THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS THIRD
AMENDMENT (this " Agreement ") is made and entered into as
of this 10th day of February, 2009, with an effective date as set
forth in Section 3 hereof, by and among SIERRA PACIFIC POWER
COMPANY d/b/a NV Energy, a Nevada corporation (the "
Borrower "), the lenders party to the Credit Agreement
referred to below (the “ Lenders ”) that have
executed a Lender Authorization in the form set forth as Exhibit
A attached hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent for the Lenders (in such capacity, the “
Administrative Agent ”).
Statement of
Purpose
The Lenders
agreed to extend certain credit facilities to the Borrower pursuant
to the Amended and Restated Credit Agreement, dated as of November
4, 2005 (as amended, modified and supplemented by that certain
Amendment and Consent dated as of April 19, 2006 and that certain
Second Amendment dated as of November 25, 2008, and as further
amended, restated, supplemented or otherwise modified from time to
time, the " Credit Agreement "), by and among the Borrower,
the Lenders and the Administrative Agent.
The Borrower
has requested, and the Lenders and the Administrative Agent have
agreed, subject to the terms and conditions set forth herein, to
amend the Credit Agreement as specifically set forth
herein.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1.
Definitions . All capitalized, undefined terms
used in this Agreement (including, without limitation, in the
Statement of Purpose hereto) shall have the meanings assigned
thereto in the Credit Agreement.
SECTION 2.
Amendments . Subject to and in accordance with
the terms and conditions set forth herein, the Administrative Agent
and the Lenders hereby agree to amend the Credit Agreement as
follows:
(a) Section
2.1(a) of the Credit Agreement is hereby amended by inserting the
following language in lieu of the period at the end of the first
sentence of such Section:
"
provided , that for purposes of this Section 2.1(a) and all
other provisions of this Agreement and each other Loan Document,
(i) the Available Commitment of a Defaulting Lender shall be deemed
to be zero and (ii) at any time there is a Defaulting Lender, the
aggregate Commitments shall be reduced by an amount equal to such
Defaulting Lender's Available Commitment (calculated without giving
effect to the immediately preceding clause (i)
)."
(b) Section
2.3 of the Credit Agreement is hereby amended by adding the
following as a new clause (c) to such Section and
re-lettering current clauses (c), (d) and (e)
accordingly:
“(c) At
any time a Lender is a Defaulting Lender, the Borrower may
terminate in full the Commitment of such Defaulting Lender by
giving notice to such Defaulting Lender and the Administrative
Agent; provided , that, (i) at the time of such termination,
(A) no Default or Event of Default has occurred and is continuing
(or the Required Lenders consent to such termination) and (B)
either (x) no Loans are outstanding or (y) such Defaulting Lender's
Percentage in respect of outstanding Loans is zero; (ii)
concurrently with such termination, the aggregate Commitments of
all Lenders shall be reduced by the Commitment of the Defaulting
Lender (it being understood that the Borrower may not terminate the
Commitment of a Defaulting Lender if, after giving effect to such
termination, the aggregate principal amount of Loans outstanding
plus the aggregate amount of LC Outstandings hereunder would
exceed the aggregate Commitments of all Lenders); and (iii)
concurrently with any subsequent payment of interest or fees to the
Lenders with respect to any period before the termination of the
Commitment of such Defaulting Lender, the Borrower shall pay to
such Defaulting Lender its ratable share (based on its ratable
share before giving effect to such termination) of such interest or
fees, as applicable. Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan
Documents, the Borrower shall not be obligated to pay any interest
or fees to a Defaulting Lender that accrue after the date that the
Borrower terminates the Commitment of such Defaulting Lender
pursuant to and in accordance with the terms of this
Agreement."
SECTION 3.
Effectiveness . The amendments set forth in
Section 2 of this Agreement shall be deemed to be effective upon
receipt by the Administrative Agent of (a) counterparts of this
Agreement executed by the Borrower and the Administrative Agent and
(b) Lender Authorizations executed by the Required Lenders pursuant
to Section 11.1 of the Credit Agreement.
SECTION 4. Effect of
Agreement . Except as expressly provided herein, the
Credit Agreement (as amended hereby) and the other Loan Documents
shall remain in full force and effect. This Agreement
shall not be deemed (a) to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the
Credit Agreement or any other Loan Documen
