Exhibit 4(B)
NEVADA POWER COMPANY
OFFICER'S CERTIFICATE
October 18, 2001
I, the undersigned officer of Nevada Power Company (the "Company"), do
hereby certify that I am an Authorized Officer of the Company as such term is
defined in the Indenture (as defined herein). I am delivering this certificate
pursuant to the authority granted in the Board Resolutions of the Company dated
August 7, 2001, and Sections 1.04, 2.01, 3.01, 4.01(a) and 4.02(b)(i) of the
General and Refunding Mortgage Indenture dated as of May 1, 2001 (the "Mortgage
Indenture"), as supplemented by the First Supplemental Indenture dated as of May
1, 2001, and as further supplemented and amended by the Second Supplemental
Indenture dated as of October 1, 2001 (the "Supplemental Indenture"; and
collectively with the Mortgage Indenture, as supplemented by said First
Supplemental Indenture, the "Indenture"), between the Company and The Bank of
New York, as Trustee (the "Trustee"). Terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Indenture unless
the context clearly requires otherwise. Based upon the foregoing, I hereby
certify on behalf of the Company as follows:
1. The terms and conditions of the Securities described in this
Officer's Certificate are as follows (the lettered subdivisions set forth in
this Paragraph 1 corresponding to the lettered subdivisions of Section 3.01 of
the Mortgage Indenture):
(a) The Securities of the second series to be issued under the
Indenture shall be designated "General and Refunding Mortgage Notes,
Floating Rate, Series B, due October 15, 2003" (the "Series B Notes").
(b) There shall be no limit upon the aggregate principal amount of
the Series B Notes that may be authenticated and delivered under the
Indenture. The Series B Notes shall be initially authenticated and
delivered in the aggregate principal amount of $140,000,000.
(c) Interest on the Series B Notes shall be payable to the Persons
in whose names such Securities are registered at the close of business
on the Regular Record Date for such interest, except as otherwise
expressly provided in the form of such Securities attached hereto as
Exhibit A.
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(d) The Series B Notes shall mature and the principal thereof shall
be due and payable together with all accrued and unpaid interest
thereon on October 15, 2003.
(e) The Series B Notes shall bear interest as provided in the form
of such Securities attached hereto as Exhibit A.
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(f) The Corporate Trust Office of The Bank of New York in New York,
New York shall be the place at which (i) the principal of, premium and
interest on, the Series B Notes shall be payable, (ii) registration of
transfer of the Series B Notes may be effected, (iii) exchanges of the
Series B Notes may be effected and (iv) notices and demands to or
upon the Company in respect of the Series B Notes and the Indenture may
be served; and The Bank of New York shall be the Security Registrar for
the Series B Notes; provided, however, that the Company reserves the
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right to change, by one or more Officer's Certificates, any such place
or the Security Registrar; and provided, further, that the Company
reserves the right to designate, by one or more Officer's Certificates,
its principal office in Las Vegas, Nevada as any such place or itself
as the Security Registrar; provided, however, that there shall be only
a single Security Registrar for the Series B Notes.
The Calculation Agent for the Series B Notes shall be The Bank
of New York, or its successor as Calculation Agent. At any time, the
Company may designate a successor Calculation Agent, who may be any
person or entity who is eligible to be a successor Trustee or
co-trustee under the Indenture or who (a) is in fact independent, (b)
does not have any direct material financial interest in the Company or
in any affiliate of the Company, (c) is not connected with the Company
as an officer, employee, promoter, underwriter, partner, director or
person performing similar functions, (d) is selected by an Authorized
Officer and (e) is approved by the Trustee in the exercise of
reasonable care.
(g) Not applicable.
(h) Not applicable.
(i) The Series B Notes are issuable only in denominations of
$100,000 and integral multiples of $1,000 in excess thereof.
(j) Not applicable.
(k) Not applicable.
(l) Not applicable.
(m) See subsection (e) above.
(n) Not applicable.
(o) Not applicable.
(p) Not applicable.
(q) Certificates representing Series B Notes offered and sold in
reliance on Rule 144A of the Securities Act of 1933, as amended (the
"Securities Act"), and only such Series B Notes, shall, except as
otherwise provided hereafter, be in the form of a permanent certificate
in global form (a "Global Certificate") registered in the name of Cede
& Co., as nominee for The Depository Trust Company (the "Depositary"),
to be delivered to the Depositary or its custodian, by or on behalf of
the Company and shall bear the Global Certificate legends set forth on
Exhibit A hereto. The Global Certificate shall not be transferable or
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exchangeable, nor shall any purported transfer be registered, except as
follows:
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(i) the Global Certificate may be transferred in whole,
and appropriate registration of transfer effected, if such
transfer is by such nominee to the Depositary, or by the
Depositary to another nominee thereof, or by any nominee of
the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor securities
depositary or any nominee thereof; and
(ii) the Global Certificate may be exchanged for Series B
Notes in the form of definitive certificates, registered in
the respective names of the beneficial owners thereof, and
thereafter shall be transferable without restriction, if:
(A) the Depositary, or any successor securities
depositary, shall have notified the Company and the
Trustee that (i) it is unwilling or unable to
continue to act as securities depositary with respect
to the Series B Notes, (ii) has ceased to be
qualified to act as such, or (iii) has ceased to be a
clearing agency registered under the Exchange Act,
and the Trustee shall not have been notified by the
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Company within ninety (90) days of the identity of a
successor securities depositary with respect to such
Securities;
(B) the Company shall have delivered to the
Trustee a Company Order to the effect that the
Company has elected to terminate the book-entry
system; or
(C) an Event of Default shall have occurred and
be continuing.
Unless and until definitive, fully registered certificates
shall have been issued to beneficial owners as provided in subclause
(ii) of this clause (g) of Paragraph 1 hereof:
(a) the provisions of this clause (q) shall be in
full force and effect;
(b) the Company and the Trustee and any agent of
either shall be entitled to deal with the Depositary for all
purposes of the Indenture and such Series B Notes (including
payment of principal of, and premium and interest thereon,
the giving of notice and receiving approvals, votes or
consents thereunder) as the Holder of such Securities and the
sole holder of the Global Certificate and shall have no
obligation to the beneficial owners of such Securities;
(c) to the extent that the provisions of clause
(q) of paragraph 1 conflicts with any other provisions of the
Indenture or the Series B Notes, the provisions of this
clause (q) of Paragraph 1 shall control; and
(d) the rights of such beneficial owners shall be
exercised only through the Depositary and shall be limited to
those established by law and agreements between such
beneficial owners or of any agent member of, or direct or
indirect participants in, the Depositary and the Depositary
or the depositary participants.
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The Depositary will make book-entry transfers among
depositary participants and receive and transmit payments of
principal, premium and interest, if any, to such depositary
participants.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein or in the Indenture shall
prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or
other authorization furnished by the Depositary (or its nominee), as a
Holder, with respect to such Global Certificate or impair, as between
such Depositary and the related beneficial owner, the operation of
customary practices governing the exercise of rights of the Depositary
(or its nominee) as Holder of such global certificate. Except for the
Global Certificate, any and all of the Series B Notes shall be in the
form of a non-global, definitive physical certificate.
Certificates representing Series B Notes offered and sold in
reliance on Rule 501(a)(1), (2), (3) or (7) under the Securities Act
shall be in the form of a non-global, definitive physical certificate
registered in the name of the institutional accredited investor (the
"IAI") purchasing such notes (the "IAI Notes"). The IAI Notes shall be
delivered to each IAI in the manner specified by such IAI upon receipt
by the Company of a satisfactorily completed purchaser's letter in the
form attached hereto as Exhibit B. The IAI Notes shall not be
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transferable or exchangeable, nor shall any purported transfer be
registered, except upon presentation of evidence satisfactory to the
Company and the transfer agent that such Notes are being offered,
resold, pledged or otherwise transferred only (i) in the United States
to a person whom the seller reasonably believes is a qualified
institutional buyer in a transaction meeting the requirements of Rule
144A, (ii) outside the U.S. in a transaction complying with the
provisions of Rule 904 under the Securities Act, (iii) pursuant to an
exemption from registration under the Securities Act provided by Rule
144 (if available) or (iv) pursuant to an effective registration
statement under the Securities Act, in each of cases (i) through (iv)
in accordance with any applicable securities laws of any State of the
United States. The IAI Notes shall bear the legends for restricted
securities set forth in Exhibit A hereto and the following additional
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legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
COMPANY AND THE SECURITIES REGISTRAR AND/OR TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS THE COMPANY AND SUCH
SECURITIES REGISTRAR AND/OR TRANSFER AGENT MAY REASONABLY REQUIRE
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(r) Not applicable.
(s) The Series B Notes have not been registered under the
Securities Act and may not be offered, sold or otherwise transferred in
the absence of such registration or an applicable exemption therefrom.
No service charge shall be made for the registration of transfer or
exchange of the Series B Notes, or any Tranche thereof; provided,
however,
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that the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with the
exchange or transfer.
(t) For purposes of the Series B Notes, "Business Day" shall mean
any day, other than Saturday or Sunday, on which commercial banks and
foreign exchange markets are open for business, including dealings in
deposits in U.S. dollars, in New York.
(u) Notwithstanding the provisions of Section 9.01 of the
Indenture, no Series B Note shall be deemed to have been paid, and the
indebtedness of the Company in respect thereof deemed to have been
satisfied and discharged as contemplated therein, unless the Company
shall have delivered to the Trustee either:
(i) an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of the
Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the
Holders of the outstanding Bonds will not recognize income,
gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
or
(ii) (A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its Indebtedness in respect
of the Bonds, shall assume the obligation (which shall be
absolute and unconditional) to irrevocably deposit with the
Trustee such additional sums of money, if any, or additional
Government Obligations, if any, or any combination thereof, at
such time or times, as shall be necessary, together with the
money and/or Government Obligations theretofore so deposited,
to pay when due the principal of and premium, if any, and
interest due and to become due on such bonds or portions
thereof; provided, however, that such instrument may state
that the obligation of the Company to make additional deposits
as aforesaid shall be subject to the delivery to the Company
by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant
of nationally recognized standing showing the calculation
thereof; and (B) an opinion of tax counsel in the United
States reasonably acceptable to the Trustee to the effect that
the Holders of the outstanding Bonds will not recognize
income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had
not occurred.
The Series B Notes shall have such other terms and provisions as are
provided in the form thereof attached hereto as Exhibit A, and shall be issued
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in substantially such form.
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2. The undersigned has read all of the covenants and conditions
contained in the Indenture, and the definitions in the Indenture relating
thereto, relating to the issuance of the Series B Notes and in respect of
compliance with which this certificate is made.
The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the undersigned with
officers and employees of the Company familiar with the matters set forth
herein.
In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenants and conditions have been
complied with.
In the opinion of the undersigned, such conditions and
covenants have been complied with.
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IN WITNESS WHEREOF, the undersigned has executed this Officer's
Certificate as of the date first written above.
By: _________________________________________
Richard K. Atkinson
Treasurer and Investor Relations Officer
Acknowledged and Received on
October ___, 2001
THE BANK OF NEW YORK,
as Trustee
By: ___________________________________________
Name: ___________________________________________
Title:___________________________________________
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Exhibit A
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Form of Series B Notes
Exhibit B
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Form of Letter to be Delivered by Accredited Investors
Nevada Power Company
P.O. Box 230
6226 W. Sahara Avenue
Las Vegas, Nevada 89146
[Securities Registrar]
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Dear Sirs:
We are delivering this letter in connection with an offering of General
and Refunding Mortgage Notes, Floating Rate, Series B, due October 15, 2003,
(the "Securities") of Nevada Power Company, a Nevada corporation (the
"Company"), all as described in the Confidential Offering Memorandum (the
"Offering Memorandum") relating to the offering.
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act"), or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2) or (3)
under the Securities Act (an "Institutional Accredited Investor");
(ii) (A) any purchase of the Securities by us will be for our
own account or for the account of one or more other Institutional
Accredited Investors or as fiduciary for the account of one or more
trusts, each of which is an "accredited investor" within the meaning of
Rule 501(a)(7) under the Securities Act and for each of which we
exercise sole investment discretion or (B) we are a "bank", within the
meaning of Section 3(a)(2) of the Securities Act, or a "savings and
loan association" or other institution described in Section 3(a)(5)(A)
of the Securities Act that is acquiring the Securities as fiduciary for
the account of one or more institutions for which we exercise sole
investment discretion,
(iii) in the event that we purchase any of the Securities, we
will acquire Securities having a minimum purchase price of not less
than $100,000 for our own account or for any separate account for which
we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and
risks of purchasing the Securities;
(v) we are not acquiring the Securities with a view to
distribution thereof or with any present intention of offering or
selling any of the Securities, except inside the United States in
accordance with Rule 144A under the Securities Act or outside the
United States under Regulation S under the Securities Act, as provided
below; provided
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that the disposition of our property and the property of any
accounts for which we are acting as fiduciary shall remain at all times
within our control; and
(vi) we have received a copy of the Offering Memorandum
relating to the offering of the Securities and acknowledge that we have
had access to financial and other information, and have been afforded
the opportunity to ask questions of representatives of the Company and
receive answers thereto, as we deem necessary in connection with our
decision to purchase the Securities.
We understand that the Securities are being offered in a transaction
not involving any public offering within the United States within the meaning of
the Securities Act and that the Securities have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Securities, that if in the future we decide to resell,
pledge or otherwise transfer the Securities, the Securities may be offered,
resold, pledged or otherwise transferred only (i) in the United States to a
person who we reasonably believe is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (ii) outside the United States in a transaction in
accordance with Rule 904 under the Securities Act, (iii) under an exemption from
registration under the Securities Act provided by Rule 144 thereunder (if
available) or (iv) under an effective registration statement under the
Securities Act, in each of cases (i) through (iv), subject to any applicable
securities laws of any State of the United States or any other applicable
jurisdiction. We understand that the registrar and transfer agent for the
Securities will not be required to accept for registration of transfer any
Securities acquired by us, except upon presentation of evidence satisfactory to
the Company and the transfer agent that the foregoing restrictions on transfer
have been complied with.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgements and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
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THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Date:______________________ _________________________________
(Name of Purchaser)
By: ______________________________
Name:
Title:
Address:
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