EXHIBIT 99.2
As of ________, 2005
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Sierra Pacific Resources, 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 6 3/4% Senior Notes due
2017 (not registered under the Securities Act of 1933, as amended (the
"Securities Act")) (the "Old Notes") for its 6 3/4% Senior Notes due 2017
(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 __________, 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 _________, 200_. 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
________, 200_ 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.
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
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
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;
(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.
16. You shall advise by email Xxxxxxx Xxxxxxx, Corporate Executive Vice
President and Chief Financial Officer (at the email address xxxxxxxx@xxxx.xxx),
Xxxxxxx X. Xxxxxx, Corporate Treasurer (at the email address xxxxxxx@xxxx.xxx),
Xxxxxx Xxxxxx, Assistant 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 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.
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:
Sierra Pacific Resources
X.X. Xxx 00000
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
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.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
SIERRA PACIFIC RESOURCES
By:
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Corporate Treasurer
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
