credit Sublimit” means, as of any date of determination, the lesser of
(a) ONE HUNDRED MILLION DOLLARS ($100,000,000) and (b) the Commitments.  The
Letter of Credit Sublimit is part of, and not in addition to, the Commitments.


 


“LIBOR Base Rate” means:


 


(a)               
for any Interest Period with
respect to a LIBOR Rate Loan, the rate of interest per annum determined on the
basis of the rate for deposits in Dollars in minimum amounts of at least
$5,000,000 for a period equal to the applicable Interest Period, as published
by Reuters at approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest 1/100th of 1%).  If, for any reason, such rate is not
available, then the “LIBOR Base Rate” shall be determined by the Administrative
Agent to be the arithmetic average of the rate per annum at which deposits in
Dollars in minimum amounts of at least $5,000,000 would be offered by first
class banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest
Period.  Each calculation by the Administrative Agent of the LIBOR Base Rate
shall be conclusive and binding for all purposes, absent manifest error; and


 


(b)               
for any interest rate
calculation with respect to a Base Rate Loan, the rate of interest per annum
determined on the basis of the rate for deposits in Dollars in minimum amounts
of at least $5,000,000 for a term of one month commencing that day, as
published by Reuters at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the date of determination (rounded upward, if necessary, to the
nearest 1/100th of 1%).  If, for any reason, such rate is not available, then
the “LIBOR Base Rate” shall be determined by the 












12




 










 








 








Administrative
Agent to be the arithmetic average of the rate per annum at which deposits in
Dollars in minimum amounts of at least $5,000,000 would be offered by first
class banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) on the date of determination for a term
equal to one month.  Each calculation by the Administrative Agent of the LIBOR
Base Rate shall be conclusive and binding for all purposes, absent manifest
error.


 


“LIBOR Market Index Rate” means, for any day,
the 30-day rate of interest per annum appearing on Reuters Screen LIBOR01 Page
(or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) on such day, or if such day
is not a London business day, then the immediately preceding London business
day (or if not so reported, then as determined by the Administrative Agent from
another recognized source or interbank quotation), or another rate as agreed to
by the Administrative Agent and the Borrower.


 


“LIBOR Market Index Rate Loan” means any Loan
bearing interest at a rate based upon the LIBOR Market Index Rate.


 


“LIBOR Rate” means a rate per annum (rounded
upwards, if necessary, to the next higher 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula: 


  




	
  LIBOR Rate =

  	
  LIBOR Base Rate

  
	
  1.00 - Eurodollar
  Reserve Percentage

  






 


“LIBOR
Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR
Rate other than LIBOR Market Index Rate Loans.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.


 


“Loan”
means an extension of credit by a Lender to the Borrower under Article III
in the form of a Revolving Loan or a Swingline Loan.


 


“Loan
Documents” means this Agreement, any Note, each Subsidiary Guarantee, if
any, each Issuing Bank Agreement, the Officer’s Certificate, the General and
Refunding Mortgage Bonds and each Fee Letter, and each other document,
instrument, certificate and agreement executed and delivered by the Borrower or
any Subsidiary thereof in connection with this Agreement, including any
certificates provided pursuant to this Agreement (excluding any Hedge Agreement
and any Treasury Management Agreement), all as may be amended, restated,
supplemented or otherwise modified from time to time.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, property, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent, the Issuing Banks or the
Lenders hereunder or thereunder.


 


“Materials
of Environmental Concern” means any gasoline or petroleum (including crude
oil or any fraction thereof) or petroleum products, polychlorinated biphenyls,
urea-formaldehyde insulation, asbestos, pollutants, contaminants,
radioactivity, and any other substances or forces of any kind, whether 












13




 










 








 








or not any such substance or force is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise
to liability under any Environmental Law.


 


“Maturity
Date” means March 23, 2017.


 


“Minimum
Collateral Amount” means, at any time, (a) with respect to Cash Collateral
consisting of cash or deposit account balances, an amount equal to 105% of the
Fronting Exposure of all Issuing Banks with respect to Letters of Credit issued
and outstanding at such time and (b) otherwise, an amount determined by the
Administrative Agent and the Issuing Banks in their sole discretion. 


 


“MLPFS”
means Merrill Lynch, Pierce, Fenner & Smith Incorporated.


 


“Moody’s”
means Moody’s Investors Service, Inc. or any successor thereto.


 


“Mortgaged
Property” has the meaning assigned to that term in the General and
Refunding Mortgage Indenture.


 


“Multiemployer
Plan” means a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.


 


“Negative
Mark-to-Market Exposure” means the mark-to-market exposure of the Borrower
or any of its Subsidiaries in connection with a Hedge Agreement with any
current Lender or Affiliate of a current Lender (or any Person that was a
Lender or Affiliate of a Lender at the time such Hedge Agreement was executed)
that would cause a liability to the Borrower or any such Subsidiary, as
calculated by the Borrower and provided in a certificate to the Administrative
Agent pursuant to Section 8.1(b)(iii) or Section 6.1(i), in each
case in form and substance reasonably acceptable to the Administrative Agent.


 


“Net
Hedging Obligations” means, as of any date, any net obligations associated
with the Termination Value of any such Hedge Agreement on such date.


 


“Net
Proceeds” means the aggregate cash
proceeds received by the Borrower or any Subsidiary in respect of any
Disposition, net of (a) direct costs incurred in connection therewith
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) and (b) taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements); it being understood that “Net Proceeds” shall include, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received by the Borrower or any Subsidiary in any
Disposition.


 


“Note”
or “Notes” means the Revolving Notes and the Swingline Note,
individually or collectively, as appropriate.


 


“Notice
of Borrowing” means a Notice of Revolving Borrowing or a Notice of
Swingline Borrowing, as the case may be.


 


“Notice
of Revolving Borrowing” has the meaning assigned to that term in Section
3.1(a). 


 


“Notice
of Swingline Borrowing” has the meaning assigned to that term in Section
3.8(b). 


 


“NPC”
means Nevada Power Company d/b/a NV Energy, a Nevada corporation.












14




 










 








 








 


“NPC
Credit Agreement” means that certain Credit Agreement, dated as of the
Closing Date, by and among NPC, as the borrower, Wells Fargo Bank, as the administrative
agent, swingline lender, an issuing bank and a lender and the other lenders and
issuing banks from time to time party thereto, as amended or otherwise
modified.


 


“OECD”
means the Organization for Economic Cooperation and Development.


 


“Obligations”
means the unpaid principal of and interest on (including, without limitation,
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities (including
any Hedging Obligations and any Treasury Management Obligations) of the
Borrower to (a) the Administrative Agent, (b) any Issuing Bank, (c) the
Swingline Lender, (d) any Lender and (e) in the case of Hedging Obligations and
Treasury Management Obligations, (i) any current Lender or Affiliate of any
current Lender and (ii) any Person who was a Lender or an Affiliate of any
Lender at the time such Hedge Agreement or Treasury Management Agreement is
executed, in each case, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any Note, any Letter of Credit,
any other Loan Document, any Hedge Agreement between the Borrower and (x) any
current Lender or any Affiliate of a current Lender or (y) any Person who was a
Lender or Affiliate of a Lender at the time such Hedge Agreement was executed,
any Treasury Management Agreement between the Borrower and (x) any current
Lender or any Affiliate of a current Lender or (y) any Person who was a Lender
or Affiliate of a Lender at the time such Treasury Management Agreement was
executed, or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent, any Issuing Bank or any
Lender that are required to be paid by the Borrower pursuant hereto) or
otherwise.


 


“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control.


 


“Officer’s
Certificate” means an “Officer’s Certificate” (as defined in the General
and Refunding Mortgage Indenture) setting forth the terms of each series of the
General and Refunding Mortgage Bonds, executed by a duly authorized officer of
the Borrower and authenticated by the trustee under the General and Refunding
Mortgage Indenture.


 


“Outstanding
Amount” means (a) with respect to any Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of any Loans occurring on such date; and (b) with
respect to any LC Obligations on any date, the amount of such LC Obligations on
such date after giving effect to any LC Credit Extension occurring on such date
and any other changes in the aggregate amount of the LC Obligations as of such
date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.


 


“Participant”
has the meaning assigned to that term in Section 11.7(d). 


 


“Patriot
Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26,
2001)), as amended or modified from time to time.


 


“Payment
Amounts” has the meaning assigned to that term in Section 9.1(e). 












15




 










 








 








 


“PBGC”
means, the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).


 


“Percentage”
means with respect to any Lender at any time, with respect to such Lender’s
Commitment at any time, the percentage of the Commitments represented by such
Lender’s Commitment at such time; provided that if the commitment of each
Lender to make Revolving Loans and the obligation of the Issuing Banks to make
LC Credit Extensions have been terminated pursuant to Section 9.2 or if
the Commitments have expired, then the Percentage of each Lender shall be
determined based on the Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments.  The initial Percentage of each
Lender is set forth opposite the name of such Lender on Schedule 1.1(B)
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Permitted
Business” has the meaning assigned to that term in Section
8.2(d)(viii)(C)(2). 


 


“Permitted
Liens” has the meaning assigned to that term in Section 8.2(b). 


 


“Person”
means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.


 


“Plan”
means, at a particular time, any employee benefit plan that is covered by ERISA
and in respect of which the Borrower or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Platform”
has the meaning assigned to that term in Section 8.1(g). 


 


“Prime
Rate” means, at any time, the rate of interest per annum publicly announced
or otherwise identified from time to time by Wells Fargo Bank at its principal
office in Charlotte, North Carolina as its prime rate.  Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in the Prime Rate occurs.  The parties hereto acknowledge that the rate
announced publicly by Wells Fargo Bank as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.


 


“Pro
Forma Basis” means, with respect to compliance with Section 8.2(a)
or Section 8.2(e), for purposes of calculating the financial covenant
set forth in Section 8.3, the incurrence of Indebtedness or the
declaring or making of a Restricted Payment shall be deemed to have occurred as
of the last day of the most recent fiscal quarter period preceding the date of such incurrence of
Indebtedness or declaring or making of such Restricted Payment for which
financial statements were delivered pursuant to Section 8.1(a). 


 


“Property”
means any right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, including, without limitation,
Capital Stock.


 


“PUCN”
means the Public Utilities Commission of Nevada, or any successor agency.


 


“Public
Lender” has the meaning assigned to that term in Section 8.1(g). 


 


“Rating
Agencies” means the collective reference to S&P and Moody’s.


 


“Register”
has the meaning assigned to that term in Section 11.7(c). 












16




 










 








 








 


“Regulation
U” means Regulation U of the Board as in effect from time to time.


 


“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, partners, employees and
agents of such Person and of such Person’s Affiliates.


 


“Reorganization”
means, with respect to any Multiemployer Plan, the condition that such plan is
in reorganization within the meaning of Section 4241 of ERISA.


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived under
subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.


 


“Request
for Credit Extension” means (a) with respect to a Borrowing of Revolving
Loans, a Notice of Revolving Borrowing, (b) with respect to an LC Credit
Extension, a Letter of Credit Application, (c) with respect to a Borrowing of
Swingline Loans, a Notice of Swingline Borrowing and (d) with respect to a
conversion or continuation of Loans, a Notice of Conversion


.


“Required
Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments, the outstanding Loans, LC Obligations and
participations therein or (b) if the Commitments have been terminated, the
outstanding Loans, LC Obligations and participations therein.  The unfunded
Commitments of, and the outstanding Loans, LC Obligations and participations
therein and in Swingline Loans held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders. 
Any determination of those Lenders constituting the Required Lenders shall be
made by the Administrative Agent and shall be conclusive and binding on all
parties absent manifest error.  


 


“Requirement
of Law” means, as to any Person, the Certificate of Incorporation and By
Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its Property is
subject.


 


“Responsible
Officer” means the chief executive officer, president, senior
vice-president, vice-president, chief financial officer, chief accounting
officer, treasurer or assistant treasurer of the Borrower, but in any event,
with respect to financial matters, the chief financial officer, chief
accounting officer or the treasurer of the Borrower.


 


“Restricted
Payments” has the meaning assigned to such term in Section 8.2(e). 


 


“Revolving
Credit Termination Date” means the earlier to occur of (i) the Maturity
Date and (ii) the date of termination or reduction in whole of the Commitments
pursuant to Section 2.3 or Section 9.2. 


 


“Revolving
Loan” means a loan by a Lender to the Borrower pursuant to Section 3.1
(or deemed made pursuant to Section 4.4) and refers to a Base Rate Loan
or a LIBOR Rate Loan (each of which shall be a “Type” of Loan).  All Loans by a
Lender of the same Type, having the same Interest Period and made or Converted
on the same day shall be deemed to be a single Revolving Loan by such Lender
until repaid or next Converted.


 


“Revolving
Note” means any promissory note of the Borrower payable to the order of a
Lender (and, if requested, its registered assigns), evidencing the Revolving
Loans made by such Lender, substantially in the form of Exhibit A-1, and
any amendments, supplements, and modifications thereto, 












17




 










 








 








any substitutes therefor, and any replacements, restatements, renewals
or extension thereof; in whole or in part and “Revolving Notes” means
any or all of the foregoing.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.


 


“Sanctioned
Entity” means (a) a country or a government of a country, (b) an agency of
the government of a country, (c) an organization directly or indirectly
controlled by a country or its government, or (d) a person or entity resident
in or determined to be resident in a country, that is subject to a country
sanctions program administered and enforced by OFAC.


 


“Sanctioned
Person” means a person named on the list of Specially Designated Nationals
maintained by OFAC.


 


“SEC”
means the Securities and Exchange Commission (or successors thereto or an
analogous Governmental Authority).


 


“Secured
Debt Rating” means, as of any date of determination, the Borrower’s senior
secured long term debt rating as determined by each of the Rating Agencies to
be in effect as of such date.


 


“Single
Employer Plan” means any Plan that is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.


 


“Solvent”
means, with respect to any Person, as of any date of determination, (a) the
amount of the “present fair saleable value” of the assets of such Person will,
as of such date, exceed the amount of all “liabilities of such Person,
contingent or otherwise”, as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and
(d) such Person will be able to pay its debts as they mature.  For purposes of
this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.


 


“Stated
Maturity” means, with respect to any installment of interest or principal
on any series of Indebtedness, the date on which the payment of interest or
principal was scheduled to be paid in the original documentation governing such
Indebtedness, and will not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.


 


“Subordinated
Debt” means any debt (including without limitation any guarantee) that is
subordinated to the prior payment of the Loans and other Obligations.


 


“Subsidiary”
means, as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the Board of Directors or other managers of such corporation, 












18




 










 








 








partnership or other entity are at the time owned, or the management of
which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person.  Unless otherwise qualified, all
references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.


 


“Subsidiary
Guarantee” means any Guarantee of the Loans and other Obligations to be
executed by any Subsidiary of the Borrower pursuant to Section 8.2(n). 


 


“Subsidiary
Guarantor” means any Subsidiary of the Borrower that executes a Subsidiary
Guarantee, and its successors and assigns.


 


“Swingline
Lender” means Wells Fargo Bank, in its capacity as a provider of Swingline
Loans, or any successor swingline lender hereunder.


 


“Swingline
Loan” has the meaning set forth in Section 3.8(a). 


 


“Swingline
Note” means the promissory note of the Borrower payable to the order of the
Swingline Lender (and, if requested, its registered assigns), evidencing the
Swingline Loans made by the Swingline Lender, substantially in the form of Exhibit
A-2, and any amendments, supplements, and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extension
thereof; in whole or in part.


 


“Swingline
Sublimit” means the lesser of (a) TWENTY MILLION DOLLARS ($20,000,000) and
(b) the Commitments.  The Swingline Sublimit is part of, and not in addition
to, the Commitments.


 


“Termination
Value” means, in respect of any one or more Hedge Agreements after taking
into account the effect of any legally enforceable netting agreement relating
to such Hedge Agreement, (x) for any date on or after the date such Hedge
Agreement has been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (y) for any date prior to the date
referenced in clause (x), the amount(s) determined as the mark-to-market
value(s) for such Hedge Agreement, as determined based upon one or more readily
available quotations provided by any recognized dealer in such Hedge Agreement
(which may include a Lender or any Affiliate of a Lender).  Notwithstanding the
foregoing, any calculation of the aggregate Termination Value shall exclude any
Termination Value of Hedge Agreements that are accounted for by the Borrower as
regulatory assets or liabilities or risk management assets or liabilities
pursuant to Financial Accounting Standards Board Statement No. 71.


 


“Total
Revolving Outstandings” means the aggregate Outstanding Amount of all
Revolving Loans, all Swingline Loans and all LC Obligations.


 


“Trading
With the Enemy Act” has the meaning assigned to that term in Section
7.1(y). 


 


“Treasury
Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overdraft,
credit or debit card, funds transfer, automated clearinghouse, zero balance
accounts, returned check concentration, controlled disbursement, lockbox,
account reconciliation and reporting and trade finance services and other cash
management services.


 


“Treasury
Management Obligations” means with respect to any Person, all existing or
future payment and other obligations owing by such Person under any Treasury
Management Agreement with 












19




 










 








 








any Person that (i) is a current Lender or Affiliate of any current
Lender or (ii) was a Lender or an Affiliate of any Lender at the time such
Treasury Management Agreement was executed.


 


“Trust
Preferred Vehicle” means any trust, the only assets of which are
Subordinated Debt of the Borrower, and which are substantially similar (except
for such changes to the terms of any such trust preferred vehicle to adopt
terms that are customary in the trust preferred vehicles market at the time of
formation of any such trust preferred vehicle) to trust preferred vehicles of
the Borrower entered into within the five (5) years immediately preceding the
Closing Date.


 


“Type”
has the meaning assigned to such term (i) in the definition of “Revolving Loan”
when used in such context and (ii) in the definition of “Borrowing” when used
in such context.


 


“Unreimbursed
Amount” has the meaning assigned to that term in Section 4.3(a). 


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the sum of the products
obtained by multiplying (i) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect of the Indebtedness, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by (b) the then outstanding
principal amount of such Indebtedness.


 


“Wells
Fargo Bank” means Wells Fargo Bank, National Association, a national
banking association, and its successors.


 


“WFS”
means Wells Fargo Securities, LLC, in its capacity as a joint lead arranger and
joint bookrunner.


 


Section 1.2           
Computation
of Time Periods; Construction. 


 


(a)               
Unless otherwise indicated,
each reference in this Agreement to a specific time of day is a reference to
Eastern Standard Time or Eastern Daylight Time, as applicable.  In the
computation of periods of time under this Agreement, any period of a specified
number of days or months shall be computed by including the first day or month
occurring during such period and excluding the last such day or month.  Unless
the context requires otherwise, in the case of a period of time “from” a
specified date “to” or “until” a later specified date, the word “from” means
“from and including” and the words “to” and “until” each means “to but
excluding”.


 


(b)               
The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.  The words “include”,
“includes”, and “including” shall be deemed to be followed by the phrase
“without limitation”.  The word “will” shall be construed to have the same meaning
and effect as the word “shall”.  Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, (iii) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, and (iv) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement.












20




 










 








 








 


Section 1.3           
Accounting
Matters.   


 


(a)               
All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, applied
in a manner consistent with those applied in the preparation of the financial
statements referred to in Section 8.1(a).  


 


(b)               
If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided  that, until so amended, (i)
such ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


(c)               
Any financial ratios required
to be maintained by the Borrower pursuant to this Agreement shall be calculated
by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with
a rounding‐up if there is no nearest number).


 


Section 1.4           
Letter
of Credit Amounts. 
Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of
any Issuing Agreement related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time. 


 


ARTICLE II.



COMMITMENTS


 


Section 2.1           
Commitments.  Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower in Dollars from time to time on any Business Day during the period
from the Closing Date to the Revolving Credit Termination Date in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided, however, that after giving effect to any
Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not
exceed the Borrowing Limit and (ii) the aggregate Outstanding Amount of the
Revolving Loans of any Lender, plus  such Lender’s Percentage of the
Outstanding Amount of all LC Obligations plus  such Lender’s Percentage
of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s
Commitment.  Within the limits of each Lender’s Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.1, prepay under Section 5.3, and reborrow under this Section
2.1.  Revolving Loans may be Base Rate Loans or LIBOR Rate Loans, or a
combination thereof, as further provided herein, provided, however,
all Borrowings made on the Closing Date shall be made as Base Rate Loans.












21




 










 








 








 


Section 2.2           
Fees.   


 


(a)               
The Borrower shall pay to the
Administrative Agent, for the account of each Lender in accordance with its
Percentage, a commitment fee (the “Commitment Fee”) at a rate per annum
equal to the product of (i) the Applicable Margin times  (ii) the actual
daily amount by which the Commitments exceed the sum of (y) the Outstanding
Amount of Revolving Loans and (z) the Outstanding Amount of LC Obligations. 
The Commitment Fee shall accrue at all times from the Closing Date until the
Revolving Credit Termination Date, including at any time during which one or
more of the conditions in Article VI is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
Closing Date, and on the Revolving Credit Termination Date; provided, that 
(A) no Commitment Fee shall accrue on the Commitment of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender and (B) any Commitment Fee
accrued with respect to the Commitment of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender.  The Commitment Fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Margin during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect.  For purposes of clarification, Swingline
Loans shall not be considered outstanding for purposes of determining the
unused portion of the Commitments.


 


(b)               
In addition to the fees
provided for in subsection (a)  above and Sections 4.8 and 4.9,
the Borrower shall pay to the Administrative Agent, for its own account, such
other fees as are provided for in the Fee Letters, in the amounts and at the
times specified therein.


 


Section 2.3           
Reduction of the Commitments.   


 


(a)               
The Commitments (i) shall be
automatically and permanently terminated on the Revolving Credit Termination
Date and (ii) shall be automatically reduced by any and all Excess Net Proceeds
in accordance with Section 8.2 (d). 


 


(b)               
The Borrower may, upon at
least three (3) Business Days’ prior written notice to the Administrative Agent
(which shall promptly distribute copies thereof to the Lenders), terminate in
whole or reduce ratably in part the unused portions of the Commitments (which
termination or reduction (as the case may be), upon its effectiveness, shall be
permanent and irrevocable); provided  that (i) any such partial reduction
shall be in the aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (ii) any reduction shall reduce the Letter of
Credit Sublimit, if applicable, in accordance with the terms of such
definition.  Subject to Section 2.2(a), all Commitment Fees accrued
until the effective date of any termination of the Commitments shall be paid on
the effective date of such termination.


 


(c)               
The Borrower may terminate
the unused amount of the Commitment of a Defaulting Lender upon not less than
three Business Days’ prior notice to such Defaulting Lender and the
Administrative Agent (which will promptly notify the other Lenders thereof) and
the Commitments shall be reduced by such amount; provided  that (i) at
the time of such termination, no Default or Event of Default has occurred and
is continuing (or the Required Lenders consent to such termination), (ii) the
Borrower shall pay to the Defaulting Lender all amounts then owed to it and
(iii) such termination will not be deemed to be a waiver or release of any
claim the Borrower, the Administrative Agent, the Swingline Lender, the Issuing
Banks or any Lender may have against such Defaulting Lender.












22




 










 








 








 


(d)               
Each permanent reduction
pursuant to this Section shall be accompanied by a payment of principal of the
Loans sufficient to reduce the aggregate Outstanding Amount of all Revolving Loans,
LC Obligations and Swingline Loans, as applicable, after such reduction to the
amount of the Commitments as so reduced, and if the Commitments as so reduced
is less than the aggregate Outstanding Amount of all LC Obligations, the
Borrower shall be required to deposit Cash Collateral in a Cash Collateral
account opened by and under the control of the Administrative Agent in an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit.  Such Cash Collateral shall be applied in accordance with Section
9.2(b).  Any reduction of the Commitments to zero shall be accompanied by
payment of all outstanding Loans (and furnishing of Cash Collateral
satisfactory to the Administrative Agent for the Outstanding Amount of all LC
Obligations) and shall result in the termination of the Commitments.  Such Cash
Collateral shall be applied in accordance with Section 9.2(b).  If the
reduction of the Commitments requires the repayment of any LIBOR Rate Loan,
such repayment shall be accompanied by any amount required to be paid pursuant
to Section 5.4 hereof.


 


(e)               
No repayment or prepayment or
reduction pursuant to this Section shall affect any of the Borrower’s
obligations under any Hedge Agreement or any Treasury Management Agreement.


 


Section 2.4           
Computations
of Outstandings. 
Whenever reference is made in this
Agreement to the principal amount outstanding on any date under this Agreement,
such reference shall refer to the sum of (i) the Outstanding Amount of all
Revolving Loans on such date plus  (ii) the Outstanding Amount of all LC
Obligations on such date plus  (iii) the Outstanding Amount of all
Swingline Loans on such date, in each case after giving effect to all
Extensions of Credit to be made on such date and the application of the
proceeds thereof.  At no time shall the principal amount outstanding under this
Agreement exceed the Borrowing Limit then in effect.  References to the unused
portion of the Commitments shall refer to the excess, if any, of the
Commitments over the principal amount outstanding hereunder; and references to
the unused portion of any Lender’s Commitment shall refer to such Lender’s
Percentage of the unused Commitments.


 


Section 2.5           
Optional
Increase of the Commitments.  At any time following the Closing Date,
the Borrower shall have the right, in consultation with the Administrative
Agent, from time to time and upon not less than thirty (30) days prior written
notice to the Administrative Agent to request an increase in the Commitments; provided,
that: 


 


(a)               
no Default or Event of
Default shall have occurred and be continuing or would result from any such
requested increase or Extension of Credit made on the date of such increase;


 


(b)               
the Borrower shall provide
the Administrative Agent with a certificate of a Responsible Officer dated as
of the date of such increase in form and substance substantially similar to the
certificate delivered under Section 8.1(b)(i) demonstrating pro  forma 
compliance with the covenant contained in Section 8.3 after giving
effect to any Extensions of Credit made on the date of such increase;


 


(c)               
each increase in Commitments
shall be in an aggregate principal amount of at least $10,000,000 or a whole
multiple of $5,000,000 in excess thereof, or in each case if less, the
remaining principal amount of increases to Commitments that are available under
this Section 2.5 (after giving effect to all prior increases pursuant to
this Section 2.5);  


 


(d)               
the aggregate amount of all
increases to the Commitments made pursuant to this Section 2.5 shall not
exceed ONE HUNDRED MILLION DOLLARS ($100,000,000); 












23




 










 








 








 


(e)               
increases in Commitments
pursuant to this Section 2.5 (i) shall not increase or otherwise affect
the Swingline Sublimit and (ii) shall increase the Letter of Credit Sublimit,
if applicable, in accordance with the terms of such definition; 


 


(f)                
the Commitment of any Lender
shall not be increased without the approval of such Lender;


 


(g)               
in connection with each
proposed increase, the Borrower may solicit commitments from (i) any Lender (provided,
that  no Lender shall have an obligation to commit to all or a portion of
the proposed increase) or (ii) any third party financial institutions that are
Eligible Assignees that are reasonably acceptable to the Administrative Agent,
the Issuing Banks, the Swingline Lender and the Borrower (a “New Lender”); 


 


(h)               
the Loans made or Letters of
Credit issued in respect of any increase in Commitments pursuant to this Section
2.5: (i) will rank pari  passu  in right of payment and
security with the other Loans made and Letters of Credit issued hereunder and
shall constitute and be part of the “Obligations” arising under this Agreement,
and (ii) shall have the same pricing and tenor as the other Loans and Letters
of Credit hereunder; 


 


(i)                 
in the event that any
existing Lender or any New Lender commits to such requested increase, (i) any
New Lender will execute an accession agreement to this Agreement, in form and substance
acceptable to the Administrative Agent, (ii) the Commitment of any existing
Lender which has committed to provide any of the requested increase shall be
increased by such amount, (iii) the Percentages of the Lenders shall be
adjusted, and (iv) other changes shall be made to the Loan Documents as may be
necessary to reflect the aggregate amount, if any, by which the Lenders have
agreed to increase their respective Commitments or New Lenders have agreed to
or make new Commitments in response to the Borrower’s request for an increase
pursuant to this Section 2.5, and which other changes do not adversely
affect the rights of those Lenders not participating in any such increase; 


 


(j)                 
with respect to each increase
in the Commitments, the Borrower will issue to the Administrative Agent General
and Refunding Mortgage Bonds, in form and substance similar to the General and
Refunding Mortgage Bonds issued to the Administrative Agent on the Closing Date
in accordance with the provisions of Section 6.1(g), in an aggregate
principal amount equal to the difference between the principal amount of the
Commitments (after giving effect to such increase and any prior increases or
permanent reductions to the Commitments) and the outstanding principal amount
of General and Refunding Mortgage Bonds previously issued to the Administrative
Agent as collateral support for the Obligations; and


 


(k)               
with respect to each increase
in the Commitments, the Borrower shall provide evidence, in form and substance
satisfactory to the Administrative Agent, of new or supplemental regulatory
approval by the PUCN (if applicable) and any other applicable regulatory body,
in each case authorizing the issuance of long-term debt securities in an
aggregate principal amount equal to such new issuance of General and Refunding
Mortgage Bonds and/or the principal amount of such increase, as applicable.












24




 










 








 








 


ARTICLE III.



LOANS


 


Section 3.1           
Revolving Loans.   


 


(a)               
The Borrower may request a
Borrowing of Revolving Loans (other than a Conversion) by delivering a notice
(a “Notice of Revolving Borrowing”) to the Administrative Agent no later
than 1:00 p.m. on the third Business Day prior to the date of the proposed
Borrowing or, in the case of Base Rate Loans, on the same Business Day of the
proposed Borrowing.  The Administrative Agent shall give each Lender prompt
notice of each Notice of Revolving Borrowing.  Each Notice of Revolving
Borrowing shall be in substantially the form of Exhibit A-3,
appropriately completed and signed by a Responsible Officer of the Borrower,
and shall specify the requested (i) date of such Borrowing (which shall be a
Business Day, but in no event later than the Business Day immediately preceding
the Maturity Date), (ii) Type of Loans to be made in connection with such
Borrowing, (iii) Interest Period, if any, for such Loans and (iv) amount of
such Borrowing.  Each proposed Borrowing shall conform to the requirements of Sections
3.3 and 3.4. 


 


(b)               
Each Lender shall, before
3:00 p.m. on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent’s Office, in same day funds, such Lender’s Percentage of such Borrowing. 
After the Administrative Agent’s receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article VI, the Administrative
Agent will make such funds available to the Borrower at the Administrative
Agent’s Office. Notwithstanding the foregoing, unless the Administrative Agent
shall have received notice from a Lender prior to the time of any Borrowing
that such Lender will not make available to the Administrative Agent such
Lender’s Percentage of such Borrowing, the Administrative Agent may assume that
such Lender has made such Percentage available to the Administrative Agent on
the date of such Borrowing in accordance with the first sentence of this
subsection (b), and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.


 


(c)               
If and to the extent that any
Lender shall not have made available to the Administrative Agent, in accordance
with subsection (b) above, such Lender’s Percentage of any Borrowing, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand corresponding amounts (not to exceed the aggregate amount
that such Lender failed to make available to the Administrative Agent),
together with interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Loans made in connection with such Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate.  Within the limits of each Lender’s
Commitment and the Borrowing Limit and subject to the other terms and
conditions set forth in this Agreement for the making of Loans, the Borrower
may request (and the Lenders shall honor) one or more additional Borrowings of
Revolving Loans from the other Lenders to fund such repayment to the
Administrative Agent.  If a Lender shall repay to the Administrative Agent such
corresponding amount in full (with interest as above provided), (x) the Administrative
Agent shall apply such corresponding amount and interest to the repayment to
the Administrative Agent (or repayment of Revolving Loans made to fund such
repayment to the Administrative Agent), and shall make any remainder available
to the Borrower and (y) such amount so repaid shall be deemed to constitute
such Lender’s Revolving Loan, made as part of such Borrowing for purposes of
this Agreement 












25




 










 








 








as if
funded concurrently with the other Revolving Loans made as part of such
Borrowing. The failure of any Lender to make the Revolving Loan to be made by
it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Revolving Loan to be made by such other Lender on the date
of any Borrowing.


 


(d)               
The Extensions of Credit made
by each Lender shall be evidenced by one or more accounts or records maintained
by such Lender and by the Administrative Agent in the ordinary course of
business.  The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the
Extensions of Credit made by the Lenders to the Borrower and the interest and
payments thereon.  Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to
pay any amount owing with respect to the Obligations.  In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error.  


 


(e)               
Any Lender may request that
its Commitment hereunder be evidenced by a Revolving Note.  In such event, the
Borrower shall prepare, execute and deliver to such Lender a Revolving Note
payable to the order of such Lender (or, if requested by such Lender, to such Lender
and its registered assigns), substantially in the form of Exhibit A-1. 
Each Lender may attach schedules to its Revolving Notes and endorse thereon the
date, amount and maturity of its Revolving Loans and payments with respect
thereto.  Upon the request of the Swingline Lender, the Borrower shall prepare,
execute and deliver to the Swingline Lender a Swingline Note payable to the
order of the Swingline Lender (or, if requested by the Swingline Lender, to the
Swingline Lender and its registered assigns), substantially in the form of Exhibit
A-2.  In addition to the accounts and records referenced above in this
subsection (e), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender or participations in Letters of Credit and Swingline
Loans.  In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.


 


Section 3.2           
Conversion
of Loans.  The Borrower may from time to time Convert
any Loan (or portion thereof) of any Type to one or more Loans of the same or
any other Type by delivering a notice of such Conversion (a “Notice of
Conversion”) to the Administrative Agent no later than 1:00 p.m. on (x) the
third Business Day prior to the date of any proposed Conversion into a LIBOR
Rate Loan and (y) the same Business Day as to the date of any proposed
Conversion into a Base Rate Loan.  The Administrative Agent shall give each
Lender prompt notice of each Notice of Conversion.  Each Notice of Conversion
shall be in substantially the form of Exhibit B and shall specify (i)
the requested date of such Conversion, (ii) the Type of, and Interest Period,
if any, applicable to, the Loans (or portions thereof) proposed to be
Converted, (iii) the requested Type of Loans to which such Loans (or portions
thereof) are proposed to be Converted, (iv) the requested initial Interest
Period, if any, to be applicable to the Loans resulting from such Conversion
and (v) the aggregate amount of Loans (or portions thereof) proposed to be
Converted.  Each proposed Conversion shall be subject to the provisions of Sections
3.3 and 3.4. 


 


Section 3.3           
Interest
Periods.  The period between the date each LIBOR
Rate Loan is made and the date of payment in full of such Loan shall be divided
into successive periods (“Interest Periods”) for purposes of computing
interest applicable thereto. The initial Interest Period for each such Loan
shall begin on the day such Loan is made, and each subsequent Interest Period
shall begin on the last day of the 












26




 










 








 








immediately
preceding Interest Period for such Loan.  The duration of each Interest Period
shall be 1, 2, 3, or 6 months as the Borrower may select in accordance with Section
3.1 or 3.2, or such shorter period as requested by the Borrower and
consented to by all Lenders (other than Defaulting Lenders), as applicable; provided,
however: 


 


(a)               
the Borrower may not select
any Interest Period that ends after the Maturity Date;


 


(b)               
whenever the last day of any
Interest Period would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall occur on the next succeeding Business
Day, provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and


 


(c)               
any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period.


 


Section 3.4           
Other Terms Relating to the Making and Conversion of
Loans.   


 


(a)               
Notwithstanding anything in Section
3.1 or 3.2  to the contrary:


 


(i)                 
each Borrowing of Revolving
Loans (other than a Borrowing deemed made under Section 4.3) shall be in
an aggregate amount not less than (A) in the case of LIBOR Rate Loans,
$5,000,000 (or such lesser amount as shall be equal to the Commitments on such
date, after giving effect to all of the other Extensions of Credit to be made
to the Borrower on such date) or an integral multiple of $1,000,000 in excess
thereof (or such lesser amount as shall be equal to the Commitments on such
date, after giving effect to all of the other Extensions of Credit to be made
to the Borrower on such date), or (B) in the case of Base Rate Loans,
$1,000,000 or an integral multiple of $500,000 in excess thereof, and shall
consist of Loans of the same Type, having the same Interest Period and made or
Converted on the same day by the Lenders ratably according to their respective Percentages;


 


(ii)               
the Borrower may request that
more than one Borrowing be made on the same day;


 


(iii)              
at no time shall more than
ten (10) different Borrowings comprising LIBOR Rate Loans be outstanding
hereunder;


 


(iv)             
no LIBOR Rate Loan may be
Converted on a date other than the last day of the Interest Period applicable
to such Loan unless the corresponding amounts, if any, payable to the Lenders
pursuant to Section 5.4(b) are paid within two (2) Business Days after
the Administrative Agent or any Lender provides written notice to the Borrower
as to amounts owing under Section 5.4(b) in connection with such
Conversion;


 


(v)               
if the Borrower shall either
fail to give a timely Notice of Conversion pursuant to Section 3.2 in
respect of any Loans or fail, in any Notice of Conversion that has been timely
given, to select the duration of any Interest Period for Loans to be Converted
into LIBOR Rate Loans in accordance with Section 3.3, such Loans shall,
on 












27




 










 








 








the
last day of the then existing Interest Period therefor, automatically Convert
into, or remain as, as the case may be, Base Rate Loans; and


 


(vi)             
if, on the date of any
proposed Conversion, any Event of Default shall have occurred and be
continuing, all Loans then outstanding shall, on such date, automatically
Convert into, or remain as, as the case may be, Base Rate Loans.


 


(b)               
If any Lender shall notify
the Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any central
bank or other governmental authority asserts that it is unlawful, for such
Lender or its Applicable Lending Office to perform its obligations hereunder to
make, or to fund or maintain, LIBOR Rate Loans hereunder, (i) the obligation of
such Lender to make, or to Convert Loans into, LIBOR Rate Loans for such
Borrowing or any subsequent Borrowing from such Lender shall be forthwith
suspended until the earlier to occur of the date upon which (A) such Lender
shall cease to be a party hereto and (B) it is no longer unlawful for such
Lender to make, fund or maintain LIBOR Rate Loans, and (ii) if the maintenance
of LIBOR Rate Loans then outstanding through the last day of the Interest
Period therefor would cause such Lender to be in violation of such law,
regulation or assertion, such Lender may require the Borrower to either prepay
or Convert all LIBOR Rate Loans from such Lender within five Business Days
after the Borrower’s receipt of such notice, and if the Borrower shall not have
so prepaid or Converted such LIBOR Rate Loans by such fifth Business Day, then
such LIBOR Rate Loans shall be deemed automatically Converted to Base Rate
Loans on such fifth Business Day.  Promptly upon becoming aware that the
circumstances that caused such Lender to deliver such notice no longer exist,
such Lender shall deliver notice thereof to the Administrative Agent (but the
failure to do so shall impose no liability upon such Lender).  Promptly upon
receipt of such notice from such Lender (or upon such Lender’s assigning all of
its Commitments, Loans, participation and other rights and obligations
hereunder to an Eligible Assignee), the Administrative Agent shall deliver
notice thereof to the Borrower and the Lenders and such suspension shall
terminate.  Prior to any Lender giving notice to the Administrative Agent or
the Borrower under this subsection (b), such Lender shall use reasonable
efforts to change the jurisdiction of its Applicable Lending Office, if such
change would avoid such unlawfulness and would not, in the sole determination
of such Lender, be otherwise disadvantageous to such Lender.


 


(c)               
If the Required Lenders
shall, at least one (1) Business Day before the date of any requested
Borrowing, notify the Administrative Agent that the LIBOR Rate for LIBOR Rate
Loans to be made in connection with such Borrowing will not adequately reflect
the cost to such Required Lenders of making, funding or maintaining their
respective LIBOR Rate Loans for such Borrowing, the right of the Borrower to
select LIBOR Rate Loans for such Borrowing and any subsequent Borrowing shall
be suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist, and
each Loan to be made or Converted in connection with such Borrowing shall be a
Base Rate Loan.


 


(d)               
If any Lender shall have
delivered a notice to the Borrower or the Administrative Agent as described in Section
3.4(b) or Section 3.6, or shall become a Defaulting Lender under Section
3.1(c) or Section 4.4, and if and so long as such Lender shall not have
withdrawn such notice or corrected such non-performance in accordance with Section
3.1(c), Section 3.4(b), Section 3.6, or Section 4.4,
the Borrower or the Administrative Agent may demand that such Lender assign in
accordance with Section 11.7, to one or more Eligible Assignees
designated by the Borrower or the Administrative Agent, all (but not less than
all) of such Lender’s Commitments, Loans, participation and other rights and
obligations hereunder; provided that any 












28




 










 








 








such
demand by the Borrower during the continuance of a Default or an Event of
Default shall be ineffective without the consent of the Required Lenders.  If,
within 30 days following any such demand by the Administrative Agent or the
Borrower, any such Eligible Assignee so designated shall fail to consummate
such assignment on terms reasonably satisfactory to such Lender, or the
Borrower and the Administrative Agent shall have failed to designate any such
Eligible Assignee, then such demand by the Borrower or the Administrative Agent
shall become ineffective, it being understood for purposes of this provision
that such assignment shall be conclusively deemed to be on terms reasonably
satisfactory to such Lender, and such Lender shall be compelled to consummate
such assignment forthwith, if such Eligible Assignee (i) shall agree to such
assignment in substantially the form of the Assignment and Assumption attached
hereto as Exhibit C and (ii) shall tender payment to such Lender in an
amount equal to the full outstanding dollar amount accrued in favor of such
Lender hereunder (as computed in accordance with the records of the
Administrative Agent), including, without limitation, all accrued interest and
fees and, to the extent not paid by the Borrower, any payments required
pursuant to Section 5.4(b). 


 


(e)               
Each Notice of Borrowing and
Notice of Conversion shall be irrevocable and binding on the Borrower.  In the
case of any Borrowing which the related Notice of Borrowing or Notice of
Conversion specifies is to be comprised of LIBOR Rate Loans, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure by the Borrower to fulfill, on or before the date
specified in such Notice of Borrowing or Notice of Conversion for such
Borrowing, the applicable conditions (if any) set forth in this Article III
(other than failure pursuant to the provisions of Section 3.4(c) hereof)
or in Article VI, including any such loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Loan to be made
by such Lender when such Loan, as a result of such failure, is not made on such
date.


 


Section 3.5           
Repayment of Loans; Interest.   


 


(a)               
Principal. 


 


(i)                 
Revolving Loans.  The Borrower shall repay the
outstanding principal amount of the Revolving Loans on the Maturity Date.


 


(ii)               
Swingline Loans.  The Borrower shall repay each Swingline
Loan on the earlier to occur of (A) ten (10) Business Days after the Swingline
Loan is made, (B) the date within one (1) Business Day of demand therefor by
the Swingline Lender and (C) the Maturity Date.


 


(b)               
Interest.  The Borrower shall pay interest on the
unpaid principal amount of each Loan owing to each Lender from the date of such
Loan until such principal amount shall be paid in full, at the Applicable Rate
for such Loan, payable as follows:


 


(i)                 
Base Rate Loans.  If such Loan is a Base Rate Loan
(including a Swingline Loan bearing interest based on the Base Rate), interest
thereon shall be payable quarterly in arrears on the last day of each March,
June, September and December, on the date of any Conversion of such Base Rate
Loan, on the date such Base Rate Loan shall become due and payable or shall
otherwise be paid in full and on the Maturity Date.












29




 










 








 








 


(ii)               
LIBOR Rate Loans.  If such Loan is a LIBOR Rate Loan,
interest thereon shall be payable on the last day of each Interest Period for
such Loan and, if the Interest Period for such Loan has a duration of more than
three months, on that day of each third month during such Interest Period that
corresponds to the first day of such Interest Period (or, if any such month
does not have a corresponding day, then on the last day of such month) and on
the Maturity Date.


 


(iii)              
LIBOR Market Index Rate
Loans.  If such Loan is a
LIBOR Market Index Rate Loan, interest thereon shall be payable on the third
Business Day following the end of each calendar month and on the Maturity Date.


 


Section 3.6           
Additional
Interest on LIBOR Rate Loans.  The Borrower shall pay to the
Administrative Agent, for the account of each Lender, any costs actually
incurred by such Lender with respect to LIBOR Rate Loans that are attributable
to such Lender’s compliance with regulations of the Board requiring the
maintenance of reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities.  Such costs shall be paid to the
Administrative Agent for the account of such Lender in the form of additional
interest on the unpaid principal amount of each LIBOR Rate Loan of such Lender,
from the date of such LIBOR Rate Loan until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the LIBOR Rate for the Interest Period for such
LIBOR Rate Loan from (ii) the rate obtained by dividing such LIBOR Rate by a
percentage equal to 100% minus the Eurodollar Reserve Percentage of such Lender
for such Interest Period, payable on each date on which interest is payable on
such LIBOR Rate Loan (but in no event earlier than ten (10) Business Days after
the Borrower’s receipt of the certificate referred to in the last sentence of
this Section 3.6).  Such additional interest shall be determined by such
Lender and notified to the Borrower through the Administrative Agent.  A
certificate as to the amount of such additional interest and giving a reasonable
explanation and calculation thereof shall be submitted to the Borrower and the
Administrative Agent by such Lender and shall be conclusive and binding for all
purposes, absent manifest error.


 


Section 3.7           
Default
Rate.  Subject to Section 9.3, (i)
immediately upon the occurrence and during the continuance of an Event of
Default under Section 9.1(a) or (f), or (ii) at the election of
the Required Lenders, upon the occurrence and during the continuance of any
other Event of Default, (A) the Borrower shall no longer have the option to
request LIBOR Rate Loans, LIBOR Market Index Rate Loans or Letters of Credit,
(B) all outstanding LIBOR Rate Loans shall bear interest at a rate per annum of
two percent (2%) in excess of the Applicable Rate with respect to LIBOR Rate
Loans until the end of the applicable Interest Period and thereafter at a rate
per annum equal to two percent (2%) in excess of the Applicable Rate with
respect to Base Rate Loans, (C) all outstanding Base Rate Loans and other
Obligations arising hereunder or under any other Loan Document shall bear
interest at a rate per annum equal to two percent (2%) in excess of the
Applicable Rate with respect to Base Rate Loans and (D) all outstanding LIBOR
Market Index Rate Loans and other Obligations arising hereunder or under any
other Loan Document shall bear interest at a rate per annum equal to two
percent (2%) in excess of the Applicable Rate with respect to LIBOR Market
Index Rate Loans.  Interest shall continue to accrue on the Obligations after
the filing by or against the Borrower of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or debtor relief,
whether state, federal or foreign. 


 


Section 3.8           
Swingline
Loans.   


(a)               
Subject to the terms
and conditions set forth herein, the Swingline Lender may, in its discretion
and in reliance upon the agreements of the other Lenders set forth in this Section
3.8, make loans (each such loan, a “Swingline Loan”) to the Borrower
from time to time on any Business Day prior to the Revolving Credit Termination
Date in an aggregate amount not to 


 












30




 










 








 








exceed
at any time outstanding the amount of the Swingline Sublimit; provided, however,
that after giving effect to any Swingline Loan, (i) the Total Revolving
Outstandings shall not exceed the Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus  such
Lender’s Percentage of the Outstanding Amount of all LC Obligations, plus 
such Lender’s Percentage of the Outstanding Amount of all Swingline Loans shall
not exceed such Lender’s Commitment, and provided, further, that
the Borrower shall not use the proceeds of any Swingline Loan to refinance any
outstanding Swingline Loan.  Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
3.8, prepay under Section 5.3, and reborrow under this Section
3.8.  Each Swingline Loan shall be a Base Rate Loan or a LIBOR Market Index
Rate Loan.  Immediately upon the making of a Swingline Loan, each Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swingline Lender a risk participation in such Swingline Loan in an
amount equal to the product of such Lender’s Percentage times  the amount
of such Swingline Loan.


 


(b)               
Borrowing Procedures.  The Borrower may request a Borrowing of
Swingline Loans by delivering a notice (a “Notice of Swingline Borrowing”)
to the Swingline Lender and the Administrative Agent no later than 1:00 p.m. on
the same Business Day of the proposed Borrowing.  Each Notice of Swingline
Borrowing shall be in substantially the form of Exhibit A-4,
appropriately completed and signed by a Responsible Officer of the Borrower,
and shall specify (i) the amount to be borrowed, which shall be a minimum
principal amount of $500,000 and integral multiples of $100,000 in excess
thereof, and (ii) the requested borrowing date, which shall be a Business Day. 
Unless the Swingline Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to
2:00 p.m. on the date of the proposed Borrowing of Swingline Loans (A)
directing the Swingline Lender not to make such Swingline Loan as a result of
the limitations set forth in the first proviso to the first sentence of Section
3.8(a), or (B) that one or more of the applicable conditions specified in Article
VI is not then satisfied, then, subject to the terms and conditions hereof,
the Swingline Lender will, not later than 3:00 p.m. on the borrowing date
specified in such written Notice of Swingline Borrowing, make the amount of its
Swingline Loan available to the Borrower.


 


(c)               
Refinancing of Swingline
Loans.   


 


(i)                 
The Swingline Lender at any
time in its sole and absolute discretion may request, on behalf of the Borrower
(which hereby irrevocably requests and authorizes the Swingline Lender to so
request on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender’s Percentage of the amount of Swingline Loans then
outstanding.  Such request shall be made in writing (which written request
shall be deemed to be a Notice of Swingline Borrowing for purposes hereof) and in
accordance with the requirements of Section 3.1, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the conditions set forth in Section 6.2 and
provided that, after giving effect to such Borrowing, the sum of the aggregate
principal amount of outstanding Revolving Loans plus  the aggregate
principal amount of outstanding Swingline Loans plus  the aggregate
outstanding LC Obligations shall not exceed the Borrowing Limit then in
effect.  The Swingline Lender shall furnish the Borrower with a copy of the
applicable Notice of Swingline Borrowing promptly after delivering such notice
to the Administrative Agent.  Each Lender shall make an amount equal to its
Percentage of the amount specified in such Notice of Swingline Borrowing
available to the Administrative Agent in immediately available funds for the
account of the Swingline Lender at the Administrative Agent’s Office not later
than 11:00 a.m. on the day specified in such 












31




 










 








 








Notice
of Swingline Borrowing, whereupon, subject to Section 3.8(c)(ii), each
Lender that so makes funds available shall be deemed to have made a Base Rate
Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Swingline Lender.


 


(ii)               
If for any reason any
Swingline Loan cannot be refinanced by such a Borrowing of Revolving Loans in
accordance with Section 3.8(c)(i), the request for Base Rate Loans
submitted by the Swingline Lender as set forth herein shall be deemed to be a
request by the Swingline Lender that each of the Lenders fund its risk
participation in the relevant Swingline Loan and each Lender’s payment to the
Administrative Agent for the account of the Swingline Lender pursuant to Section
3.8(c)(i) shall be deemed payment in respect of such participation.


 


(iii)              
If any Lender fails to make
available to the Administrative Agent for the account of the Swingline Lender
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 3.8(c) by the time specified in Section
3.8(c)(i), the Swingline Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Swingline Lender at
a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swingline Lender in accordance with banking industry rules on
interbank compensation.  A certificate of the Swingline Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.


 


(iv)             
Each Lender’s obligation to
make Revolving Loans or to purchase and fund risk participations in Swingline
Loans pursuant to this Section 3.8(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right that such Lender may
have against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to
make Revolving Loans pursuant to this Section 3.8(c) is subject to the
conditions set forth in Section 6.2.  No such purchase or funding of
risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swingline Loans, together with interest as provided herein.


 


(d)               
Repayment of
Participations.  


 


(i)                 
At any time after any Lender
has purchased and funded a risk participation in a Swingline Loan, if the
Swingline Lender receives any payment on account of such Swingline Loan, the
Swingline Lender will distribute to such Lender its Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s risk participation was funded) in the
same funds as those received by the Swingline Lender.


 


(ii)               
If any payment received by
the Swingline Lender in respect of principal or interest on any Swingline Loan
is required to be returned by the Swingline Lender under any of the circumstances
described in Section 11.5(c) (including pursuant to any settlement
entered into by the Swingline Lender in its discretion), each Lender shall pay
to the Swingline Lender its Percentage thereof on demand of the Administrative
Agent,












32




 










 








 








plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate.  The Administrative Agent will make such demand upon the
request of the Swingline Lender.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)               
Interest for Account of
Swingline Lender.  The
Swingline Lender shall be responsible for invoicing the Borrower for interest
on the Swingline Loans.  Until each Lender funds its Revolving Loans that are
Base Rate Loans or risk participation pursuant to this Section 3.8 to
refinance such Lender’s Percentage of any Swingline Loan, interest in respect
of such Percentage shall be solely for the account of the Swingline Lender.


 


(f)                
Payments Directly to
Swingline Lender.  The
Borrower shall make all payments of principal and interest in respect of the
Swingline Loans directly to the Swingline Lender.


 


ARTICLE IV.



LETTERS
OF CREDIT


 


Section 4.1           
The Letter
of Credit Commitment.   


 


(a)               
Subject to the terms and
conditions set forth herein, (i) each Issuing Bank agrees, in reliance upon the
agreements of the Lenders set forth in this Article IV, (A) from time to
time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the
account of the Borrower or any of its Subsidiaries, and to amend or extend
Letters of Credit previously issued by it, in accordance with Section 4.2,
and (B) to honor drawings under the Letters of Credit; and (ii) the Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower or its Subsidiaries and any drawings thereunder; provided, that 
after giving effect to any LC Credit Extension with respect to any Letter of
Credit, (w) the Total Revolving Outstandings shall not exceed the Commitments,
(x) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus 
such Lender’s Percentage of the Outstanding Amount of all LC Obligations plus 
such Lender’s Percentage of the Outstanding Amount of all Swingline Loans shall
not exceed such Lender’s Commitment and (y) the Outstanding Amount of the LC
Obligations shall not exceed the Letter of Credit Sublimit.  Each request by
the Borrower for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Borrower that the LC Credit Extension so
requested complies with the conditions set forth in the proviso to the
preceding sentence.  Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.  Furthermore, each Lender acknowledges and
confirms that it has a participation interest in the liability of Bank of
America under the Existing Letters of Credit in a percentage equal to its
Percentage of the Commitments.  The Borrower’s reimbursement obligations in
respect of the Existing Letters of Credit, and each Lender’s obligations in
connection therewith, shall be governed by the terms of this Agreement.


 


(b)               
Notwithstanding clause (a) of
this Section 4.1 and any other term or provision of this Agreement,
including, without limitation, the size of the Letter of Credit Sublimit, (i)
Wells Fargo Bank shall not be obligated to issue Letters of Credit in an
aggregate amount outstanding at any one time in excess of $33,333,334, (ii)
Bank of America shall not be obligated to issue Letters of Credit in an
aggregate amount outstanding at any one time in excess of $33,333,333 












33




 










 








 








and
(iii) JPMorgan shall not be obligated to issue Letters of Credit in an
aggregate amount outstanding at any one time in excess of $33,333,333.


 


(c)               
No Issuing Bank shall issue
any Letter of Credit if:


 


(i)                 
the expiry date of such
requested Letter of Credit would occur more than twelve (12) months after the
date of issuance or last extension, unless the Required Lenders have approved
such expiry date; or


 


(ii)               
the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all of the Lenders shall have approved such expiry date;


 


(d)               
No Issuing Bank shall be
under any obligation to issue any Letter of Credit if:


 


(i)                 
any order, judgment or decree
of any Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any
Requirement of Law or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over such Issuing
Bank shall prohibit, or request that such Issuing Bank  refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such Issuing Bank is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which such Issuing Bank in
good faith deems material to it;


 


(ii)               
the issuance of such Letter
of Credit would violate one or more policies of such Issuing Bank;


 


(iii)              
except as otherwise agreed by
the Administrative Agent and the applicable Issuing Bank, such Letter of Credit
is in an initial stated amount less than $100,000;


 


(iv)             
such Letter of Credit is to
be denominated in a currency other than Dollars;


 


(v)               
any Lender is at that time a
Defaulting Lender, unless the applicable Issuing Bank has entered into
arrangements, including the delivery of Cash Collateral, satisfactory to such
Issuing Bank (in its sole discretion) with the Borrower or such Lender to
eliminate such Issuing Bank’s actual or potential Fronting Exposure (after
giving effect to Section 11.18(a)(iv)) with respect to the Defaulting
Lender arising from either the Letter of Credit then proposed to be issued or
that Letter of Credit and all other LC Obligations as to which such Issuing
Bank has actual or potential Fronting Exposure, as it may reasonably require;
or


 


(vi)             
such Letter of Credit would
cause such Issuing Bank to exceed the applicable amount specified for such
Issuing Bank in Section 4.1(b). 












34




 










 








 








 


(e)               
No Issuing Bank shall amend
any Letter of Credit if such Issuing Bank would not be permitted at such time
to issue such Letter of Credit in its amended form under the terms hereof.


 


(f)                
No Issuing Bank shall be
under any obligation to amend any Letter of Credit if (i) such Issuing Bank
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (ii) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.


 


(g)               
Each Issuing Bank shall act
on behalf of the Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and such Issuing Bank shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article
X with respect to any acts taken or omissions suffered by such Issuing Bank
in connection with Letters of Credit issued by it or proposed to be issued by
it and the Issuing Bank Agreement pertaining to such Letters of Credit as fully
as if the term “Administrative Agent” as used in Article X included such
Issuing Bank with respect to such acts or omissions, and (B) as additionally
provided herein with respect to such Issuing Bank.


 


Section 4.2           
Procedures
for Issuance and Amendment of Letters of Credit; Evergreen Letters of Credit.   


 


(a)               
Each Letter of Credit shall
be issued or amended, as the case may be, upon the request of the Borrower
delivered to the applicable Issuing Bank (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of the Borrower.  Such Letter of Credit
Application must be received by the applicable Issuing Bank and the
Administrative Agent not later than 2:00 p.m. at least five (5) Business Days
(or such later date and time as the applicable Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be.  In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail reasonably satisfactory to the applicable Issuing
Bank: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; (G) the purpose and nature of the requested Letter of
Credit; and (H) such other matters as the applicable Issuing Bank may
reasonably require.  In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail reasonably satisfactory to the applicable Issuing Bank: (A)
the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and (D)
such other matters as the applicable Issuing Bank may reasonably require. 
Additionally, the Borrower shall furnish to the applicable Issuing Bank and the
Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuing Bank
Agreement, as such Issuing Bank or the Administrative Agent may reasonably
require.


 


(b)               
Promptly after receipt of any
Letter of Credit Application, the applicable Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the Borrower and,
if not, such Issuing Bank will provide the Administrative Agent with a copy
thereof.  Unless such Issuing Bank has received written notice from any Lender,
the Administrative Agent or the 












35




 










 








 








Borrower,
at least one (1) Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article VI shall not be satisfied, then, subject
to the terms and conditions hereof, such Issuing Bank shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or the
applicable Subsidiary or enter into the applicable amendment, as the case may
be, in each case in accordance with such Issuing Bank’s usual and customary
business practices.  Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the applicable Issuing Bank a risk participation in
such Letter of Credit in an amount equal to the product of such Lender’s
Percentage times  the amount of such Letter of Credit.


 


(c)               
If the Borrower so requests
in any applicable Letter of Credit Application, an Issuing Bank may, in its
sole and absolute discretion, agree to issue an Evergreen Letter of Credit; provided,
that  any such Evergreen Letter of Credit must permit the applicable
Issuing Bank to prevent any extension at least once in each twelve‐month
period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Non‐Extension
Notice Date”) in each such twelve‐month period to be agreed upon at
the time such Letter of Credit is issued.  Unless otherwise directed by the
applicable Issuing Bank, the Borrower shall not be required to make a specific
request to such Issuing Bank for any such extension.  Once an Evergreen Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but
may not require) the applicable Issuing Bank to permit the extension of such
Letter of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that no Issuing Bank
shall permit any such extension if (i) such Issuing Bank has determined that it
would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (c) or (d) of Section 4.1 or
otherwise), or (ii) it has received notice (which may be by telephone or in
writing) on or before the day that is seven (7) Business Days before the Non‐Extension
Notice Date (A) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (B) from the Administrative Agent, any
Lender or the Borrower that one or more of the applicable conditions specified
in Section 6.2 is not then satisfied, and in each such case directing
such Issuing Bank not to permit such extension.


 


(d)               
Promptly after its delivery
of any Letter of Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the applicable Issuing
Bank will also deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.


 


Section 4.3           
Drawings and
Reimbursements; Funding of Participations.   


 


(a)               
Upon receipt from the
beneficiary of any Letter of Credit of any notice of drawing under such Letter
of Credit, the applicable Issuing Bank shall notify the Borrower and the
Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any
payment by any Issuing Bank under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse such Issuing Bank through the
Administrative Agent in an amount equal to the amount of such drawing.  If the
Borrower fails to so reimburse such Issuing Bank by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Lender’s Percentage thereof.  In such event, the Borrower shall
be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 3.4(a) for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the 












36




 










 








 








Commitments
and the Borrowing Limit and the conditions set forth in Section 6.2
(other than the delivery of a Notice of Revolving Borrowing).  Any notice given
by an Issuing Bank or the Administrative Agent pursuant to this Section
4.3(a) may be given by telephone if immediately confirmed in writing; provided,
that, the lack of such immediate written confirmation shall not affect
the conclusiveness or binding effect of such notice.


 


(b)               
Each Lender shall upon any
notice of an Unreimbursed Amount pursuant to Section 4.3(a) make funds
available (and the Administrative Agent may apply Cash Collateral provided for
this purpose) for the account of the applicable Issuing Bank at the
Administrative Agent’s Office in an amount equal to its Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 4.3(c), each Lender that so makes funds available shall be
deemed to have made a Base Rate Loan to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the applicable
Issuing Bank.


 


(c)               
With respect to any Unreimbursed
Amount that is not fully refinanced by a Borrowing of Base Rate Loans because
the conditions set forth in Section 6.2 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the applicable
Issuing Bank an LC Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which LC Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate.  In such
event, each Lender’s payment to the Administrative Agent for the account of the
applicable Issuing Bank pursuant to Section 4.3(b) shall be deemed
payment in respect of its participation in such LC Borrowing and shall
constitute an LC Advance from such Lender in satisfaction of its participation
obligation under this Article IV. 


 


(d)               
Until each Lender funds its
Revolving Loan or LC Advance pursuant to this Section 4.3 to reimburse
an Issuing Bank for any amount drawn under any Letter of Credit, interest in
respect of such Lender’s Percentage of such amount shall be solely for the
account of the applicable Issuing Bank.


 


(e)               
Each Lender’s obligation to
make Revolving Loans or LC Advances to reimburse the Issuing Banks for amounts
drawn under Letters of Credit, as contemplated by this Section 4.3,
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against any Issuing Bank, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Loans pursuant to this Section 4.3
is subject to the conditions set forth in Section 6.2 (other than
delivery by the Borrower of a Notice of Revolving Borrowing).  No such making
of an LC Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Banks for the amount of any payment made by
an Issuing Bank under any Letter of Credit, together with interest as provided
herein.


 


(f)                
If any Lender fails to make
available to the Administrative Agent for the account of an Issuing Bank any
amount required to be paid by such Lender pursuant to the foregoing provisions
of this Section 4.3 by the time specified in Section 4.3(b), the
applicable Issuing Bank shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the applicable Issuing Bank at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by
the 


 












37




 










 








 








applicable
Issuing Bank in accordance with banking industry rules on interbank
compensation plus any administrative, processing or similar fees customarily
charged by such Issuing Bank in connection with the foregoing.  A certificate
of an Issuing Bank submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (f) shall be conclusive
absent manifest error.


 


Section 4.4           
Repayment of
Participations.   


 


(a)               
At any time after an Issuing
Bank has made a payment under any Letter of Credit and has received from any
Lender such Lender’s LC Advance in respect of such payment in accordance with Section
4.3, if the Administrative Agent receives for the account of such Issuing
Bank any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s LC Advance was outstanding) in the
same funds as those received by the Administrative Agent.


 


(b)               
If any payment received by
the Administrative Agent for the account of an Issuing Bank pursuant to Section
4.3(a) is required to be returned under any of the circumstances described
in Section 11.5 (including pursuant to any settlement entered into by
the applicable Issuing Bank in its discretion), each Lender shall pay to the
Administrative Agent for the account of such Issuing Bank its Percentage
thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect. 
The obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.


 


Section 4.5           
Obligations
Absolute.  The obligation of the Borrower to
reimburse the Issuing Banks for each drawing under each Letter of Credit and to
repay each LC Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:


 


(a)               
any lack of validity or
enforceability of such Letter of Credit, this Agreement, or any other Loan
Document;


 


(b)               
the existence of any claim,
counterclaim, setoff, defense or other right that the Borrower or any
Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), any Issuing Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;


 


(c)               
any draft, demand,
certificate or other document presented under such Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


(d)               
any payment by the applicable
Issuing Bank under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by such Issuing Bank under such Letter of Credit to
any Person 












38




 










 








 








purporting
to be a trustee in bankruptcy, debtor‐in‐possession, assignee for
the benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Law; and


 


(e)               
any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower or any Subsidiary.


 


The Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with the Borrower’s instructions or other
irregularity, the Borrower will promptly notify the applicable Issuing Bank. 
The Borrower shall be conclusively deemed to have waived any such claim against
such Issuing Bank and its correspondents unless such notice is given as
aforesaid; provided, that, the terms and provisions of this Section
4.5 shall not limit the rights of the Borrower under Section 4.6. 


 


Section 4.6           
Role
of Issuing Banks. 
Each Lender and the Borrower agree that,
in paying any drawing under a Letter of Credit, no Issuing Bank shall have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.  None of any Issuing
Bank, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of any Issuing Bank shall be liable to
any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuing Bank Agreement.  The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement.  None of any Issuing Bank, the Administrative Agent, any
of their respective Related Parties nor any correspondent, participant or
assignee of any Issuing Bank shall be liable or responsible for any of the
matters described in clauses (a) through (e) of Section 4.5; provided,
however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against an Issuing Bank, and an Issuing Bank may
be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower
which are determined by a court of competent jurisdiction by final and
non-appealable judgment to have been caused by such Issuing Bank’s willful
misconduct or gross negligence or such Issuing Bank’s willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit unless such Issuing Bank is prevented or prohibited from
so paying as a result of any order or directive of any court or other
Governmental Authority.  In furtherance and not in limitation of the foregoing,
each Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice
or information to the contrary, and each Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.


 


Section 4.7           
Applicability
of ISP and UCP.  Unless otherwise expressly agreed by the
applicable Issuing Bank and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i)
the rules of the ISP98 shall apply to each Letter 












39




 










 








 








of
Credit and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at
the time of issuance shall apply to each commercial or direct pay Letter of
Credit.


 


Section 4.8           
Letter
of Credit Fees. 
The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Percentage a Letter of Credit fee (the “Letter of Credit Fee”), for each
Letter of Credit equal to the Applicable Margin times  the daily maximum
amount available to be drawn under such Letter of Credit; provided, however,
any Letter of Credit Fees otherwise payable for the account of a Defaulting
Lender with respect to which such Defaulting Lender has not provided Cash
Collateral satisfactory to the applicable Issuing Bank pursuant to this Article
IV shall be payable, to the maximum extent permitted by applicable Law, to
the other Lenders in accordance with the upward adjustments in their respective
Percentages allocable to such Letter of Credit pursuant to Section
11.18(a)(iv), with the balance of such fee, if any, payable to the
applicable Issuing Bank for its own account.  For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section 1.4. 
Letter of Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand.  If there is any change in the
Applicable Margin during any quarter, the daily amount available to be drawn
under each Letter of Credit shall be computed and multiplied by the Applicable
Margin separately for each period during such quarter that such Applicable
Margin was in effect.  Notwithstanding anything to the contrary contained herein,
upon the request of the Required Lenders, while any Event of Default under Section
9.1(a) exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


Section 4.9           
Fronting
Fee and Processing Charges Payable to Issuing Banks.  The Borrower shall pay to the
Administrative Agent, for the account of the applicable Issuing Bank a fronting
fee with respect to each Letter of Credit issued by such Issuing Bank in an
amount equal to the actual daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit) multiplied by the rate per annum specified in the
applicable Fee Letter between the Borrower and such Issuing Bank and computed
on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the last Business Day of each March, June, September and December, commencing
with (a) with respect to the Existing Letters of Credit, the first such date to
occur after the Closing Date, on the Letter of Credit Expiration Date and
thereafter on demand and (b) with respect to all Letters of Credit other than
Existing Letters of Credit, the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand.  For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined
in accordance with Section 1.4.  In addition, the Borrower shall pay
directly to each Issuing Bank for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of such Issuing Bank relating to letters of credit as from time to
time in effect.  Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.


 


Section 4.10       
Conflict
with Issuing Bank Agreements.  In the event of any conflict between the
terms hereof and the terms of any Issuing Bank Agreement, the terms hereof
shall control.


 


Section 4.11       
Letters
of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Subsidiary, the Borrower shall be obligated to reimburse the
applicable Issuing Bank hereunder for any and all drawings under such Letter of
Credit.  The Borrower hereby acknowledges that the issuance of 












40




 










 








 








Letters
of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower’s business derives substantial benefits from
the businesses of such Subsidiaries.


 


ARTICLE V.



PAYMENTS,
COMPUTATIONS AND

YIELD PROTECTION


 


Section 5.1           
Payments and Computations.  


  


(a)               
The Borrower shall make each
payment hereunder and under the other Loan Documents not later than 3:00 p.m.
on the day when due in Dollars to the Administrative Agent’s Office in same day
funds, except payments to be made directly to the Issuing Banks or the Swingline
Lender as expressly provided herein; any payment received after 3:00 p.m. shall
be deemed to have been received at the start of business on the next succeeding
Business Day.  The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest, fees or
other amounts payable to the Lenders, to the respective Lenders to which the
same are payable, for the account of their respective Applicable Lending
Offices, in each case to be applied in accordance with the terms of this
Agreement.  If and to the extent that any distribution of any payment from the
Borrower required to be made to any Lender pursuant to the preceding sentence
shall not be made in full by the Administrative Agent on the date such payment
was received by the Administrative Agent, the Administrative Agent shall pay to
such Lender, upon demand, interest on the unpaid amount of such distribution,
at a rate per annum equal to the Federal Funds Rate, from the date of such
payment by the Borrower to the Administrative Agent to the date of payment in
full by the Administrative Agent to such Lender of such unpaid amount.  Upon
the Administrative Agent’s acceptance of an Assignment and Assumption and
recording of the information contained therein in the Register pursuant to Section
11.7, from and after the effective date specified in such Assignment and
Assumption, the Administrative Agent shall make all payments hereunder and
under any Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Assumption shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.


 


(b)               
The Borrower hereby
authorizes the Administrative Agent, the Swingline Lender, each Lender and each
Issuing Bank, if and to the extent payment owed by the Borrower to the
Administrative Agent, the Swingline Lender, such Lender or such Issuing Bank,
as the case may be, is not made when due hereunder (or, in the case of a
Lender, under any Note held by such Lender), to charge from time to time
against any or all of the Borrower’s accounts with the Administrative Agent,
the Swingline Lender, such Lender or such Issuing Bank, as the case may be, any
amount so due.


 


(c)               
All computations of interest
for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be.  All other computations of interest and fees hereunder shall
be made by the Administrative Agent on the basis of a year of 360 days.  In
each such case, such computation shall be made for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable.  Each such determination by the
Administrative Agent or a Lender shall be conclusive and binding for all
purposes, absent manifest error.












41




 










 








 








 


(d)               
Whenever any payment
hereunder or under any other Loan Document shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest and fees hereunder; provided, however,
that if such extension would cause payment of interest on or principal of LIBOR
Rate Loans to be made in the next following calendar month, such payment shall
be made on the next preceding Business Day.


 


(e)               
Unless the Administrative
Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Lenders hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that the Borrower has
made such payment in full to the Administrative Agent on such date, and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender.  If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, such Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such
Lender, together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount to
the Administrative Agent, at the Federal Funds Rate.


 


(f)                
If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal then due hereunder, ratably among the parties entitled
thereto.


 


Section 5.2           
Interest
Rate Determination.  The Administrative Agent shall give prompt
notice to the Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of Section 3.5(b)(i)
or (ii). 


 


Section 5.3           
Prepayments.  The Borrower shall have no right to prepay
any principal amount of any Loans other than as provided in subsections (a) and
(b) below.


 


(a)               
Voluntary Prepayments. 


 


(i)                 
Revolving Loans.  The Borrower may, upon at least three
(3) Business Days’ notice, with respect to LIBOR Rate Loans, and one (1) Business
Day’s notice, with respect to Base Rate Loans, to the Administrative Agent
stating the proposed date and the aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the outstanding
principal amounts of Revolving Loans made as part of the same Borrowing, in
whole or ratably in part, together with (i) accrued interest to the date of
such prepayment on the principal amount prepaid and (ii) in the case of LIBOR
Rate Loans, and subject to Section 5.4(d), any amount payable to the
Lenders pursuant to Section 5.4(b); provided, however,
that each partial prepayment shall be in an aggregate principal amount of not
less than (A) in the case of LIBOR Loans, $5,000,000 or an integral multiple of
$1,000,000 in excess thereof or (B) in the case of Base Rate Loans, $1,000,000
or an integral multiple of $500,000 in excess thereof.


 


(ii)               
Swingline Loans.  The Borrower may, upon one (1) Business
Day’s notice to the Swingline Lender (with a copy to the Administrative Agent)
stating the proposed date and the aggregate principal amount of the prepayment,
at any time and from time to time, and if such notice is given the Borrower
shall, voluntarily prepay 












42




 










 








 








Swingline
Loans in whole or in part without premium or penalty, together with accrued
interest to the date of such prepayment on the principal amount prepaid; provided,
that, (A) such notice must be received by the Swingline Lender and the
Administrative Agent not later than 1:00 p.m. on the date of such prepayment
and (B) such prepayment shall be in a minimum principal amount of $100,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire principal
thereof then outstanding).


 


(b)               
Mandatory Prepayments.   


 


(i)                 
Revolving Commitments.  If for any reason the Total Revolving
Outstandings exceeds the Commitments (including as a result of any termination
or reduction of the Commitments pursuant to Sections 2.3 or 8.2(d)),
the Borrower shall immediately pay or prepay so much of the principal amount
outstanding hereunder as shall be necessary in order that the Total Revolving
Outstandings (after giving effect to all Extensions of Credit to be made on
such date and the application of the proceeds thereof) will not exceed the
Commitments, together with (i) accrued interest to the date of such prepayment
on the principal amount prepaid and (ii) in the case of prepayments of LIBOR
Rate Loans, and subject to Section 5.4(d), any amount payable to the
Lenders pursuant to Section 5.4(b).  Any prepayments required by this
subsection (b) shall be applied to outstanding Base Rate Loans up to the full
amount thereof before they are applied to outstanding LIBOR Rate Loans.


 


(ii)               
Negative Mark-to-Market
Exposure.  If, as of the
end of any calendar month, (A) there exists Aggregate Negative Mark-to-Market
Exposure, as set forth in the certificate of a Responsible Officer of the
Borrower required to be delivered pursuant to Section 8.1(b)(iii) and
(B) at such time the Total Revolving Outstandings exceed the Borrowing Limit
then in effect (after giving effect to the reduction in the Borrowing Limit
caused by such Aggregate Negative Mark-to-Market Exposure), the Borrower shall,
within three (3) Business Days pay or prepay so much of the principal amount
outstanding hereunder as shall be necessary in order that the Total Revolving
Outstandings (after giving effect to all Extensions of Credit to be made on
such date and the application of the proceeds thereof) will not exceed the
Borrowing Limit.


 


Section 5.4           
Yield Protection.   


 


(a)               
Increased Costs.  If, due to any Change in Law there
shall be reasonably incurred any increase in (A) the cost to any Lender of
agreeing to make or making, funding or maintaining LIBOR Rate Loans, or of
participating in the issuance, maintenance or funding of any Letter of Credit,
or (B) the cost to any Issuing Bank of issuing or maintaining any Letter of
Credit, then the Borrower shall from time to time, promptly after receipt of
written demand by such Lender or Issuing Bank, as the case may be (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender or Issuing Bank, as the case may be, additional
amounts sufficient to compensate such Lender or Issuing Bank, as the case may
be, for such increased cost.  A certificate as to the amount of such increased
cost and giving a reasonable explanation and calculation thereof shall be
submitted to the Borrower and the Administrative Agent by such Lender or such
Issuing Bank, as the case may be, shall constitute such demand and shall be
conclusive and binding for all purposes, absent manifest error.


 


(b)               
Breakage.  If, due to any prepayment pursuant to Section
5.3, an acceleration of maturity of the Loans pursuant to Section 9.2,
or any other reason, any Lender receives payments of principal of any LIBOR
Rate Loan other than on the last day of the Interest Period relating to 


 












43




 










 








 








such
Loan, or if the Borrower shall Convert any LIBOR Rate Loans on any day other
than the last day of the Interest Period therefor, the Borrower shall, promptly
after demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for additional losses, costs, or
expenses (including anticipated lost profits) that such Lender may reasonably
incur as a result of such payment or Conversion, including any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such Loan.  For
purposes of this subsection (b) and Section 3.4(e), a certificate
setting forth the amount of such additional losses, costs, or expenses and
giving a reasonable explanation and calculation thereof shall be submitted to
the Borrower and the Administrative Agent by such Lender, shall constitute such
demand and shall be conclusive and binding for all purposes, absent manifest
error.


 


(c)               
Capital.  If any Lender or Issuing Bank
determines that any Change in Law after the date hereof, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or Issuing Bank, whether directly, or indirectly as a result of
commitments of any corporation controlling such Lender or Issuing Bank (but
without duplication), and the amount of such capital is increased by or based
upon (A) the existence of such Lender’s or Issuing Bank’s commitment to lend or
issue or participate in any Letter of Credit hereunder, or (B) the participation
in or issuance or maintenance of any Letter of Credit or Loan and (C) other
similar such commitments, then, promptly after demand by such Lender or Issuing
Bank, the Borrower shall pay to the Administrative Agent for the account of
such Lender or Issuing Bank from time to time as specified by such Lender or
Issuing Bank additional amounts sufficient to compensate such Lender or Issuing
Bank in the light of such circumstances, to the extent that such Lender or
Issuing Bank reasonably determines such increase in capital to be allocable to
the transactions contemplated hereby.  A certificate as to such amounts and
giving a reasonable explanation and calculation thereof (to the extent
permitted by law) shall be submitted to the Borrower and the Administrative
Agent by such Lender or Issuing Bank and shall be conclusive and binding for
all purposes, absent manifest error.


 


(d)               
Notices, Etc.  Each Lender and each Issuing Bank hereby
agrees to use its best efforts to notify the Borrower of the occurrence of any
event referred to in subsection (a), (b) or (c) of this Section 5.4
promptly after becoming aware of the occurrence thereof.  The Borrower shall
pay the Administrative Agent, for the account of such Lender or such Issuing
Bank, the amount shown as due on any certificate delivered pursuant to this Section
5.4 within ten (10) Business Days after its receipt of the same.  The
failure of any Lender or any Issuing Bank to provide such notice or to make
demand for payment under said subsection shall not constitute a waiver of such
Lender’s or such Issuing Bank’s rights hereunder; provided, that,
notwithstanding any provision to the contrary contained in this Section 5.4,
the Borrower shall not be required to reimburse any Lender or any Issuing Bank
for any amounts or costs incurred under subsection (a), (b) or (c) above, more
than 90 days prior to the date that such Lender or such Issuing Bank, as the
case may be, notifies the Borrower in writing thereof, in each case unless, and
to the extent that, any such amounts or costs so incurred shall relate to the
retroactive application of any event notified to the Borrower which entitles
such Lender to such compensation.  Each Lender and Issuing Bank claiming any
compensation under this Section 5.4 shall use reasonable efforts to
designate a different Applicable Lending Office if such designation would not
result in the incurrence by such Lender or such Issuing Bank of additional
costs or expenses which it deems material or, in the sole judgment of such
Lender or such Issuing Bank, be inadvisable for regulatory, competitive or
internal management reasons.  If any Lender or Issuing Bank shall subsequently
determine that any amount demanded and collected under this Section 5.4
was done so in error, such Lender or such Issuing Bank will promptly return
such amount to the Borrower.  


 












44




 










 








 








Notwithstanding
any other provision of this Section 5.4, no Lender or Issuing Bank shall
demand compensation for any increased cost or increased capital requirement
referred to in subsection (a) or (c) above if it shall not at the time be the
general policy or practice of such Lender or Issuing Bank (as the case may be)
to demand such compensation in similar circumstances under comparable
provisions of other credit agreements, if any.


 


(e)               
Survival of Obligations.  Subject to subsection (d) above, the
Borrower’s obligations under this Section 5.4 shall survive the
repayment of all other amounts owing to the Lenders, the Swingline Lender, the
Administrative Agent and the Issuing Banks under the Loan Documents and the
termination of the Commitments.


 


Section 5.5           
Sharing
of Payments, Etc. 
If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans or other obligations owing to it pursuant
to this Agreement (excluding any amounts applied by the Swingline Lender to
outstanding Swingline Loans and excluding any amounts received by an Issuing Bank
and/or the Swingline Lender to secure the obligations of a Defaulting Lender to
fund risk participations hereunder and other than pursuant to Section 5.4,
5.6, 11.4  or 11.7) in excess of its ratable share of
payments obtained by all the Lenders on account of the Loans of such Lenders,
such Lender shall forthwith purchase from the other Lenders such participation
in the Loans owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender’s ratable
share (according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered.  The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section
5.5 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.  Notwithstanding the foregoing, if any Lender shall
obtain any such excess payment involuntarily, such Lender may, in lieu of
purchasing participations from the other Lenders in accordance with this Section
5.5, on the date of receipt of such excess payment, return such excess
payment to the Administrative Agent for distribution in accordance with Section
5.1(a). 


 


Section 5.6           
Taxes.   


 


(a)               
All payments by the Borrower
hereunder and under the other Loan Documents shall be made in accordance with Section
5.1, free and clear of and without deduction for all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender, each
Issuing Bank and the Administrative Agent, taxes imposed on its overall net or
gross income, receipts, capital, net worth, privilege of transacting business
or corporate franchise taxes imposed on it by the jurisdiction under the laws
of which such Lender, such Issuing Bank or the Administrative Agent (as the case
may be) is organized or any political subdivision thereof and, in the case of
each Lender, taxes imposed on its overall net or gross income, receipts,
capital, net worth, privilege of transacting business or corporate franchise
taxes imposed on it by the jurisdiction of such Lender’s Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as “Taxes”).  If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder or
under any other Loan Document to any Lender, any Issuing Bank or the
Administrative Agent, (i) the sum payable shall be increased as may be
necessary so 


 












45




 










 








 








that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 5.6) such Lender, such
Issuing Bank or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.


 


(b)               
In addition, the Borrower
agrees to pay any present or future stamp or documentary taxes or any other
similar taxes or charges that arise from any payment made hereunder or under
any other Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as “Other Taxes”). 


 


(c)               
Tax Indemnifications. 


 


(i)                 
Without limiting the
provisions of subsection (a) or (b) of this Section 5.6 and subject to
clause (ii) below, the Borrower shall, and does hereby, indemnify the
Administrative Agent, each Lender, and each Issuing Bank and shall make payment
in respect thereof within thirty (30) days after demand therefor, for the full
amount of any Taxes or Other Taxes (including Taxes or Other Taxes imposed by
any jurisdiction or asserted on or attributable to amounts payable under this
Section) withheld or deducted by the Borrower or the Administrative Agent or
paid by the Administrative Agent, such Lender, or such Issuing Bank, as the
case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by any Governmental Authority. 
The Borrower shall also, and does hereby, indemnify the Administrative Agent,
and shall make payment in respect thereof within thirty (30) days after demand
therefor, for any amount which a Lender for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of this
subsection.  A certificate as to the amount of any such payment or liability
delivered to the Borrower by a Lender or Issuing Bank (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or Issuing Bank, shall be conclusive absent manifest error. 
Nothing herein shall preclude the right of the Borrower to contest any such
Taxes or Other Taxes so paid, and each Lender, each Issuing Bank and the
Administrative Agent (as the case may be) will, following notice from, and at
the expense of, the Borrower, reasonably cooperate with the Borrower to
preserve the Borrower’s rights to contest such Taxes or Other Taxes.


 


(ii)               
Without limiting the
provisions of subsection (a) or (b) above, each Lender shall, and does hereby,
indemnify the Borrower and the Administrative Agent, and shall make payment in
respect thereof within thirty (30) days after demand therefor, against any and
all Taxes and any and all related losses, claims, liabilities, penalties,
interest and expenses (including the fees, charges and disbursements of any
counsel for the Borrower or the Administrative Agent) incurred by or asserted
against the Borrower or the Administrative Agent by any Governmental Authority
directly as a result of the failure by such Lender to deliver, or as a result
of the inaccuracy, inadequacy or deficiency of, any documentation required to
be delivered by such Lender to the Borrower or the Administrative Agent
pursuant to subsection (e) below.  Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender
under this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this subsection (c)(ii).  The 












46




 










 








 








agreements
in this subsection (c)(ii) shall survive the resignation and/or replacement of
the Administrative Agent, any assignment of rights by, or the replacement of, a
Lender, the repayment of all other amounts owing to the Lenders, the
Administrative Agent and the Issuing Banks under the Loan Documents and the
termination of the Commitments.


 


(d)               
Within thirty (30) days after
the date of any payment of Taxes, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 11.2, the
original or a certified copy of a receipt evidencing payment thereof.


 


(e)               
Each Lender represents and
warrants that either (i) it is organized under the laws of a jurisdiction
within the United States or (ii) it has delivered to the Borrower or the
Administrative Agent duly completed copies of such form or forms prescribed by
the United States Internal Revenue Service indicating that such Lender is
entitled to receive payments without deduction or withholding of any United
States federal income taxes, as permitted by the Code or any tax treaty to
which the United States is a party.  Each other Lender agrees that, on or prior
to the date upon which it shall become a party hereto, and upon the reasonable
request from time to time of the Borrower or the Administrative Agent, such
Lender will deliver to the Borrower and the Administrative Agent (to the extent
that it is not prohibited by law from doing so) either (A) a statement that it
is organized under the laws of a jurisdiction within the United States or (B)
duly completed copies of such form or forms as may from time to time be
prescribed by the United States Internal Revenue Service, indicating that such
Lender is entitled to receive payments without deduction or withholding of any
United States federal income taxes, as permitted by the Code.  Each Lender that
has delivered, and each other Lender that hereafter delivers, to the Borrower
and the Administrative Agent the form or forms referred to in the two preceding
sentences further undertakes to deliver to the Borrower and the Administrative
Agent, to the extent that it is not prohibited by law from doing so, further
copies of such form or forms, or successor applicable form or forms, as the
case may be, as and when any previous form filed by it hereunder shall expire
(upon request for recertification made by the Borrower or the Administrative
Agent) or shall become incomplete or inaccurate in any respect.  Each Lender
represents and warrants that each such form supplied by it to the
Administrative Agent and the Borrower pursuant to this subsection (e), and not
superseded by another form supplied by it, is or will be, as the case may be,
complete and accurate, and such Lender acknowledges and agrees that nothing
contained herein shall in any way limit, waive, or otherwise reduce any claim
that the Administrative Agent or the Borrower may have against such Lender in
the event that any such form shall not be complete and accurate.


 


(f)                
Any Lender claiming any
additional amounts payable pursuant to this Section 5.6 shall use its
best efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if
the making of such a change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.


 


(g)               
Any Lender claiming any
additional amounts payable pursuant to this Section 5.6 (“Additional
Amounts”) who determines, in its sole discretion exercised in good faith,
that it has received a tax refund as a result of the Borrower’s payment of such
Additional Amounts shall, to the extent it can do so without prejudice to the
retention of the amount of the tax refund so realized (after taking into account
any net additional taxes paid in connection with the realization thereof),
notify the Borrower and pay to the Borrower (to the extent that the same shall
not already have been taken into account in computing any amount previously
paid by the Borrower or the amount of any reimbursement 












47




 










 








 








previously
received by such Lender) promptly after the realization thereof an amount that
is equal to the net amount thereof (or, in the event of a deduction from
taxable income, the net tax benefit generated thereby, if less than such
deduction) plus  any additional tax savings resulting from the payment of
such amount to the Borrower pursuant to this sentence; provided, that,
the aggregate of all such payments shall not exceed the aggregate of all
Additional Amounts paid by the Borrower with respect to such Lender; provided,
further, that, the Borrower, upon request of such Lender, agrees
to pay the amount paid over to the Borrower (plus penalties, interest and other
charges) to such Lender in the event such Lender is required to repay or return
such refund with respect to which a payment was made by such Lender to the
Borrower.  Nothing contained herein shall interfere with the right of such
Lender to arrange its tax affairs in whatever manner it deems appropriate and, in
particular, such Lender shall neither be under any obligation to claim relief
from a tax liability in priority to any other credit or deduction available to
it or be obligated to disclose any information relating to its tax affairs or
any computations in respect thereof or be required to do anything that would
prejudice its ability to benefit from any other credits, deductions or similar
tax savings to which it may be entitled.


 


(h)               
Without prejudice to
the survival of any other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section 5.6 shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender, the repayment of all
other amounts owing to the Lenders, the Administrative Agent and the Issuing
Banks under the Loan Documents and the termination of the Commitments.  If and
to the extent that the obligations of the Borrower under this Section 5.6
are unenforceable for any reason, the Borrower agrees to make the maximum
contribution to the payment and satisfaction thereof which is permissible under
applicable law.


ARTICLE VI.



CONDITIONS
PRECEDENT


 


Section 6.1           
Conditions
Precedent to Effectiveness of this Agreement.  This Agreement shall become effective on
the first date on which all of the following conditions precedent shall be
satisfied or waived:


 


(a)               
Loan Documents.  The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower and each Lender, (ii) the General and Refunding
Mortgage Bonds in a principal amount equal to the Commitments, duly issued and
delivered by a duly authorized officer of the Borrower and duly authenticated
by the trustee under the General and Refunding Mortgage Indenture, (iii) the
Notes (if requested by any Lender), duly executed by the Borrower and (iv) any
other applicable Loan Documents, each of which shall have been duly authorized,
executed and delivered to the Administrative Agent.


 


(b)               
Approvals.  All governmental and third party
approvals (including, without limitation, any required approvals of the PUCN
and any relevant Federal regulatory bodies) necessary in connection with the
transactions contemplated herein, the issuance and delivery to the
Administrative Agent of the General and Refunding Mortgage Bonds and the
continuing operations of the Borrower and its Subsidiaries shall have been
obtained and be in full force and effect; and the Administrative Agent shall
have received evidence satisfactory to it that the foregoing have been
accomplished. 


 


(c)               
Related Agreements.  The Administrative Agent shall have
received (in a form reasonably satisfactory to the Administrative Agent) true
and correct copies, certified as to 












48




 










 








 








authenticity
by a Responsible Officer of the Borrower, of such documents or instruments as
may be reasonably requested by the Administrative Agent, including, without
limitation, a copy of any debt instrument, security agreement or other material
contract to which the Borrower may be a party.


 


(d)               
Fees.  The Lenders, the Administrative Agent
and Wells Fargo Securities, JPM Securities and MLPFS (each in its capacity as
Joint Lead Arranger) shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Administrative Agent), on or
before the Closing Date.


 


(e)               
Closing Certificates.  The Administrative Agent shall have
received an officer’s certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit D, and a secretary’s certificate of
the Borrower, dated the Closing Date, substantially in the form of Exhibit E,
in each case executed by a Responsible Officer of the Borrower, with
appropriate insertions and attachments in form and substance satisfactory to
the Administrative Agent.


 


(f)                
Legal Opinions.  The Administrative Agent shall have
received the following executed legal opinions:


 


(i)                 
the legal opinion of Choate,
Hall & Stewart LLP, special counsel to the Borrower, in form and substance
satisfactory to the Administrative Agent (including, without limitation,
matters governed by New York law); and


 


(ii)               
the legal opinion of Woodburn
and Wedge, Nevada counsel to the Borrower, in form and substance satisfactory
to the Administrative Agent.


 


Each such legal opinion
shall cover such other matters incident to the transactions contemplated by
this Agreement as the Administrative Agent may reasonably require.


 


(g)               
General and Refunding
Mortgage Bond Documents. 
The Administrative Agent shall have received copies of (i) the General and
Refunding Mortgage Indenture as in effect on the Closing Date, certified as to
authenticity by a Responsible Officer of the Borrower and (ii) each of the
following documents (all as defined in the General and Refunding Mortgage
Indenture), each certified as to authenticity by a Responsible Officer of the
Borrower: (A) an “Officer’s Certificate” pursuant to a board resolution
meeting the requirements of Section 4.01(b) of the General and Refunding
Mortgage Indenture and setting forth the terms of the General and Refunding
Mortgage Bonds; (B) a “Company Order” requesting authentication of the
General and Refunding Mortgage Bond by the trustee under the General and
Refunding Mortgage Indenture; and (C) all legal opinions provided in connection
with the issuance of the General and Refunding  Mortgage Bonds, including that
required by Section 4.01(d) of the General and Refunding Mortgage Indenture.


 


(h)               
Financial Statements and
Projections.  The Lenders
and the Administrative Agent shall have received and be satisfied with (i) the
financial statements referred to in Section 7.1(a) and (ii) projections
for the Borrower through the fiscal year ending December 31, 2016.


 


(i)                 
Negative Mark-to-Market
Exposure.  The
Administrative Agent shall have received a certificate of a Responsible Officer
of the Borrower, in form and substance satisfactory to the Administrative
Agent, setting forth calculations of the Borrower’s Aggregate Negative 












49




 










 








 








Mark-to-Market
Exposure as of the Closing Date, if any, in respect of all Hedge Agreements
between the Borrower and any Lender or any Affiliate of a Lender.


 


(j)                 
Termination of Existing
SPPC Credit Agreement. 
Receipt by the Administrative Agent of evidence that the Existing SPPC Credit
Agreement concurrently with the Closing Date is being terminated and all Liens
securing obligations under the Existing SPPC Credit Agreement concurrently with
the Closing Date are being released.


 


(k)               
NPC Facility.  Receipt by the Administrative Agent of
a certificate of a Responsible Officer of the Borrower, certifying that the NPC
Credit Agreement is, or contemporaneously with the effectiveness of this
Agreement will be, effective on and as of Closing Date.


 


(l)                 
Good Standing Certificate. The Administrative Agent shall have
received a certificate of good standing (or equivalent certification) issued
within five (5) days prior to the Closing Date with respect to the Borrower by
the Secretary of State in the Borrower’s jurisdiction of incorporation.


 


(m)             
Other Approvals, Etc. The Administrative Agent shall have
received such other approvals, opinions and documents as any Lender, through
the Administrative Agent, may reasonably request.


 


Section 6.2           
Conditions
Precedent to Each Extension of Credit.  The obligation of each Lender or Issuing
Bank, as the case may be, to make an Extension of Credit (including the initial
Extension of Credit, but excluding Conversions (except (x) the condition
precedent set forth in clause (c) of this Section 6.2 shall be satisfied
for all Conversions and (y) the condition precedent set forth in clause (b) of
this Section 6.2 shall be satisfied for all Conversions from Base Rate
Loans to LIBOR Rate Loans)) shall be subject to the further conditions
precedent that (a) each of the representations and warranties made by the
Borrower in or pursuant to the Loan Documents (other than in the case of any
Extension of Credit made after the occurrence of a Debt Ratings Trigger and
during the period that the conditions for the Debt Ratings Trigger remain in
effect, the representations and warranties set forth in Section 7.1(b)
of this Agreement) is true and correct in all material respects on and as of
the date of such Extension of Credit as if made on such date, (b) no Default or
Event of Default has occurred and is continuing on the date of such Extension
of Credit or after giving effect to the Extensions of Credit requested to be
made on such date and (c) the Administrative Agent and, if applicable, the
applicable Issuing Bank and/or the Swingline Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.


 


Section 6.3           
Determinations
Under Section 6.1. 
For purposes of determining compliance with the conditions specified in Section
6.1, each Lender shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received written notice from such
Lender prior to the date hereof specifying its objection thereto.


 


Section 6.4           
Reliance
on Certificates. 
The Lenders, the Issuing Banks and the
Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of the Borrower as to the
names, incumbency, authority and signatures of the respective individuals named
therein until such time as the Administrative Agent may receive a replacement
certificate, in form acceptable to the Administrative Agent, from an officer of
such Person identified to the Administrative Agent as having authority to
deliver such certificate, setting forth the names and true 












50




 










 








 








signatures
of the officers and other representatives of such Person thereafter authorized
to act on behalf of such Person.


 


ARTICLE VII.



REPRESENTATIONS
AND WARRANTIES


 


Section 7.1           
Representations
and Warranties of the Borrower.  To induce the Administrative Agent, the
Issuing Banks and the Lenders to enter into this Agreement and to make
Extensions of Credit, the Borrower hereby represents and warrants to the
Administrative Agent, each Issuing Bank and each Lender that:


 


(a)               
Financial Condition.  The audited consolidated balance sheets
of the Borrower as at December 31, 2010 and December 31, 2011 and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Deloitte & Touche LLP, present fairly the Consolidated financial condition
of the Borrower and its Subsidiaries as at such dates, and the Consolidated
results of its operations and its Consolidated cash flows for the respective
fiscal years then ended.  All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein).  The Borrower and
its Subsidiaries do not have any material Guarantees, contingent liabilities
and liabilities for taxes, or any long-term leases or unusual forward or
long-term commitments, including, without limitation, any interest rate or
foreign currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph.  During the period from December 31, 2011 to and
including the date hereof there has been no Disposition by the Borrower or any
of its Subsidiaries of any material part of its business or Property.  The
financial statements delivered pursuant to Section 8.1(a) have been prepared
in accordance with GAAP and present fairly in all material respects the
consolidated financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries, as of the date and for the periods covered
thereby.


 


(b)               
No Change.  Since December 31, 2011, there has been
no development or event that has had or could reasonably be expected to have a
Material Adverse Effect.


 


(c)               
Corporate Existence;
Compliance with Law. 
Each of the Borrower and its Subsidiaries (i) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority, and the legal right,
to own and operate its Property, to lease the Property it operates as lessee
and to conduct the business in which it is currently engaged, (iii) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of Property or the conduct
of its business requires such qualification and (iv) is in compliance with all
Requirements of Law, except to the extent that, in the case of clauses (ii),
(iii) and (iv) above, the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.  Set forth
on Schedule 7.1(c) as of the Closing Date (and for the four (4) months
immediately preceding the Closing Date), is the exact legal name of the
Borrower, the state of its incorporation, the chief executive office, the
principal place of business, the jurisdictions in which the Borrower is
qualified to do business, the federal tax identification number and
organizational identification number of the Borrower.












51




 










 








 








 


(d)               
Corporate Power;
Authorization; Enforceable Obligations.  The Borrower has the corporate power and authority,
and the legal right, to make, deliver and perform the Loan Documents and to
borrow hereunder.  The Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance of the Loan Documents, to
authorize the issuance and delivery or assignment of the General and Refunding
Mortgage Bonds on the terms and conditions of this Agreement and to authorize
such borrowings on the terms and conditions of this Agreement.  No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or the execution, delivery, performance, validity or
enforceability of this Agreement or any of the other Loan Documents, except
consents, authorizations, filings and notices described in Schedule 7.1(d),
which consents, authorizations, filings and notices have been obtained or made
and are in full force and effect.  Each Loan Document has been duly executed
and delivered on behalf of the Borrower.  This Agreement constitutes, and each
other Loan Document upon execution will constitute, a 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 laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).


 


(e)               
No Legal Bar.  The execution, delivery and performance
of this Agreement and the other Loan Documents, the Extensions of Credit
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of the Borrower or any of its Subsidiaries
and will not result in, or require, the creation or imposition of any Lien
(other than pursuant to the Loan Documents) on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation.  No Requirement of Law or Contractual Obligation
applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.


 


(f)                
No Material Litigation.  No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (i) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (ii) that could reasonably be expected to have a Material
Adverse Effect, except as set forth on Schedule 7.1(f). 


 


(g)               
No Default.  Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect.  No Default or Event of Default has occurred and is continuing.


 


(h)               
Ownership of Property; Liens.  Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other Property, and none of such Property is subject to any Lien except for
Permitted Liens, including without limitation all Mortgaged Property and all
rights to control or occupy easements or rights of way that are part of the
Mortgaged Property.


 


(i)                 
Intellectual Property.  The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted.  No material claim has
been asserted and is pending by any Person challenging or questioning the use
of any Intellectual Property or the validity or effectiveness of any
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim.  The use of 












52




 










 








 








Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights
of any Person in any material respect.


 


(j)                 
Taxes.  Each of the Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its Property and all other taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Borrower or its Subsidiaries, as the case may
be); and no tax Lien has been filed, and, to the knowledge of the Borrower, no
claim is being asserted, with respect to any such tax, fee or other charge.


 


(k)               
Federal Regulations.  No part of the proceeds of any
Extension of Credit will be used for “purchasing” or “carrying” any “margin
stock” within the respective meanings of each of the quoted terms under
Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the regulations of the Board.  The
Borrower does not own any “margin stock” within the meaning of the quoted term
under Regulation U as now and from time to time hereafter in effect.  If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to
in Regulation U.


 


(l)                 
Government Approval and
Filings.  The PUCN has
duly and validly issued an order authorizing the Borrower to enter into this
Agreement and the other Loan Documents and to take all actions contemplated
hereby or thereby or in connection herewith or therewith and to incur the
maximum amount of indebtedness provided for in this Agreement and the other
Loan Documents, and such authority granted to the Borrower pursuant to such
order has not been rescinded, revoked or otherwise modified and remains in full
force and effect.  All compliance reports required to be filed with the PUCN in
connection with this Agreement and the other Loan Documents have been properly
filed with and accepted by the PUCN.  No other authorization, approval, order,
decree, ruling or other action by, or notice to or filing with, any
Governmental Authority is required for the due execution, delivery and
performance by the Borrower of this Agreement or any of the other Loan
Documents.


 


(m)             
Labor Matters.  There are no strikes or other labor
disputes against the Borrower or any of its Subsidiaries pending or, to the
knowledge of the Borrower, threatened that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect.  Hours worked
by and payment made to employees of the Borrower and its Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect.  All payments
due from the Borrower or any of its Subsidiaries on account of employee health
and welfare insurance that (individually or in the aggregate) could reasonably
be expected to have a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the Borrower or the relevant Subsidiary.


 


(n)               
ERISA.  Neither a Reportable Event nor an
“accumulated funding deficiency” (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code.  No termination of a Single Employer Plan has
occurred, and 












53




 










 








 








no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period. 
No Single Employer Plan is in “at risk status” (as defined in Section 430(i)(4)
of the Code, without regard to Section 430(i)(4)(B) relating to the transition
rule) and the Borrower has timely made the minimum required contribution (as
defined in Section 430(a) of the Code) to each Single Employer Plan.  Neither
the Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be
expected to result in a material liability under ERISA, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
material liability under ERISA if the Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made.  No such Multiemployer Plan is in Reorganization or
Insolvent.


 


(o)               
Investment Company Act;
Other Regulations.  The
Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.  The Borrower is not subject to regulation under any Requirement of
Law (other than Regulation X of the Board) which limits its ability to incur
Indebtedness (other than public utility laws and regulations of Nevada administered
by the PUCN).


 


(p)               
Subsidiaries.   


 


(i)                 
The Subsidiaries listed on Schedule
7.1(p) constitute all the Subsidiaries of the Borrower at the date hereof. 
Schedule 7.1(p) sets forth as of the Closing Date the name and
jurisdiction of incorporation of each Subsidiary and, as to each Subsidiary,
the percentage of each class of Capital Stock owned by the Borrower.


 


(ii)               
There are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments of any nature relating to any Capital Stock of the Borrower or any
Subsidiary.


 


(q)               
Use of Proceeds.  The proceeds of the Extensions of
Credit shall be used solely for working capital and general corporate purposes
of the Borrower and its Subsidiaries, including, without limitation, the
refinancing of certain Indebtedness outstanding as of the Closing Date
(including the Existing SPPC Credit Agreement), Capital Expenditures in the
ordinary course of business, acquisitions permitted hereunder, commercial paper
back-stop purposes and the payment of certain fees and expenses incurred in
connection with the transactions contemplated by this Agreement.


 


(r)                
Environmental Matters.  Except with respect to matters existing
on the Closing Date as set forth in the Borrower’s annual report on form 10-K
for the fiscal year ended December 31, 2011 and other than exceptions to any of
the following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:


 


(i)                 
The Borrower and its
Subsidiaries:  (A) are, and within the period of all applicable statutes of
limitation have been, in compliance with all applicable Environmental Laws; (B)
hold all Environmental Permits (each of which is in full force and effect)
required for any of their current or intended operations or for any property
owned, leased, or otherwise operated by any of them; (C) are, and within the
period of all applicable statutes of limitation have been, in compliance with
all of their Environmental Permits; and (D) reasonably believe that: each of
their Environmental Permits will be 












54




 










 








 








timely
renewed and complied with, without material expense; any additional
Environmental Permits that may be required of any of them will be timely
obtained and complied with, without material expense; and compliance with any
Environmental Law that is or is expected to become applicable to any of them
will be timely attained and maintained, without material expense.


 


(ii)               
There are no Materials of
Environmental Concern present at, on, under, in, or about any real property now
or formerly owned, leased or operated by the Borrower or any of its
Subsidiaries, or at any other location (including, without limitation, any
location to which Materials of Environmental Concern have been sent for re-use
or recycling or for treatment, storage, or disposal), which could reasonably be
expected, individually or in the aggregate, to (A) give rise to liability of
the Borrower or any of its Subsidiaries under any applicable Environmental Law
or otherwise result in costs to the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect, or (B)
interfere with the Borrower’s or any of its Subsidiaries’ continued operations,
or (C) materially adversely affect the fair saleable value of any real property
owned or leased by the Borrower or any of its Subsidiaries.


 


(iii)              
There is no judicial,
administrative, or arbitral proceeding (including any notice of violation or
alleged violation) under or relating to any Environmental Law to which the
Borrower or any of its Subsidiaries is, or to the knowledge of the Borrower or
any of its Subsidiaries will be, named as a party that is pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened.


 


(iv)             
Neither the Borrower nor any
of its Subsidiaries has received any written request for information, or been
notified that it is a potentially responsible party under or relating to the
federal Comprehensive Environmental Response, Compensation, and Liability Act
or any similar Environmental Law, or with respect to any Materials of
Environmental Concern.


 


(v)               
Neither the Borrower nor any
of its Subsidiaries has entered into or agreed to any consent decree, order, or
settlement or other agreement, or is subject to any judgment, decree, or order
or other agreement, in any judicial, administrative, arbitral, or other forum
for dispute resolution, relating to compliance with or liability under any
Environmental Law.


 


(vi)             
Neither the Borrower nor any
of its Subsidiaries has assumed or retained, by contract or operation of law,
any liabilities of any kind, fixed or contingent, known or unknown, under any
Environmental Law or with respect to any Material of Environmental Concern.


 


(s)               
Accuracy of Information,
etc.  No statement or
information contained in this Agreement, any other Loan Document or any other
document, certificate or statement furnished to the Administrative Agent or the
Lenders or any of them, by or on behalf of the Borrower for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished, any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained herein or therein not misleading.  The projections and pro forma
financial information contained in the materials referenced above are based
upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to












55




 










 








 








future
events is not to be viewed as fact and that actual results during the period or
periods covered by such financial information may differ from the projected
results set forth therein by a material amount.  There is no fact known to the
Borrower that could reasonably be expected to have a Material Adverse Effect
that has not been expressly disclosed herein, in the other Loan Documents or in
any other documents, certificates and statements furnished to the Administrative
Agent and the Lenders for use in connection with the transactions contemplated
hereby and by the other Loan Documents.


 


(t)                
General and Refunding
Mortgage Bonds. 


 


(i)                 
The General and Refunding
Mortgage Indenture is effective to create in favor of The Bank of New York
Mellon Trust Company, N.A., as trustee under the General and Refunding Mortgage
Indenture (the “Indenture Trustee”), for the ratable benefit of all
Holders of Securities (as defined in the General and Refunding Mortgage
Indenture), a legal, valid, binding, subsisting and enforceable Lien on and
security interest in the Mortgaged Property and the proceeds thereof, subject
to applicable Debtor Relief Laws, and such Lien constitutes a fully perfected
Lien on, and security interest in, all right title and interest of the grantors
thereof in such Mortgaged Property and the proceeds thereof, in each case prior
to and superior in right to any other Person subject only to Permitted Liens
(as defined in the General and Refunding Mortgage Indenture.


 


(ii)               
The General and Refunding
Mortgage Bonds, when executed by the Borrower and authenticated by the
Indenture Trustee in accordance with the General and Refunding Mortgage
Indenture and delivered to the Administrative Agent in accordance with the
terms hereof, will constitute valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their terms, except as the
enforceability thereof may be limited by applicable Debtor Relief Laws.  The
Borrower has all requisite corporate power and authority to issue and deliver
the General and Refunding Mortgage Bonds in accordance with and upon the terms
and conditions set forth herein.


 


(iii)              
The General and Refunding
Mortgage Bonds secure the Obligations of the Borrower hereunder, have been duly
and validly issued and are entitled to the security and benefits of the General
and Refunding Mortgage Indenture.  The General and Refunding Mortgage Bonds are
secured equally and ratably with, and only with, all other Securities (as
defined in the General and Refunding Mortgage Indenture) issued and outstanding
under the General and Refunding Mortgage Indenture.


 


(u)               
Solvency.  The Borrower is, and after giving
effect to the incurrence of all Indebtedness and obligations being incurred in
connection herewith will be and will continue to be, Solvent.


 


(v)               
Compliance with OFAC Rules
and Regulations.   












56




 










 








 








 


(i)                 
None of the Borrower or any
of its Subsidiaries or their respective Affiliates is in violation of and shall
not violate any of the country or list based economic and trade sanctions
administered and enforced by OFAC that are described or referenced at http://www.ustreas.gov/offices/enforcement/ofac/ 
or as otherwise published from time to time.


 


(ii)               
None of the Borrower or any
of its Subsidiaries or their respective Affiliates (i) is a Sanctioned Person
or a Sanctioned Entity, (ii) has more than 10% of its assets located in
Sanctioned Entities, or (iii) derives more than 10% of its operating income
from investments in, or transactions with Sanctioned Persons or Sanctioned
Entities.  No proceeds of any Loan will be used nor have any been used to fund
any operations in, finance any investments or activities in or make any
payments to, a Sanctioned Person or a Sanctioned Entity.


 


(w)             
Insurance.  The Borrower and its Subsidiaries
maintain insurance with financially sound and reputable insurance companies on
all its Property in at least such amounts and against at least such risks as
are usually insured against in the same general area by companies engaged in
the same or a similar business.


 


(x)               
Compliance with FCPA.  Each of the Borrower and its
Subsidiaries is in compliance with the Foreign Corrupt Practices Act, 15 U.S.C.
§§ 78dd-1, et seq., and any foreign counterpart thereto.  None of the
Borrower or its Subsidiaries has made a payment, offering, or promise to pay,
or authorized the payment of, money or anything of value (a) in order to assist
in obtaining or retaining business for or with, or directing business to, any
foreign official, foreign political party, party official or candidate for
foreign political office, (b) to a foreign official, foreign political party or
party official or any candidate for foreign political office, and (c) with the
intent to induce the recipient to misuse his or her official position to direct
business wrongfully to the Borrower or any of its Subsidiaries or to any other
Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1,
et seq.  


 


(y)               
Anti-Terrorism Laws.  Neither the Borrower nor any of its
Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of
Section 2 of the Trading with the Enemy Act of the United States of America (50
U.S.C. App. §§ 1 et seq.) (the “Trading with the Enemy Act”), as
amended.  Neither any of the Borrower nor any of its Subsidiaries is in violation
of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto or (c) the Patriot Act.  None of the Borrower or its
Subsidiaries (i) is a blocked person described in Section 1 of the
Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any
dealings or transactions, or is otherwise associated, with any such blocked
person.


 


ARTICLE VIII.



COVENANTS
OF THE BORROWER


 


Section 8.1           
Affirmative
Covenants.  So long as any Loan or any other amount
payable hereunder or under any Note shall remain unpaid, any Letter of Credit
shall remain outstanding or any Lender shall have any Commitment, the Borrower
shall and shall cause each of its Subsidiaries to:


 


(a)               
Financial Statements.  Furnish to the Administrative Agent and
each Lender:


 


(i)                 
as soon as available, but in
any event within ninety (90) (or, if earlier, on the date of any required
public filing thereof) days after the end of each fiscal year of the Borrower,
a copy of the audited Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such year and the related audited
Consolidated statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a “going 












57




 










 








 








concern”
or like qualification or exception, or qualification arising out of the scope of
the audit, by independent certified public accountants of nationally recognized
standing; provided, that, electronic delivery by the Borrower to
the Administrative Agent and the Lenders of the Borrower’s annual report to the
SEC on Form 10-K with respect to any fiscal year within the period specified
above shall be deemed to be compliance by the Borrower with this Section
8.1(a)(i); and


 


(ii)               
as soon as available, but in
any event not later than forty-five (45) (or, if earlier, on the date of any
required public filing thereof) days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the unaudited
Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
at the end of such quarter and the related unaudited Consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments); provided, that, electronic delivery by the Borrower
to the Administrative Agent and the Lenders of the Borrower’s quarterly report
to the SEC on Form 10-Q with respect to any fiscal quarter within the period
specified above shall be deemed to be compliance by the Borrower with this Section
8.1(a)(ii). 


 


All such financial
statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except as
approved by such accountants or officer, as the case may be, and disclosed in
reasonable detail therein) consistently throughout the periods reflected
therein and with prior periods.


 


(b)               
Certificates; Other
Information.  Furnish to
the Administrative Agent and each Lender, or, in the case of clause (iv) below,
to the relevant Lender:


 


(i)                 
concurrently with the
delivery of any financial statements pursuant to Section 8.1(a), (A) a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer’s knowledge, the Borrower and each of its Subsidiaries
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate, and
(B) a schedule in form satisfactory to the Administrative Agent of the
computations used by the Borrower in determining, as of the end such fiscal
year or quarter (as the case may be), compliance with the covenant contained in
Section 8.3; 


 


(ii)               
if requested by the
Administrative Agent or another Lender within five (5) days after such request,
copies of all financial statements and reports that the Borrower sends to the
holders of any class of its debt securities or public equity securities and,
within five days after such request, copies of all financial statements and
reports that the Borrower may make to, or file with, the SEC;


 


(iii)              
after the date of the first
trade of interest protection, commodity hedges, foreign exchange or other
hedging arrangements by the Borrower and continuing thereafter, within five (5)
Business Days after the end of each calendar month, a certificate of a
Responsible Officer of the Borrower substantially in the form of Exhibit F,
in form and substance satisfactory to the Administrative Agent, setting forth
calculations of the Borrower’s Aggregate Negative Mark-to-Market Exposure, if
any;












58




 










 








 








 


(iv)             
promptly, such additional
financial and other information as any Lender may from time to time reasonably
request; and


 


(v)               
concurrently with the delivery
of any financial statements pursuant to Section 8.1(a), a certificate of
a Responsible Officer of the Borrower, in form and substance satisfactory to
the Administrative Agent, setting forth any updated information as to the exact
legal name of the Borrower, the state of its incorporation, the chief executive
office, the principal place of business, the jurisdictions in which the
Borrower is qualified to do business, the federal tax identification number and
the organizational identification number of the Borrower.


 


(c)               
Payment of Obligations.  Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.


 


(d)               
Conduct of Business,
Maintenance of Existence, Compliance with Law, etc.  (i) (A)  Preserve, renew and keep in
full force and effect its corporate existence and (B) take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business, except, in each case, as otherwise
permitted by Section 8.2(c) and except, in the case of clause (B) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (ii) comply with all Contractual Obligations and
Requirements of Law, except (x) to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (y) as described on Schedule 8.1(d). 


 


(e)               
Maintenance of Property;
Insurance.  (i) Keep all
Property and systems useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted and (ii) maintain with
financially sound and reputable insurance companies insurance on all its
Property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business.


 


(f)                
Inspection of Property;
Books and Records; Discussions.  (i) Keep proper books of records and accounts in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall
be made of all dealings and transactions in relation to its business and
activities and (ii) permit representatives of any Lender (at such Lender’s
expense, except during the continuation of an Event of Default) to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.


 


(g)               
Notices.  Promptly give notice to the Administrative
Agent and each Lender of:


 


(i)                 
the occurrence of any Default
or Event of Default;


 


(ii)               
any (A) default or event of
default under any Contractual Obligation of the Borrower or any of its
Subsidiaries or (B) litigation, investigation or proceeding (other than any
regularly scheduled rate proceeding with the PUCN) which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental 












59




 










 








 








Authority,
that in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;


 


(iii)              
any litigation or proceeding
affecting the Borrower or any of its Subsidiaries in which (A) the amount
involved is $25,000,000 or more and not covered by insurance or (B) injunctive
or similar relief is sought and such litigation or proceeding, could reasonably
be expected to have a Material Adverse Effect;


 


(iv)             
the following events, as soon
as possible and in any event within thirty (30) days after the Borrower knows
or has reason to know thereof: (A) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or
the termination, Reorganization or Insolvency of, any Multiemployer Plan or (B)
the institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; 


 


(v)               
any development or event that
has had or could reasonably be expected to have a Material Adverse Effect;


 


(vi)             
any change in the Borrower’s
Secured Debt Rating; and


 


(vii)            
any amendment or modification
to (A) its certificate of incorporation or (B) the General and Refunding
Mortgage Indenture.


 


Each notice pursuant to this
Section (other than clause (vi)) shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to
take with respect thereto.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint
Lead Arrangers will make available to the Lenders and the Issuing Banks
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials
on SyndTrak or another similar electronic system (the "Platform")
and (b) certain of the Lenders (each a “Public Lender”) may have
personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons' securities.  The Borrower hereby
agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be
deemed to have authorized the Administrative Agent, the Joint Lead Arrangers,
the Issuing Banks and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or
its securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 11.8);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated as “Public Side Information;” and
(z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to
treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform that is not marked as
"Public Side Information."  Notwithstanding the foregoing, the
Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”












60




 










 








 








 


(h)               
Environmental Laws.  Except where the failure to take the
following actions could not reasonably be expected to have a Material Adverse
Effect, 


 


(i)                 
comply with, and ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply with and maintain, and ensure that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws; and


 


(ii)               
conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.


 


Section 8.2           
Negative
Covenants.  So long as any Loan or any other amount
payable hereunder or under any Note shall remain unpaid, any Letter of Credit
shall remain outstanding or any Lender shall have any Commitment, the Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:


 


(a)               
Limitation on Indebtedness.  Incur Indebtedness unless (i) there
exists no Default or Event of Default and (ii) after giving effect to the
incurrence of such Indebtedness, the Borrower will be in compliance with the
financial covenant set forth in Section 8.3(a) on a Pro Forma Basis.


 


(b)               
Limitation on Liens.  Create, incur, assume or suffer to
exist any Lien of any kind securing Indebtedness, Attributable Debt or trade
payables on any of its Property, whether now owned or hereafter acquired,
except for the following (the “Permitted Liens”): 


 


(i)                 
Liens securing the liabilities
and obligations of the Borrower under the Loan Documents and Liens securing any
Hedging Obligations to the extent such Liens are granted on a pari  passu 
basis with each other;


 


(ii)               
Liens in favor of the
Borrower or any Subsidiary Guarantors;


 


(iii)              
Liens on property of a Person
existing at the time such Person is merged with or into or consolidated with
the Borrower or any Subsidiary of the Borrower; provided, that 
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Borrower or such Subsidiary;


 


(iv)             
Liens on property existing at
the time of acquisition of the property by the Borrower or any Subsidiary of
the Borrower; provided, that  such Liens were in existence prior
to the contemplation of such acquisition;


 


(v)               
Liens to secure the
performance of statutory or regulatory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the
ordinary course of business;


 


(vi)             
Liens existing on the Closing
Date listed on Schedule 8.2(b)(vi); 












61




 










 








 








 


(vii)            
Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided, that  any reserve or other
appropriate provision as is required in conformity with GAAP has been made
therefor;


 


(viii)          
Liens securing any
Indebtedness that is issued pursuant to the General and Refunding Mortgage Indenture;


 


(ix)             
Liens, including pledges,
rights of offset and bankers’ liens, on deposit accounts, instruments,
investment accounts and investment property (including cash, cash equivalents
and marketable securities) from time to time maintained with or held by any
financial and/or depository institutions, in each case solely to secure any and
all obligations now or hereafter existing of the Borrower or any of its
Subsidiaries in connection with any deposit account, investment account or cash
management service (including ACH, Fedwire, CHIPS, concentration and zero
balance accounts, and controlled disbursement, lockbox or restricted accounts)
now or hereafter provided by any financial and/or depository institutions to or
for the benefit of the Borrower or any of its Subsidiaries; 


 


(x)               
Liens in favor of the United
States Department of Energy in connection with the Borrower’s smart grid assets
purchased with a grant from the United States Department of Energy under the
American Recovery and Reinvestment Act;


 


(xi)             
Liens that constitute
“Permitted Liens” as defined in the General and Refunding Mortgage Indenture as
in effect on the Closing Date except for Liens permitted by clause (c) of such
definition of “Permitted Liens” in the General and Refunding Mortgage Indenture
as in effect on the Closing Date;


 


(xii)            
the Lien in favor of the
Indenture Trustee on the Mortgaged Property; 


 


(xiii)          
Liens securing Indebtedness
under any accounts receivables securitization facility in an aggregate amount
not to exceed, at any one time outstanding, $100,000,000; and


 


(xiv)          
Other Liens securing
Indebtedness not to exceed, at any one time outstanding, $35,000,000.


 


(c)               
Limitation on Fundamental
Changes.  Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of all or substantially
all of its Property or business, except that:


 


(i)                 
any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower (provided,
that  the Borrower shall be the continuing or surviving corporation); 


 


(ii)               
any Subsidiary of the
Borrower may be merged or consolidated with another Subsidiary of the Borrower;



 


(iii)              
any Subsidiary of the
Borrower may Dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower; and












62




 










 








 








 


(iv)             
the Borrower may be merged or
consolidated with or into NPC (and Sierra Pacific Power Company shall cease to
exist as a result of such merger); provided, that (A) NPC shall assume all of
the obligations of the Borrower under this Agreement pursuant to documentation
acceptable to the Administrative Agent (including such certificates and legal
opinions as are deemed necessary by the Administrative Agent), (B) the
surviving entity, as Borrower, will be in compliance with the financial
covenant set forth in Section 8.3(a) on a Pro Forma Basis, (C) each of
the representations and warranties made by the Borrower in or pursuant to the
Loan Documents is true and correct in all material respects, except to the
extent such representation or warranty is already qualified by materiality or
Material Adverse Effect, in which case it shall be true and correct in all
respects, on and as of the date of such merger or consolidation as if made on
such date, (D) no Default or Event of Default has occurred and is continuing on
the date of such merger or consolidation or after giving effect to the merger
or consolidation and (E) such merger or consolidation is permitted under the
General and Refunding Mortgage Indenture and the General and Refunding Mortgage
Bonds and the General and Refunding Mortgage Bonds remain in full force and
effect.


 


(d)               
Limitation on Disposition
of Property; Issuance of Subsidiary Capital Stock.  Dispose of any of its Property (including, without
limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary’s Capital Stock to any Person, except: 


 


(i)                 
the Disposition of obsolete
or worn out property in the ordinary course of business.


 


(ii)               
the sale of inventory in the
ordinary course of business.


 


(iii)              
(A) the issuance of Equity
Interests by a Subsidiary to the Borrower or another Subsidiary or (B) the sale
of any Subsidiary’s Capital Stock to the Borrower.


 


(iv)             
the transfer of assets
between or among the Borrower and its Subsidiaries.


 


(v)               
a Restricted Payment that is
permitted by Sections 8.2(e). 


 


(vi)             
the transfer of assets by the
Borrower and its Subsidiaries required under statute or regulation in
connection with renewable energy contracts.


 


(vii)            
sales, transfers or other
Dispositions of assets, including Capital Stock of Subsidiaries, for
consideration at least equal to the fair market value of the assets Disposed
of, but only if the consideration received consists of Capital Stock of a
Person that becomes a Subsidiary engaged in, or property or assets (other than
cash, except to the extent used as a bona fide means of equalizing the value of
the property or assets involved in the swap transaction) of a nature or type
that are used in, a Permitted Business; provided, that, the fair
market value of any assets Disposed of shall be determined by the Board of
Directors of the Borrower and based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
fair market value of the assets Disposed of exceeds $25,000,000.












63




 










 








 








 


(viii)          
Dispositions not otherwise
permitted by this Section 8.2(d); provided, that: 


 


(A)              
the aggregate amount
of Dispositions made in accordance with this clause (viii), in any fiscal year,
shall not exceed 10% of the Consolidated Assets, as determined as of the last
day of the fiscal year prior to the fiscal year in which the Dispositions are
made;


 


(B)               
the Borrower (or the
Subsidiary, as the case may be) receives consideration at the time of such
Disposition at least equal to the fair market value of the assets Disposed of
(the fair market value of any assets Disposed of shall be determined by (x) a
Responsible Officer if the fair market value is less than $25,000,000 (provided,
that, a Responsible Officer shall not be required to determine the fair
market value of any assets Disposed if the value thereof is less than
$1,000,000, so long as the aggregate amount of asset sales less than $1,000,000
do not exceed $10,000,000, in the aggregate, in any fiscal year) or (y) the
Board of Directors of the Borrower, if the fair market value is $25,000,000 or
greater and based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing);


 


(C)               
at least seventy-five
percent (75%) of the consideration received in connection with the Disposition
shall be in the form of cash.  Strictly for purposes of this Section
8.2(d)(viii)(C), each of the following shall be deemed to be cash:


 


(1)           any
liabilities, as shown on the most recent financial statements delivered by the
Borrower pursuant to Section 8.1(a), of the Borrower or any Subsidiary
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Obligations) that are assumed by the transferee or
purchaser of such assets Disposed of pursuant to a customary novation agreement
that releases the Borrower or such Subsidiary from further liability; and


 


(2)           any
securities, notes or other obligations received by the Borrower or any such
Subsidiary from such transferee or purchaser of the assets Disposed of that are
contemporaneously, subject to ordinary settlement periods, converted by the
Borrower or such Subsidiary into cash, to the extent of the cash received in
that conversion; and


 


(D)               
within three hundred
sixty-five (365) days of the receipt by the Borrower or any Subsidiary of any
Net Proceeds from any Disposition under this Section 8.2(d)(viii), the
Borrower shall apply such Net Proceeds at its option:


 


(1)                 
to repay outstanding Indebtedness
issued pursuant to the General and Refunding Mortgage Indenture or any
Indebtedness which is indirectly secured thereby;


 


(2)                 
to acquire all or substantially
all of the assets of, or a majority of the voting Capital Stock of, a business
that the Borrower is permitted to engage in pursuant to and in accordance with Section
8.2(l) (a “Permitted Business”); 












64




 










 








 








 


(3)                 
to make a capital expenditure;
and/or


 


(4)                 
to acquire other long-term assets
that are used or useful in connection with a Permitted Business.


 


The amount of any Net Proceeds of a Disposition that
are not applied as set forth above (“Excess Net Proceeds”) shall cause a
reduction in the Commitments in the amount of such Excess Net Proceeds in
accordance with Section 2.3(a). 


 


(ix)             
Dispositions not otherwise
permitted under this Section 8.2(d), in an amount not to exceed a fair
market value of $25,000,000, in the aggregate, during any fiscal year of the
Borrower.


 


(e)               
Limitation on Restricted
Payments.  (i) Declare or
pay any dividend or make any other payment or distribution on account of the
Borrower’s or any of its Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation
involving the Borrower or any of its Subsidiaries) or to the direct or indirect
holders of the Borrower’s or any of its Subsidiaries’ Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests of the Borrower) or to the Borrower or a Subsidiary of the Borrower
or (ii) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation involving
the Borrower) any Equity Interests of the Borrower or any direct or indirect
parent of the Borrower (all such payments and other actions set forth in
clauses (i) and (ii) above being collectively referred to as “Restricted
Payments”), unless, (i) there exists no Default or Event of Default
and (ii) after giving effect to such Restricted Payment, the Borrower will be
in compliance with the financial covenant set forth in Section 8.3(a) on
a Pro Forma Basis; provided, however, the preceding provisions
will not prohibit: (1) the payment of any dividend within 60 days after the
date of declaration of the dividend, if at the date of declaration the dividend
payment would have complied with the provisions of this clause (e), (2) the
payment of any dividend by a Subsidiary of the Borrower to the holders of its
Equity Interests on a pro rata basis and (3) the payment of any distribution by
a Trust Preferred Vehicle to holders of such trust’s preferred beneficial
interests, to the extent such distribution does not exceed the amount that is
contemporaneously received by such trust as a payment of interest at its Stated
Maturity on the Subordinated Debt of the Borrower held by such trust.


 


(f)                
Modifications of
Instruments, etc.  Amend
or modify in any manner adverse to the Lenders (as reasonably determined by the
Administrative Agent) (i) its certificate of incorporation (except in
connection with any merger or consolidation permitted under Section
8.2(c)(iv) hereof) or (ii) the General and Refunding Mortgage Indenture.
Notwithstanding the foregoing, it is understood and agreed that subsequent to
any merger or consolidation by the Borrower into NPC, NPC shall be permitted to
change its legal name subject to (A) prior written notice to the Administrative
Agent and (B) delivery of such documents, certificates and opinions reasonably
required by the Administrative Agent, including without limitation, any
documentation, certificates and opinions in connection with the General and
Refunding Mortgage Bonds.


 


(g)               
Limitation on Transactions
with Affiliates.  Except
as set forth on Schedule 8.2(g) and the transactions contemplated and
permitted pursuant to Section 8.2(c)(iv), enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of Property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower or any Subsidiary) unless
such transaction is (i) otherwise 












65




 










 








 








permitted
under this Agreement, (ii) in the ordinary course of business or consistent
with past practice of the Borrower or such Subsidiary, as the case may be, and
(iii) upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm’s
length transaction with a Person that is not an Affiliate.


 


(h)               
Limitation on Changes in
Fiscal Periods.  Permit
the fiscal year of the Borrower to end on a day other than December 31 or
change the Borrower’s method of determining fiscal quarters.


 


(i)                 
Limitation on Negative
Pledge Clauses.  Enter
into or suffer to exist or become effective any agreement that (i) prohibits or
limits the ability of the Borrower or any of its Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired, to secure the Obligations, other than
(x) this Agreement and the other Loan Documents, (y) any agreements governing
any purchase money Liens or Capital Lease Obligations otherwise permitted
hereby (in which case, any prohibition or limitation shall only be effective
against the assets financed thereby) and (z) any restriction in effect on the
date hereof or (ii) contains covenants more restrictive than the covenants in
this Section 8.2, unless the Borrower offers to amend this Agreement,
concurrently with the effectiveness of such other agreement, to provide
covenants under this Agreement equivalent to the more restrictive covenants
under such other agreement for so long as such more restrictive covenants
remain in effect under such other agreement.


 


(j)                 
Limitation on Assets in
Subsidiaries.  Permit
less than 80% of the Consolidated Assets of the Borrower and its Subsidiaries
to be held by Persons other than the Borrower.


 


(k)               
Limitation on
Modifications to Subordinated Debt.  Amend, supplement or otherwise modify any
documentation governing any Subordinated Debt (other than (i) amendments to
such Subordinated Debt which reduce the interest rate or extend the maturity
thereof and (ii) waivers of compliance by the Borrower with any of the terms or
conditions of such Subordinated Debt (except those terms or conditions which by
their terms are for the benefit of the Lenders)).


 


(l)                 
Limitation on Lines of
Business.  Engage in any
business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date
of this Agreement or that are reasonably related thereto.


 


(m)             
Limitation on Release from
Liens.  Cause the Liens
of the General and Refunding Mortgage Indenture and related security documents,
upon any assets, to be released, except in connection with a Disposition of
such assets permitted by Section 8.2(d); provided, that 
within one hundred and eighty (180) days after any such release, the Borrower
will either (i) Dispose of such assets or (ii) subject such assets again to the
Lien of the General and Refunding Mortgage Indenture.


 


(n)               
Limitation on Subsidiary
Guarantees.  Permit any
Subsidiary to Guarantee the payment of any Indebtedness of the Borrower unless:


 


(i)                 
such Subsidiary
simultaneously executes and delivers to the Administrative Agent a Subsidiary
Guarantee of such Subsidiary, except that, with respect to a Guarantee of
Indebtedness of the Borrower if such Indebtedness is by its express terms
subordinated in right of payment to the Loans and other Obligations, any such
Guarantee of such Subsidiary with respect to such Indebtedness shall be 












66




 










 








 








subordinated
in right of payment to such Subsidiary’s Subsidiary Guarantee with respect to
the Loans and such other Obligations substantially to the same extent as such
Indebtedness is subordinated to the Loans and such other Obligations;


 


(ii)               
such Subsidiary waives, and
will not in any manner whatsoever claim or take the benefit or advantage of,
any rights of reimbursement, indemnity or subrogation or any other rights
against the Borrower or any other Subsidiary of the Borrower as a result of any
payment by such Subsidiary under its Subsidiary Guarantee of the Loans and
other Obligations; and


 


(iii)              
such Subsidiary shall deliver
to the Administrative Agent an opinion of counsel to the effect that (A) such
Subsidiary Guarantee has been duly executed and authorized and (B) such
Subsidiary Guarantee constitutes a valid, binding and enforceable obligation of
such Subsidiary, except insofar as enforcement thereof may be limited by
applicable Debtor Relief Laws (including, without limitation, all laws relating
to fraudulent transfers) and except insofar as enforcement thereof is subject
to general principles of equity;


 


provided, that  this Section shall not be applicable to
any Guarantee of any Subsidiary that (A) existed at the time such Person became
a Subsidiary of the Borrower and (B) was not incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary of the Borrower.


 


Notwithstanding the
foregoing and the other provisions of this Agreement, in the event a Subsidiary
Guarantor is sold or Disposed of (whether by merger, consolidation, the sale of
its Capital Stock or the sale of all or substantially all of its assets (other
than by lease) and whether or not the Subsidiary Guarantor is the surviving
corporation in such transaction) to a Person which is not the Borrower or a
Subsidiary of the Borrower, such Subsidiary Guarantor will be released from its
obligations under its Subsidiary Guarantee if (1) the sale or other Disposition
is in compliance with Section 8.2(d) and (2) the Subsidiary Guarantor is
also released or discharged from its obligations under the Guarantee which
resulted in the creation of such Subsidiary Guarantee, except by or as a result
of payment under such Guarantee.


 


(o)               
Use of Proceeds.  Use the proceeds of any Extension of
Credit, whether directly or indirectly, and whether immediately, incidentally
or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the Board) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred
for such purpose.


 


(p)               
Payment of Subordinated
Debt.  Make any payment
on or with respect to, or purchase, redeem, defease or otherwise acquire or
retire for value, any Subordinated Debt, except for any scheduled payment of
interest or the payment of principal at the Stated Maturity thereof and except
for payments made in respect of Subordinated Debt that constitutes trust
preferred securities pursuant to a Trust Preferred Vehicle permitted hereunder.


 


Section 8.3           
Financial Covenant.   


 


(a)               
Maximum Leverage.  The Borrower shall not permit the ratio
of (a) Consolidated Indebtedness to (b) Consolidated Capital, determined as of
the last day of each fiscal quarter, to exceed 0.68 to 1.00.












67




 










 








 








 


(b)               
Compliance Period.  The covenant set forth in subsection
(a) above shall have no further force or effect, and the Borrower shall no
longer be required to comply therewith, at any time after the Maturity Date,
unless at any such time any Loan or any other amount payable hereunder or under
any Note shall remain unpaid or any Letter of Credit shall remain outstanding.


 


ARTICLE IX.



DEFAULTS


 


Section 9.1           
Events
of Default.  If any of the following events shall occur
and be continuing, the Administrative Agent and the Lenders shall be entitled
to exercise the remedies set forth in Section 9.2: 


 


(a)               
The Borrower shall: 


 


(i)                 
fail to pay any principal of
any Loan or any LC Obligation when due in accordance with the terms hereof; or 


 


(ii)               
fail to pay any interest on
any Loan or any LC Obligation, or any other amount payable hereunder or under
any other Loan Document, within five (5) days after any such interest or other
amount becomes due in accordance with the terms hereof or thereof; or


 


(b)               
Any representation or
warranty made or deemed made by the Borrower herein or in any other Loan
Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been inaccurate
in any material respect on or as of the date made or deemed made or furnished;
or


 


(c)               
The Borrower shall default in
the observance or performance of any agreement contained in clause (A) 
or (B)  of Section 8.1(d)(i), Section 8.1(g)(i), Section
8.2 or Section 8.3; or


 


(d)               
The Borrower shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs (a)
through (c) of this Section), and such default shall continue unremedied for a
period of thirty (30) days; or


 


(e)               
(i) The Borrower or any of
its Subsidiaries shall (A) default in making any payment of any principal of
any Indebtedness (including, without limitation, any Guarantees, but excluding
the Loans) on the scheduled or original due date with respect thereto; or (B)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (C) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf
of such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or to become
subject to a mandatory offer to purchase by the obligor thereunder or (in the
case of any such Indebtedness constituting a Guarantee) to become payable; or
(ii) the Borrower or any of its Subsidiaries shall, (A) default in making any
payment of any amount owing to a counterparty under any Hedge Agreement beyond 


 












68




 










 








 








the
period of grace, if any, provided in such Hedge Agreement; or (B) default in
the observance or performance of any other agreement or condition relating to
any such Hedge Agreement or contained in such Hedge Agreement or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the counterparty under such Hedge
Agreement to cause, with the giving of notice if required, the Borrower or such
Subsidiary to make a termination payment, payment of liquidated damages or
similar payment under such Hedge Agreement (collectively, “Payment Amounts”);
provided, that  a default, event or condition described in clause
(i) or (ii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i) and (ii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness and/or Payment Amounts
the outstanding principal amount of which exceeds $35,000,000 in the aggregate
; or


 


(f)                
(i) The Borrower or any of
its Subsidiaries shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have
an order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period
of sixty (60) days; or (iii) there shall be commenced against the Borrower or
any of its Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets that results in the entry of an order for
any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or (iv)
the Borrower or any of its Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any
of its Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or


 


(g)               
(i) Any Person shall engage
in any “prohibited transaction” (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency”
(as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, any Single Employer Plan shall be deemed to be in “at risk
status” as defined in Section 430(i)(4) of the Code, or any Lien in favor of
the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders shall be likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect to
a Plan; and in each case in clauses (i) through (vi) above, such event 


 












69




 










 








 








or
condition, together with all other such events or conditions, if any, could, in
the sole judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or


 


(h)               
One or more judgments,
decrees or orders shall be entered against the Borrower or any of its
Subsidiaries involving for the Borrower and its Subsidiaries taken as a whole a
liability (not paid or fully covered by insurance as to which the relevant
insurance company (that shall be rated at least “A” by A.M. Best Company) has
acknowledged coverage) that exceeds more than $35,000,000 in the aggregate
(with credit for any applicable insurance coverage) and all such judgments,
decrees or orders shall not have been vacated, discharged, stayed, paid or
bonded pending appeal within sixty (60) days from the entry thereof; or


 


(i)                 
Any of the Loan Documents or
the General and Refunding Mortgage Indenture (or any security documents
executed in connection therewith) shall cease for any reason to be in full
force and effect, or the Borrower or any Affiliate of the Borrower shall so
assert; or any Lien created by any of the Loan Documents or the General and
Refunding Mortgage Indenture (or any security documents executed in connection
therewith) shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or


 


(j)                 
Any Event of Default under
(and as defined in) the General and Refunding Mortgage Indenture shall occur;
or


 


(k)               
Any Change of Control shall
occur; or


 


(l)                 
At any time any of the
Issuing Banks shall have been served with or otherwise subjected to a court
order, injunction, or other process or decree issued or granted at the instance
of the Borrower restraining or seeking to restrain such Issuing Bank from
paying any amount under any Letter of Credit issued by it and either (i) there
has been a drawing under such Letter of Credit which such Issuing Bank would
otherwise be obligated to pay or (ii) the stated expiration date or any
reduction of the stated amount of such Letter of Credit has occurred but the
right of the beneficiary to draw thereunder has been extended to a date after
the Letter of Credit Expiration Date in connection with the pendency of the
related court action or proceeding; or


 


(m)             
Any Subordinated Debt shall
cease (or the Borrower or an Affiliate of the Borrower shall so assert), for
any reason, to be validly subordinated to the Obligations as provided in the
agreements evidencing the Subordinated Debt.


 


Section 9.2           
Remedies.  Upon the occurrence of an Event of
Default, with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower:


 


(a)               
Acceleration; Termination
of Facilities.  Terminate
the Commitments and declare the principal of and interest on the Loans at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(including, without limitation, the Outstanding Amount of all LC Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented or shall be entitled to present the documents required
thereunder) and all other Obligations (other than Hedging Obligations and
Treasury Management Obligations), to be forthwith due and payable, whereupon
the same shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by the Borrower,
anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the credit facility under this Agreement and any
right of the Borrower to request












70




 










 








 








borrowings
or Letters of Credit thereunder; provided, that  upon the
occurrence of an Event of Default specified in Section 9.1(f), the
Commitments shall be automatically terminated and all Obligations (other than
Hedging Obligations and Treasury Management Obligations) shall automatically
become due and payable without presentment, demand, protest or other notice of
any kind, all of which are expressly waived by the Borrower, anything in this
Agreement or in any other Loan Document to the contrary notwithstanding.


 


(b)               
Letters of Credit.  With respect to all Letters of Credit
with respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to Section 9.2(a), the Borrower shall at
such time deposit in a Cash Collateral account opened by and under the control
of the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit.  Amounts held in such Cash
Collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay the other Obligations on a pro rata basis. 
After all such Letters of Credit shall have expired or been fully drawn upon,
the Outstanding Amount of all LC Obligations shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
Cash Collateral account shall be returned to the Borrower.


 


(c)               
Rights of Collection.  Exercise on behalf of the Lenders all
of its other rights and remedies under this Agreement, the other Loan
Documents, the General and Refunding Mortgage Bonds, the General and Refunding
Mortgage Indenture and Applicable Law, in order to satisfy all of the
Obligations.


 


Section 9.3           
Rights
and Remedies Cumulative; Non-Waiver; etc.  The enumeration of the rights and remedies
of the Administrative Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Administrative Agent and the
Lenders of any right or remedy shall not preclude the exercise of any other
rights or remedies, all of which shall be cumulative, and shall be in addition
to any other right or remedy given hereunder or under the other Loan Documents
or that may now or hereafter exist at law or in equity or by suit or
otherwise.  No delay or failure to take action on the part of the
Administrative Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege or shall be
construed to be a waiver of any Event of Default.  No course of dealing between
the Borrower, the Administrative Agent and the Lenders or their respective
agents or employees shall be effective to change, modify or discharge any
provision of this Agreement or any of the other Loan Documents or to constitute
a waiver of any Event of Default.


 


Section 9.4           
Crediting
of Payments and Proceeds.  In the event that the Borrower shall fail
to pay any of the Obligations when due and the Obligations have been
accelerated pursuant to Section 9.2, all payments received by the
Lenders (and in the case of Hedge Agreements and Treasury Management
Agreements, Affiliates of Lenders) upon the Obligations and all net proceeds
from the enforcement of the Obligations shall be applied: 


 


First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts, including attorney
fees, payable to the Administrative Agent in its capacity as such, the Issuing
Banks in their respective capacities as such and the Swingline Lender in its
capacity as such (ratably among the Administrative Agent and the Issuing Banks
in proportion to the respective amounts described in this clause First 
payable to them);












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Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal and
interest) payable to the Lenders, including attorney fees (ratably among the
Lenders in proportion to the respective amounts described in this clause Second 
payable to them);


 


Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans and LC Borrowings and any
Hedging Obligations (including any accrued and unpaid interest thereon, but
excluding any termination payments paid pursuant to clause Fourth)
(ratably among the Lenders (and, in the case of Hedging Obligations, Affiliates
of Lenders) in proportion to the respective amounts described in this clause Third 
payable to them);


 


Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and LC Borrowings, any termination
payments then required to be paid in connection with Hedging Obligations, and
payments due in connection with Treasury Management Obligations and to the
Administrative Agent for the account of the Issuing Banks, to Cash
Collateralize any LC Obligations (ratably among the Lenders and the
Administrative Agent (and, in the case of Hedging Obligations and Treasury
Management Obligations, Affiliates of Lenders), in proportion to the respective
amounts described in this clause Fourth  held by or payable to them); and


 


Last, the balance, if any, after all of the Obligations
have been indefeasibly paid in full, to the Borrower or as otherwise required
by Law.


 


Section 9.5           
Administrative
Agent May File Proofs of Claim.  In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Borrower,
the Administrative Agent (irrespective of whether the principal of any Loan or
LC Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:


 


(a)               
to file and prove a claim for
the whole amount of the principal and interest owing and unpaid in respect of
the Loans, LC Obligations and all other Obligations (except for Hedging
Obligations and Treasury Management Obligations of other Lenders) that are
owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders and
the Administrative Agent under Sections 2.2, 4.8, 4.9  and 11.4)
allowed in such judicial proceeding; and


 


(b)               
to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.2, 4.8, 4.9  and 11.4. 
 


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment 












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or composition affecting the Obligations or the rights of any Lender or
to authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.


 


ARTICLE X.



THE
ADMINISTRATIVE AGENT


 


Section 10.1       
Appointment
and Authority. 
Each of the Lenders and the Issuing Banks
hereby irrevocably appoints Wells Fargo Bank to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  Each of the Lenders and the Issuing Banks hereby
authorizes the Administrative Agent to vote the General and Refunding Mortgage
Bonds, or consent with respect thereto, at any meeting (or where the vote or
consent of the bondholders is requested without a meeting) of the bondholders
under the General and Refunding Mortgage Indenture.  The provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and
the Issuing Banks, and neither the Borrower nor any Subsidiary thereof shall
have rights as a third party beneficiary of any of such provisions.


 


Section 10.2       
Rights
as a Lender.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity.  Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


 


Section 10.3       
Exculpatory
Provisions.  The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents.  Without limiting the generality of the foregoing, the
Administrative Agent:


 


(a)               
shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or Event of
Default has occurred and is continuing;


 


(b)               
shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided, that  the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any
Loan Document or any Requirement of Law; and


 


(c)               
shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of its Affiliates that is communicated to or obtained by
the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.












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The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.2 and 11.1) or (ii) in
the absence of its own gross negligence or willful misconduct as determined by
a court of competent jurisdiction by final nonappealable judgment.  The
Administrative Agent shall be deemed not to have knowledge of any Default or
Event of Default unless and until written notice describing such Default or
Event of Default is given to the Administrative Agent by the Borrower, a Lender
or the Issuing Banks.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default or Event of Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article VI or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.  


 


Section 10.4       
Reliance
by the Administrative Agent.  The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  The Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by
it to have been made by the proper Person, and shall not incur any liability
for relying thereon.  In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the Issuing Banks, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Banks unless the Administrative Agent shall have received
notice to the contrary from such Lender or the Issuing Banks prior to the
making of such Loan or the issuance of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.


 


Section 10.5       
Delegation
of Duties.  The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties.  The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.


 


Section 10.6       
Resignation of Administrative Agent.   


 


(a)               
The Administrative Agent may
at any time give notice of its resignation to the Lenders, the Issuing Banks
and the Borrower.  Upon receipt of any such notice of resignation, the Required
Lenders shall have the right with the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, and shall not be required upon
the occurrence or continuance of an Event of Default), in consultation with the
Borrower, to appoint a successor, 












74




 










 








 








which
shall be a bank with an office in the United States, or an Affiliate of any
such bank with an office in the United States.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the Issuing Banks and without the requirement of the
consent of any other Person (other than the successor Administrative Agent),
appoint a successor Administrative Agent meeting the qualifications set forth
above; provided, that  if the Administrative Agent shall notify
the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (i) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the Issuing Banks under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (ii) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and the Issuing Banks directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
paragraph.  Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
paragraph).  The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.4 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.


 


(b)               
Any resignation by Wells
Fargo Bank as Administrative Agent pursuant to this Section shall also constitute
its resignation as an Issuing Bank and as Swingline Lender.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (i)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Issuing Bank and Swingline
Lender, (ii) the retiring Issuing Bank and Swingline Lender shall be discharged
from all of their respective duties and obligations hereunder or under the
other Loan Documents, and (iii) the successor Issuing Bank shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangement satisfactory to the retiring
Issuing Bank to effectively assume the obligations of the retiring Issuing Bank
with respect to such Letters of Credit.  


 


Section 10.7       
Non-Reliance
on Administrative Agent and Other Lenders.  Each Lender and each Issuing Bank acknowledges
that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.  Each Lender and each Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.












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Section 10.8       
No
Other Duties, etc. 
Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, bookrunners, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a Lender or an Issuing Bank hereunder.


 


Section 10.9       
Collateral
and Guaranty Matters.  The Lenders and the Issuing Banks
irrevocably authorize the Administrative Agent, at its option and in its discretion,


 


(a)               
to release any Lien on any
collateral granted to or held by the Administrative Agent under any Loan
Document or to release the General and Refunding Mortgage Bonds (i) upon
termination of the Commitments and payment in full of all Obligations under the
Loan Documents (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit (other than Letters of
Credit as to which other arrangements satisfactory to the Administrative Agent
and the applicable Issuing Bank in their sole discretion shall have been made)
or (ii) if approved, authorized or ratified in writing in accordance with Section
11.1; 


 


(b)               
to subordinate any Lien on
any collateral granted to or held by the Administrative Agent under any Loan Document
to the holder of any Lien on such collateral that is permitted by Section
8.2(b)(vi); and


 


(c)               
to release any Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.


 


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to
release any Subsidiary Guarantor from its obligations under any Subsidiary
Guarantee pursuant to this Section.


 


ARTICLE XI.



MISCELLANEOUS


 


Section 11.1       
Amendments,
Etc.  No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing
and signed by each Lender affected thereby, do any of the following:  (i)
waive, modify or eliminate any of the conditions specified in Section 6.2,
(ii) increase the Commitments of the Lenders or subject the Lenders to any
additional obligations (other than as provided by this Agreement), (iii) reduce
the principal of, or interest on, any Loan, any Applicable Margin or any fees
or other amounts payable hereunder (other than fees payable to the
Administrative Agent pursuant to Section 2.2(b)), (iv) extend the
Revolving Credit Termination Date or the Letter of Credit Expiration Date or
postpone any date fixed for any payment of principal of, or interest on, any
Loan or any fees or other amounts payable hereunder (other than fees payable to
the Administrative Agent pursuant to Section 2.2(b)), (v) change the
definition of “Required Lenders” contained in Section 1.1 or
change any other provision that specifies the percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans or the number of Lenders
which shall be required for the Lenders or any of them to take any action
hereunder, (vi) amend any Loan Document in a manner intended to prefer one or
more Lenders over any other Lenders, (vii) take any action that would result in
the General and 












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Refunding
Mortgage Bonds no longer being secured equally and ratably with all other
securities issued and outstanding under the General and Refunding Mortgage
Indenture or no longer being secured by direct and valid, duly perfected Liens
on and security interests in the Mortgaged Property (as defined in the General
and Refunding Mortgage Indenture), subject only to Permitted Liens (as such
term is defined in the General and Refunding Mortgage Indenture), (viii)
release the General and Refunding Mortgage Bonds or Subsidiary Guarantees, if
any, except pursuant to the terms thereof or pursuant to Section 10.9
hereof, or change any provision of the General and Refunding Mortgage Bonds
providing for the release of the General and Refunding Mortgage Bonds, or (ix)
amend, waive or modify this Section 11.1. 


 


Furthermore,
(A) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document, (B) no amendment, waiver or consent
shall, unless in writing and signed by each Issuing Bank in addition to the
Lenders required above to take such action, affect the rights or duties of the
Issuing Banks under this Agreement or any other Loan Document and (C) no
amendment, waiver or consent shall, unless in writing and signed by the
Swingline Lender in addition to the Lenders required above to take such action,
affect the rights or duties of the Swingline Lender under this Agreement or any
other Loan Document.  


 


Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than the Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely than other affected Lenders will
require the consent of such Defaulting Lender.


 


Any
request from the Borrower for any amendment, waiver or consent under this Section
11.1 shall be addressed to the Administrative Agent.  The Administrative
Agent, as holder of the General and Refunding Mortgage Bonds, will not consent
to any amendment or other modification of the General and Refunding Mortgage
Indenture that requires the consent of holders of all securities issued
thereunder, without the consent of each Lender.


 


Section 11.2       
Notices,
Etc.  All notices and other communications
provided for hereunder and under the other Loan Documents shall be in writing
(including telegraphic, facsimile, telex or cable communication) and mailed,
sent via electronic mail, telegraphed, telecopied, telexed, cabled or
delivered, (i) if to the Borrower, at the address specified on Schedule 11.2;
(ii) if to any Lender, at its Domestic Lending Office specified in the
administrative questionnaire submitted to the Administrative Agent; (iii) if to
any Issuing Bank, at its address specified on Schedule 11.2; (iv) if to
any Lender other than a Lender listed on Schedule 11.2, at its Domestic
Lending Office specified in the Assignment and Assumption pursuant to which it
became a Lender; and (v) if to Wells Fargo Bank as Administrative Agent or
Swingline Lender, at its address specified on Schedule 11.2; or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties.  Notices sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have
been given when received; notices sent by facsimile or electronic mail shall be
deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient).


 


Section 11.3       
No
Waiver of Remedies.  No failure on the part of the Borrower,
any Lender, the Issuing Banks or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder or under any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial 












77




 










 








 








exercise
of any such right preclude any other or further exercise thereof or the
exercise of any other right.  The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.


 


Section 11.4       
Costs, Expenses and Indemnification.  


 


(a)               
Costs and Expenses.  The Borrower hereby agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in connection with the syndication
of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred
by the Issuing Banks in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder, and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, any
Lender or the Issuing Banks (including the fees, charges and disbursements of
any counsel for the Administrative Agent, any Lender or the Issuing Banks), in
connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.


 


(b)               
Indemnification by the
Borrower.  The Borrower
shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender and the Issuing Banks, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims (including,
without limitation, any environmental claims or civil penalties or fines
assessed by OFAC), damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for any Indemnitee) arising out
of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the
Issuing Banks to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Materials of Environmental Concern on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any environmental claim
related in any way to the Borrower or any of its Subsidiaries, (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower, and regardless of whether
any Indemnitee is a party thereto, or (v) any claim (including, without
limitation, any environmental claims or civil penalties or fines assessed by
OFAC), investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the Loans, this
Agreement, any other Loan Document, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby, including without limitation, reasonable attorneys and consultant’s
fees, provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related
expenses  are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence, bad faith or
willful misconduct of such Indemnitee.  












78




 










 








 








 


(c)               
Reimbursement by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under clause (a)
or (b) of this Section to be paid by it to the Administrative Agent (or
any sub-agent thereof), the Issuing Banks or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the Issuing Banks or such Related Party, as the case may
be, such Lender’s Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided,
that  the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Banks
in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or Issuing Banks in
connection with such capacity.  The obligations of the Lenders under this
clause (c) are subject to the provisions of Section 5.5. 


 


(d)               
Waiver of Consequential
Damages, Etc.  To the
fullest extent permitted by any Requirement of Law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred
to in clause (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.


 


(e)               
Payments.  All amounts due under this Section
shall be payable promptly after demand therefore.  


 


Section 11.5       
Right of Set-off; Payments Set
Aside.   


 


(a)               
If an Event of Default shall
have occurred and be continuing, each Lender, the Issuing Banks and each of
their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by any Requirement of Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the Issuing Banks or any
such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower or now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the Issuing Banks,
irrespective of whether or not such Lender or the Issuing Banks shall have made
any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender or the Issuing Banks different from the branch
or office holding such deposit or obligated on such indebtedness.  The rights
of each Lender or the Issuing Banks and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender or the Issuing Banks or their respective Affiliates
may have.  Each Lender or the Issuing Banks agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application; provided,
that  the failure to give such notice shall not affect the validity of
such setoff and application.


 


(b)               
The Borrower agrees that it
shall have no right of off set, deduction or counterclaim in respect of its
obligations hereunder, and that the obligations of the Lenders hereunder are
several and not joint.  Nothing contained herein shall constitute a
relinquishment or 












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waiver
of the Borrower’s rights to any independent claim that the Borrower may have
against the Administrative Agent or any Lender for the Administrative Agent’s
or such Lender’s, as the case may be, gross negligence or willful misconduct,
but no Lender shall be liable for any such conduct on the part of the
Administrative Agent or any other Lender, and the Administrative Agent shall
not be liable for any such conduct on the part of any Lender.


 


(c)               
To the extent that any
payment by or on behalf of the Borrower is made to the Administrative Agent,
any Issuing Bank or any Lender, or the Administrative Agent, any Issuing Bank
or any Lender exercises its right of setoff, and such payment or the proceeds
of such setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent, such Issuing Bank or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors or otherwise, then (i) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (ii) each Lender and each Issuing Bank
severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus  interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.  The obligations of the Lenders and the
Issuing Banks under clause (ii) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


Section 11.6       
Binding
Effect.  This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have been notified by each Lender and each
Issuing Bank that such Lender or Issuing Bank, as applicable, has executed it
and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent, each Lender and each Issuing Bank and their
respective successors and assigns.


 


Section 11.7       
Successors and Assigns;
Participations. 


 


(a)               
Successors and Assigns Generally.  The provisions of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder or thereunder without the prior
written consent of the Administrative Agent, the Issuing Banks and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any
party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Issuing Banks and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.


 


(b)               
Assignments by Lenders.  Any Lender may at any time assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement and the other 












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Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in Letters of Credit and in Swingline Loans) at the time owing
to it); provided; that  any such assignment shall be subject to
the following conditions:


 


(i)                 
Minimum Amounts.   


 


(A)          in the case of
an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the related Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)           in any case
not described in subsection (b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 in the case of an assignment of a
Commitment unless each of the Administrative Agent and, so long as no Default
or Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met. 


 


(ii)               
Proportionate Amounts.  Each partial assignment shall be made
as an assignment of a proportionate part of all of the assigning Lender's Loans
and Commitments, and rights and obligations with respect thereto, assigned, except
that this clause (ii) shall not apply to the Swingline Lender's rights and
obligations in respect of Swingline Loans;


 


(iii)              
Required Consents.  No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this Section
and, in addition:


 


(A)          the consent of
the Borrower (such consent not to be unreasonably withheld or delayed; it being
understood and agreed that it shall be deemed reasonable for the Borrower to
withhold consent to any assignment to an Ineligible Lender) shall be required
unless (1) a Default or an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, an Affiliate
of a Lender or an Approved Fund;


 


(B)           the consent of
the Administrative Agent (such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of any Commitment if such
assignment is to a Person that is not a Lender, an Affiliate of such Lender or
an Approved Fund with respect to such Lender;












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(C)           the consent of
each Issuing Bank (each such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of any Commitment; and


 


(D)          the consent of
the Swingline Lender (such consent not to be unreasonably withheld or delayed)
shall be required for assignments in respect of any Commitment.


 


(iv)             
Assignment and Assumption.  The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500; provided,
however, that (x) such processing and recordation fee shall not be
required in the case of any assignment to a Lender, an Affiliate of a Lender or
an Approved Fund and (y) the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment.  The Eligible Assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.


 


(v)               
No Assignment to Borrower.  No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


(vi)             
No Assignment to Natural
Persons.  No such
assignment shall be made to a natural person.


 


(vii)            
No Assignment to
Defaulting Lender.  No
such assignment shall be made to a Defaulting Lender.


Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section 11.7,
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 5.4, 5.6 and 11.4  with respect to facts and
circumstances occurring prior to the effective date of such assignment).  Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
Eligible Assignee.  Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.


 


(c)               
Register.  The Administrative Agent, acting solely
for this purpose as an agent of the Borrower, shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of the Loans and
Letters of Credit owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the 












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contrary. 
The Register shall be available for inspection by the Borrower and any Lender
at any reasonable time and from time to time upon reasonable prior notice.  


 


(d)               
Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in Letters of Credit and/or Swingline
Loans) owing to it); provided; that  (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Lenders and
the Issuing Banks shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided, that  such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in Section
11.1 that affects such Participant.  Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 5.4, and 5.6  to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section.  To the extent permitted by Law, each
Participant also shall be entitled to the benefits of Section 11.5 as
though it were a Lender, provided  such Participant agrees to be subject
to Section 5.5 as though it were a Lender.


 


(e)               
Limitation on Participant
Rights.  A Participant
shall not be entitled to receive any greater payment under Section 5.4
or 5.6  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent.  A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 5.6 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
5.6 as though it were a Lender.


 


(f)                
Certain Pledges.  Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided  that no such pledge or assignment shall release
such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.


 


(g)               
Resignation as Issuing
Bank or Swingline Lender after Assignment.  Notwithstanding anything to the contrary contained
herein, if any Lender acting as an Issuing Bank or the Swingline Lender assigns
all of its Commitment pursuant to subsection (b) above, such Lender may, (i)
upon thirty (30) days' notice to the Borrower and the Lenders, resign as an
Issuing Bank and/or (ii) upon thirty (30) days' notice to the Borrower, resign
as Swingline Lender.  In the event of any such resignation as an Issuing Bank
or Swingline Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor Issuing Bank or Swingline Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of such Lender as an Issuing Bank or Swingline
Lender, as the case may be.  If a Lender resigns as an Issuing Bank, it shall
retain all the rights, 












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powers,
privileges and duties of an Issuing Bank hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as an Issuing
Bank and all LC Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations
pursuant to Article IV).  If Wells Fargo Bank resigns as Swingline
Lender, it shall retain all the rights of the Swingline Lender provided for
hereunder with respect to Swingline Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swingline
Loans pursuant to Section 3.8(c).  Upon the appointment of a successor
Issuing Bank and/or Swingline Lender, (1) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring Issuing Bank or Swingline Lender, as the case may be, and (2) the
successor Issuing Bank shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the resigning Issuing Bank to effectively
assume the obligations of the resigning Issuing Bank with respect to such
Letters of Credit.


 


Section 11.8       
Confidentiality.  Each of the Administrative Agent, the
Lenders, the Swingline Lender and the Issuing Banks agree to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, credit insurance providers, directors, officers,
employees, agents, advisors and other representatives (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder, under any other Loan Document or Hedge
Agreement or Treasury Management Agreement entered into with a Lender or an
Affiliate of a Lender or any action or proceeding relating to this Agreement,
any other Loan Document or Hedge Agreement or Treasury Management Agreement
entered into with a Lender or an Affiliate of a Lender or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement, (g)(i)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (ii) an
investor or prospective investor in securities issued by an Approved Fund that
also agrees that Information shall be used solely for the purpose of evaluating
an investment in such securities issued by the Approved Fund, (iii) a trustee,
collateral manager, servicer, backup servicer, noteholder or secured party in
connection with the administration, servicing and reporting on the assets
serving as collateral for securities issued by an Approved Fund, or (iv) a
nationally recognized rating agency that requires access to information
regarding the Borrower and its Subsidiaries, the Loans and Loan Documents in
connection with ratings issued in respect of securities issued by an Approved
Fund (in each case, it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential), (h) with the
consent of the Borrower or (i) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the Swingline
Lender, any Issuing Bank or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.


 


For
purposes of this Section, “Information” means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender, the
Swingline Lender or any Issuing Bank on a nonconfidential basis prior to
disclosure by any the Borrower or any of its Subsidiaries; provided, that,
in the case of information received from the Borrower or any of 












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its Subsidiaries after the date hereof, such information is clearly
identified at the time of delivery as confidential.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Section 11.9       
Waiver
of Jury Trial. 
EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


Section 11.10    Governing Law;
Submission to Jurisdiction.  This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York (without regard to the conflicts of laws principles thereof).  The
Borrower, the Lenders, the Issuing Banks and the Administrative Agent each (a)
irrevocably submits to the jurisdiction of any New York State court or Federal
court sitting in New York, New York in any action arising out of any Loan
Document, (b) agrees that all claims in such action may be decided in such
court, (c) waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum and (d) consents to the service of process by mail.  A
final judgment in any such action shall be conclusive and may be enforced in
other jurisdictions.  Nothing herein shall affect the right of any party to
serve legal process in any manner permitted by law or affect its right to bring
any action in any other court.


 


Section 11.11    Relation of
the Parties; No Beneficiary.  In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), the
Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (a)(i) the arranging and other services regarding this
Agreement provided by the Administrative Agent, the Lenders and the Joint Lead Arrangers,
are arm’s-length commercial transactions between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent, the Lenders and the
Joint Lead Arrangers, on the other hand, (ii) the Borrower has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (iii) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents; (b)(i) the Administrative Agent, each
Lender and each Joint Lead Arranger is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not and will not be acting as an advisor, agent or fiduciary,
for the Borrower or any of Affiliates or any other Person and (ii) neither the
Administrative Agent nor any Lender nor Joint Lead Arranger has any obligation
to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (c) the Administrative Agent, each Lender and
each Joint Lead Arranger and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of
the Borrower and its Affiliates, and neither the Administrative Agent nor any
Lender nor any Joint Lead Arranger has any obligation to disclose any of such
interests to the Borrower or its Affiliates.  To the fullest extent permitted
by law, the Borrower hereby waives and releases, any claims that it may have
against the Administrative Agent, any 












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Lender
or any Joint Lead Arranger with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.


 


Section 11.12    Execution in
Counterparts. 
This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This Agreement and the other Loan
Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. 
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a
manually executed counterpart of this Agreement.


 


Section 11.13    Survival of
Agreement.  All covenants, agreements, representations
and warranties made herein and in the certificates pursuant hereto shall be
considered to have been relied upon by the Administrative Agent, the Issuing
Banks and the Lenders and shall survive the making by the Lenders of the
Extensions of Credit and the execution and delivery to the Lenders of any Notes
evidencing the Extensions of Credit and shall continue in full force and effect
so long as any Note or any amount due hereunder or under any other Loan
Document is outstanding and unpaid, any Letter of Credit is outstanding, or any
Commitment of any Lender has not been terminated.  


 


Section 11.14    Survival of
Indemnities.  Notwithstanding any termination of this
Agreement, the indemnities to which the Administrative Agent and the Lenders are
entitled under the provisions of this Article XI and any other provision
of this Agreement and the other Loan Documents shall continue in full force and
effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.


 


Section 11.15    Patriot Act
Notice.  Each Lender and the Administrative Agent
(for itself and not on behalf of any other party) hereby notifies the Borrower
that, pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Patriot Act.


 


Section 11.16   
Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions.  The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


Section 11.17   
Electronic
Execution of Assignments and Certain Other Documents.  The words “execution,” “signed,”
“signature” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall
be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act. 












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Section 11.18   
Defaulting Lenders.   


 


(a)               
Adjustments.  Notwithstanding anything to the
contrary contained in this Agreement, if any Lender becomes a Defaulting
Lender, then, until such time as that Lender is no longer a Defaulting Lender,
to the extent permitted by applicable Law:


 


(i)                 
Waivers and Amendments.  That Defaulting Lender’s right to
approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in Section 11.1 and in the
definition of “Required Lenders”.


 


(ii)               
Reallocation of Payments.  Any payment of principal, interest,
fees or other amounts received by the Administrative Agent for the account of
such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant
to Article IX or otherwise, and including any amounts made available to
the Administrative Agent by that Defaulting Lender pursuant to Section 11.5),
shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by that
Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting
Lender to the Issuing Banks or Swingline Lender hereunder; third, to
Cash Collateralize the Fronting Exposure of the Issuing Banks and the Swingline
Lender with respect to such Defaulting Lender in accordance with Section
11.19; fourth, as the Borrower may request (so long as no Default or
Event of Default exists), to the funding of any Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a
non-interest bearing deposit account and released pro rata in order to
(A) satisfy such Defaulting Lender’s potential future funding obligations with
respect to Loans and funded participations under this Agreement and (B) Cash
Collateralize the Issuing Banks’ future Fronting Exposure with respect to such
Defaulting Lender with respect to future Letters of Credit and Swingline Loans
issued under this Agreement, in accordance with Section 11.19; sixth,
to the payment of any amounts owing to the Lenders, the Issuing Banks or the
Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender
against that Defaulting Lender as a result of that Defaulting Lender’s breach
of its obligations under this Agreement; seventh, so long as no Default
or Event of Default exists, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by
the Borrower against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to
that Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided, that  if (x) such payment is a payment of
the principal amount of any Loans or LC Borrowings in respect of which that
Defaulting Lender has not fully funded its appropriate share and (y) such Loans
or LC Borrowings were made at a time when the conditions set forth in Section
6.2 were satisfied or waived, such payment shall be applied solely to pay
the Loans of, and LC Borrowings owed to, all non-Defaulting Lenders on a pro
rata basis prior to being applied to the payment of any Loans of, or LC
Borrowings owed to, that Defaulting Lender until such time as all Loans and
funded and unfunded participations in LC Obligations and Swingline Loans are
held by the Lenders pro rata in accordance with the Commitments.  Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash
Collateral pursuant to this Section 11.18(a)(ii) shall be deemed paid to
and redirected by that Defaulting Lender, and each Lender irrevocably consents
hereto.












87




 










 








 








 


(iii)              
Certain Fees.  Such Defaulting Lender (A) shall not be
entitled to receive any Commitment Fee pursuant to Section 2.2(a) for
any period during which such Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been
required to have been paid to such Defaulting Lender) and (B) shall be limited
in its right to receive Letter of Credit Fees as provided in Section 4.8). 


 


(iv)             
Reallocation of Applicable
Percentages to Reduce Fronting Exposure.  During any period in which there is a Defaulting
Lender, for purposes of computing the amount of the obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters
of Credit or Swingline Loans, the “Percentage” of each non-Defaulting Lender
shall be computed without giving effect to the Commitment of that Defaulting
Lender; provided, that, (i) each such reallocation shall be given
effect only if, the conditions set forth in Section 6.2 are satisfied at
the time of such reallocation (and, unless the Borrower shall have otherwise
notified the Administrative Agent at such time, the Borrower shall be deemed to
have represented and warranted that such conditions are satisfied at such
time), and (ii) the aggregate obligation of each non-Defaulting Lender to
acquire, refinance or fund participations in Letters of Credit and Swingline
Loans shall not exceed the positive difference, if any, of (A) the Commitment
of that non-Defaulting Lender minus  (B) the aggregate Outstanding Amount
of the Revolving Loans of that Lender. No reallocation hereunder shall
constitute a waiver or release of any claim of any party hereunder against a
Defaulting Lender arising from that Lender having become a Defaulting Lender,
including any claim of a non-Defaulting Lender as a result of such
non-Defaulting Lender’s increased exposure following such reallocation.


 


(v)               
Cash Collateral, Repayment
of Swingline Loans.  If
the reallocation described in clause (iv) above cannot, or can only partially,
be effected, the Borrower shall, without prejudice to any right or remedy
available to it hereunder or under law, (x) first, repay Swingline Loans in an
amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash
Collateralize the Issuing Banks’ Fronting Exposure in accordance with the
procedures set forth in Section 11.19. 


 


(b)               
Defaulting Lender Cure.  If the Borrower, the Administrative
Agent, the Swingline Lender and the Issuing Banks agree in writing in their
sole discretion that a Defaulting Lender no longer falls under the definition
of “Defaulting Lender”, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject
to any conditions set forth therein (which may include arrangements with respect
to any Cash Collateral), such Lender will, to the extent applicable, purchase
that portion of outstanding Loans of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary to cause the
Revolving Loans and funded and unfunded participations in Letters of Credit and
Swingline Loans to be held on a pro rata basis by the Lenders in accordance
with their Percentages (without giving effect to Section 11.18(a)(iv)),
whereupon such Lender will cease to be a Defaulting Lender; provided 
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any
claim of any party hereunder arising from such Lender’s having been a
Defaulting Lender.


 


(c)               
New Swingline
Loans/Letters of Credit. 
So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall
not be required to fund any Swingline Loans unless it is 












88




 










 








 








satisfied
that it will have no Fronting Exposure after giving effect to such Swingline
Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or
increase any Letter of Credit unless it is satisfied that it will have no
Fronting Exposure after giving effect thereto.


 


Section 11.19   
Cash Collateral.   


 


(a)               
Certain Credit Support
Events.  At any time
that there shall exist a Defaulting Lender, within one Business Day following
the written request of the Administrative Agent, an Issuing Bank or the
Swingline Lender (with a copy to the Administrative Agent), the Borrower shall
Cash Collateralize the Fronting Exposure of such Issuing Bank and/or the
Swingline Lender, as applicable, with respect to such Defaulting Lender
(determined after giving effect to Section 11.18(a)(iv) and any Cash Collateral
provided by such Defaulting Lender) in an amount not less than the Minimum
Collateral Amount.


 


(b)               
Grant of
Security Interest.  The Borrower,
and to the extent provided by any Defaulting Lender, such Defaulting Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for
the benefit of the Administrative Agent, the Issuing Banks and the Lenders
(including the Swingline Lender), and agrees to maintain, a first priority
security interest in all such Cash Collateral, all as security for the Defaulting
Lender’s obligations to fund participations in respect of LC Obligations and
Swingline Loans, to be applied pursuant to subsection (c) below.  If at any
time the Administrative Agent determines that Cash Collateral is subject to any
right or claim of any Person other than the Administrative Agent as herein
provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Borrower
or the relevant Defaulting Lender will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional
Cash Collateral in an amount sufficient to eliminate such deficiency.


 


(c)               
Application.  Notwithstanding anything to the
contrary contained in this Agreement, Cash Collateral provided under any of
this Section 11.19 or Sections 2.3, 3.8, 5.5, 9.2 
or Article IV in respect of Letters of Credit or Swingline Loans shall
be held and applied to the satisfaction of the specific LC Obligations,
Swingline Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such
obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided
for herein. 


 


(d)               
Release.  Cash Collateral (or the appropriate
portion thereof) provided to reduce Fronting Exposure or other obligations
shall be released promptly following (i) the elimination of the applicable
Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender) or (ii) the
Administrative Agent’s good faith determination that there exists excess Cash
Collateral; provided, however, (x) that Cash Collateral furnished
by or on behalf of the Borrower shall not be released during the continuance of
an Event of Default (and following application as provided in this Section
11.19 may be otherwise applied in accordance with Section 9.4), and
(y) the Person providing Cash Collateral and the applicable Issuing Bank or
Swingline Lender, as applicable, may agree that Cash Collateral shall not be
released but instead held to support future anticipated Fronting Exposure or
other obligations.


 


Section 11.20   
Press Releases and Related Matters.  The Borrower and its Affiliates agree that
they will not in the future issue any press releases or other public disclosure
using the name of the Administrative Agent or any Lender or their respective
Affiliates or referring to this Agreement or any of the Loan Documents without
the prior written consent of such Person, unless (and only to the extent that) 












89




 










 








 








the
Borrower or such Affiliate is
required to do so under law and then, in any event, the Borrower or such
Affiliate will consult with such Person before issuing such press release or
other public disclosure; provided, however, the Borrower and its
Affiliates shall not be required to obtain the prior written consent of any
Person or consult with any Person prior to any public disclosure required (a)
pursuant to any federal securities laws applicable to the Borrower or any of
its Subsidiaries, (b) pursuant to the rules and regulations governing the New
York Stock Exchange or any other stock exchange or quotation service from time
to time applicable to the Borrower or any of its Subsidiaries or (c) by any
other Governmental Authority.  The Borrower and its Subsidiaries consent to the
publication by the Administrative Agent or any Lender of customary advertising
material relating to the transactions contemplated by this Agreement and the
Loan Documents using the name, product photographs, logo or trademark of the
Borrower and its Subsidiaries.


 


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OF PAGE INTENTIONALLY LEFT BLANK]
















90




 










 








 








IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


 


SIERRA PACIFIC POWER COMPANY 


 


 




	
   

  	
  By:

  	
  /s/ Dilek L. Samil

  	
   

  
	
   

  	
  Name:

  	
  Dilek L. Samil

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President, Finance,

  	
   

  
	
   

  	
   

  	
  Chief Financial Officer and 

  	
   

  
	
   

  	
   

  	
  Treasurer

  	
   

  






 


 


 


[signature
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WELLS FARGO BANK, NATIONAL ASSOCIATION, 


as Administrative Agent


 


 




	
   

  	
  By:

  	
  /s/ Yann Blindert

  	
   

  
	
   

  	
  Name:

  	
  Yann Blindert

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


[signature
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WELLS FARGO BANK, NATIONAL ASSOCIATION,  


as a Lender, Swingline Lender and an Issuing Bank


 


 




	
   

  	
  By:

  	
  /s/ Yann Blindert

  	
   

  
	
   

  	
  Name:

  	
  Yann Blindert

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


 


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BANK OF AMERICA, N.A., 


as a Lender and an Issuing Bank


 


 


 




	
   

  	
  By:

  	
  /s/ Kevin Bertelsen

  	
   

  
	
   

  	
  Name:

  	
  KEVIN BERTELSEN

  	
   

  
	
   

  	
  Title:

  	
  MANAGING DIRECTOR

  	
   

  






 


 


 


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JPMORGAN CHASE BANK, N.A., 


as a Lender and an Issuing Bank


 


 


 




	
   

  	
  By:

  	
  /s/ Nancy R. Barwig

  	
   

  
	
   

  	
  Name:

  	
  Nancy R. Barwig

  	
   

  
	
   

  	
  Title:

  	
  Credit Executive

  	
   

  






 


 


 


 


[signature
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THE BANK OF NOVIA
SCOTIA,


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Brenda Insull

  	
   

  
	
   

  	
  Name:

  	
  Brenda Insull

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  






 


 


 


 


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UNION BANK, N.A., 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Jeffrey Fesenmaier

  	
   

  
	
   

  	
  Name:

  	
  Jeffrey Fesenmaier

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  






 


 


 


 


 


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BARCLAYS BANK PLC 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Diane Rolfe

  	
   

  
	
   

  	
  Name:

  	
  Diane Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


 


 


 


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DEUTSCHE BANK TRUST COMPANY AMERICAS, 


as a Lender


 


 


 


 




	
   

  	
  By:

  	
  /s/ Marcus M. Tarkington

  	
   

  
	
   

  	
  Name:

  	
  Marcus M. Tarkington

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


 




	
   

  	
  By:

  	
  /s/ Marguerite Sutton

  	
   

  
	
   

  	
  Name:

  	
  Marguerite Sutton

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


 


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GOLDMAN SACHS BANK
USA, 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Anna Ostrovsky

  	
   

  
	
   

  	
  Name:

  	
  Anna Ostrovsky

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  






 


 


 


 


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The Royal Bank of
Scotland plc, 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Andrew N. Taylor

  	
   

  
	
   

  	
  Name:

  	
  Andrew N. Taylor

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  






 


 


 


 


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UBS LOAN FINANCE LLC, 


as a Lender


 


 


 


 




	
   

  	
  By:

  	
  /s/ Irja R. Otsa

  	
   

  
	
   

  	
  Name:

  	
  Irja R. Otsa

  	
   

  
	
   

  	
  Title:

  	
  Associate Director

  	
   

  






 


 


 




	
   

  	
  By:

  	
  /s/ Mary E. Evans

  	
   

  
	
   

  	
  Name:

  	
  Mary E. Evans

  	
   

  
	
   

  	
  Title:

  	
  Associate Director

  	
   

  






 


 


 


 


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SUNTRUST BANK, 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Andrew Johnson

  	
   

  
	
   

  	
  Name:

  	
  Andrew Johnson

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  






 


 


 


 


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THE BANK OF NEW YORK
MELLON,


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Mark W. Rogers

  	
   

  
	
   

  	
  Name:

  	
  Mark W. Rogers

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  






 


 


 


 


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U.S. BANK NATIONAL
ASSOCIATION, 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Holland H. Williams

  	
   

  
	
   

  	
  Name:

  	
  Holland H. Williams

  	
   

  
	
   

  	
  Title:

  	
  AVP & Portfolio Manager

  	
   

  






 


 


 


 


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PNC BANK, NATIONAL
ASSOCIATION,  


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Dale Stein

  	
   

  
	
   

  	
  Name:

  	
  Dale Stein

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  






 


 


 


 


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THE NORTHERN TRUST
COMPANY, 


as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Steven W. Ryan

  	
   

  
	
   

  	
  Name:

  	
  Steven W. Ryan

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  






 


 


 


 


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ASSOCIATED BANK, N.A.,



as a Lender


 


 


 




	
   

  	
  By:

  	
  /s/ Kristin A. Isleib

  	
   

  
	
   

  	
  Name:

  	
  Kristin A. Isleib

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  






 


 


 


 


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CANADIAN IMPERIAL BANK
OF COMMERCE,


NEW YORK AGENCY, as a Lender


 


 


 


 




	
   

  	
  By:

  	
  /s/ Jonathan Kim

  	
   

  
	
   

  	
  Name:

  	
  Jonathan Kim

  	
   

  
	
   

  	
  Title:

  	
  Executive Director

  	
   

  






 


 


 




	
   

  	
  By:

  	
  /s/  Eoin Roche

  	
   

  
	
   

  	
  Name:

  	
  Eoin Roche

  	
   

  
	
   

  	
  Title:

  	
  Executive Director

  	
   

  






 


 


 


 


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SIERRA
PACIFIC POWER COMPANY


 


Schedules
to Credit Agreement, dated as of March 23, 2012, by and among Sierra Pacific
Power Company, as Borrower, Wells Fargo Bank, N.A., as Administrative Agent,
Swingline Lender and an Issuing Bank and the Lenders and Issuing Banks party
thereto.


 


 


 


 


	
  SCHEDULE 1.1(A)

  	
   

  	
  Existing Letters
  of Credit

  
	
  SCHEDULE 1.1(B)

  	
   

  	
  Commitments and
  Percentages

  
	
  SCHEDULE 7.1(c)

  	
   

  	
  Legal Name, Etc.

  
	
  SCHEDULE 7.1(d)

  	
   

  	
  Consents,
  Authorizations, Filings and Notices

  
	
  SCHEDULE 7.1(f)

  	
   

  	
  Material
  Litigation

  
	
  SCHEDULE 7.1(p)

  	
   

  	
  Subsidiaries

  
	
  SCHEDULE 8.1(d)

  	
   

  	
  Contractual
  Obligations, Compliance with Law

  
	
  SCHEDULE
  8.2(b)(vi)

  	
   

  	
  Existing Liens

  
	
  SCHEDULE 8.2(d)

  	
   

  	
  Disposition of
  Property

  
	
  SCHEDULE 8.2(g)

  	
   

  	
  Affiliate
  Transactions

  
	
  SCHEDULE 11.2

  	
   

  	
  Certain Addresses
  for Notices; Applicable Lending Offices

  




 
 







2 




 










 








 








Schedule 1.1(A)


 


Existing Letters of Credit


 


 




	
  Issuing

  	
  Beneficiary

  	
  No.

  	
  Date of 

  	
  Date of

  	
  Face

  	
  Reason

  	
  Note

  
	
  Bank

  	
   

  	
   

  	
  Issue

  	
  Expiry

  	
  Amount

  	
   

  	
   

  
	
  Bank of
  America

  	
  Gas Transmission 

  	
  3112935

  	
  7/23/2010

  	
  4/28/2012

  	
  $4,200,000.00 

  	
  Transportation
  Service Agreement

  	
  Financial

  
	
   

  	
  NW Corp.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of
  America

  	
  Tuscarora Gas

  	
  3112931

  	
  7/23/2010

  	
  2/15/2013

  	
  $6,000,000.00 

  	
  Precedent
  Agreement

  	
  Financial

  
	
   

  	
  Transmission Company

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of
  America

  	
  Idaho Power Company

  	
  3112934

  	
  7/23/2010

  	
  12/20/2012

  	
  $350,000.00 

  	
  Transportation
  Service Agreement

  	
  Performance

  






 


 












3 




 










 








 








Schedule 1.1(B)


 


Commitments and Percentages


 


 




	
   

  Lender

   

  	
  Commitment

  	
  Percentage of Commitments

  
	
  Wells
  Fargo Bank, National Association

  	
  $18,666,666.68

  	
  7.466666672%

  
	
  Bank of
  America, N.A.

  	
  $18,666,666.67

  	
  7.466666668%

  
	
  JPMorgan
  Chase Bank, N.A.

  	
  $18,666,666.67

  	
  7.466666668%

  
	
  The Bank
  of Nova Scotia 

  	
  $18,666,666.67

  	
  7.466666668%

  
	
  Union
  Bank, N.A.

  	
  $18,666,666.67

  	
  7.466666668%

  
	
  Barclays
  Bank PLC

  	
  $15,333,333.33

  	
  6.133333332%

  
	
  Deutsche
  Bank Trust Company Americas

  	
  $15,333,333.33

  	
  6.133333332%

  
	
  Goldman
  Sachs Bank USA

  	
  $15,333,333.33

  	
  6.133333332%

  
	
  The
  Royal Bank of Scotland plc 

  	
  $15,333,333.33

  	
  6.133333332%

  
	
  UBS Loan
  Finance LLC

  	
  $15,333,333.33

  	
  6.133333332%

  
	
  SunTrust
  Bank

  	
  $13,333,333.33

  	
  5.333333332%

  
	
  The Bank
  of New York Mellon

  	
  $13,333,333.33

  	
  5.333333332%

  
	
  U.S.
  Bank National Association

  	
  $13,333,333.33

  	
  5.333333332%

  
	
  PNC Bank, National Association

  	
  $11,666,666.67

  	
  4.666666668%

  
	
  The Northern Trust Company

  	
  $11,666,666.67

  	
  4.666666668%

  
	
  Associated Bank, N.A.

  	
  $8,333,333.33

  	
  3.333333332%

  
	
  Canadian Imperial Bank of Commerce

  	
  $8,333,333.33

  	
  3.333333332%

  
	
  TOTAL

  	
  $250,000,000.00

  	
  100.000000000%

  






 












4 




 










 








 








Schedule 7.1(c)


 


Legal
Name, Etc.


 


Legal Name of Borrower:  Sierra Pacific Power Company


State of Incorporation:  Nevada


Chief Executive Office and Principal
Place of Business:  6100 Neil Road,
Reno, Nevada 89511


Jurisdictions in which Borrower is
qualified to do business:  California


Federal Tax Identification Number:  88-0044418


Organizational Identification Number:  C63-1965












5 




 










 








 








Schedule 7.1(d)




Consents, Authorizations, Filings and Notices


 


Order of the Public Utilities Commission
of Nevada, Docket No. 09-07024, dated November 2, 2009.


 


 












6 




 










 








 








Schedule 7.1(f)


 


Material
Litigation


 


The litigation that is described in
“Legal Proceedings” and Note 13 to the financial statements, in each case as
included in the Borrower’s and NV Energy, Inc.’s Annual Report on Form 10-K for
the year ended December 31, 2011.


 












7 




 










 








 








Schedule 7.1(p)


 


Subsidiaries


 


 


	
  Company

  	
  State
  of Formation

  
	
   

  	
   

  
	
  Piñon Pine Company, LLC

  	
  Nevada

  
	
   

  	
   

  




The Subsidiary listed above is a
wholly-owned subsidiary of the Borrower.


 


 


	
  Company

  	
  State
  of Incorporation/Formation

  
	
  Piñon Pine Investment Company

  	
  Nevada

  
	
  GPSF-B

   

  Piñon Pine Corporation

  	
  Delaware

   

  Nevada

  
	
   

  	
   

  




Each of the Subsidiaries listed above
are wholly-owned subsidiaries of Piñon Pine Company LLC.


 












8 




 










 








 








Schedule 8.1(d)


 


Contractual
Obligations, Compliance with Law


 


None.


 


 












9 




 










 








 








Schedule 8.2(b)(vi)


 


Existing
Liens


 


None.












10 




 










 








 








Schedule 8.2(g)


 


Affiliate
Transactions


 


 


 


1.       
Portfolio Energy Credit (PEC)
Pooling Arrangement between Nevada Power Company (“NPC”) and the Borrower
(approved by Public Utilities Commission of Nevada in its Docket No. 08-04002
on October 7, 2008)


 


2.       
Master Services Agreement between
NPC, the Borrower and NV Energy, Inc. (December 23, 2009) as updated from time
to time


 


3.       
Any prospective coal sale
agreements between Borrower and NPC.


 


4.       
Any existing and prospective 
Power Related  Agreements between the Borrower and NPC, executed to facilitate
compliance with the Renewable Energy Portfolio Standard, including the
following:


 


 




	
  Buyer

  	
  Seller

  	
  Project

  
	
  Nevada
  Power Company

  	
  Sierra
  Pacific Power Company

  	
  Nevada Solar One

  
	
   

  	
   

  	
  NPC-SPPC Portfolio Energy

  
	
  Nevada
  Power Company

  	
  Sierra
  Pacific Power Company

  	
  Credit Agreement

  
	
  Sierra
  Pacific Power Company

  	
  Nevada
  Power Company

  	
  Faulkner | Blue Mountain

  
	
  Sierra
  Pacific Power Company

  	
  Nevada
  Power Company

  	
  Desert Peak 2

  
	
  Sierra
  Pacific Power Company

  	
  Nevada
  Power Company

  	
  Galena 2

  
	
  Sierra
  Pacific Power Company

  	
  Nevada
  Power Company

  	
  Salt Wells

  
	
  Sierra
  Pacific Power Company

  	
  Nevada
  Power Company

  	
  Stillwater (New)

  
	
  Sierra
  Pacific Power Company

  	
  Nevada Power
  Company

  	
  Jersey Valley

  
	
  Sierra
  Pacific Power Company

  	
  Nevada
  Power Company

  	
  Tuscarora

  






 


 


5.  Any prospective pooling arrangements
to share spare generating station parts among the Borrower, NPC and third party
vendors.  These arrangements shall be on fair and reasonable terms no less
favorable to the Borrower than it would obtain in a comparable arm’s length
transaction with a Person that is not an Affiliate.


 


 












11 




 










 








 








Schedule 11.2


 


Certain
Addresses for Notices; Applicable Lending Offices


 


A.            CERTAIN ADDRESSES
FOR NOTICES


 


1.  Address for Borrower: 


 


Sierra Pacific Power Company 


c/o Nevada Power Company


  d/b/a NV Energy


6226 West Sahara Avenue


Las Vegas, Nevada 89146


Attention: Dilek L. Samil,  Senior Vice President,
Finance, Chief Financial Officer and Treasurer, or any duly appointed
successor(s)


Copy to:   E. Kevin Bethel, Vice
President, Chief Accounting Officer and Controller


Telephone: (702) 402-5620 (Samil) or
(702) 402-5622 (Bethel)


Facsimile:  (702) 402-2250 (Samil) or
(702) 402-2250 (Bethel)


Electronic mail: dsamil@nvenergy.com; kbethel@nvenergy.com; 


U.S. Taxpayer Identification Number:
88-0044418


 


with a copy (which shall not constitute
notice) to:


 


Choate, Stewart & Hall LLP


Two International Place


Boston, Massachusetts 02110


Attention: Andrew J. Hickey, Esq.


Telephone: (617) 218-5267


Facsimile: (617) 248-4000


 


 


2.  Addresses for Administrative
Agent and Swingline Lender: 


 


Wells Fargo Bank, National Association


1525 W WT Harris Boulevard


Mail Code : D1109-019


Charlotte, NC 28262


Attention: Syndication Agency Services


Telephone: (704) 590-2706


Facsimile: (704) 590-2790


Electronic Mail : Agencyservices.requests@wellsfargo.com


 


Wiring Instructions


 


Bank Name :          Wells Fargo Bank, National
Association


Account Number :               01104331628807    


Routing / ABA :   121000248


Attention :             Financial Cash Controls


Reference :            Sierra Pacific Power
Company












12 




 










 








 








 


3.  Addresses for Issuing Banks: 


 


a.             Wells Fargo Bank, National
Association


1525 W WT Harris Boulevard


Charlotte, NC 28262


Mail Code: NC0680


Telephone: (704) 590-2706


Facsimile: (704) 590-2790


 


b.                  
Bank of America, N.A.

1000 W. Temple Street


7th Floor


Mail Code: CA9-705-07-05  

Los Angeles, CA 90012


Attention: Mane Badalyan

Telephone: (213) 417-9466 


Facsimile: (213) 457-8841 


Electronic Mail: mane.v.badalyan@baml.com


 


                                Remittance
Instructions: 


                                Bank of America, N.A.


                                ABA #: 026-009-593 


                                Account #: 45358-83980


                                Attn: LA Standby LC
Dept.                               


Reference: LC#____________


 


                c.             JPMorgan
Chase Bank, N.A.


Attn: Standby Letter of Credit Unit


10 South Dearborn, 5th Floor


Mail Code: IL1-0236


Chicago, IL 60603-5506


Telephone: 800-634-1969 – option 1


Email: Standbylc.chi.mc@jpmchase.com



With a copy to: nancy.r.barwig@jpmorgan.com


Reference: Sierra Pacific Power Company
















13 




 










 








 








EXHIBIT A-1


 


FORM OF
REVOLVING NOTE


 


FOR VALUE RECEIVED,
the undersigned, SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY, a Nevada corporation
(the “Borrower”), HEREBY PROMISES TO PAY to the order of
_________________ or its registered assigns (the “Lender”), in
accordance with the provisions of the Credit Agreement (as hereinafter
defined), the principal amount of each Revolving Loan from time to time made by
the Lender to the Borrower under the Credit Agreement.  Capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
assigned to such terms in the Credit Agreement.


 


The Borrower
promises to pay interest on the unpaid principal amount of each Revolving Loan
from the date of such Revolving Loan until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in
the Credit Agreement.  All payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent’s Office.  If any
amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the date thereof until the date of
actual payment (and before as well as after judgment) computed at the rate per
annum set forth in the Credit Agreement.


 


This Revolving Note
is one of the Revolving Notes referred to in, and is entitled to the benefits
of, that certain Credit Agreement, dated as of March 23, 2012 (as amended,
restated, modified or supplemented from time to time, the “Credit
Agreement”), among the Borrower, the Lenders and Issuing Banks from
time to time party thereto and Wells Fargo Bank, National Association, as
Administrative Agent, Swingline Lender and an Issuing Bank.  The Credit
Agreement, among other things, (a) provides for the making of Revolving Loans
by the Lender to the Borrower from time to time, the indebtedness of the
Borrower resulting from each such Revolving Loan being evidenced by this
Revolving Note and (b) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.


 


The Lender may
attach schedules to this Revolving Note and endorse thereon the date, amount
and maturity of its Revolving Loans and payments with respect thereto.


 


The Indebtedness
evidenced by this Revolving Note is senior in right of payment to all
Subordinated Debt.


 


The Borrower, for
itself, its successors and assigns, hereby waives diligence, presentment,
demand, protest and notice of any kind.  No failure to exercise, and no delay
in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.












 










 








 








This Revolving Note shall be governed by, and construed in accordance
with, the laws of the State of New York (without regard to the conflicts of
laws principles thereof).


 


SIERRA PACIFIC POWER COMPANY d/b/a NV
ENERGY,


a Nevada corporation


 


 


By:                                                                                                     


Name:                                                                                                


Title:                                                                                                  












 










 








 








EXHIBIT A-2


 


FORM OF
SWINGLINE NOTE


 


FOR VALUE RECEIVED,
the undersigned, SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY, a Nevada
corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order
of WELLS FARGO BANK, NATIONAL ASSOCIATION or its registered assigns (the “Swingline 
Lender”), in accordance with the provisions of the Credit
Agreement (as hereinafter defined), the principal amount of each Swingline Loan
from time to time made by the Swingline Lender to the Borrower under the Credit
Agreement.  Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings assigned to such terms in the Credit
Agreement.


 


The Borrower
promises to pay interest on the unpaid principal amount of each Swingline Loan
from the date of such Swingline Loan until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in
the Credit Agreement.  All payments of principal and interest shall be made
directly to the Swingline Lender in Dollars in immediately available funds.  If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the rate
per annum set forth in the Credit Agreement.


 


This Swingline Note
is the Swingline Note referred to in, and is entitled to the benefits of, that
certain Credit Agreement, dated as of March 23, 2012 (as amended, restated,
modified or supplemented from time to time, the “Credit Agreement”),
among the Borrower, the Lenders and Issuing Banks from time to time party
thereto, and Wells Fargo Bank, National Association, as Administrative Agent,
Swingline Lender and an Issuing Bank.  The Credit Agreement, among other
things, (a) provides for the making of Swingline Loans by the Swingline Lender to
the Borrower from time to time, the indebtedness of the Borrower resulting from
each such Swingline Loan being evidenced by this Swingline Note and (b)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.


 


The Swingline Lender
may attach schedules to this Swingline Note and endorse thereon the date,
amount and maturity of its Swingline Loans and payments with respect thereto.


 


The Indebtedness
evidenced by this Swingline Note is senior in right of payment to all
Subordinated Debt.


 


The Borrower, for
itself, its successors and assigns, hereby waives diligence, presentment, demand,
protest and notice of any kind.  No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.


 












 










 








 








This Swingline Note shall be governed by, and construed in accordance
with, the laws of the State of New York (without regard to the conflicts of
laws principles thereof).


 


SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY,


a Nevada corporation


 


 


By:                                                                                                     


Name:                                                                                                


Title:                                                                                                  












 










 








 








EXHIBIT A-3


 


FORM OF
NOTICE OF REVOLVING BORROWING


 


Date: __________,
201_


 


To:          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies
and Gentlemen:


 


The
undersigned, Sierra Pacific Power Company d/b/a NV Energy, a Nevada corporation
(the “Borrower”), refers to that certain Credit Agreement, dated
as of March 23, 2012 (as amended, restated, modified or supplemented from time
to time, the “Credit Agreement”), among the Borrower, the Lenders
and Issuing Banks from time to time party thereto and Wells Fargo Bank,
National Association, as Administrative Agent, Swingline Lender and an Issuing
Bank, and hereby gives you notice, irrevocably, pursuant to Section 3.1
of the Credit Agreement that the undersigned hereby requests a Borrowing of
Revolving Loans under the Credit Agreement, and in connection with such
Borrowing sets forth below the information relating to such Borrowing (the “Proposed
Borrowing”) as required by Section 3.1(a) of the Credit
Agreement:


 


                (i)            The Business Day of the
Proposed Borrowing is ____________, 201_.


 


                (ii)           The Type of Loans comprising
the Proposed Borrowing is [Base Rate Loans] [LIBOR Rate Loans].


 


                (iii)          The aggregate principal
amount of the Proposed Borrowing is $________. 


 


                (iv)          For Proposed Borrowing
consisting of LIBOR Rate Loans: with an Interest Period of ___ months.


 


Capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.


 


The
Borrower hereby represents and warrants that (a) after giving effect to the
Proposed Borrowing, (i) the Total Revolving Outstandings shall not exceed the
Borrowing Limit and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender plus  such Lender’s Percentage of all LC Obligations plus 
such Lender’s Percentage of the Outstanding Amount of all Swingline Loans shall
not exceed such Lender’s Commitment, (b) each of the conditions set forth in Section
6.2 of the Credit Agreement has been satisfied on and as of the date of
such Proposed Borrowing and (c) the Proposed Borrowing is made in compliance
with Sections 3.1, 3.3  and 3.4  of the Credit Agreement.


 


Very
truly yours,


 


SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY, a Nevada corporation


 


 


By:                                                                                                     


Name:                                                                                                


Title:                                                                                                  


 












 










 








 








EXHIBIT A-4


 


FORM OF
NOTICE OF SWINGLINE BORROWING


 


 


Date:
____________, 201_


 


To:          Wells Fargo Bank, National
Association, as Swingline Lender


 


cc:
          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies
and Gentlemen:


 


The
undersigned, Sierra Pacific Power Company d/b/a NV Energy, a Nevada corporation
(the “Borrower”), refers to that certain Credit Agreement, dated
as of March 23, 2012 (as amended, restated, modified or supplemented from time
to time, the “Credit Agreement”), among the Borrower, the Lenders
and Issuing Banks from time to time party thereto and Wells Fargo Bank,
National Association, as Administrative Agent, Swingline Lender and an Issuing
Bank, and hereby gives you notice, irrevocably, pursuant to Section 3.8
of the Credit Agreement that the undersigned hereby requests a Borrowing of
Swingline Loans under the Credit Agreement (the “Proposed Swingline
Borrowing”), and in connection with such Proposed Swingline Borrowing
sets forth below the information relating to such Proposed Swingline Borrowing
as required by Section 3.8(b) of the Credit Agreement:


 


                (i)            The Business Day of the Proposed
Borrowing is ____________, 201_.


 


                (ii)           The aggregate principal
amount of the Proposed Borrowing is $________. 


 


                (iii)          The Type of Loans
comprising the Proposed Borrowing is [Base Rate Loans] [LIBOR Market Index Rate
Loans].


 


 


Capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.


 


The
Borrower hereby represents and warrants that (a) after giving effect to the
Proposed Swingline Borrowing, (i) the Total Revolving Outstandings shall not exceed
the Borrowing Limit and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender plus  such Lender’s Percentage of all LC Obligations plus 
such Lender’s Percentage of the Outstanding Amount of all Swingline Loans shall
not exceed such Lender’s Commitment, (b) each of the conditions set forth in Section
6.2 of the Credit Agreement has been satisfied on and as of the date of
such Proposed Swingline Borrowing and (c) the Proposed Swingline Borrowing is
made in compliance with Sections 3.4 and 3.8  of the Credit
Agreement.












 










 








 








 


                                                                                                Very
truly yours,


 


SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY,


a Nevada corporation


 


 


By:                                                                                                     


Name:                                                                                                


Title:                                                                                                  


 












 










 








 








EXHIBIT B


 


FORM OF
NOTICE OF CONVERSION


 


Date: _______,
201_


 


To:          Wells Fargo Bank, National
Association, as Administrative Agent


 


Ladies
and Gentlemen:


 


The
undersigned, Sierra Pacific Power Company d/b/a NV Energy, a Nevada corporation
(the “Borrower”), refers to that certain Credit
Agreement dated as of March 23, 2012 (as amended, restated, modified or
supplemented from time to time, the “Credit Agreement”), among
the Borrower, the Lenders and Issuing Banks from time to time party thereto and
Wells Fargo Bank, National Association, as Administrative Agent, Swingline
Lender and an Issuing Bank, and hereby gives you notice, irrevocably, pursuant
to Section 3.2 of the Credit Agreement that the undersigned hereby
requests a Conversion under the Credit Agreement, and in connection with such
Conversion sets forth below the information relating to such Conversion (the “Proposed
Conversion”) as required by Section 3.2 of the Credit Agreement:


 


                (i)            The Business Day of the Proposed Conversion is
________________, 201_.


 


                (ii)           The Type of Loans comprising the Proposed Conversion is
[Base Rate Loans] [LIBOR Rate Loans].


  


                (iii)          The Interest Period for
each Loan to be Converted is _______months.1 


 


                (iv)          The aggregate amount of the
Proposed Conversion is $____________.


 


                (v)           The Type of Loans to which
such Loans are proposed to be Converted is [Base Rate Loans] [LIBOR Rate
Loans].


 


                (vi)          The Interest Period for
each Converted Loan made as part of the Proposed Conversion is ___ month(s).2


 


Capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


___________________


 


	
  1

  	
  To be
  included for a Proposed Conversion to LIBOR Rate Loans only.

  
	
  2

  	
  To be
  included for a Proposed Conversion to LIBOR Rate Loans only.

  




 












 










 








 








The Borrower hereby certifies that
its request for the Proposed Conversion is made in compliance with Sections
3.2, 3.3  and 3.4  of the Credit Agreement.  The undersigned
hereby acknowledges that the delivery of this Notice of Conversion shall
constitute a representation and warranty by the Borrower that, on the date of
the Proposed Conversion, no Default or Event of Default has occurred and is
continuing or would result from the Proposed Conversion.3


 


                                                                                                Very
truly yours,


 


SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY,


a Nevada corporation


 


By:                                                                                                     


Name:                                                                                                


Title:                                                                                                  


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


___________________


 


	
  3

  	
  Include
  this bracketed sentence for Proposed Conversions to LIBOR Rate Loans, and
  delete if Proposed Conversion into Base Rate Loans.

  




 












 










 








 








 


EXHIBIT C


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


This Assignment and
Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert
name of Assignor] (the “Assignor”) and [Insert name of
Assignee] (the “Assignee).  Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (the “Credit Agreement”), receipt of a copy of
which is hereby acknowledged by the Assignee.  The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


 


For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit, Guarantees and Swingline
Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as, the “Assigned
Interest”).  Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.


 


1.             Assignor:                              ______________________________


 


2.             Assignee:                              ______________________________


                                                                [and is an Affiliate/Approved Fund of [identify Lender]]


 


3.             Borrower:                               Sierra Pacific Power
Company d/b/a NV Energy, a Nevada corporation


 


4.             Agent:                                    Wells Fargo Bank, National
Association, as the administrative agent under the Credit Agreement


 


5.             Credit Agreement:                Credit Agreement dated as
of March 23, 2012 among the Borrower, the Lenders and Issuing Banks from time
to time party thereto and Wells Fargo Bank, National Association, as
Administrative Agent, Swingline Lender and an Issuing Bank












 










 








 








 


 


6.             Assigned Interest:


 




	
  Aggregate Amount of Commitment/Loans for all Lenders

  	
  Amount
  of Commitment/Loans Assigned1

  	
  Percentage
  Assigned of Commitment/Loans2

  
	
   

  	
   

  	
   

  






 


7.             Trade Date:                           __________, 201_


 


8.             Effective Date:                      __________, 201_


 


 


 


 


The terms set
forth in this Assignment and Assumption are hereby agreed to:


 


ASSIGNOR:                                                          [NAME OF ASSIGNOR]


 


                                                                                By:______________________________


                                                                                Name: 


                                                                                Title:


 


ASSIGNEE:                                                           [NAME OF ASSIGNEE]


 


                                                                                By:______________________________


                                                                                Name:


                                                                                Title:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


_________________________


 


	
  1

  	
  Amount
  to be adjusted by the counterparties to take into account any payments or
  prepayments made between the Trade Date and the Effective Date.

  
	
  2

  	
  Set
  forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
  Lenders thereunder.

  














 










 








 








 


[Consented to and]3 Accepted:


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Administrative Agent


 


By_________________________________


Name:


Title:


 


Consented to:


 


SIERRA PACIFIC POWER COMPANY d/b/a NV
ENERGY, 


a Nevada corporation


 


By________________________________


Name:


Title:


 


WELLS FARGO BANK, NATIONAL ASSOCIATION, 


as an Issuing Bank and as Swingline
Lender


 


By:______________________________


Name: 


Title:


 


BANK OF AMERICA, N.A.,


as an Issuing Bank


 


By________________________________


Name:


Title:


 


JPMORGAN CHASE BANK, N.A.,


as an Issuing Bank


 


By________________________________


Name:


Title:


 


 


 


 


 


 


 


 


 


 


 


 


_________________________


 


	
  3

  	
  To
  be added only if the consent of the Administrative Agent is required by the
  terms of the Credit Agreement.

  














 










 








 








Annex 1 to Assignment and Assumption


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.             Representations and
Warranties. 


 


1.1.          Assignor.  The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of
its Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2.          Assignee.  The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets the requirements to be an
assignee under Section 11.7(b)(iii), (v), (vi), and (vii) of the Credit
Agreement (subject to such consents as may be required under Section
11.7(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to
decisions to acquire assets of the type represented by the Assigned Interest
and either it, or the Person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 8.1(a) thereof, as applicable, and
such other documents and information as it deems appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and
to purchase the Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest and (vii) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


2.             Payments.  From and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.


 


3.             General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns.  This
Assignment and 


 












 










 








 








Assumption may be executed in any number of counterparts, which
together shall constitute one instrument.  Delivery of an executed counterpart
of a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption.  This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York (without regard to the conflicts
of laws principles thereof).


 


 












 










 








 








EXHIBIT D


 


SIERRA
PACIFIC POWER COMPANY


d/b/a
NV ENERGY


 


FORM OF
OFFICER'S CERTIFICATE


 


March 23,
2012


 


This Officer’s
Certificate is delivered pursuant to Section 6.1(e) of the Credit
Agreement, dated as of March 23, 2012 (the “Credit Agreement”)
among Sierra Pacific Power Company d/b/a NV Energy, a Nevada corporation (the “Borrower”),
the Lenders and Issuing Banks from time to time party thereto and Wells Fargo
Bank, National Association, as Administrative Agent, Swingline Lender and an
Issuing Bank.  Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.  The undersigned, _________, the _________ of the Borrower hereby certifies
to the Administrative Agent and the Lenders as follows:


 


                1.             The representations and
warranties of the Borrower contained in Article VII of the Credit
Agreement or in any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the date hereof, except
for representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties were true and
correct as of such earlier date.


  


                2.             No Default exists as of the
date hereof, or would result from the Extensions of Credit to be made on the
date hereof or from the application of the proceeds thereof.


 


                3.             The conditions precedent
set forth in Sections 6.1 and 6.2  of the Credit Agreement are
satisfied as of the date hereof.


 


                4.             There are no liquidation or
dissolution proceedings pending or to my knowledge threatened against the
Borrower, nor has any other event occurred adversely affecting or threatening
the continued corporate existence of the Borrower.


 


                5.             The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Nevada.


 


                6.             The NPC Credit Agreement
is, or contemporaneously with the effectiveness of the Credit Agreement will
be, effective on and as of the date hereof.


 


                7.             Attached hereto as Exhibit
A is a true and complete copy of the General and Refunding Mortgage
Indenture as in effect on the date hereof, the General and Refunding Mortgage
Bonds and all other documents required to be delivered pursuant to Section
6.1(g) of the Credit Agreement.


 


                8.             Attached hereto as Exhibit
B is the certificate required to be delivered by the Borrower pursuant to Section
6.1(i) of the Credit Agreement, demonstrating that, as of the Closing Date,
the Borrower does not have any Negative Mark-to-Market Exposure. 


 


Woodburn and Wedge and Choate, Hall &
Stewart LLP are entitled to rely on this certificate in connection with the
opinions that such firms are rendering pursuant to clauses (i) and (ii) of Section
6.1(f) of the Credit Agreement.  The undersigned acknowledges that (a) in
entering into the Credit Agreement, the Administrative Agent, the Lenders and
the Issuing Banks are entitled to rely and have, in fact, relied 












 










 








 








upon the
statements contained herein and (b) any successor or assign of the
Administrative Agent, the Lenders and the Issuing Banks is entitled to rely
upon the statements contained herein, such statements being made only as of the
date hereof.


 


[Remainder
of Page Intentionally Left Blank]


 












 










 








 








 


IN WITNESS WHEREOF,
the undersigned Responsible Officer of the Borrower has executed this Officer’s
Certificate as of the date first written above.


 


 


SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY, 


a Nevada corporation


 


 


                By:  _____________________________________


                Name:     ___________________________________


                Title:       ___________________________________


 


 












 










 








 








EXHIBIT E


 


SIERRA
PACIFIC POWER COMPANY


d/b/a
NV ENERGY


 


FORM OF
SECRETARY’S CERTIFICATE


 


March 23,
2012


 


This Secretary’s
Certificate is delivered pursuant to Section 6.1(e) of the Credit Agreement
dated as of March 23, 2012 (as amended, modified, supplemented or extended from
time to time, the “Credit Agreement”) among Sierra Pacific Power
Company d/b/a NV Energy, a Nevada corporation (the “Company”),
the Lenders and Issuing Banks from time to time party thereto and Wells Fargo
Bank, National Association, as Administrative Agent, Swingline Lender and an
Issuing Bank.  Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.  I, _____________, do hereby certify
that (a) I am the duly appointed, qualified and acting Secretary of the
Company, (b) I am authorized to execute this certificate on behalf of the
Company, and (c) as follows:


 


1. 
Attached hereto as Exhibit A is a true and complete copy of the Restated
Articles of Incorporation of the Company and all amendments thereto as
in effect on the date hereof.  Such articles have not otherwise been amended,
modified, rescinded or changed in any respect since their date of adoption and
are in full force and effect on and as of the date hereof.


 


2. 
Attached hereto as Exhibit B is a true and complete copy of the Bylaws
of the Company, together with all amendments thereto, as in effect on the date
hereof.  Such Bylaws have not been otherwise amended, modified, rescinded or
changed in any respect since their date of adoption and are in full force and
effect as of the date hereof.


 


3. 
Attached hereto as Exhibit C is a true, complete and correct copy
of the resolutions of the Board of Directors of the Company, duly adopted by
said Board of Directors at a meeting held on October 28, 2011, at which a
quorum was present and acting throughout; such resolutions were duly adopted
and constitute all resolutions of the Board of Directors of the Company with
respect to the authorization of the execution, delivery and performance of the
Credit Agreement, the General and Refunding Mortgage Bonds and the agreements
and transactions contemplated thereby and in connection therewith, and such
resolutions have not been amended, modified, annulled or revoked, and are in
full force and effect on the date hereof; and the instruments referred to in
said resolutions of said Board of Directors were executed pursuant thereto and
in compliance therewith.


 


                4.  Attached hereto as Exhibit D is a true, complete and correct
copy of a certificate of the Company setting forth the true and genuine
signatures of the persons, each being a duly elected and qualified officer of
the Company, authorized to execute and deliver on behalf of the Company each of
the Loan Documents and any certificate or other document to be delivered by the
Company pursuant to the Loan Documents.


 


                5.  Attached hereto as Exhibit E is a true, complete and correct
copy of the order of the Public Utilities Commission of Nevada, Docket No.
09-07024 dated November 2, 2009, authorizing the execution and delivery by the
Company of the Credit Agreement and the agreements and transactions
contemplated thereby and in connection therewith (including without limitation
the issuance of the General and Refunding Mortgage Bonds), which order has not
been rescinded and remains in full force and effect on the date hereof.












 










 








 








 


Woodburn and Wedge
and Choate, Hall & Stewart LLP are entitled to rely on this certificate in
connection with the opinions that such firms are rendering pursuant to clauses
(i) and (ii) of Section 6.1(f) of the Credit Agreement.  The undersigned
acknowledges that (a) in entering into the Credit Agreement, the Administrative
Agent, the Lenders and the Issuing Banks are entitled to rely and have, in
fact, relied upon the statements contained herein and (b) any successor or
assign of the Administrative Agent, the Lenders and the Issuing Banks is
entitled to rely upon the statements contained herein, such statements being
made only as of the date hereof.  


 













 










 








 








                IN WITNESS WHEREOF, I hereunder subscribe my name
effective as of the 23rd day of March, 2012.


 


 


                                                                                                                 


Secretary of Sierra Pacific
Power Company d/b/a NV Energy,


a Nevada corporation


 












 










 








 








EXHIBIT F


 


SIERRA
PACIFIC POWER COMPANY


d/b/a
NV ENERGY


 


FORM OF
MARK-TO-MARKET EXPOSURE CERTIFICATE


 


______,
201_


 


Reference is made to
that certain Credit Agreement dated as of March 23, 2012 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”)
among Sierra Pacific Power Company d/b/a NV Energy, a Nevada corporation (the “Borrower”),
the Lenders and Issuing Banks from time to time party thereto and Wells Fargo
Bank, National Association, as Administrative Agent, Swingline Lender and an
Issuing Bank.  Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.  This Mark-to-Market Exposure Certificate
is delivered pursuant to [Section 6.1(i)] [Section 8.1(b)(iii)]
of the Credit Agreement.  The undersigned Responsible Officer of the Borrower
hereby certified as follows:


 


[No
Aggregate Negative Mark-to Market Exposure exists as of the Closing Date.]


 


[Schedule 1
hereto sets forth calculations of the Borrower’s Aggregate Negative
Mark-to-Market Exposure or calculations demonstrating the absence of Aggregate
Negative Mark-to-Market Exposure, as the case may be, as of the most recently
ended calendar month.]












 










 








 








IN WITNESS WHEREOF, the undersigned Responsible Officer of the Borrower
has executed this Mark-to-Market Exposure Certificate as of the date first
written above.


 


SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY, 


a Nevada corporation


 


 


                                                                                                By:  _____________________________________


                                                                                                Name:     ___________________________________


                                                                                                Title:       ___________________________________


 












 










 








 








SCHEDULE 1


 


 


Monthly Period End Date:  [_____], 201_


$ amounts actual


 


	
   

  	
  Lender
  or Lender Affiliate ISDA1

  	
   

  	
   

  
	
  Counterparty

  	
  Interest
  Rate Mark-to-Market

  	
  Commodities
  Mark-to-Market

  	
  Netting2

  	
  Negative
  Mark-to-Market

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[          
     ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
   

  	
  $[             
  ]

  	
  $[             
  ]

  	
  [Y/N]

  	
  $[             
  ]

  
	
  Aggregate Negative Mark-to-Market
  Exposure3

  	
  $[             
  ]

  	
  $[             
  ]

  	
   

  	
  $[             
  ]

  




 


 


 


 


 


 


 


 


	
  1

  	
  Indicate Negative Mark-to-Market by
  placing the dollar amount in parentheticals.

  
	
  2

  	
  Netting of exposure calculated in
  accordance with the terms of the Credit Agreement, which permits netting
  between two or more Hedge Agreements each by and between the Borrower and any
  Subsidiary, on the one hand, and the same legal entity (or any Affiliate
  thereof), on the other hand, that is contractually available to the Borrower
  or such Subsidiary.  For the avoidance of doubt, the Borrower and the
  Administrative Agent agree that netting between and among transactions within
  a Hedge Agreement is permitted (to the extent permitted by the terms of such
  Hedge Agreement).  Capitalized terms used but not defined in this footnote 1
  shall have the meanings ascribed thereto in the Credit Agreement.

  
	
  3

  	
  Excludes netting across counterparties.