EXHIBIT 4.1(c)
NEVADA POWER COMPANY
OFFICER'S CERTIFICATE
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
May 22, 2001, and Sections 1.04, 2.01, 3.01 and 4.01(a) of the General and
Refunding Mortgage Indenture dated as of May 1, 2001 (the "Mortgage Indenture"),
as supplemented by a First Supplemental Indenture dated as of May 1, 2001 (the
"Supplemental Indenture"; and collectively with the Mortgage 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 first series to be issued under the
Indenture shall be designated "8.25% General and Refunding Mortgage
Bonds, Series A, due June 1, 2011" (the "Series A Bonds").
(b) There shall be no limit upon the aggregate principal amount of
the Series A Bonds that may be authenticated and delivered under the
Indenture. The Series A Bonds shall be initially authenticated and
delivered in the aggregate principal amount of $350,000,000.
(c) Interest on the Series A Bonds 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 A Bonds shall mature and the principal thereof shall
be due and payable together with all accrued and unpaid interest
thereon on June 1, 2011.
(e) The Series A Bonds shall bear interest at the rate of 8.25% per
annum. Interest shall accrue on the Series A Bonds from May 24, 2001,
or the most recent date to which interest has been paid or duly
provided for. The Interest Payment Dates for the Series A Bonds shall
be June 1 and December 1 in each year commencing December 1, 2001, and
the Regular Record Dates with respect to the Interest Payment Dates for
the Series A Bonds shall be May 17 and November 16 in each year,
respectively (whether or not a Business Day).
(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 A
Bonds shall be payable, (ii) registration of transfer of the Series A
Bonds may be effected, (iii) exchanges of the Series A Bonds may be
effected and (iv) notices and demands to or upon the Company in respect
of the Series A Bonds and the Indenture may be served; and The Bank of
New York shall be the Security Registrar for the Series A Bonds;
provided, however, that the Company reserves the right to change, by
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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 A Bonds.
(g) The Series A Bonds shall be redeemable, at the option of the
Company, at any time or from time to time, in whole or in part, at a
price equal to 100% of the principal amount of the Series A Bonds to be
redeemed plus accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on a Regular Record Date
occurring prior to such Redemption Date to receive interest paid on the
applicable Interest Payment Date ) plus the applicable make-whole
premium (the "Make-Whole Premium").
The amount of the Make-Whole Premium with respect to the Series A
Bonds (or portion thereof) to be redeemed will be equal to the excess,
if any, of:
(i) the sum of the present values, calculated as of the
Redemption Date, of:
(A) each interest payment that, but for such redemption,
would have been payable on the Series A Bonds (or portion
thereof) being redeemed on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued
and unpaid interest for the period prior to the Redemption
Date); and
(B) the principal amount that, but for such redemption,
would have been payable at the Stated Maturity of the
Series A Bonds (or portion thereof) being redeemed,
over
(ii) the principal amount of the Series A Bonds (or portion
thereof) being redeemed.
The present values of each interest and principal payment
referred to in clause (i) above will be determined in accordance with
generally accepted principles of financial analysis. Such present
values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have
been payable, but for such redemption, to the Redemption Date at a
discount rate equal to the Treasury Yield (as defined below) plus 30
basis points.
The Make-Whole Premium will be calculated by Credit Suisse First
Boston Corporation or, if such firm is unwilling or unable to make such
calculation, by an
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independent investment banking institution of national standing
appointed by the Company (in any such case, an "Independent Investment
Banker"). The Trustee shall have no responsibility for the calculation
of the Make-Whole Premium and may conclusively presume the correctness
of such calculation.
For purposes of determining the Make-Whole Premium, "Treasury
Yield" means a rate of interest per annum equal to the weekly average
yield to maturity of United States Treasury Notes that have a constant
maturity that corresponds to the remaining term to maturity of the
Series A Bonds, calculated to the nearest 1/12 of a year (the
"Remaining Term"). The Treasury Yield will be determined as of the
third business day immediately preceding the applicable Redemption
Date.
The weekly average yields of United States Treasury Notes will be
determined by reference to the most recent statistical release
published by the Federal Reserve Bank of New York and designated
"H.15(519) Selected Interest Rates" or any successor release (the "H.15
Statistical Release"). If the H.15 Statistical Release sets forth a
weekly average yield for United States Treasury Notes having a constant
maturity that is the same as the Remaining Term, then the Treasury
Yield will be equal to such weekly average yield. In all other cases,
the Treasury Yield will be calculated by interpolation, on a
straight-line basis, between the weekly average yields on the United
States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes
that have a constant maturity closest to and less than the Remaining
Term (in each case as set forth in the H.15 Statistical Release). Any
weekly average yields so calculated by interpolation will be rounded to
the nearest 1/100th of 1%, with any figure of 1/200 of 1% or above
being rounded upward. If weekly average yields for United States
Treasury Notes are not available in the H.15 Statistical Release or
otherwise, then the Treasury Yield will be calculated by interpolation
of comparable rates selected by the Independent Investment Banker.
If less than all of the Series A Bonds are to be redeemed, the
Security Registrar will select the Series A Bonds to be redeemed by
such method as the Security Registrar shall deem fair and appropriate.
The Trustee may select for redemption Series A Bonds and portions of
Series A Bonds in amounts of $1,000 or whole multiples of $1,000;
subject to clause (i) of this Paragraph 1 (as to minimum
denominations).
(h) Not applicable.
(i) The Series A Bonds are issuable only in denominations of $250,000
and integral multiples of $1000 in excess thereof.
(j) Not applicable.
(k) Not applicable.
(l) Not applicable.
(m) Not applicable.
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(n) Not applicable.
(o) Pursuant to the terms of a registration rights agreement with one
or more of the initial purchasers of the Series A Bonds (a
"Registration Rights Agreement"), the Company has agreed to file an
exchange offer registration statement to exchange the Series A Bonds
for substantially identical Securities registered under the Securities
Act of 1933, as amended (the "Securities Act") as evidence of the same
underlying indebtedness. Unless otherwise specified by the Company in a
supplement to this Officer's Certificate, the Securities so registered
and offered and issued in exchange shall be additional Series A Bonds.
The Company has also agreed to file a shelf registration statement to
cover resales of the Series A Bonds, as initially issued and sold,
under certain circumstances. If the Company fails to satisfy those
obligations, the Company has agreed to pay liquidated damages to the
holders of the Series A Bonds under certain circumstances. The terms
relating to the exchange of the Series A Bonds are set forth in the
Registration Rights Agreement attached hereto as Exhibit B.
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(p) Not applicable.
(q) Certificates representing Series A Bonds offered and sold in
reliance on Rule 144A (and only such Series A Bonds) shall 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. The Global Certificate
shall not be transferable or exchangeable, nor shall any purported
transfer be registered, except as follows:
(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 A
Bonds 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 A
Bonds, (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
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notified by the Company within ninety (90) days of the
identity of a successor securities depositary with respect
to such Securities;
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(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 A Bonds (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 A Bonds, 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. 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 A Bonds shall be in the
form of a non-global, definitive physical certificate.
(r) Not applicable.
(s) The Series A Bonds 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 A Bonds, 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 A Bonds, "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 A Bond 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 A Bonds 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.
2. All conditions precedent provided for in the Mortgage Indenture
and the Indenture (including any covenants compliance with which constitutes a
condition precedent)
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relating to the execution and delivery of the Supplemental Indenture and the
authentication and delivery of the Series A Bonds have been complied with.
3. 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 A Bonds and in respect of
compliance with which this certificate is made.
4. 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.
5. 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.
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IN WITNESS WHEREOF, the undersigned has executed this Officer's
Certificate on this 24th day of May, 2001.
By:
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Name:
Title:
Acknowledged and Received on
May __, 2001
THE BANK OF NEW YORK,
as Trustee
By:
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Name:
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Title:
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