Exhibit 10(N)
AMENDMENT AND WAIVER AGREEMENT
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This AMENDMENT AND WAIVER AGREEMENT (this "Agreement"), is made and
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entered into as of March 1, 2001, among NEVADA POWER COMPANY (the "Company"),
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MELLON BANK, N.A. ("Mellon"), FIRST UNION NATIONAL BANK ("First Union"), XXXXX
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FARGO BANK, N.A. ("Xxxxx Fargo"), and the other parties set forth on the
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signatures pages hereto (the "Lenders").
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RECITALS
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A. The Company, Mellon, in its capacity as administrative agent (the
"Administrative Agent"), First Union and Xxxxx Fargo, each in their capacity as
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syndication agent, and the Lenders have entered into a Credit Agreement, dated
as of June 24, 1999 (as amended, modified and supplemented through the date
hereof, the "Credit Agreement").
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B. Pursuant to Section 6.01(a) of the Credit Agreement, the Company's
ratio of Total Indebtedness to the sum of Total Indebtedness and Shareholders'
Equity (the "Debt to Equity Ratio"), determined as of the last day of each
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fiscal quarter, shall not exceed 0.65 to 1.
C. The Company reasonably believes that it will be in breach of its
fixed charge coverage ratio set forth in Section 6.01(b) of the Credit Agreement
for the four fiscal quarter period ended December 31, 2000 when it delivers its
financial statements and compliance certificate for such quarter pursuant to
Sections 5.01(a) and (c) of the Credit Agreement (as such breach relates to the
four fiscal quarter period ended December 31, 2000 only, the "Financial Covenant
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Breach").
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D. The effect of the Financial Covenant Breach would, if not waived
by March 31, 2001, result in a Default.
E. The Company has requested that the Lenders (a) amend Section
6.01(a) of the Credit Agreement to reduce the Debt to Equity Ratio to 0.58 to 1
and (b) waive any Default or Event of Default resulting from the Financial
Covenant Breach.
NOW, THEREFORE, in consideration of the foregoing, the premises and
mutual covenants contained herein and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
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used herein shall have the meanings given thereto in the Credit Agreement.
2. Effectiveness of this Agreement. This Agreement shall become
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effective and the waiver and amendment described in Section 3 below shall become
effective at the time (the "Effective Time") on the first date (the "Effective
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Date") on which each of the following conditions shall be satisfied or waived by
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the Administrative Agent and the Required Lenders:
(a) Execution of Agreement. The Company and the Required Lenders
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shall have executed a copy of this Agreement (whether the same or different
copies) and shall have delivered the same to the Administrative Agent.
(b) Quarterly Compliance Certificate. The Company shall have
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delivered to the Administrative Agent a Quarterly Compliance Certificate
for the four fiscal quarter period ended December 31, 2000, which Quarterly
Compliance Certificate shall certify that the Company is in compliance with
its financial covenants with respect to such quarter, except that the Fixed
Charge Coverage Ratio shall be not less than 0.76 to 1.
(c) No Litigation. The Administrative Agent and the Required Lenders
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shall be satisfied that, immediately prior to the Effective Time, no
judgment, order, injunction or other restraint shall have been issued or
filed which restrains, and no hearing seeking injunctive relief or other
restraint is pending or has been noticed which seeks to restrain, the
Company from consummating the transactions described in the Loan Documents
or this Agreement.
(d) No Default; Representations and Warranties. The Administrative
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Agent and the Required Lenders shall be satisfied that, immediately prior
to the Effective Time and after giving effect to this Agreement, (i) there
shall exist no Default or Event of Default and (ii) the representations and
warranties of the Company contained in the Loan Documents to which the
Company is a party are true and correct in all material respects as of the
Effective Time with the same effect as though such representations and
warranties had been made on and as of the Effective Time (except for such
representations and warranties made as of a specified date, which shall be
true and correct in all material respects as of such specified date).
(e) Corporate Proceedings. All corporate and legal proceedings and
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all instruments and agreements in connection with the transactions
contemplated in this Agreement and the other Loan Documents shall be
satisfactory in form and substance to the Administrative Agent and the
Required Lenders, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings and governmental approvals, if any, which any Lender
reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or
governmental authorities.
(f) Fee. For consenting to the amendment and waiver contained in this
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Agreement, each Lender that executes and delivers this Agreement prior to
5:00 p.m., Pacific Time, on March 1, 2001 shall have received on or before
the Effective Date a fee in immediately available funds equal to the
product of (i) 0.05% and (ii) the aggregate amount of such Lender's
Commitments.
(g) Other Payments. The Administrative Agent and each Lender shall
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have received all amounts, if any, owing from the Company to such Person
through and including the Effective Date.
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All the certificates and other documents and papers referred to in this Section
2, unless otherwise specified, shall be delivered to the Administrative Agent's
counsel, White & Case LLP, at 000 Xxxx Xxxxx Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxxxxx,
XX 00000, facsimile (000) 000-0000, for the account of each of the Lenders and
in sufficient counterparts for each of the Lenders and shall be satisfactory in
form and substance to the Administrative Agent and the Required Lenders.
3. Amendment and Waiver. At and from the Effective Time:
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(a) Section 6.01(a) of the Credit Agreement shall be amended by
deleting the text "0.65 to 1" and inserting the text "0.58 to 1" in
its place.
(b) The Administrative Agent and the Required Lenders agree to
waive the Financial Covenant Breach to the extent (and only to the
extent) the Company has complied with Section 2(b) of this Agreement.
4. Representations and Warranties. The Company makes, as of the
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Effective Date, each of the representations and warranties set forth in Article
V of the Credit Agreement and such representations and warranties are, by this
reference, incorporated herein as if set forth herein in their entirety;
provided that references to "Loan Documents" shall, for purposes of this
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paragraph, be deemed to include this Agreement.
5. Miscellaneous.
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(a) The waiver contained in this Agreement is a one-time waiver only,
is made only with respect to the specific provisions of the Credit Agreement
referenced above and is made only to the extent and for the limited purposes
described herein. Such waiver shall not be construed as a waiver for any
purpose other than as expressly set forth herein and shall not constitute an
agreement or obligation on the part of the Administrative Agent or any Lender to
grant any other or future waiver, or prevent any of them from enforcing any
right or remedy under the Credit Agreement or otherwise with respect thereto.
(b) Except as expressly modified by this Agreement, the Credit
Agreement shall continue to be and remain in full force and effect in accordance
with its terms. Any future reference to the Credit Agreement shall, from and
after the Effective Time, be deemed to be a reference to the Credit Agreement as
amended by Section 3(a) of this Agreement.
(c) This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
(d) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAW RULES.
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(e) This Agreement may be executed by facsimile signature and each
such signature shall be treated in all respects as having the same effect as an
original signature.
(f) The rules of construction set forth in Section 1.03 of the Credit
Agreement are, by this reference, incorporated herein as if set forth in their
entirety, provided that references to "this Agreement" in such section shall
mean references to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
NEVADA POWER COMPANY
By: _______________________________
Name: Xxxx X. Xxxxxx
Title: Sr. Vice President, CFO
-Signature Page-
Amendment and Waiver Agreement
MELLON BANK, N.A., as Administrative
Agent and as a Lender
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Lender
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
XXXXX FARGO BANK, N.A., as Syndication
Agent and as a Lender
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
BANK OF AMERICA, N.A.
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
THE BANK OF NEW YORK
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
BANK ONE, N.A. (Main Office-Chicago)
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
CREDIT SUISSE FIRST BOSTON
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
BNP PARIBAS
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
UNION BANK OF CALIFORNIA, N.A.
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
BAYERISCHE LANDESBANK GIROZENTRALE
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
FLEETBOSTON FINANCIAL CORP.
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
FIRST SECURITY BANK OF NEVADA
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
KBC BANK, N.V.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
U.S. BANK NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
-Signature Page-
Amendment and Waiver Agreement
