Exhibit 4(D)
NEVADA POWER COMPANY
TO
DEUTSCHE BANK
TRUST COMPANY AMERICAS
(SUCCESSOR TO BANKERS TRUST
COMPANY),
as Trustee
TWENTY-NINTH SUPPLEMENTAL
INDENTURE
Dated as of February 23,
2004
THIS TWENTY-NINTH
SUPPLEMENTAL INDENTURE dated as of February 23, 2004, made by
and between NEVADA POWER COMPANY (formerly DESERT Merger Sub, Inc.,
a wholly owned subsidiary of Sierra Pacific Resources and successor
by merger to Nevada Power Company), a corporation duly organized
and existing under the laws of the State of Nevada (the
“Company”), having its principal place of business at
Las Vegas, Nevada, and DEUTSCHE BANK TRUST COMPANY AMERICAS
(successor to Bankers Trust Company), a banking corporation duly
organized and existing under and by virtue of the banking laws of
the State of New York, having its principal place of business at
Sixty Wall Street, New York, New York (the
“Trustee”);
WHEREAS, the
Company has heretofore executed and delivered to the Trustee its
Indenture of Mortgage and Deed of Trust (“Original
Indenture”) dated October 1, 1953, to secure the payment
of the principal of and interest and premium, if any, on all bonds
of the Company at any time outstanding thereunder; and, for the
purpose of amending and supplementing and further confirming the
lien of the Original Indenture, has heretofore executed and
delivered the following Supplemental Indentures and Instrument of
Further Assurance, each dated as hereinafter set forth:
|
|
|
|
|
|
|
|
|
|
|
|
First
Supplemental Indenture
|
|
August 1,
1954
|
|
|
Instrument of
Further Assurance
|
|
as of
April 1, 1956
|
|
|
Second
Supplemental Indenture
|
|
September 1, 1956
|
|
|
Third
Supplemental Indenture
|
|
as of
May 1, 1959
|
|
|
Fourth
Supplemental Indenture
|
|
as of
October 1, 1960
|
|
|
Fifth
Supplemental Indenture
|
|
as of
December 1, 1961
|
|
|
Sixth
Supplemental Indenture
|
|
as of
October 1, 1963
|
|
|
Seventh
Supplemental Indenture
|
|
as of
August 1, 1964
|
|
|
Eighth
Supplemental Indenture
|
|
as of
April 1, 1968
|
|
|
Ninth
Supplemental Indenture
|
|
as of
October 1, 1969
|
|
|
Tenth
Supplemental Indenture
|
|
as of
October 1, 1970
|
|
|
Eleventh
Supplemental Indenture
|
|
as of
November 1, 1972
|
|
|
Twelfth
Supplemental Indenture
|
|
as of
December 1, 1974
|
|
|
Thirteenth
Supplemental Indenture
|
|
as of
October 1, 1976
|
|
|
Fourteenth
Supplemental Indenture
|
|
as of
May 1, 1977
|
|
|
Fifteenth
Supplemental Indenture
|
|
as of
September 1, 1978
|
|
|
Sixteenth
Supplemental Indenture
|
|
as of
December 1, 1981
|
|
|
Seventeenth
Supplemental Indenture
|
|
as of
August 1, 1982
|
|
|
Eighteenth
Supplemental Indenture
|
|
as of
November 1, 1986
|
|
|
Nineteenth
Supplemental Indenture
|
|
as of
October 1, 1989
|
|
|
Twentieth
Supplemental Indenture
|
|
as of
May 1, 1992
|
|
|
Twenty-First
Supplemental Indenture
|
|
as of
June 1, 1992
|
|
|
Twenty-Second
Supplemental Indenture
|
|
as of
June 1, 1992
|
|
|
Twenty-Third
Supplemental Indenture
|
|
as of
October 1, 1992
|
|
|
Twenty-Fourth
Supplemental Indenture
|
|
as of
October 1, 1992
|
|
|
Twenty-Fifth
Supplemental Indenture
|
|
as of
January 1, 1993
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Twenty-Sixth
Supplemental Indenture
|
|
as of
May 1, 1995
|
|
|
Twenty-Seventh
Supplemental Indenture
|
|
as of
July 1, 1999
|
|
|
Twenty-Eighth
Supplemental Indenture
|
|
as of
July 1, 2001
|
|
|
the Original Indenture, as
amended and supplemented by the instruments listed above and as to
be supplemented by this Twenty-Ninth Supplemental Indenture and as
it may from time to time be amended or supplemented pursuant to the
provisions thereof, is hereinafter sometimes called the
“Indenture”;
WHEREAS, the
Original Indenture, the Instrument of Further Assurance and the
Supplemental Indentures listed in the foregoing paragraph were
recorded in Offices of the County Recorders of the States of
Nevada, Arizona and Utah as set forth in Exhibit A attached
hereto and incorporated herein by reference;
WHEREAS, in
addition to twenty-three series of Bonds heretofore issued under
the Indenture, all of which have been retired, there have
heretofore been issued under the Indenture First Mortgage Bonds of
series and in principal amounts as follows:
|
|
|
|
|
|
|
|
|
|
|
Title
|
|
Issued
|
|
|
Outstanding
|
|
6.70% Bonds of Series V due 2022
|
|
$
|
105,000,000
|
|
|
$
|
105,000,000
|
|
6.60% Bonds of Series W due 2019
|
|
$
|
39,500,000
|
|
|
$
|
39,500,000
|
|
7.20% Bonds of Series X Due 2022
|
|
$
|
78,000,000
|
|
|
$
|
78,000,000
|
|
8.50% Bonds of Series Z due 2023
|
|
$
|
45,000,000
|
|
|
$
|
35,000,000
|
|
First Mortgage Bonds, Series BB Due
2020
|
|
$
|
100,000,000
|
|
|
$
|
100,000,000
|
|
First Mortgage Bonds, Series CC Due
2009
|
|
$
|
15,000,000
|
|
|
$
|
15,000,000
|
|
WHEREAS, the
Company in the exercise of the power and authority conferred upon
and reserved to it under the provisions of the Indenture, and
pursuant to a resolution duly adopted by its Board of Directors,
has resolved and determined to make, execute and deliver to the
Trustee this Twenty-Ninth Supplemental Indenture, in the form
hereof, which further supplements the Indenture and amends
Section 8.13 of the Indenture in its entirety to read as
follows:
“That the
Company will not declare or pay any dividends on shares of its
stock of any class (other than dividends payable or paid in shares
of its stock) or make any other distribution on any shares of its
stock or purchase or redeem any shares of its stock for an amount
in excess of the net proceeds of the sale of shares of its capital
stock sold after July 28, 1999, if as a result thereof
(a) the accumulated aggregate amounts of such dividends,
distributions, purchases or redemptions after July 28, 1999,
will exceed (b) the sum of (i) the Net Earnings of the
Company, and (ii) cash contributions to the Company’s
capital from the Company’s parent, for such period, taken as
one accounting period, computed by generally accepted accounting
standards, excluding from such Net Earnings all adjustments
properly attributable to operations prior to July 28,
1999.” ; and
-3-
WHEREAS, all
conditions and requirements necessary to make this Twenty-Ninth
Supplemental Indenture a valid, binding and legal instrument have
been done, performed and fulfilled, and the execution and delivery
hereof have been in all respects duly authorized;
NOW, THEREFORE in
consideration of the premises and of the sum of one dollar ($1),
lawful money of the United States of America, duly paid by the
Trustee to the Company, and of other good and valuable
consideration, receipt whereof is hereby acknowledged, and to
secure the performance and observation of each and every of the
covenants and conditions contained in the Indenture, and without in
any way limiting the generality or effect of the Indenture insofar
as by any provision thereof any of the properties therein or
hereinafter referred to are now subject, or are now intended to be
subject to the lien and operation thereof, but to such extent
confirming such lien and operation, the Company has executed and
delivered this Twenty-Ninth Supplemental Indenture and has granted,
bargained, sold, warranted, aliened, remised, released, conveyed,
assigned, transferred, mortgaged, pledged, set over and confirmed,
and by these presents does grant, bargain, sell, warrant, alien,
remise, release, convey, assign, transfer, mortgage, pledge, set
over and confirm, unto Deutsche Bank Trust Company Americas, as
Trustee aforesaid, and to its successors in the trust hereby
created, in trust upon the conditions, terms and provisions of the
Indenture, subject to the encumbrances and other matters permitted
by the Indenture, all and singular the following premises,
properties, interests and rights, all to the same extent and with
the same force and effect as though owned by the Company at the
date of execution of the Original Indenture and described in the
same detail in the Granting Clauses of the Original Indenture, such
premises, properties, interests and rights having been generally
described and referred to in the Original Indenture; and to such
ends the Company hereby supplements, as below set forth, the
Granting Clauses of the Original Indenture:
GRANTING CLAUSES
All
of the premises, property, franchises and rights of every kind and
description, real, personal and mixed, tangible and intangible, now
owned or hereafter acquired by the Company and wherever
situate.
Together with all
and singular the tenements, hereditament and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and
remainders, tolls, rents, revenues, issues, income, products and
profits thereof and all the estate, right, title, interest and
claim whatsoever at law as well as in equity, which the Company now
has or may hereafter acquire in and to the aforesaid property and
franchises and every part and parcel thereof.
Excepting and
excluding, however, any and all property, premises and rights of
the kinds or classes which by the terms of the Indenture are
excepted and excluded from the lien and operation thereof, and
therein sometimes referred to as “Excepted Property”
(subject, however, to the Trustee’s rights to possession of
Excepted Property in case of default, as set forth under
“Excepted Property” in the Original
Indenture).
TO
HAVE AND TO HOLD in trust with power of sale for the equal and
proportionate benefit and security of all holders of all Bonds and
the interest coupons appertaining thereto, now
-4-
or hereafter issued under the
Indenture, and for the enforcement and payment of Bonds and
interest thereon when payable, and the performance of and
compliance with the covenants and conditions of the Indenture,
without any preference, distinction or priority as to lien or
otherwise of any Bonds or coupons over any others thereof by reason
of the difference in the time of the actual issue, sale or
negotiation thereof, or by reason of the date of maturity thereof,
or for any other reason whatsoever, except as otherwise expressly
provided in the Indenture, so that each and every Bond shall have
the same lien and so that the interest and principal of every Bond
shall, subject to the terms thereof, be equally and proportionately
secured by said lien, as if such Bond had been made, executed,
delivered, sold and negotiated simultaneously with the execution
and delivery of the Original Indenture.
The
Trustee executes this Twenty-Ninth Supplemental Indenture only on
the condition that it shall have and enjoy with respect thereto all
of the rights, privileges and immunities as set forth in the
Indenture.
The
Company has agreed and covenanted and does hereby agree and
covenant with the Trustee and its successors and assigns, and with
the respective holders from time to time of the Bonds, or any
thereof, as follows:
PART I
ARTICLE I
AMENDMENT TO INDENTURE
The
Original Indenture as heretofore and hereafter amended and
modified, is hereby amended as provided below.
Section 8.13
of the Original Indenture, as amended by Section 9 of the
Second Supplemental Indenture, Part II of the Eighth
Supplemental Indenture and Part II of the Twenty-Fourth
Supplemental Indenture, is hereby amended in its entirety to read
as follows:
“That the
Company will not declare or pay any dividends on shares of its
stock of any class (other than dividends payable or paid in shares
of its stock) or make any other distribution on any shares of its
stock or purchase or redeem any shares of its stock for an amount
in excess of the net proceeds of the sale of shares of its capital
stock sold after July 28, 1999, if as a result thereof
(a) the accumulated aggregate amounts of such dividends,
distributions, purchases or redemptions after July 28, 1999,
will exceed (b) the sum of (i) the Net Earnings of the
Company, and (ii) cash contributions to the Company’s
capital from the Company’s parent, for such period, taken as
one accounting period, computed by generally accepted accounting
standards, excluding from such Net Earnings all adjustments
properly attributable to operations prior to July 28,
1999.”
-5-
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The
Company represents and warrants that, as of the date of execution
of this Twenty-Ninth Supplemental Indenture, it has good and
marketable title in fee simple to all the real properties described
in the Granting Clauses of the Original Indenture, the First
Supplemental Indenture, the Instrument of Further Assurance, the
Second Supplemental Indenture, the Third Supplemental Indenture,
the Fourth Supplemental Indenture, the Fifth Supplemental
Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the
Ninth Supplemental Indenture, the Tenth Supplemental Indenture, the
Eleventh Supplemental Indenture, the Twelfth Supplemental
Indenture, the Thirteenth Supplemental Indenture, the Fourteenth
Supplemental Indenture, the Fifteenth Supplemental Indenture, the
Sixteenth Supplemental Indenture, the Seventeenth Supplemental
Indenture, the Eighteenth Supplemental Indenture, the Nineteenth
Supplemental Indenture, the Twentieth Supplemental Indenture, the
Twenty-First Supplemental Indenture, the Twenty-Second Supplemental
Indenture, the Twenty-Third Supplemental Indenture, the
Twenty-Fourth Supplemental Indenture, the Twenty-Fifth Supplemental
Indenture, the Twenty-Sixth Supplemental Indenture, the
Twenty-Seventh Supplemental Indenture and the Twenty-Eighth
Supplemental Indenture (except any property heretofore released
from the lien of the Indenture in accordance with the terms
thereof), free and clear of any liens and encumbrances except
Permitted Encumbrances and those, if any, referred to in said
Granting Clauses, and that it has good and marketable title and is
lawfully possessed of all other properties described in said
Granting Clauses (except any properties therein described as to be
acquired by the Company after the date of this Twenty-Ninth
Supplemental Indenture and except any property heretofore released
from the lien of the Indenture in accordance with the terms
thereof), and the Indenture constitutes a direct and valid first
mortgage lien on all such properties, subject only to Permitted
Encumbrances and those, if any, referred to in said Granting
Clauses. The Company represents and warrants that it has and
covenants that it will continue to have, subject to the provisions
of the Indenture, good right, full power and lawful authority to
grant, bargain, sell, warrant, alien, remise, release, convey,
assign, transfer, mortgage, pledge, set over and confirm to the
Trustee all properties of every kind and nature described or
referred to in said Granting Clauses (except any properties therein
described as to be acquired by the Company after the date of this
Twenty-Ninth Supplemental Indenture) which by the provisions of the
Indenture are intended to be subject to the lien of the Indenture
and that it will defend the title to such property and every part
thereof to the Trustee forever, for the benefit of the holders of
the Bonds, against the claims and demands of all persons
whomsoever.
PART II
MISCELLANEOUS PROVISIONS
Except insofar as
herein otherwise expressly provided, all of the definitions,
provisions, terms and conditions of the Indenture shall be deemed
to be incorporated in, and made a part of, this Twenty-Ninth
Supplemental Indenture; and the Original Indenture as amended and
supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture, the
-6-
|