EXCHANGE AGENT AGREEMENT
Exhibit 99.2
As of August 15, 2005
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Nevada Power Company, a corporation organized and existing under the laws of the State of
Nevada (the “Company”), proposes to make an offer (the “Exchange Offer”) to exchange all of its
outstanding 5
7/8% General and Refunding Mortgage Notes, Series L, due 2015
(not registered under the Securities Act of 1933, as amended (the “Securities Act”)) (the “Old
Notes”) for its 5 7/8% General and Refunding Mortgage Notes, Series L, due
2015 (registered under the Securities Act) (the “New Notes”). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated August 15, 2005 (the
“Prospectus”), proposed to be distributed to all record holders of the Old Notes. The Old Notes
and the New Notes are collectively referred to herein as the “Securities”.
The Company hereby appoints The Bank of New York to act as exchange agent (the “Exchange
Agent”) in connection with the Exchange Offer pursuant to this Exchange Agent Agreement (the
“Agreement”). References hereinafter to “you” shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about August 15, 2005.
The Letter of Transmittal accompanying the Prospectus (or in the case of book-entry securities, the
Automated Tender Offer Program (“ATOP”) of the Book-Entry Transfer Facility (as defined below)) is
to be used by the holders of the Old Notes to accept the Exchange Offer and contains instructions
with respect to the delivery of certificates for Old Notes tendered in connection therewith.
Anything contained herein or in the Prospectus or Letter of Transmittal to the contrary
notwithstanding, the Exchange Agent’s obligations with respect to receipt and inspection of the
Letters of Transmittal in connection with the Exchange Offer shall be satisfied for all purposes
hereof by inspection of the electronic message (the “Agent’s Message” as defined in the Prospectus)
transmitted to the Exchange Agent by the Book-Entry Transfer Facility, in accordance with ATOP, and
by otherwise observing and complying with all procedures established by the Book-Entry Transfer
Facility in connection with ATOP, to the extent that ATOP is utilized by the Exchange Offer
participants.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on September 16, 2005 or on
such subsequent date or time to which the Company may extend the Exchange Offer (the “Expiration
Date”). Subject to the terms and conditions set forth in the Prospectus, the Company expressly
reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (promptly confirmed in writing) or written notice to you before 9:00 a.m., New York
City time, on the business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange Offer, and not to
accept for exchange any Old Notes not theretofore accepted for exchange, upon the occurrence of any
of the conditions of the Exchange Offer specified in the Prospectus under the caption “The Exchange
Offer — Conditions to the Exchange Offer.” The Company will give oral (promptly confirmed in
writing) or written notice of any amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following
instructions:
1. You will perform such duties and only such duties as are specifically set forth in the
section of the Prospectus captioned “The Exchange Offer” or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing.
2. You will establish a book-entry account with respect to the Old Notes at The Depository
Trust Company (the “Book-Entry Transfer Facility”) for purposes of the Exchange Offer within two
business days after the date of the Prospectus, and any financial institution that is a participant
in the Book-Entry Transfer Facility’s systems may make book-entry delivery of the Old Notes by
causing the Book-Entry Transfer Facility to transfer such Old Notes into your account in accordance
with the Book-Entry Transfer Facility’s procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for Old Notes (or
Agent’s Message or confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility, as applicable) and any other documents delivered or mailed to you by or for holders of
the Old Notes to ascertain whether: (i) the Letters of Transmittal and any such other documents are
duly executed and properly completed in accordance with instructions set forth therein; and (ii)
the Old Notes have otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the certificates for Old
Notes are not in proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be reasonably necessary or
advisable to cause such irregularity to be corrected.
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4. With the approval of the President, any Senior or Executive Vice President, any Vice
President, the Treasurer or the Acting Secretary of the Company (each, an “Authorized Officer”),
such approval, if given orally, to be promptly confirmed in writing, or any other party designated
in writing, by such Authorized Officer, you are authorized to waive any irregularities in
connection with any tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of Transmittal and in the
section of the Prospectus captioned “The Exchange Offer — Procedures for Tendering — Registered
Holders and DTC Participants”, and Old Notes shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Notes which any Authorized Officer shall
approve as having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Notes received subsequent to the
Expiration Date and accept its instructions with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names only if signed by all
named holders;
(b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in
a fiduciary or a representative capacity only when proper evidence of his or her authority so to
act is submitted; and
(c) from persons other than the registered holder of Old Notes, provided that customary
transfer requirements, including payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as permitted in the
Letter of Transmittal and deliver certificates for Old Notes to the registrar for split-up and
return any untendered Old Notes to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company
will notify you (such notice, if given orally, to be promptly confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes properly tendered and you, on
behalf of the Company, will exchange such
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Old Notes for New Notes and cause such Old Notes to be cancelled. Delivery of New Notes will
be made on behalf of the Company by you at the rate of $1,000 principal amount of New Notes for
each $1,000 principal amount of the corresponding series of Old Notes tendered promptly after
notice (such notice if given orally, to be promptly confirmed in writing) of acceptance of said Old
Notes by the Company; provided, however, that in all cases, Old Notes tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of certificates for such Old
Notes (or confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) or Agent’s Message (as defined in the Letter of Transmittal) in lieu thereof,
with any required signature guarantees and any other required documents. You shall issue New Notes
only in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that, subject to the terms
and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Old Notes
tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Notes tendered if any of the
conditions set forth in the Exchange Offer are not met. Notice of any decision by the Company not
to exchange any Old Notes tendered shall be given (if given orally, to be promptly confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for exchange all or part
of the Old Notes tendered because of an invalid tender, the occurrence of certain other events set
forth in the Prospectus under the caption “The Exchange Offer — Conditions to the Exchange Offer”
or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of Transmittal relating
thereto that are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for New Notes shall be
forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions, commissions or solicitation
fees to any broker, dealer, bank or other persons or to engage or utilize any person to solicit
tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action taken, omitted to be taken or suffered to exist, or for
any loss or injury resulting from your actions or your performance or lack of performance of your
duties hereunder in the absence of gross
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negligence on your part, and in no event shall you be liable to a securityholder, the Company
or any third party for any special, punitive, indirect or consequential loss or damages of any kind
whatsoever, or lost profits, arising in connection with this Agreement even if you have been
advised of the likelihood of such loss or damage and regardless of the form of action.
(b) shall have no duties or obligations other than those expressly set forth herein (either by
specific description or by reference to the Prospectus) or as may be subsequently agreed to in
writing between you and the Company and no implied duties or obligations shall be read into this
Agreement against you. No provision in this Agreement shall require you to expend or risk your own
funds or otherwise incur any financial liability in the performance of any of your duties, or in
the exercise of your rights and powers hereunder;
(c) will be regarded as making no representations and having no responsibilities as to the
validity, sufficiency, value or genuineness of any of the certificates or the Old Notes represented
thereby deposited with you pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder which might in your judgment
involve any expense or liability, unless you shall have been furnished with indemnity satisfactory
to you;
(e) may conclusively rely on and shall be fully protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram or other document or security delivered
to you and believed in good faith by you to be genuine and to have been signed or presented by the
proper person or persons;
(f) may act upon any tender, statement, request, document, agreement, certificate or other
instrument whatsoever not only as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any information contained therein, which you
shall in good faith believe to be genuine or to have been signed or presented by the proper person
or persons;
(g) may conclusively rely on and shall be fully protected in acting upon written or oral
instructions from any authorized officer of the Company;
(h) may perform any of your duties hereunder either directly or through agents or attorneys
and you shall not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with reasonable care by you hereunder;
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(i) shall not be liable or responsible for any failure of the Company to comply with any of
its obligations relating to the Exchange Offer, including without limitation obligations under
applicable securities laws;
(j) shall not be liable for any delay, failure, malfunction, interruption or error in the
transmission or receipt of communications or messages through electronic means to or from the
Book-Entry Transfer Facility, or for the actions of any other person in connection with any such
message or communication;
(k) may consult with counsel of your selection with respect to any questions relating to your
duties and responsibilities and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of such counsel;
(l) shall not advise any person tendering Old Notes pursuant to the Exchange Offer as to the
wisdom of making such tender or as to the market value or decline or appreciation in market value
of any Old Notes;
(m) you shall not be liable for any action taken, suffered or omitted by you in good faith and
believed by you to be authorized or within the discretion or rights or powers conferred upon you by
this Agreement; and
(n) you shall not be responsible or liable for any failure or delay in the performance of your
obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances
beyond your reasonable control, including without limitation, acts of God; earthquakes; fires;
floods; wars; civil or military disturbances; terrorist acts; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications
service; accidents; labor disputes; and acts of civil or military authority or governmental
actions; it being understood that you shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the
circumstances.
15. You shall take such action as may from time to time be requested by the Company (and such
other action as you may deem appropriate) to furnish copies of the Prospectus and the Letter of
Transmittal (as defined in the Prospectus) or such other forms as may be approved from time to time
by the Company, to all persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange Offer. The Company
will furnish you with copies of such documents on your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention: Xxxxxxx X. Xxxxxx.
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16. You shall advise by email (email Xxxxxxx Xxxxxxx, Corporate Executive Vice President and
Chief Financial Officer (at the email address xxxxxxxx@xxxx.xxx) and Xxxxxxx X. Xxxxxx, Corporate
Treasurer (at the email address xxxxxxx@xxxx.xxx), and such other person or persons as the Company
may request, daily (and more frequently during the week immediately preceding the Expiration Date
if requested) up to and including the Expiration Date, as to the principal amount of Old Notes
which have been tendered pursuant to the Exchange Offer and the items received by you pursuant to
this Agreement, separately reporting and giving cumulative totals as to items properly received and
items improperly received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from time to time prior
to the Expiration Date of such other information as they may reasonably request. Such cooperation
shall include, without limitation, the granting by you to the Company and such person as the
Company may request of access to those persons on your staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to extend the Exchange
Offer. You shall prepare a final list of all persons whose tenders were accepted, the aggregate
principal amount of Old Notes tendered, the aggregate principal amount of Old Notes accepted and
deliver said list to the Company.
17. Letters of Transmittal shall be stamped by you as to the date and, after the expiration of
the Exchange Offer, the time, of receipt thereof and shall be preserved by you for a period of time
at least equal to the period of time you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal and other surplus materials in
accordance with your normal practices.
18. For services rendered as Exchange Agent hereunder, you shall be entitled to such
compensation and reimbursement of out-of-pocket expenses (including the reasonable fees and
expenses of your counsel) as has been separately agreed upon in writing by you and the Company.
The provisions of this Section shall survive the termination of this Agreement and your resignation
or removal for any reason.
19. You hereby acknowledge receipt of the Prospectus and the Letter of Transmittal. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to your duties, liabilities and
indemnification as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you harmless against any and
all loss, liability, cost or expense, including attorneys’ fees and expenses, incurred without
gross negligence on your part, arising out of or in connection with any act, omission, delay or
refusal made by you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document believed in good faith by you to be
valid, genuine and sufficient
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and in accepting any tender or effecting any transfer of Old Notes believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any tenders or effect
any transfer of Old Notes. In each case, the Company shall be notified by you, by letter or
facsimile transmission, of the written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received any such written assertion or shall
have been served with a summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action and, if the Company
so elects, the Company shall assume the defense of any suit brought to enforce any such claim. In
the event that the Company shall assume the defense of any such suit, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained by you, so long as
the Company shall retain counsel reasonably satisfactory to you to defend such suit, and so long as
you have not determined, in your reasonable judgment, that a conflict of interest exists between
you and the Company. The provisions of this section shall survive the termination of this
Agreement.
21. You shall arrange to comply with all requirements under the tax laws of the United States,
including those relating to missing Tax Identification Numbers, and shall file any appropriate
reports with the Internal Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner to each governmental
authority to which any transfer taxes are payable in respect of the exchange of Old Notes, the
Company’s check in the amount of all transfer taxes so payable; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment with the Company’s
check of any such transfer taxes, at such time as such refund is received by you.
23. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York (including without limitation Section 5-1401 of the New York General Obligations
Law or any successor to such statute).
24. This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original and all of which together shall constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified, amended, rescinded,
cancelled or waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This Agreement may not be modified orally.
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27. Unless otherwise provided herein, all notices, requests and other communications to any
party hereunder shall be in writing (including, if receipt thereof is confirmed, facsimile or
similar writing) and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company:
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
If to the Exchange Agent:
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
Attention: Corporate Trust Trustee
Administration
28. This Agreement shall be effective as of the date first above written. Unless terminated
earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Sections 17, 18 and 20 shall survive the termination of this
Agreement. Except as otherwise set forth herein, upon any termination of this Agreement, you shall
promptly deliver to the Company any certificates for Securities, funds or property then held by you
as Exchange Agent under this Agreement.
29. This Agreement shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the parties hereto.
30. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
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Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| NEVADA POWER COMPANY |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Acting General Counsel and Acting Corporate Secretary | |||
Accepted as of the date
first above written:
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: |
||||
| Name: | ||||
| Title: |
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