EXHIBIT 4.2(c)
SIERRA PACIFIC POWER COMPANY
OFFICER'S CERTIFICATE
I, the undersigned officer of Sierra Pacific 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% General and Refunding Mortgage Bonds, Series A,
due 2008" (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.
(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, 2008.
(e) The Series A Bonds shall bear interest at the rate of 8% 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,
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however, that the Company reserves the right to change, by one or more
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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 that is prior to the Redemption 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.
(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 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 a 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 provision 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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