EXHIBIT 99.2
As of September 2, 2004
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 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 6 1/4% General and
Refunding Mortgage Notes, Series H, due 2012 (not registered under the
Securities Act of 1933, as amended (the "Securities Act")) (the "Old Notes") for
its 6 1/4% General and Refunding Mortgage Notes, Series H, due 2012 (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
September 2, 2004 (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 September 2, 2004. 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.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
October 4, 2004 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 confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) 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, the Assistant Treasurer or
the 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 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 protected in
acting upon written or oral instructions from any authorized officer of the
Company;
(h) 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;
(i) 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;
(j) 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
(k) 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, Letter of Transmittal and the Notice of
Guaranteed Delivery (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: Xxxxx X. Xxxxxxx.
16. You shall advise by facsimile transmission (at the facsimile
number 775-834-5462) or by electronic communication, Xxxxx X. Xxxxxxx, the
Assistant Treasurer of the Company, 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 number 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 and Notices of Guaranteed Delivery
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 by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you shall
be entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
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 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
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 Power Company
X.X. Xxx 00000
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000-0000 (89511)
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
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.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
SIERRA PACIFIC POWER COMPANY
By:
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Xxxxx X. Xxxxxxx
Assistant Treasurer
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
