April 15, 2005
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division - Corporate Finance Unit
Ladies and Gentlemen:
Sierra Pacific Resources, a Nevada corporation (the "Company"), is
offering to exchange (the "Exchange Offer") up to 4,704,350 of its existing
Premium Income Equity Securities (the "Old PIES") for a like amount of new
Premium Income Equity Securities (the "New PIES") plus an exchange fee (the
"Exchange Fee") in an amount hereinafter set forth. The terms and conditions of
the Exchange Offer as currently contemplated are set forth in the Company's
"Offer to Exchange", dated April 15, 2005 (as the same may be amended or
supplemented from time to time, the "Exchange Offer Prospectus"), and in the
accompanying letter of transmittal (the "Letter of Transmittal"), which are both
proposed to be distributed to all record holders of the Old PIERS and which
collectively constitute the Exchange Offer. Capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to them in the
Exchange Offer Prospectus.
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" and "your" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
April 15, 2005. The Letter of Transmittal accompanying the Exchange Offer
Prospectus (or in the case of book-entry securities, the Automated Tender Offer
Program ("ATOP") of The Depository Trust Company (the "Book-Entry Transfer
Facility")) is to be used by the holders of the Old PIES to accept the Exchange
Offer and contains instructions with respect to the delivery of certificates for
Old PIES tendered in connection therewith. Anything contained herein or in the
Exchange Offer Prospectus or Letter of Transmittal to the contrary
notwithstanding, the Exchange Agent's obligations with respect to receipt and
inspection of the Letter 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 Exchange Offer 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 pm on May 18, 2005, New York City
time (such
time, and as extended, the "Expiration Date"). The Company reserves the right,
in its sole discretion, to (1) extend the Exchange Offer, (2) terminate the
Exchange Offer upon failure to satisfy any of the conditions listed in the
Exchange Offer Prospectus or 3) amend the Exchange Offer by giving oral,
promptly confirmed in writing, or written notice of such delay, extension,
termination or amendment to the exchange agent. Any such extension, termination
or amendment will be followed promptly by a public announcement thereof which,
in the case of an extension, will be made no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
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 Exchange Offer Prospectus captioned "The
Exchange Offer," and the Letter of Transmittal 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 PIES at
the Book-Entry Transfer Facility for purposes of the Exchange Offer within two
business days after the date of the Exchange Offer Prospectus. Any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Old PIES by causing the Book-Entry Transfer
Facility to transfer such Old PIES into such account in accordance with the
Book-Entry Transfer Facility's procedures for such transfer; and you may effect
withdrawals of tendered Old PIES by book-entry movement out of such account.
3. You are to examine each Letter of Transmittal and certificate for Old
PIES, or Agent's Message and 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 PIES, to
ascertain whether: (i) the Letter of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein; and (ii) the Old PIES have otherwise been properly tendered. The
determination of all questions as to validity, form, eligibility, acceptance and
withdrawal with respect to the exchange of any Old PIES shall be made by the
Company upon consultation thereof. 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 PIES 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, Chief Financial Officer, any Senior
or Executive Vice President, any Vice President, Controller, Treasurer,
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 any such officer, you are authorized
to waive any defects, irregularities or conditions of tender or withdrawal in
connection with any tender or withdrawal of Old PIES pursuant to the Exchange
Offer.
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5. Tenders of Old PIES may be made only as set forth in the Letter of
Transmittal and in the section of the Exchange Offer Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Old PIES" and Old PIES 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 PIES which any
Authorized Officer of the Company 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 PIES received
subsequent to the Expiration Date and accept any instructions of the Company
with respect to disposition of such Old PIES.
7. You shall accept tenders:
(a) in cases where the Old PIES 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 PIES,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old PIES where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old PIES to
the registrar for split-up and return any untendered Old PIES 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) promptly after the Expiration Date, of all Old PIES
properly tendered and you, on behalf of the Company, will exchange such Old PIES
for New PIES and the Exchange Fee of $0.125 for each Old PIES and cause such
accepted Old PIES to be canceled; provided, however, that in all cases, Old PIES
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old PIES (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and a properly
completed and duly executed Letter of Transmittal (or manually signed facsimile
thereof or an Agent's Message) with any required signature guarantees and any
other required documents. Promptly following notice of acceptance of said Old
PIES by the Company with respect to payment of the Exchange Fee, the Company
shall deliver to you an amount in immediately available funds sufficient to fund
the total amount of the Exchange Fee, together with written instructions from
any officer of the Company referred to in Section 5 above. Payment of the
Exchange Fee will be made by you, on behalf of the
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Company, promptly after such notice of acceptance of said Old PIES by the
Company in such amount for each Old PIES as set forth in the Exchange Offer
Prospectus.
9. Tenders pursuant to the Exchange Offer are irrevocable, subject,
however, to the terms and conditions set forth in the Exchange Offer Prospectus
and the Letter of Transmittal. Old PIES tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date under the
circumstances set forth in the Exchange Offer Prospectus and the Letter of
Transmittal.
10. The Company shall not be required to accept any Old PIES tendered if
any of the conditions set forth in the Exchange Offer Prospectus or the Letter
of Transmittal are not met. Notice of any decision by the Company not to accept
any Old PIES 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 PIES tendered because of an invalid tender, the
occurrence of certain other events set forth in the Exchange Offer Prospectus
under the caption "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 representing unaccepted Old PIES (or effect
appropriate book-entry transfer), together with any related required documents
and the Letter of Transmittals relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates representing unaccepted Old PIES, reissued Old PIES
or New PIES, and all checks representing the Exchange Fee, shall be returned to,
or as directed by the holder thereof, 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 act, omission to act or sufferance
to exist, unless the same constitutes your own gross negligence or willful
misconduct, and in no event shall you be liable to a security holder, 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
Exchange Offer 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 financial
liability in the performance of any of your duties, or in the exercise of
your rights and powers hereunder;
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(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 Book-Entry Confirmations, or the Old PIES
represented thereby, deposited with or transferred to you pursuant to the
Exchange Offer, and will not be required to make any, and will be regarded
as making 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 reasonably
believed 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, Book-Entry
Confirmation, Agent's Message, 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 officer of the Company referred
to in Section 5 above;
(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 as Exchange Agent
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 reliance
thereon;
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(l) shall not advise any person tendering Old PIES 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 PIES;
(m) 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) 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 Exchange Offer Prospectus and Letter of Transmittal, 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 and not the merits of 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 by you to the
Company, Attention: Xxxxx Xxxxxxx, Manager of Finance and Treasury.
16. You shall advise by email Xxxxxxx Xxxxxxx, Corporate Executive Vice
President and Chief Financial Officer of the Company (at the email address
xxxxxxxx@xxxx.xxx) and Xxxxx Xxxxxxx, Manager of Finance and Treasury of the
Company (at the email address xxxxxxxx@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 amount of Old PIES 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 or written 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. A final list
of the aggregate amount of Old PIES tendered and the aggregate amount of Old
PIES accepted, and deliver said list to the Company.
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17. Letter of Transmittals shall be stamped by you as to the date and,
after the Expiration Date, 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 Exchange Offer Prospectus and
the Letter of Transmittal. Any inconsistency between this Agreement, on the one
hand, and the Exchange Offer 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 (all of which shall be governed and controlled
by the provisions of this Agreement).
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 PIES 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 PIES. 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, provided that the failure to make such
notification shall not affect your right to receive indemnity hereunder except
to the extent that the Company has been prejudiced in any material respect by
such failure. 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 (i) the Company shall retain counsel
reasonably satisfactory to you to defend such suit and (ii) 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 (eg., Form 1099s, etc.). The Company understands that you are required
to deduct 28% on payments to certain holders who have not
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supplied their correct Taxpayer Identification Number or required certification.
Such funds so deducted will be turned over to the Internal Revenue Service.
22. 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).
23. 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.
24. 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.
25. 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 each of the
parties hereto. This Agreement may not be modified orally.
26. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including by
telecopy, if receipt thereof is confirmed) 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.
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division - Corporate Finance Unit
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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27. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 18, 20 and 22 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 Old PIES, funds or property
then held by you as Exchange Agent under this Agreement.
28. This Agreement shall inure to the benefit of and the obligations
created hereby shall be binding upon the parties hereto and their successors and
assigns. Neither party may assign this Agreement without the prior written
consent of the other party. Any entity into which the Exchange Agent may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which the Exchange
Agent shall be a party, or any entity succeeding to all or substantially all of
the corporate trust business of the Exchange Agent, shall be the successor of
the Exchange Agent hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. This Agreement shall
become effective as of the date hereof.
29. 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.
[Signature page follows]
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
SIERRA PACIFIC RESOURCES
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
THE BANK OF NEW YORK
as Exchange Agent
By:_______________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
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