NIAGARA MOHAWK POWER CORPORATION to HSBC Bank USA, as Trustee SUPPLEMENTAL INDENTURE Dated as of May 1, 2003
| Executed in 52 Counterparts of which this is Counterpart No. _____. |
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NIAGARA MOHAWK POWER CORPORATION
to
HSBC Bank USA, as Trustee
_____________
Dated as of May 1, 2003
Providing for the exchange of instruments relating to the following so as
to evidence the extension of the due date thereof and change in interest rate
provisions thereof: Bonds of the Eighty-third Series, Bonds of the
Eighty-fourth Series, and Bonds of the Eighty-fifth Series, splitting the
Eighty-third Series into three series and redesignating two of such series as
the Eighty-ninth and Ninetieth Series and exchanging Bonds of the Eighty-third
Series for an equivalent principal amount of Bonds of the Eighty-third Series,
Bonds of the Eighty-ninth Series and Bonds of the Ninetieth Series, splitting
the Eighty-fourth Series into four series and redesignating three of such series
as the Ninety-first Series, the Ninety-second Series and the Ninety-third Series
and exchanging Bonds of the Eighty-fourth Series for an equivalent principal
amount of Bonds of the Eighty-fourth Series, the Ninety-first Series, the
Ninety-second Series and the Ninety-third Series and providing for the
corresponding amendment and restatement of the Supplemental Indentures dated as
of March 20, 1996 and June 1, 2000.
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SUPPLEMENTAL INDENTURE, dated as of May 1, 2003, made by and between
NIAGARA MOHAWK POWER CORPORATION, a corporation duly organized and existing
under the laws of the State of New York, having its principal place of business
(residence) at No. 000 Xxxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx (hereinafter
sometimes referred to as the "Company"), party of the first part, and
HSBC Bank USA (successor to Bankers Trust Company, in turn, successor to Marine
Midland Bank, N.A., a national banking association and, in turn, successor to
Marine Midland Bank, a corporation duly organized and existing under the laws of
the State of New York, formerly named The Marine Midland Trust Company of New
York, Marine Midland Grace Trust Company of New York and Marine Midland Bank
β New York), a banking association duly organized and existing under the
laws of the State of New York, having its principal corporate trust office at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter sometimes referred to as the
"Trustee"), as Trustee under the Mortgage Trust Indenture hereinafter
mentioned, party of the second part.
WHEREAS, the Company (formerly Central New York Power Corporation) has
heretofore executed and delivered to the Trustee its Mortgage Trust Indenture
dated as of October 1, 1937 (hereinafter referred to as the "Original
Indenture") and indentures supplemental thereto dated as of December 1,
1938, as of April 15, 1939, as of July 1, 1940, as of January 1, 1942, as of
October 1, 1944, as of June 1, 1945, as of November 29, 1946, as of August 17,
1948, as of December 31, 1949, as of January 1, 1950, as of October 1, 1950, as
of October 19, 1950, as of December 1, 1951, as of February 1, 1953, as of
February 20, 1953, as of October 1, 1953, as of August 1, 1954, as of April 25,
1956, as of May 1, 1956, as of September 1, 1957, as of June 1, 1958, as of
March 15, 1960, as of October 1, 1960, as of November 1, 1961, as of December 1,
1964, as of October 1, 1966, as of July 15, 1967, as of August 1, 1967, as of
August 1, 1968, as of December 1, 1969, as of February 1, 1971, as of February
1, 1972, as of August 1, 1972, as of December 1, 1973, as of October 1, 1974, as
of March 1, 1975, as of August 1, 1975, as of March 15, 1977, as of August 1,
1977, as of December 1, 1977, as of March 1, 1978, as of December 1, 1978, as of
September 1, 1979, as of October 1, 1979, as of June 15, 1980, as of September
1, 1980, as of March 1, 1981, as of August 1, 1981, as of March 1, 1982, as of
October 1, 1982, as of June 1, 1982, as of August 1, 1982, as of November 1,
1982, as of March 1, 1983, as of May 1, 1983, as of June 1, 1983, as of March 1,
1984, as of May 1, 1984, as of July 1, 1984, as of October 1, 1984, as of
January 1, 1985, as of February 1, 1985, as of February 15, 1985, as of November
1, 1985, as of June 1, 1986, as of August 1, 1986, as of October 1, 1986, as of
November 1, 1986, as of July 1, 1987, as of May 1, 1988, as of February 1, 1989,
as of April 1, 1989, as of October 1, 1989, as of June 1, 1990, as of November
1, 1990, as of March 1, 1991, as of October 1, 1991, as of April 1, 1992, as of
June 1, 1992, as of July 1, 1992, as of August 1, 1992, as of April 1, 1993, as
of July 1, 1993, as of September 1, 1993, as of March 1, 1994, as of July 1,
1994, as of May 1, 1995, as of March 20, 1996, as of June 30, 1998 and as of
June 1, 2000 (said Original Indenture, together with all instruments stated to
be supplemental thereto to which the Trustee has heretofore been or shall
hereafter be a party, including said enumerated Supplemental Indentures and this
Supplemental Indenture, being herein referred to as the "Indenture");
capitalized terms used herein and not otherwise defined herein are used as
defined in the Indenture; and
WHEREAS, the Indenture provides in Section 1 of Article Twelfth thereof
that without any action or consent by, or notice to, the holders of any of the
Bonds, the Company and the Trustee, from time to time and at any time, may enter
into such indentures supplemental to the Original Indenture as shall be by them
deemed necessary or desirable for the purpose of establishing the form, term,
provisions and conditions of a particular series of Bonds, and of providing the
terms and conditions of redemption of Bonds of such series, or for a retirement
fund or other fund for such series, or for any other purpose not inconsistent
with the terms of the Indenture and which shall not impair the security of the
same; and
WHEREAS, the Indenture provides in Section 2 of Article Twelfth thereof
that in addition to the power and authority given under Section 1 of Article
Twelfth, any of the provisions of the Indenture may be amended, repealed or
modified in the manner provided in such Section 2, provided, that no such
amendment, repeal or modification shall alter or impair the obligation of the
Company, which is absolute and unconditional to pay the principal and interest
of any Bond outstanding under the Indenture at the time and place and at the
rate prescribed therein without notice to and the consent of the holder of such
Bond; and
WHEREAS, the Indenture provides in paragraph E of Section 2 of Article
Twelfth thereof that, provided the holders of at least 66 2/3 per cent in
aggregate principal amount of the outstanding Bonds affected by the alteration
shall have consented to and approved the execution of any such supplemental
indenture, no holder of any Bond shall thereafter have any right or interest to
object to any of the terms or provisions therein contained, or in any manner to
question the propriety of the execution thereof, or to enjoin or restrain the
Trustee or the Company from executing the same or from taking any action
pursuant to the provisions thereof; and
WHEREAS, the Indenture provides in Section 7 of Article Fourth thereof
that, so long as the Company shall not be in default with respect to the
performance or observance of any covenant or agreement contained in the
Indenture, the Company may from time to time sign, seal and deliver to the
Trustee and the Trustee, subject to the provisions of such Section 7, shall
authenticate and deliver to or upon the order of the Company additional Bonds
secured by the Indenture in exchange for outstanding Bonds of a like aggregate
principal amount, subject to the terms and conditions set forth in such Section
7; and
WHEREAS, the New York State Energy Research and Development Authority
("NYSERDA") has heretofore issued:
(i) Pollution Control Revenue Bonds (Niagara Mohawk Power Corporation
Project) due July 1, 2015, 1985 Series A (the "Prior Series 1985A NYSERDA
Bonds"), pursuant to an Indenture of Trust dated as of August 15, 1985, as
amended (the "Prior Series 1985A NYSERDA Indenture"), between NYSERDA and
The Bank of New York (successor to Irving Trust Company), as trustee (in such
capacity, the "Prior Series 1985A NYSERDA Trustee");
(ii) Pollution Control Refunding Revenue Bonds (Niagara Mohawk Power
Corporation Project) due December 1, 2025, 1985 Series B (the "Prior Series
1985B NYSERDA Bonds"), pursuant to an Indenture of Trust dated as of
December 1, 1985 (the "Prior Series 1985B NYSERDA Indenture"), between
NYSERDA and The Bank of New York (successor to Irving Trust Company), as trustee
(in such capacity, the "Prior Series 1985B NYSERDA Trustee");
(iii) Pollution Control Refunding Revenue Bonds (Niagara Mohawk Power
Corporation Project) due December 1, 2025, 1985 Series C (the "Prior Series
1985C NYSERDA Bonds"), pursuant to an Indenture of Trust dated as of
December 1, 1985 (the "Prior Series 1985C NYSERDA Indenture"), between
NYSERDA and The Bank of New York (successor to Irving Trust Company), as trustee
(in such capacity, the "Prior Series 1985C NYSERDA Trustee");
(iv) Pollution Control Revenue Bonds (Niagara Mohawk Power Corporation
Project) due December 1, 2026, 1986 Series A (the "Prior Series 1986A NYSERDA
Bonds"), pursuant to an Indenture of Trust dated as of December 1, 1986, as
amended (the "Prior Series 1986A NYSERDA Indenture"), between NYSERDA and
The Bank of New York (successor to Irving Trust Company), as trustee (in such
capacity, the "Prior Series 1986A NYSERDA Trustee");
(v) Pollution Control Flexible Rate Refunding Revenue Bonds (Niagara
Mohawk Power Corporation Project ) due March 1, 2027, 1987 Series A, as amended
(the "Prior Series 1987A NYSERDA Bonds"), pursuant to an Indenture of
Trust dated as of March 1, 1987 (the "Prior Series 1987A NYSERDA
Indenture"), between NYSERDA and The Bank of New York (successor to Irving
Trust Company), as trustee (in such capacity, the "Prior Series 1987A NYSERDA
Trustee");
(vi) Pollution Control Flexible Rate Revenue Bonds (Niagara Mohawk Power
Corporation Project) due July 1, 2027, 1987 Series B (the "Prior Series 1987B
NYSERDA Bonds"), pursuant to an Indenture of Trust dated as of July 1, 1987,
as amended (the "Prior Series 1987B NYSERDA Indenture"), between NYSERDA
and The Bank of New York (successor to Irving Trust Company), as trustee (in
such capacity, the "Prior Series 1987B NYSERDA Trustee"); and
(vii) Adjustable Rate Pollution Control Revenue Bonds (Niagara Mohawk
Power Corporation Project) due December 1, 2023, 1988 Series A (the "Prior
Series 1988A NYSERDA Bonds"), pursuant to an Indenture of Trust dated as of
December 1, 1988, as amended (the "Prior Series 1988A NYSERDA
Indenture"), between NYSERDA and The Bank of New York (successor to Irving
Trust Company), as trustee (in such capacity, the "Prior Series 1988A NYSERDA
Trustee");
(the Prior Series 1985A NYSERDA Bonds, the Prior Series 1985B NYSERDA
Bonds, the Prior Series 1985C NYSERDA Bonds, the Prior Series 1986A NYSERDA
Bonds, the Prior Series 1987A NYSERDA Bonds, the Prior Series 1987B NYSERDA
Bonds and the Prior Series 1988A NYSERDA Bonds, collectively called the
"Prior NYSERDA Bonds"; the Prior Series 0000X XXXXXXX Xxxxxxxxx, the
Prior Series 1985B NYSERDA Indenture, the Prior Series 1985C NYSERDA Indenture,
the Prior Series 0000X XXXXXXX Xxxxxxxxx, the Prior Series 0000X XXXXXXX
Xxxxxxxxx, the Prior Series 1987B NYSERDA Indenture and the Prior Series 1988A
NYSERDA Indenture, collectively called the "Prior NYSERDA Indentures";
and the Prior Series 1985A NYSERDA Trustee, the Prior Series 1985B NYSERDA
Trustee, the Prior Series 1985C NYSERDA Trustee, the Prior Series 1986A NYSERDA
Trustee, the Prior Series 1987A NYSERDA Trustee, the Prior Series 1987B NYSERDA
Trustee and the Prior Series 1988A NYSERDA Trustee, collectively called the
"Prior NYSERDA Trustees"), and advanced to the Company the proceeds of
the Prior NYSERDA Bonds for use by the Company in connection with pollution
control projects of the Company; and
WHEREAS, in connection with the issuance of the Prior NYSERDA Bonds,
pursuant to the several Participation Agreements, as amended, between NYSERDA
and the Company dated as of AugustΒ 15, 1985 with respect to the Prior
Series 1985A NYSERDA Bonds, December 1, 1985 with respect to the Prior Series
1985B NYSERDA Bonds, December 1, 1985 with respect to the Prior Series 1985C
NYSERDA Bonds, December 1, 1986 with respect to the Prior Series 1986A NYSERDA
Bonds, March 1, 1987, with respect to the Prior Series 1987A NYSERDA Bonds, July
1, 1987 with respect to the Prior Series 1987B NYSERDA Bonds and December 1,
1988 with respect to the Prior Series 1988A NYSERDA Bonds, the Company delivered
to the respective Prior NYSERDA Trustees (i) $163,000,000 in principal amount of
its First Mortgage Bonds, Floating Rate Series C due June 2, 2003 (also known as
the Eighty-third Series of Bonds), (ii) $213,260,000 in principal amount of its
First Mortgage Bonds, Floating Rate Series D due June 2, 2003 (also known as the
Eighty-fourth Series of Bonds) and (iii) $37,500,000 in principal amount of its
First Mortgage Bonds, Floating Rate Series E due June 2, 2003 (also known as the
Eighty-fifth Series of Bonds) (collectively, the "Prior First Mortgage
Bonds"), pursuant to a Supplemental Indenture dated as of March 20, 1996 as
amended by a Supplemental Indenture dated as of June 1, 2000 (as so amended, the
"Prior Supplemental Indenture") between the Company and HSBC Bank USA
(successor to Bankers Trust Company), as trustee, which pursuant to the Prior
Supplemental Indenture were transferred to Bank One, NA, as Master Creditor
Agent (the "Master Creditor Agent") under the Amended and Restated Master
Creditor Agreement dated as of June 1, 2000 (as amended, supplemented or
modified from time to time, the "Master Creditor Agreement"), on behalf
of the lenders and issuing bank named as "Lenders" and the "Issuing
Bank" in, (I) with respect to the Prior First Mortgage Bonds described in
clause (i) above, the Amended and Restated Letter of Credit and Reimbursement
Agreement dated as of June 1, 2000 (the "Prior Xxxxxx Reimbursement
Agreement") among the Company and the Prior LC Credit Parties named therein,
including Xxxxxx Guaranty Trust Company, as Prior LC Issuer, (II) with respect
to the Prior First Mortgage Bonds described in clause (ii) above, (a) the
Amended and Restated Reimbursement Agreement dated as of June 1, 2000 (the
"Prior Bank One Reimbursement Agreement I") among the Company and the
Prior LC Credit Parties, including Bank One, NA, as Prior LC Issuer and (b) the
Amended and Restated Reimbursement Agreement dated as of June 1, 2000 (the
"Prior Toronto Dominion Reimbursement Agreement") among the Company and
the Prior LC Credit Parties, including Toronto Dominion (Texas), Inc., as Prior
LC Issuer, and (III) with respect to the Prior First Mortgage Bonds described in
clause (iii) above, the Amended and Restated Reimbursement Agreement II dated as
of June 1, 2000 (the "Prior Bank One Reimbursement Agreement II") among
the Company and the Prior LC Credit Parties, including Bank One, NA, as Prior LC
Issuer (such issuing banks collectively called the "Prior LC Issuers",
such lenders collectively called the "Prior LC Lenders" and the Prior LC
Issuers and the Prior LC Lenders collectively called the "Prior LC Credit
Parties") as security for the Companyβs obligations to the Prior LC
Credit Parties under the Prior Reimbursement Agreements (the Prior Xxxxxx
Reimbursement Agreement, the Prior Bank One Reimbursement Agreement I, the Prior
Toronto Dominion Reimbursement Agreement and the Prior Bank One Reimbursement
Agreement II, collectively called the "Prior Reimbursement Agreements");
and
WHEREAS, in order to (a) permit the NYSERDA Bonds to bear interest at
various variable interest rates, including, without limitation, at daily,
weekly, monthly, semi-annual, term, commercial paper and auction rates, (b)
provide for new provisions made necessary or desirable by the issuance of a
municipal bond insurance policy (the "Bond Insurance Policy") and (c)
otherwise conform certain terms of the Prior NYSERDA Indentures relating to each
series of the NYSERDA Bonds while they bear interest at variable interest rates
and certain other terms of the Original Indenture with the current market
standard for multi-modal bonds, NYSERDA has agreed
(i) pursuant to a First Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1985A NYSERDA
Participation Agreement"), as of May 1, 2003, to amend and restate the Prior
Series 1985A NYSERDA Bonds (as so amended and restated and as may be further
amended, supplemented or modified from time to time, the "Series 0000X
XXXXXXX Xxxxx", and to amend and restate the Prior Series 1985A NYSERDA
Indenture, pursuant to an Amended and Restated Indenture of Trust dated as of
May 1, 2003 (as so amended and restated and as may be further amended,
supplemented or modified from time to time, the "Series 1985A NYSERDA
Indenture") between NYSERDA and The Bank of New York, as trustee (together
with its successors and assigns in such capacity, the "Series 1985A NYSERDA
Trustee");
(ii) pursuant to a First Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1985B NYSERDA
Participation Agreement"), as of May 1, 2003, to amend and restate the Prior
Series 1985B NYSERDA Bonds (as so amended and restated and as may be further
amended, supplemented or modified from time to time, the "Series 1985B
NYSERDA Bonds", and to amend and restate the Prior Series 1985B NYSERDA
Indenture, pursuant to an Amended and Restated Indenture of Trust dated as of
May 1, 2003 (as so amended and restated and as may be further amended,
supplemented or modified from time to time, the "Series 1985B NYSERDA
Indenture") between NYSERDA and The Bank of New York, as trustee (together
with its successors and assigns in such capacity, the "Series 1985B NYSERDA
Trustee");
(iii) pursuant to a First Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1985C NYSERDA
Participation Agreement"), as of May 1, 2003, to amend and restate the Prior
Series 1985C NYSERDA Bonds (as so amended and restated and as may be further
amended, supplemented or modified from time to time, the "Series 1985C
NYSERDA Bonds", and to amend and restate the Prior Series 1985C NYSERDA
Indenture, pursuant to an Amended and Restated Indenture of Trust dated as of
May 1, 2003 (as so amended and restated and as may be further amended,
supplemented or modified from time to time, the "Series 1985C NYSERDA
Indenture") between NYSERDA and The Bank of New York, as trustee (together
with its successors and assigns in such capacity, the "Series 1985C NYSERDA
Trustee");
(iv) pursuant to a First Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1986A NYSERDA
Participation Agreement"), as of May 1, 2003, to amend and restate the Prior
Series 1986A NYSERDA Bonds (as so amended and restated and as may be further
amended, supplemented or modified from time to time, the "Series 0000X
XXXXXXX Xxxxx", and to amend and restate the Prior Series 1986A NYSERDA
Indenture, pursuant to an Amended and Restated Indenture of Trust dated as of
May 1, 2003 (as so amended and restated and as may be further amended,
supplemented or modified from time to time, the "Series 1986A NYSERDA
Indenture") between NYSERDA and The Bank of New York, as trustee (together
with its successors and assigns in such capacity, the "Series 1986A NYSERDA
Trustee");
(v) pursuant to a Second Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1987A NYSERDA
Participation Agreement"), as of May 1, 2003, to amend and restate the Prior
Series 1987A NYSERDA Bonds (as so amended and restated and as may be further
amended, supplemented or modified from time to time, the "Series 0000X
XXXXXXX Xxxxx", and to amend and restate the Prior Series 1987A NYSERDA
Indenture, pursuant to an Amended and Restated Indenture of Trust dated as of
May 1, 2003 (as so amended and restated and as may be further amended,
supplemented or modified from time to time, the "Series 1987A NYSERDA
Indenture") between NYSERDA and The Bank of New York, as trustee (together
with its successors and assigns in such capacity, the "Series 1987A NYSERDA
Trustee");
(vi) pursuant to a Second Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1987B NYSERDA
Participation Agreement"), as of May 1, 2003, to split the Prior Series
1987B NYSERDA Bonds into two series, such additional series, as amended,
supplemented or modified from time to time, to be called the "Series 0000X-0
XXXXXXX Xxxxx" and the "Series 0000X-0 XXXXXXX Xxxxx", and to amend
and restate the Prior Series 1987B NYSERDA Indenture, pursuant to an Amended and
Restated Indenture of Trust dated as of May 1, 2003 (as so amended and restated
and as may be further amended, supplemented or modified from time to time, the
"Series 1987B NYSERDA Indenture") between NYSERDA and The Bank of New
York, as trustee (together with its successors and assigns in such capacity, the
"Series 1987B NYSERDA Trustee"); and
(vii) pursuant to a Second Supplemental Participation Agreement between
NYSERDA and the Company dated as of May 1, 2003 (the "Series 1988A NYSERDA
Participation Agreement"), to amend and restate the Prior Series 1988A
NYSERDA Bonds (as so amended and restated and as may be further amended,
supplemented or modified from time to time, the "Series 0000X XXXXXXX
Xxxxx", and to amend and restate the Prior Series 1988A NYSERDA Indenture,
pursuant to an Amended and Restated Indenture of Trust dated as of May 1, 2003
(as so amended and restated and as may be further amended, supplemented or
modified from time to time, the "Series 1988A NYSERDA Indenture") between
NYSERDA and The Bank of New York, as trustee (together with its successors and
assigns in such capacity, the "Series 1988A NYSERDA Trustee")
(the Series 1985A NYSERDA Bonds, the Series 1985B NYSERDA Bonds, the Series
1985C NYSERDA Bonds, the Series 1986A NYSERDA Bonds, the Series 1987A NYSERDA
Bonds, the Series 1987B-1 NYSERDA Bonds, the Series 1987B-2 NYSERDA Bonds and
the Series 1988A NYSERDA Bonds, collectively called the "NYSERDA Bonds";
the Series 1985A NYSERDA Indenture, the Series 1985B NYSERDA Indenture, the
Series 1985C NYSERDA Indenture, the Series 1986A NYSERDA Indenture, the Series
1987A NYSERDA Indenture, the Series 1987B NYSERDA Indenture and the Series 1988A
NYSERDA Indenture, collectively called the "NYSERDA Indentures" and each
a "NYSERDA Indenture"; the Series 1985A NYSERDA Trustee, the Series 1985B
NYSERDA Trustee, the Series 1985C NYSERDA Trustee, the Series 1986A NYSERDA
Trustee, the Series 1987A NYSERDA Trustee, the Series 1987B NYSERDA Trustee and
the Series 1988A NYSERDA Trustee, collectively called the "NYSERDA
Trustees" and each a "NYSERDA Trustee"; and the Series 1985A NYSERDA
Participation Agreement, the Series 1985B NYSERDA Participation Agreement, the
Series 1985C NYSERDA Participation Agreement, the Series 1986A NYSERDA
Participation Agreement, the Series 1987A NYSERDA Participation Agreement, the
Series 1987B NYSERDA Participation Agreement and the Series 1988A NYSERDA
Participation Agreement, collectively called the "NYSERDA Participation
Agreements"); and
WHEREAS, as set forth in the Participation Agreement, NYSERDA and the
Company have agreed that concurrently at such times as the Prior NYSERDA Bonds
are amended and restated to become the NYSERDA Bonds and the Series 1987B-1
NYSERDA Bonds and the Series 1987B-2 NYSERDA Bonds are issued in exchange for
the Prior Series 1987B NYSERDA Bonds, the Company will take actions necessary to
ensure that (i) certificates representing all Prior First Mortgage Bonds
relating to such Prior NYSERDA Bonds and the Prior Reimbursement Agreements
shall be delivered by either the Prior LC Issuer (or its agent) or the Prior
NYSERDA Trustee, as applicable, to the NYSERDA Trustee, who may transfer the
same to Ambac Assurance Corporation, as the issuer of the Bond Insurance Policy
(together with its successors and assigns, the "Bond Insurer"), (ii) all
Prior First Mortgage Bonds relating to such Prior NYSERDA Bonds shall be amended
and restated pursuant to the terms of this Supplemental Indenture, (iii) the
Prior Supplemental Indenture shall be amended under and pursuant to the terms of
this Supplemental Indenture, (iv) the Prior LC Issuer (or its agent) or the
NYSERDA Trustee, as applicable, shall deliver the Prior First Mortgage Bonds to
the Trustee and (v) the Trustee shall deliver new certificates representing the
First Mortgage Bonds of the Eighty-third, Eighty-fourth, Eighty-fifth,
Eighty-ninth, Ninetieth, Ninety-first, Ninety-second and Ninety-third Series to
the NYSERDA Trustee pursuant to the terms of this Supplemental Indenture; and
WHEREAS, the Company desires to enter into this Supplemental Indenture,
which is an indenture supplemental to the Original Indenture, with the Trustee
for the purpose of (a) amending and restating the form, terms, provisions and
conditions of the Eighty-third, Eighty-fourth and Eighty-fifth Series of Bonds
under the Indenture, for the purpose of (i) splitting the Eighty-third Series
(in the current outstanding principal amount of $163,000,000) into three series
and redesignating two of such series as the Eighty-ninth (in the maximum
principal amount of $69,800,000) and Ninetieth (in the maximum principal amount
of $25,000,000) Series of Bonds and exchanging the Bonds of the Eighty-third
Series of Bonds for an equivalent principal amount of Bonds of the Eighty-third,
Eighty-ninth and Ninetieth Series of Bonds (with the remaining Eighty-third
Series having a maximum principal amount of $68,200,000 after all Bonds to be
exchanged for Bonds of the Eighty-ninth and Ninetieth Series have been so
exchanged), (ii) splitting the Eighty-fourth Series (in the current outstanding
principal amount of $213,260,000) into four series and redesignating three of
such series as the Ninety-first (in the maximum principal amount of
$37,500,000), Ninety-second (in the maximum principal amount of $50,000,000) and
Ninety-third (in the maximum principal amount of $25,760,000) Series of Bonds
and exchanging the Bonds of the Eighty-fourth Series of Bonds for an equivalent
principal amount of Bonds of the Eighty-fourth, Ninety-first, Ninety-second and
Ninety-third Series of Bonds (with the remaining Eighty-fourth Series having a
maximum principal amount of $100,000,000 after all Bonds to be exchanged for
Bonds of the Ninety-first, Ninety-second and Ninety-third Series have been so
exchanged), and (b) amending the Supplemental Indentures creating and amending
the Eighty-third, Eighty-fourth and Eighty-fifth Series of Bonds in accordance
with this Supplemental Indenture, all as determined by resolution or resolutions
of the Board of Directors of the Company and as agreed to by the Master Creditor
Agent on behalf of the Prior LC Credit Parties, as holder of 100% of the Bonds
of the Eighty-third, Eighty-fourth and Eighty-fifth Series, and in accordance
with Section 7 of Article Fourth of the Indenture; and
WHEREAS, the current aggregate balance of principal indebtedness, in
respect of the Eighty-third, Eighty-fourth, Eighty-fifth, Eighty-ninth,
Ninetieth, Ninety-first, Ninety-second and Ninety-third Series of Bonds,
outstanding after giving effect to this Supplemental Indenture, $413,760,000,
is not and is not permitted to be in excess of the current aggregate balance of
principal indebtedness, in respect of the Eighty-third, Eighty-fourth and
Eighty-fifth Series of Bonds, outstanding under the Original Indenture with
respect to which mortgage tax was paid, no reloans or readvances have become
secured under the Indenture to date with respect to which mortgage tax was not
previously paid and no additional monies are secured by this Supplemental
Indenture, entitling the Company to request exemption from mortgage tax under
Section 255 of the Real Estate Tax Law of the State of New York; and
WHEREAS, the Company in the exercise of the authority and power reserved
to it under and by virtue of the provisions of the Indenture and pursuant to
appropriate resolutions of its Board of Directors has duly resolved and
determined to make, execute and deliver to the Trustee, and has requested the
Trustee to enter into, a supplemental indenture in the form hereof and for the
purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled and the execution and delivery
hereof have been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
W I T N E S S E T H:
That for and in consideration of the premises and of the purchase or
acceptance of the Bonds by those who shall hold the same from time to time and
of the sum of One Dollar to the Company duly paid by the Trustee at or before
the execution and delivery of this Supplemental Indenture and for other good and
valuable consideration, the receipt whereof is hereby acknowledged, the Company
does hereby covenant and agree with the Trustee for the benefit of the holders
of the Bonds, or any of them, issued or to be issued under the Indenture, as
follows:
ARTICLE I
AMENDMENT AND RESTATEMENT
OF THE SUPPLEMENTAL INDENTURE CREATING
THE PRIOR MORTGAGE BONDS
AMENDMENT AND RESTATEMENT
OF THE SUPPLEMENTAL INDENTURE CREATING
THE PRIOR MORTGAGE BONDS
Section 1. Effectiveness of this Supplemental Indenture. Effective
on the first of the Effective Dates (as hereinafter defined) of any of Articles
II through IX (the "Initial Effective Date"), the prior Supplemental
Indenture shall be amended and restated as set forth in this Supplemental
Indenture.
Section 2. Effective Dates of Articles II through IX.
(a) Article II of this Supplemental Indenture setting forth the amended
and restated terms of the First Mortgage Bonds of the Eighty-third Series shall
become effective on the date on which the Prior First Mortgage Bonds of the
Eighty-third Series (other than the Bonds of that series redesignated as the
Bonds of the Eighty-ninth Series or the Bonds of the Ninetieth Series) shall
have been delivered to the Trustee in exchange for the Amended and Restated
Bonds of the Eighty-third Series, as set forth in SectionΒ 1 of Article
II.
(b) Article III of this Supplemental Indenture setting forth the amended
and restated terms of the First Mortgage Bonds of the Eighty-fourth Series shall
become effective on the date on which the Prior First Mortgage Bonds of the
Eighty-fourth Series (other than the Bonds of that series redesignated as the
Bonds of the Ninety-first Series, the Bonds of the Ninety-second Series or the
Bonds of the Ninety-third Series) shall have been delivered to the Trustee in
exchange for the Amended and Restated Bonds of the Eighty-fourth Series, as set
forth in SectionΒ 1 of Article III.
(c) Article IV of this Supplemental Indenture setting forth the amended
and restated terms of the First Mortgage Bonds of the Eighty-fifth Series shall
become effective on the date on which the Prior First Mortgage Bonds of the
Eighty-fifth Series shall have been delivered to the Trustee in exchange for the
Amended and Restated Bonds of the Eighty-fifth Series, as set forth in
SectionΒ 1 of Article IV.
(d) Article V of this Supplemental Indenture setting forth the terms of
the First Mortgage Bonds of the Eighty-ninth Series (which shall be split from
the Prior First Mortgage Bonds of the Eighty-third Series on the date on which
Article V becomes effective) shall become effective on the date on which
$69,800,000 principal amount of the Prior First Mortgage Bonds of the
Eighty-third Series shall have been delivered to the Trustee in exchange for
the Bonds of the Eighty-ninth Series, as set forth in SectionΒ 1 of Article
V.
(e) Article VI of this Supplemental Indenture setting forth the terms of
the First Mortgage Bonds of the Ninetieth Series (which shall be split from the
Prior First Mortgage Bonds of the Eighty-third Series on the date on which
Article VI becomes effective) shall become effective on the date on which
$25,000,000 principal amount of the Prior First Mortgage Bonds of the
Eighty-third Series shall have been delivered to the Trustee in exchange for the
Bonds of the Ninetieth Series, as set forth in SectionΒ 1 of Article
VI.
(f) Article VII of this Supplemental Indenture setting forth the terms of
the First Mortgage Bonds of the Ninety-first Series (which shall be split from
the Prior First Mortgage Bonds of the Eighty-fourth Series on the date on which
Article VII becomes effective) shall become effective on the date on which
$37,500,000 of the Prior First Mortgage Bonds of the Eighty-fourth Series shall
have been delivered to the Trustee in exchange for the Bonds of the Ninety-first
Series, as set forth in SectionΒ 1 of Article VII.
(g) Article VIII of this Supplemental Indenture setting forth the terms of
the First Mortgage Bonds of the Ninety-second Series (which shall be split from
the Prior First Mortgage Bonds of the Eighty-fourth Series on the date on which
Article VIII becomes effective) shall become effective on the date on which
$50,000,000 of the Prior First Mortgage Bonds of the Eighty-fourth Series shall
have been delivered to the Trustee in exchange for the Bonds of the
Ninety-second Series, as set forth in SectionΒ 1 of Article VIII.
(h) Article IX of this Supplemental Indenture setting forth the terms of
the First Mortgage Bonds of the Ninety-third Series (which shall be split from
the Prior First Mortgage Bonds of the Eighty-fourth Series on the date on which
Article IX becomes effective) shall become effective on the date on which
$25,760,000 of the Prior First Mortgage Bonds of the Eighty-fourth Series shall
have been delivered to the Trustee in exchange for the Bonds of the Ninety-third
Series, as set forth in SectionΒ 1 of Article IX.
Section 3. Replacement Bonds if Effective Dates Differ. If the
Effective Dates of Articles II, V and VI are not the same date, the Trustee
shall, at the request of the holder to the Prior First Mortgage Bonds of the
Eighty-third Series in accordance with the provisions of the Indenture, but at
no charge to such holder, authenticate and deliver to such holder a replacement
Bond or Bonds of the Eighty-third Series representing the portion of the Prior
First Mortgage Bonds of the Eighty-third Series not delivered for exchange and
replacement on such Effective Date. Likewise, if the Effective Dates of
Articles III, VII, VIII and IX are not the same date, the Trustee shall, at the
request of the holder to the Prior First Mortgage Bonds of the Eighty-fourth
Series in accordance with the provisions of the Indenture, but at no charge to
such holder, authenticate and deliver to such holder a replacement Bond or Bonds
of the Eighty-fourth Series representing the portion of the Prior First Mortgage
Bonds of the Eighty-fourth Series not delivered for exchange and replacement on
such Effective Date.
ARTICLE II
AMENDMENT AND RESTATEMENT OF THE
EIGHTY-THIRD SERIES OF FIRST MORTGAGE BONDS
AMENDMENT AND RESTATEMENT OF THE
EIGHTY-THIRD SERIES OF FIRST MORTGAGE BONDS
Section 1. Amendment and Restatement of Bonds of the Eighty-third
Series. At such time as all Prior First Mortgage Bonds of the Eighty-third
Series issued under the Prior Supplemental Indenture (other than the Bonds of
that series redesignated as the Bonds of the Eighty-ninth Series or the Bonds of
the Ninetieth Series) not heretofore cancelled by the Trustee or delivered to
the Trustee cancelled or for cancellation have been delivered to the Trustee by
the registered holder thereof to be exchanged for new Bonds under this Article
II (which shall be deemed to be the "Effective Date" of this Article II),
such Prior First Mortgage Bonds of the Eighty-third Series not heretofore
cancelled by the Trustee or delivered to the Trustee cancelled or for
cancellation shall be amended and restated as set forth in this ArticleΒ II
and redesignated "First Mortgage Bonds, Floating Rate Series C due July 1,
2027" (hereinafter sometimes referred to as the "Amended and Restated
Bonds of the Eighty-third Series").
The Amended and Restated Bonds of the Eighty-third Series shall be
registered in the name of the Series 1987B NYSERDA Trustee, as trustee on behalf
of the holders of the Series 1987B-1 NYSERDA Bonds, pursuant to the Series 1987B
NYSERDA Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Amended and Restated Bonds of the Eighty-third Series which may be
amended and restated by the Company and executed by the Company in connection
therewith and authenticated by the Trustee is limited so that at no time shall
there be authenticated, delivered or outstanding under the Indenture, Amended
and Restated Bonds of the Eighty-third Series for a principal amount exceeding
$68,200,000, except that Amended and Restated Bonds of the Eighty-third Series
may always be issued as provided in Section 2 of Article Fourth of the
Indenture.
On the Effective Date of this Article II, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Amended and
Restated Bonds of the Eighty-third Series in an aggregate principal amount not
exceeding $68,200,000, and deliver the same to the Series 1987B NYSERDA Trustee,
in exchange for certificates representing the same principal amount of the Prior
First Mortgage Bonds delivered to the Trustee by the 1987B NYSERDA Trustee or
Xxxxxx Guaranty Trust Company, as the Prior LC Issuer.
Section 2. Terms of the Amended and Restated Bonds of the Eighty-third
Series. The Amended and Restated Bonds of the Eighty-third Series shall
mature according to their terms on July 1, 2027, and, in the case of the initial
authentication of the Amended and Restated Bonds of the Eighty-third Series,
shall be dated the Effective Date and shall bear interest from the Effective
Date at the rate per annum sufficient to pay interest accruing on the Series
1987B-1 NYSERDA Bonds as it becomes due, payable on the dates on which interest
is payable on the Series 1987B-1 NYSERDA Bonds under the Series 1987B NYSERDA
Indenture. The principal of, and premium, if any, in respect of, the Amended
and Restated Bonds of the Eighty-third Series shall be payable on the same date
or dates and in the same amounts as set forth in the Series 1987B NYSERDA
Indenture for the payment of principal on, or premium, if any, in respect of,
the Series 1987B-1 NYSERDA Bonds. Definitive Bonds of said series shall be
registered Bonds without coupons and shall be issued in denominations of $1,000
and multiples thereof.
Subsequent to the initial authentication of the Amended and Restated Bonds
of the Eighty-third Series, each Amended and Restated Bond of the Eighty-third
Series shall be dated as of the date of its authentication and shall bear
interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Amended and Restated Bonds of the Eighty-third Series shall be
fully or partially satisfied and discharged, and the amount of any such payment
shall be reduced, to the extent that the Company shall have made the payment, in
full or in part, of principal and premium, if any, and interest then due on the
Series 1987B-1 NYSERDA Bonds, and the Trustee shall not have received written
notice from the Company that the obligation of the Company shall not be so
satisfied and discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Amended and Restated Bonds of the Eighty-third Series or, as that
term is defined in the Series 1987B NYSERDA Indenture, with respect to the
Series 1987B-1 NYSERDA Bonds, has occurred and no amounts are due under the
Amended and Restated Bonds of the Eighty-third Series unless and until the
Trustee shall have received from the Series 1987B NYSERDA Trustee a notice of
the occurrence of an Event of Default (as defined in the Series 1987B NYSERDA
Indenture) or written demand from the Series 1987B NYSERDA Trustee (which notice
or demand has not been subsequently rescinded or revoked by the Series 1987B
NYSERDA Trustee), setting forth in detail the amount then due with respect to
such Series 1987B-1 NYSERDA Bonds, which statement shall, unless and until
revoked, rescinded or amended by the Series 1987B NYSERDA Trustee, be deemed to
be correct, and the Trustee shall be entitled and authorized to rely
conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Amended and Restated Bonds of the Eighty-third Series
were registered at the close of business on the record date for such payment of
interest (except any such Bond which has been called for redemption on a date
fixed for such redemption which is after such record date and prior to such
interest payment date) notwithstanding any cancellation of Amended and Restated
Bonds of the Eighty-third Series upon any registration of transfer or exchange
thereof between such record date and such interest payment date; except that if
the Company shall default in the payment of any interest due on such interest
payment date such defaulted interest shall be paid to the persons in whose names
Amended and Restated Bonds of the Eighty-third Series are registered either at
the close of business on the date preceding the date of payment of such
defaulted interest or on a subsequent record date fixed for the payment of such
defaulted interest by notice given by mail by or on behalf of the Company to
holders of Bonds of the Eighty-third Series not less than ten calendar days
preceding such subsequent record date. The term "record date" as used
herein shall mean, with respect to a regular interest payment date, the close of
business on the day that is ten calendar days prior to such interest payment
date or, if such day shall be a day on which banking institutions in The City of
New York are authorized by law to close, the next preceding day which shall not
be a day on which such institutions are so authorized to close or, in the case
of defaulted interest, the close of business on any subsequent record date
established as provided above.
All of the Amended and Restated Bonds of the Eighty-third Series shall be
executed in the name and on behalf of the Company by a facsimile of the
signature (or manual signature) of its President or a Vice President, and
imprinted with its corporate seal (or a facsimile thereof), attested by a
facsimile of the signature (or manual signature) of its Secretary or an
Assistant Secretary.
Amended and Restated Bonds of the Eighty-third Series shall be lettered
"RU" and numbered consecutively from RU-4 upwards, or shall bear such
other letters as may be provided therefor by the Board of Directors of the
Company.
To the extent that any payment of principal of and interest on the Amended
and Restated Bonds of the Eighty-third Series (as well as any premium thereon
applicable in case of any redemption thereof prior to maturity) shall be
payable, all such amounts shall be payable at the office of the Companyβs
paying agent, which in the case of HSBC Bank USA, shall be its corporate trust
office in the Borough of Manhattan, The City of New York, State of New York, or
at such other office or agency in the Borough of Manhattan, The City of New
York, State of New York, as shall be maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts.
Section 3. Redemption of the Amended and Restated Bonds of the
Eighty-third Series. The Amended and Restated Bonds of the Eighty-third
Series are subject to mandatory redemption, in whole or in part, in the event of
any optional or mandatory redemption of the Series 1987B-1 NYSERDA Bonds, on the
date fixed for such mandatory redemption of the Series 1987B-1 NYSERDA Bonds,
upon notice given as hereinafter in this Section 3 provided, at the applicable
redemption price specified in the Series 1987B NYSERDA Indenture for the Series
1987B-1 NYSERDA Bonds being redeemed, in such amount as, together with any
moneys available therefor under the Series 1987B NYSERDA Indenture, shall be
required, in accordance with the provisions of the Series 1987B NYSERDA
Participation Agreement and the Series 1987B NYSERDA Indenture, to pay the
principal of and premium, if any, and interest on the Series 1987B-1 NYSERDA
Bonds so redeemed.
The Amended and Restated Bonds of the Eighty-third Series are subject to
mandatory redemption, as a whole but not in part, at a redemption price equal to
100% of the principal amount thereof, together with interest accrued to the date
fixed for redemption, upon a declaration by the Series 1987B NYSERDA Trustee
that the principal of all Series 1987B-1 NYSERDA Bonds then outstanding is
immediately due and payable pursuant to the Series 1987B NYSERDA Indenture and
upon written notice thereof by the Series 1987B NYSERDA Trustee to the Trustee
at least 30 days prior to the date fixed for redemption, provided that no
written cancellation of such declaration shall have been received by the Trustee
and the Company prior to notice of such redemption having been given to the
Trustee.
No redemption of the Amended and Restated Bonds of the Eighty-third
Series, either as a whole or in part, may be made except in connection with the
payment of a like principal amount of Series 1987B-1 NYSERDA Bonds, either by
redemption or at maturity (stated or otherwise), which Series 1987B-1 NYSERDA
Bonds, shall not thereafter be remarketed. The principal amount of the Series
1987B-1 NYSERDA Bonds and, therefore, the principal of the Bonds of the
Eighty-third Series, may be prepaid, and the due dates thereof shall be
accelerated, in accordance with the terms of the Series 1987B NYSERDA
Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Amended and Restated Bonds of the Eighty-third Series then
outstanding, the Company shall give to the Trustee notice in writing at least 45
days prior to the redemption date fixed by the Company (unless a shorter notice
is required for the corresponding redemption under the Series 1987B NYSERDA
Indenture or shall be satisfactory to the Trustee) of the principal amount of
Amended and Restated Bonds of the Eighty-third Series which it desires or is
required to redeem, specifying the date on which it desires or is required to
make redemption. There shall be furnished to the Trustee a certificate or
opinion executed by the President or a Vice-President and the Treasurer or an
Assistant Treasurer of the Company stating that the conditions precedent
specified in this Section 3 with respect to such redemption have been complied
with and notwithstanding anything to the contrary contained herein or in the
Indenture, prior to receipt of a notice of default, the Trustee shall be
entitled and authorized to rely conclusively thereon. As soon as practicable
thereafter, if the Bonds are to be redeemed in part, the Trustee shall issue to
the Series 1987B NYSERDA Trustee a new Bond or Bonds of the Eighty-third Series
in the principal amount not so redeemed in exchange for the outstanding Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
ArticleΒ Tenth of the Indenture, accept the certificate of the President or
any Vice President or the Treasurer of the Company as sufficient evidence that
the requirements as to mailing of notices of the call for redemption have been
fully complied with or the Trustee may, at its option and at the expense and on
behalf of the Company, give such notice and take any other action required of
the Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Amended and
Restated Bonds of the Eighty-third Series called for redemption, which together
with any moneys available therefor under the Series 1987B NYSERDA Indenture is
sufficient to redeem, at the redemption price payable as hereinbefore provided,
the Bonds of such series designated for redemption and the called part of any
Bond of such series called only in part, and to pay the interest accrued thereon
up to said redemption date, to be applied by the Trustee to the payment of such
Bonds (and the called part of any such Bond) and such accrued interest thereon
upon presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Amended and Restated Bonds of the
Eighty-third Series, for a principal amount equal to the uncalled and unpaid
balance of the principal amount of such Bond, will be executed by the Company
and shall be authenticated and delivered by the Trustee to the owner of such
Bond, without expense to such owner. If the Series 1987B-1 NYSERDA Bonds have
been redeemed in whole or in part, the Amended and Restated Bonds of the
Eighty-third Series shall be deemed to have been redeemed in whole or in part in
the equivalent principal amount. The Trustee shall be entitled and authorized
to rely conclusively on a certificate of the Company as to such redemption,
together with the surrender by the Bondholder of such redeemed Bonds for
cancellation or for exchange for one or more replacement Bonds in the aggregate
principal amount of such unredeemed portion of the Bonds as evidence of such
redemption. Notwithstanding the foregoing, the principal and interest due on
the Amended and Restated Bonds of the Eighty-third Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Amended and Restated Bonds of the Eighty-third
Series or the Series 1987B-1 NYSERDA Bonds) is rescinded or must otherwise be
returned by the Series 1987B NYSERDA Trustee or the holders of the Series
1987B-1 NYSERDA Bonds or any other person upon the insolvency, bankruptcy or
reorganization of the Company or by operation of law, all as though payment had
not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Amended and Restated Bond of the Eighty-third Series may at any time
surrender the same at the corporate trust office of the Trustee, or at any other
office or agency of the Trustee or the Company maintained for such purpose, and
with instruments of transfer satisfactory to the Trustee, and, subject to the
terms, conditions and limitations specified in the Indenture, shall be entitled
to receive in exchange therefor an equal principal amount of Bonds of said
series of other authorized denominations; and the Company will provide, and the
Trustee shall authenticate and deliver, the Bonds necessary to make such
exchange. The Amended and Restated Bonds of the Eighty-third Series are
nontransferable except to effect transfer to any successor to the Series 1987B
NYSERDA Trustee, to the Bond Insurer or to any successor to the Bond Insurer,
any such transfer of an Amended and Restated Bond of the Eighty-third Series to
be made at the principal corporate trust office of the Trustee, upon surrender
and cancellation of such Bond, accompanied by a written instrument of transfer
in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Amended and Restated Bond or Bonds of the Eighty-third Series, for a like
principal amount and bearing interest at the same rates and having the same
maturity date, will be issued to the successor to the Series 1987B NYSERDA
Trustee, the Bond Insurer or the successor to the Bond Insurer, as the case may
be, in exchange therefor, as provided in the Indenture. The provisions of
Section 12 of Article Second of the Original Indenture to the contrary
notwithstanding, no payment of a service charge shall be required for any
exchange or registration of transfer, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto.
Section 6. Form of Amended and Restated Bonds of the Eighty-third
Series. The definitive Amended and Restated Bonds of the Eighty-third
Series, and the Trusteeβs certificate to be inscribed on all Bonds of said
series, are to be substantially in the forms set forth in ExhibitΒ A.
Such Amended and Restated Bonds of the Eighty-third Series shall be issued to
the NYSERDA Trustee, in the initial principal amount, and with the description
of the Bonds, identification of the series of NYSERDA Bonds and the
corresponding NYSERDA Trustee and the NYSERDA Indenture, all as specified in
SectionΒ 1 of this ArticleΒ II.
ARTICLE III
AMENDMENT AND RESTATEMENT
OF THE EIGHTY-FOURTH SERIES OF FIRST MORTGAGE BONDS
AMENDMENT AND RESTATEMENT
OF THE EIGHTY-FOURTH SERIES OF FIRST MORTGAGE BONDS
Section 1. Amendment and Restatement of Bonds of the Eighty-fourth
Series. At such time as all Prior First Mortgage Bonds of the Eighty-fourth
Series issued under the Prior Supplemental Indenture (other than the Bonds of
that series redesignated as the Bonds of the Ninety-first Series, the Bonds of
the Ninety-second Series and the Bonds of the Ninety-third Series) not
heretofore cancelled by the Trustee or delivered to the Trustee cancelled or for
cancellation have been delivered to the Trustee by the registered holder thereof
to be exchanged for new Bonds under this Article III (which shall be deemed to
be the "Effective Date" of this Article III) such Prior First Mortgage
Bonds of the Eighty-fourth Series not heretofore cancelled by the Trustee or
delivered to the Trustee cancelled or for cancellation shall be amended and
restated as set forth in this Article III and redesignated "First Mortgage
Bonds, Floating Rate Series D due July 1, 2015" (hereinafter sometimes
referred to as the "Amended and Restated Bonds of the Eighty-fourth
Series").
The Amended and Restated Bonds of the Eighty-fourth Series shall be
registered in the name of the Series 1985A NYSERDA Trustee, as trustee on behalf
of the holders of the Series 1985A NYSERDA Bonds, pursuant to the Series 1985A
NYSERDA Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Amended and Restated Bonds of the Eighty-fourth Series which may be
amended and restated by the Company and executed by the Company in connection
therewith and authenticated by the Trustee is limited so that at no time shall
there be authenticated, delivered or outstanding under the Indenture, Amended
and Restated Bonds of the Eighty-fourth Series for a principal amount exceeding
$100,000,000, except that Amended and Restated Bonds of the Eighty-fourth Series
may always be issued as provided in Section 2 of Article Fourth of the
Indenture.
On the Effective Date of this Article III, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Amended and
Restated Bonds of the Eighty-fourth Series in an aggregate principal amount not
exceeding $100,000,000 and deliver the same to the Series 1985A NYSERDA Trustee,
in exchange for certificates representing the same principal amount of the Prior
First Mortgage Bonds delivered to the Trustee by the Series 0000X XXXXXXX
Xxxxxxx xx Xxxxxxx Xxxxxxxx (Xxxxx), Inc., as the Prior LC Issuer.
Section 2. Terms of the Amended and Restated Bonds of the Eighty-fourth
Series. The Amended and Restated Bonds of the Eighty-fourth Series shall
mature according to their terms on July 1, 2015 and, in the case of the initial
authentication of the Amended and Restated Bonds of the Eighty-fourth Series,
shall be dated the Effective Date and shall bear interest from the Effective
Date at the rate per annum sufficient to pay interest accruing on the Series
1985A NYSERDA Bonds as it becomes due, payable on the dates on which interest is
payable on the Series 1985A NYSERDA Bonds under the Series 1985A NYSERDA
Indenture. The principal of, and premium, if any, in respect of, the Amended
and Restated Bonds of the Eighty-fourth Series shall be payable on the same date
or dates and in the same amounts as set forth in the Series 1985A NYSERDA
Indenture for the payment of principal on, or premium, if any, in respect of,
the Series 1985A NYSERDA Bonds. Definitive Bonds of said series shall be
registered Bonds without coupons and shall be issued in denominations of $1,000
and multiples thereof.
Subsequent to the initial authentication of the Amended and Restated Bonds
of the Eighty-fourth Series, each Amended and Restated Bond of the Eighty-fourth
Series shall be dated as of the date of its authentication and shall bear
interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Amended and Restated Bonds of the Eighty-fourth Series shall be
fully or partially satisfied and discharged, and the amount of any such payment
shall be reduced, to the extent that the Company shall have made the payment, in
full or in part, of principal and premium, if any, and interest then due on the
Series 1985A NYSERDA Bonds, and the Trustee shall not have received written
notice from the Company that the obligation of the Company shall not be so
satisfied and discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Amended and Restated Bonds of the Eighty-fourth Series or, as
that term is defined in the Series 0000X XXXXXXX Xxxxxxxxx, with respect to the
Series 1985A NYSERDA Bonds, has occurred and no amounts are due under the
Amended and Restated Bonds of the Eighty-third Series unless and until the
Trustee shall have received from the Series 1985A NYSERDA Trustee a notice of
the occurrence of an Event of Default (as defined in the Series 0000X XXXXXXX
Xxxxxxxxx) or written demand from the Series 1985A NYSERDA Trustee (which notice
or demand has not been subsequently rescinded or revoked by the Series 1985A
NYSERDA Trustee), setting forth in detail the amount then due with respect to
such Series 1985A NYSERDA Bonds, which statement shall, unless and until
revoked, rescinded or amended by the Series 1985A NYSERDA Trustee, be deemed to
be correct, and the Trustee shall be entitled and authorized to rely
conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Amended and Restated Bonds of the Eighty-fourth
Series were registered at the close of business on the record date for such
payment of interest (except any such Bond which has been called for redemption
on a date fixed for such redemption which is after such record date and prior to
such interest payment date) notwithstanding any cancellation of Amended and
Restated Bonds of the Eighty-fourth Series upon any registration of transfer or
exchange thereof between such record date and such interest payment date; except
that if the Company shall default in the payment of any interest due on such
interest payment date such defaulted interest shall be paid to the persons in
whose names Amended and Restated Bonds of the Eighty-fourth Series are
registered either at the close of business on the date preceding the date of
payment of such defaulted interest or on a subsequent record date fixed for the
payment of such defaulted interest by notice given by mail by or on behalf of
the Company to holders of Bonds of the Eighty-fourth Series not less than ten
calendar days preceding such subsequent record date. The term "record
date" as used herein shall mean, with respect to a regular interest payment
date, the close of business on the day that is ten calendar days prior to such
interest payment date or, if such day shall be a day on which banking
institutions in The City of New York are authorized by law to close, the next
preceding day which shall not be a day on which such institutions are so
authorized to close or, in the case of defaulted interest, the close of business
on any subsequent record date established as provided above.
All of the Amended and Restated Bonds of the Eighty-fourth Series shall be
executed in the name and on behalf of the Company by a facsimile of the
signature (or manual signature) of its President or a Vice President, and
imprinted with its corporate seal (or a facsimile thereof), attested by a
facsimile of the signature (or manual signature) of its Secretary or an
Assistant Secretary.
Amended and Restated Bonds of the Eighty-fourth Series shall be lettered
"RU" and numbered consecutively from RU-5 upwards, or shall bear such
other letters as may be provided therefor by the Board of Directors of the
Company.
To the extent that any payment of principal of and interest on the Amended
and Restated Bonds of the Eighty-fourth Series (as well as any premium thereon
applicable in case of any redemption thereof prior to maturity) shall be
payable, all such amounts shall be payable at the office of the Companyβs
paying agent, which in the case of HSBC Bank USA, shall be its corporate trust
office in the Borough of Manhattan, The City of New York, State of New York, or
at such other office or agency in the Borough of Manhattan, The City of New
York, State of New York, as shall be maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts.
Section 3. Redemption of the Amended and Restated Bonds of the
Eighty-fourth Series. The Amended and Restated Bonds of the Eighty-fourth
Series are subject to mandatory redemption, in whole or in part, in the event of
any optional or mandatory redemption of the Series 1985A NYSERDA Bonds, on the
date fixed for such mandatory redemption of the Series 1985A NYSERDA Bonds, upon
notice given as hereinafter in this Section 3 provided, at the applicable
redemption price specified in the Series 0000X XXXXXXX Xxxxxxxxx for the Series
1985A NYSERDA Bonds being redeemed, in such amount as, together with any moneys
available therefor under the Series 1985A NYSERDA Indenture, shall be required,
in accordance with the provisions of the Series 1985A NYSERDA Participation
Agreement and the Series 0000X XXXXXXX Xxxxxxxxx, to pay the principal of and
premium, if any, and interest on the Series 1985A NYSERDA Bonds so
redeemed.
The Amended and Restated Bonds of the Eighty-fourth Series are subject to
mandatory redemption, as a whole but not in part, at a redemption price equal to
100% of the principal amount thereof, together with interest accrued to the date
fixed for redemption, upon a declaration by the Series 1985A NYSERDA Trustee
that the principal of all Series 1985A NYSERDA Bonds then outstanding is
immediately due and payable pursuant to the Series 1985A NYSERDA Indenture and
upon written notice thereof by the Series 1985A NYSERDA Trustee to the Trustee
at least 30 days prior to the date fixed for redemption, provided that no
written cancellation of such declaration shall have been received by the Trustee
and the Company prior to notice of such redemption having been given to the
Trustee.
No redemption of the Amended and Restated Bonds of the Eighty-fourth
Series, either as a whole or in part, may be made except in connection with the
payment of a like principal amount of Series 1985A NYSERDA Bonds, either by
redemption or at maturity (stated or otherwise), which Series 1985A NYSERDA
Bonds, shall not thereafter be remarketed. The principal amount of the Series
1985A NYSERDA Bonds and, therefore, the principal of the Bonds of the
Eighty-fourth Series, may be prepaid, and the due dates thereof shall be
accelerated, in accordance with the terms of the Series 1985A NYSERDA
Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Amended and Restated Bonds of the Eighty-fourth Series then
outstanding, the Company shall give to the Trustee notice in writing at least 45
days prior to the redemption date fixed by the Company (unless a shorter notice
is required for the corresponding redemption under the Series 1985A NYSERDA
Indenture or shall be satisfactory to the Trustee) of the principal amount of
Amended and Restated Bonds of the Eighty-fourth Series which it desires or is
required to redeem, specifying the date on which it desires or is required to
make redemption. There shall be furnished to the Trustee a certificate or
opinion executed by the President or a Vice-President and the Treasurer or an
Assistant Treasurer of the Company stating that the conditions precedent
specified in this Section 3 with respect to such redemption have been complied
with and notwithstanding anything to the contrary contained herein or in the
Indenture, prior to receipt of a notice of default, the Trustee shall be
entitled and authorized to rely conclusively thereon. As soon as practicable
thereafter, if the Bonds are to be redeemed in part, the Trustee shall issue to
the Series 1985A NYSERDA Trustee, a new Bond or Bonds of the Eighty-fourth
Series in the principal amount not so redeemed in exchange for the outstanding
Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, accept the certificate of the President or any
Vice President or the Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption have been fully
complied with or the Trustee may, at its option and at the expense and on behalf
of the Company, give such notice and take any other action required of the
Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Amended and
Restated Bonds of the Eighty-fourth Series called for redemption, which together
with any moneys available therefor under the Series 0000X XXXXXXX Xxxxxxxxx is
sufficient to redeem, at the redemption price payable as hereinbefore provided,
the Bonds of such series designated for redemption and the called part of any
Bond of such series called only in part, and to pay the interest accrued thereon
up to said redemption date, to be applied by the Trustee to the payment of such
Bonds (and the called part of any such Bond) and such accrued interest thereon
upon presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in ArticleΒ Fourth of the Indenture
and except that, if less than the entire principal amount of any Bond shall be
so redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Amended and Restated Bonds of the
Eighty-fourth Series, for a principal amount equal to the uncalled and unpaid
balance of the principal amount of such Bond, will be executed by the Company
and shall be authenticated and delivered by the Trustee to the owner of such
Bond, without expense to such owner. If the Series 1985A NYSERDA Bonds have
been redeemed in whole or in part, the Amended and Restated Bonds of the
Eighty-fourth Series shall be deemed to have been redeemed in whole or in part
in the equivalent principal amount. The Trustee shall be entitled and
authorized to rely conclusively on a certificate of the Company as to such
redemption, together with the surrender by the Bondholder of such redeemed Bonds
for cancellation or for exchange for one or more replacement Bonds in the
aggregate principal amount of such unredeemed portion of the Bonds as evidence
of such redemption. Notwithstanding the foregoing, the principal and interest
due on the Amended and Restated Bonds of the Eighty-fourth Series shall continue
or be reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Amended and Restated Bonds of the Eighty-fourth
Series or the Series 1985A NYSERDA Bonds) is rescinded or must otherwise be
returned by the Series 1985A NYSERDA Trustee or the holders of the Series 1985A
NYSERDA Bonds or any other person upon the insolvency, bankruptcy or
reorganization of the Company or by operation of law, all as though payment had
not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Amended and Restated Bond of the Eighty-fourth Series may at any time
surrender the same at the corporate trust office of the Trustee, or at any other
office or agency of the Trustee or the Company maintained for such purpose, and
with instruments of transfer satisfactory to the Trustee, and, subject to the
terms, conditions and limitations specified in the Indenture, shall be entitled
to receive in exchange therefor an equal principal amount of Bonds of said
series of other authorized denominations; and the Company will provide, and the
Trustee shall authenticate and deliver, the Bonds necessary to make such
exchange. The Amended and Restated Bonds of the Eighty-fourth Series are
nontransferable except to effect transfer to any successor to the Series 1985A
NYSERDA Trustee, to the Bond Insurer or to any successor to the Bond Insurer,
any such transfer of an Amended and Restated Bond of the Eighty-fourth Series to
be made at the principal corporate trust office of the Trustee, upon surrender
and cancellation of such Bond, accompanied by a written instrument of transfer
in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Amended and Restated Bond or Bonds of the Eighty-fourth Series, for a like
principal amount and bearing interest at the same rates and having the same
maturity date, will be issued to the successor to the Series 1985A NYSERDA
Trustee, the Bond Insurer or the successor to the Bond Insurer, as the case may
be, in exchange therefor, as provided in the Indenture. The provisions of
Section 12 of Article Second of the Original Indenture to the contrary
notwithstanding, no payment of a service charge shall be required for any
exchange or registration of transfer, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto.
Section 6. Form of Amended and Restated Bonds of the Eighty-fourth
Series. The definitive Amended and Restated Bonds of the Eighty-fourth
Series, and the Trusteeβs certificate to be inscribed on all Bonds of said
series, are to be substantially in the forms set forth in Exhibit A.
Such Amended and Restated Bonds of the Eighty-fourth Series shall be issued to
the NYSERDA Trustee, in the initial principal amount, and with the description
of the Bonds, identification of the series of NYSERDA Bonds and the
corresponding NYSERDA Trustee and the NYSERDA Indenture, all as specified in
SectionΒ 1 of this ArticleΒ III.
ARTICLE IV
AMENDMENT AND RESTATEMENT
OF THE EIGHTY-FIFTH SERIES OF FIRST MORTGAGE BONDS
AMENDMENT AND RESTATEMENT
OF THE EIGHTY-FIFTH SERIES OF FIRST MORTGAGE BONDS
Section 1. Amendment and Restatement of Bonds of the Eighty-fifth
Series. At such time as all Prior First Mortgage Bonds of the Eighty-fifth
Series issued under the Prior Supplemental Indenture not heretofore cancelled by
the Trustee or delivered to the Trustee cancelled or for cancellation have been
delivered to the Trustee by the registered holder thereof to be exchanged for
new Bonds under this Article IV (which shall be deemed to be the "Effective
Date" of this Article IV), such Prior First Mortgage Bonds of the
Eighty-fifth Series not heretofore cancelled by the Trustee or delivered to the
Trustee cancelled or for cancellation shall be amended and restated as set forth
in this Article IV and redesignated "First Mortgage Bonds, Floating Rate
Series E due December 1, 2025" (hereinafter sometimes referred to as the
"Amended and Restated Bonds of the Eighty-fifth Series").
The Amended and Restated Bonds of the Eighty-fifth Series shall be
registered in the name of the Series 1985C NYSERDA Trustee, as trustee on behalf
of the holders of the Series 1985C NYSERDA Bonds, pursuant to the Series
1985C NYSERDA Indenture.
The permitted principal amount of the Amended and Restated Bonds of the
Eighty-fifth Series which may be amended and restated by the Company and
executed by the Company in connection therewith and authenticated by the Trustee
is limited so that at no time shall there be authenticated, delivered or
outstanding under the Indenture, Amended and Restated Bonds of the Eighty-fifth
Series for a principal amount exceeding $37,500,000, except that Amended and
Restated Bonds of the Eighty-fifth Series may always be issued as provided in
Section 2 of Article Fourth of the Indenture.
On the Effective Date of this Article IV, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of ArticleΒ Second of the Indenture, the Amended and
Restated Bonds of the Eighty-fifth Series in an aggregate principal amount not
exceeding $37,500,000 and deliver the same to the Series 1985C NYSERDA Trustee,
in exchange for certificates representing the same principal amount of the Prior
First Mortgage Bonds delivered to the Trustee by the Series 1985C NYSERDA
Trustee or Xxxxxx Guaranty Trust Company, as the Prior LC Issuer.
Section 2. Terms of the Amended and Restated Bonds of the Eighty-fifth
Series. The Amended and Restated Bonds of the Eighty-fifth Series shall
mature according to their terms on December 1, 2025 and, in the case of the
initial authentication of the Amended and Restated Bonds of the Eighty-fifth
Series, shall be dated the Effective Date and shall bear interest from the
Effective Date at the rate per annum sufficient to pay interest accruing on the
Series 1985C NYSERDA Bonds, as it becomes due, payable on the dates on which
interest is payable on the Series 1985C NYSERDA Bonds, under the Series 1985C
NYSERDA Indenture. The principal of, and premium, if any, in respect of, the
Amended and Restated Bonds of the Eighty-fifth Series shall be payable on the
same date or dates and in the same amounts as set forth in the Series 1985C
NYSERDA Indenture for the payment of principal on, or premium, if any, in
respect of, the Series 1985C NYSERDA Bonds. Definitive Bonds of said series
shall be registered Bonds without coupons and shall be issued in denominations
of $1,000 and multiples thereof.
Subsequent to the initial authentication of the Amended and Restated Bonds
of the Eighty-fifth Series, each Amended and Restated Bond of the Eighty-fifth
Series shall be dated as of the date of its authentication and shall bear
interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Amended and Restated Bonds of the Eighty-fifth Series shall be
fully or partially satisfied and discharged, and the amount of any such payment
shall be reduced, to the extent that the Company shall have made the payment, in
full or in part, of principal and premium, if any, and interest then due on the
Series 1985C NYSERDA Bonds, and the Trustee shall not have received written
notice from the Company that the obligation of the Company shall not be so
satisfied and discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Amended and Restated Bonds of the Eighty-fifth Series or, as that
term is defined in the Series 1985C NYSERDA Indenture, with respect to the
Series 1985C NYSERDA Bonds, has occurred and no amounts are due under the
Amended and Restated Bonds of the Eighty-third Series unless and until the
Trustee shall have received from the Series 1985C NYSERDA Trustee a notice of
the occurrence of an Event of Default (as defined in the Series 0000X XXXXXXX
Xxxxxxxxx) or written demand from the Series 1985C NYSERDA Trustee (which notice
or demand has not been subsequently rescinded or revoked by the Series 1985C
NYSERDA Trustee), setting forth in detail the amount then due with respect to
such Series 1985C NYSERDA Bonds, which statement shall, unless and until
revoked, rescinded or amended by the Series 1985C NYSERDA Trustee, be deemed to
be correct, and the Trustee shall be entitled and authorized to rely
conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Amended and Restated Bonds of the Eighty-fifth Series
were registered at the close of business on the record date for such payment of
interest (except any such Bond which has been called for redemption on a date
fixed for such redemption which is after such record date and prior to such
interest payment date) notwithstanding any cancellation of Amended and Restated
Bonds of the Eighty-fifth Series upon any registration of transfer or exchange
thereof between such record date and such interest payment date; except that if
the Company shall default in the payment of any interest due on such interest
payment date such defaulted interest shall be paid to the persons in whose names
Amended and Restated Bonds of the Eighty-fifth Series are registered either at
the close of business on the date preceding the date of payment of such
defaulted interest or on a subsequent record date fixed for the payment of such
defaulted interest by notice given by mail by or on behalf of the Company to
holders of Bonds of the Eighty-fifth Series not less than ten calendar days
preceding such subsequent record date. The term "record date" as used
herein shall mean, with respect to a regular interest payment date, the close of
business on the day that is ten calendar days prior to such interest payment
date or, if such day shall be a day on which banking institutions in The City of
New York are authorized by law to close, the next preceding day which shall not
be a day on which such institutions are so authorized to close or, in the case
of defaulted interest, the close of business on any subsequent record date
established as provided above.
All of the Amended and Restated Bonds of the Eighty-fifth Series shall be
executed in the name and on behalf of the Company by a facsimile of the
signature (or manual signature) of its President or a Vice President, and
imprinted with its corporate seal (or a facsimile thereof), attested by a
facsimile of the signature (or manual signature) of its Secretary or an
Assistant Secretary.
Amended and Restated Bonds of the Eighty-fifth Series shall be lettered
"RU" and numbered consecutively from RU-4 upwards, or shall bear such
other letters as may be provided therefor by the Board of Directors of the
Company.
To the extent that any payment of principal of and interest on the Amended
and Restated Bonds of the Eighty-fifth Series (as well as any premium thereon
applicable in case of any redemption thereof prior to maturity) shall be
payable, all such amounts shall be payable at the office of the Companyβs
paying agent, which in the case of HSBC Bank USA, shall be its corporate trust
office in the Borough of Manhattan, The City of New York, State of New York, or
at such other office or agency in the Borough of Manhattan, The City of New
York, State of New York, as shall be maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts.
Section 3. Redemption of the Amended and Restated Bonds of the
Eighty-fifth Series. The Amended and Restated Bonds of the Eighty-fifth
Series are subject to mandatory redemption, in whole or in part, in the event of
any optional or mandatory redemption of the Series 1985C NYSERDA Bonds, on the
date fixed for such mandatory redemption of the Series 1985C NYSERDA Bonds, upon
notice given as hereinafter in this Section 3 provided, at the applicable
redemption price specified in the Series 1985C NYSERDA Indenture for the Series
1985C NYSERDA Bonds being redeemed, in such amount as, together with any moneys
available therefor under the Series 1985C NYSERDA Indenture, shall be required,
in accordance with the provisions of the Series 1985C NYSERDA Participation
Agreement and the Series 0000X XXXXXXX Xxxxxxxxx, to pay the principal of and
premium, if any, and interest on the Series 1985C NYSERDA Bonds, so
redeemed.
The Amended and Restated Bonds of the Eighty-fifth Series are subject to
mandatory redemption, as a whole but not in part, at a redemption price equal to
100% of the principal amount thereof, together with interest accrued to the date
fixed for redemption, upon a declaration by the Series 1985C NYSERDA Trustee
that the principal of all Series 1985C NYSERDA Bonds then outstanding is
immediately due and payable pursuant to the Series 1985C NYSERDA Indenture and
upon written notice thereof by the Series 1985C NYSERDA Trustee to the Trustee
at least 30 days prior to the date fixed for redemption, provided that no
written cancellation of such declaration shall have been received by the Trustee
and the Company prior to notice of such redemption having been given to the
Trustee.
No redemption of the Amended and Restated Bonds of the Eighty-fifth
Series, either as a whole or in part, may be made except in connection with the
payment of a like principal amount of Series 1985C NYSERDA Bonds, either by
redemption or at maturity (stated or otherwise), which Series 1985C NYSERDA
Bonds, shall not thereafter be remarketed. The principal amount of the Series
1985C NYSERDA Bonds and, therefore, the principal of the Bonds of the
Eighty-fifth Series, may be prepaid, and the due dates thereof shall be
accelerated, in accordance with the terms of the Series 1985C NYSERDA
Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Amended and Restated Bonds of the Eighty-fifth Series then
outstanding, the Company shall give to the Trustee notice in writing at least 45
days prior to the redemption date fixed by the Company (unless a shorter notice
is required for the corresponding redemption under the Series 1985C NYSERDA
Indenture or shall be satisfactory to the Trustee) of the principal amount of
Amended and Restated Bonds of the Eighty-fifth Series which it desires or is
required to redeem, specifying the date on which it desires or is required to
make redemption. There shall be furnished to the Trustee a certificate or
opinion executed by the President or a Vice-President and the Treasurer or an
Assistant Treasurer of the Company stating that the conditions precedent
specified in this Section 3 with respect to such redemption have been complied
with and notwithstanding anything to the contrary contained herein or in the
Indenture, prior to receipt of a notice of default, the Trustee shall be
entitled and authorized to rely conclusively thereon. As soon as practicable
thereafter, if the Bonds are to be redeemed in part, the Trustee shall issue to
the Series 1985C NYSERDA Trustee, a new Bond or Bonds of the Eighty-fifth Series
in the principal amount not so redeemed in exchange for the outstanding
Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
ArticleΒ Tenth of the Indenture, accept the certificate of the President or
any Vice President or the Treasurer of the Company as sufficient evidence that
the requirements as to mailing of notices of the call for redemption have been
fully complied with or the Trustee may, at its option and at the expense and on
behalf of the Company, give such notice and take any other action required of
the Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Amended and
Restated Bonds of the Eighty-fifth Series called for redemption, which together
with any moneys available therefor under the Series 1985C NYSERDA Indenture is
sufficient to redeem, at the redemption price payable as hereinbefore provided,
the Bonds of such series designated for redemption and the called part of any
Bond of such series called only in part, and to pay the interest accrued thereon
up to said redemption date, to be applied by the Trustee to the payment of such
Bonds (and the called part of any such Bond) and such accrued interest thereon
upon presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Amended and Restated Bonds of the
Eighty-fifth Series, for a principal amount equal to the uncalled and unpaid
balance of the principal amount of such Bond, will be executed by the Company
and shall be authenticated and delivered by the Trustee to the owner of such
Bond, without expense to such owner. If the Series 1985C NYSERDA Bonds have
been redeemed in whole or in part, the Amended and Restated Bonds of the
Eighty-fifth Series shall be deemed to have been redeemed in whole or in part in
the equivalent principal amount. The Trustee shall be entitled and authorized
to rely conclusively on a certificate of the Company as to such redemption,
together with the surrender by the Bondholder of such redeemed Bonds for
cancellation or for exchange for one or more replacement Bonds in the aggregate
principal amount of such unredeemed portion of the Bonds as evidence of such
redemption. Notwithstanding the foregoing, the principal and interest due on
the Amended and Restated Bonds of the Eighty-fifth Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Amended and Restated Bonds of the Eighty-fifth
Series or the Series 1985C NYSERDA Bonds) is rescinded or must otherwise be
returned by the Series 1985C NYSERDA Trustee or the holders of the Series 1985C
NYSERDA Bonds or any other person upon the insolvency, bankruptcy or
reorganization of the Company or by operation of law, all as though payment had
not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Amended and Restated Bond of the Eighty-fifth Series may at any time
surrender the same at the corporate trust office of the Trustee, or at any other
office or agency of the Trustee or the Company maintained for such purpose, and
with instruments of transfer satisfactory to the Trustee, and, subject to the
terms, conditions and limitations specified in the Indenture, shall be entitled
to receive in exchange therefor an equal principal amount of Bonds of said
series of other authorized denominations; and the Company will provide, and the
Trustee shall authenticate and deliver, the Bonds necessary to make such
exchange. The Amended and Restated Bonds of the Eighty-fifth Series are
nontransferable except to effect transfer to any successor to the Series 1985C
NYSERDA Trustee, to the Bond Insurer or to any successor to the Bond Insurer,
any such transfer of an Amended and Restated Bond of the Eighty-fifth Series to
be made at the principal corporate trust office of the Trustee, upon surrender
and cancellation of such Bond, accompanied by a written instrument of transfer
in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Amended and Restated Bond or Bonds of the Eighty-fifth Series, for a like
principal amount and bearing interest at the same rates and having the same
maturity date, will be issued to the successor to the Series 1985C NYSERDA
Trustee, the Bond Insurer or the successor to the Bond Insurer, as the case may
be, in exchange therefor, as provided in the Indenture. The provisions of
Section 12 of Article Second of the Original Indenture to the contrary
notwithstanding, no payment of a service charge shall be required for any
exchange or registration of transfer, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto.
Section 6. Form of Amended and Restated Bonds of the Eighty-fifth
Series. The definitive Amended and Restated Bonds of the Eighty-fifth
Series, and the Trusteeβs certificate to be inscribed on all Bonds of said
series, are to be substantially in the forms set forth in Exhibit A.
Such Amended and Restated Bonds of the Eighty-fifth Series shall be issued to
the NYSERDA Trustee, in the initial principal amount, and with the description
of the Bonds, identification of the series of NYSERDA Bonds and the
corresponding NYSERDA Trustee and the NYSERDA Indenture, all as specified in
SectionΒ 1 of this ArticleΒ IV.
ARTICLE V
AMENDMENT AND RESTATEMENT OF
THE FIRST SPLIT PORTION OF THE BONDS OF THE EIGHTY-THIRD SERIES
REDESIGNATED AS THE BONDS OF THE EIGHTY-NINTH SERIES
AMENDMENT AND RESTATEMENT OF
THE FIRST SPLIT PORTION OF THE BONDS OF THE EIGHTY-THIRD SERIES
REDESIGNATED AS THE BONDS OF THE EIGHTY-NINTH SERIES
Section 1. Exchange, Amendment and Restatement of Bonds of the
Eighty-ninth Series. At such time as Prior First Mortgage Bonds of the
Eighty-third Series in the principal amount of $69,800,000 issued under the
Prior Supplemental Indenture not heretofore cancelled by the Trustee or
delivered to the Trustee cancelled or for cancellation have been delivered to
the Trustee by the registered holder thereof to be exchanged for new Bonds under
this Article V (which shall be deemed to be the "Effective Date" of this
Article V), such portion of the Prior First Mortgage Bonds of the
Eighty-third Series shall be split from the remaining Prior First Mortgage Bonds
of the Eighty-third Series, shall be amended and restated as set forth in this
Article V, and shall be redesignated "First Mortgage Bonds, Floating Rate
Series F due December 1, 2023" (hereinafter sometimes referred to as the
"Bonds of the Eighty-ninth Series").
The Bonds of the Eighty-ninth Series shall be registered in the name of
the Series 1988A NYSERDA Trustee, as trustee on behalf of the holders of the
Series 1988A NYSERDA Bonds pursuant to the Series 1988A NYSERDA
Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Bonds of the Eighty-ninth Series which may be amended and restated by the
Company and executed by the Company in connection therewith and authenticated by
the Trustee is limited so that at no time shall there be authenticated,
delivered or outstanding under the Indenture, Bonds of the Eighty-ninth Series
for a principal amount exceeding $69,800,000, except that Bonds of the
Eighty-ninth Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
On the Effective Date of this Article V, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Bonds of the
Eighty-ninth Series in an aggregate principal amount not exceeding $69,800,000
and deliver the same to the Series 1988A NYSERDA Trustee, in exchange for
certificates representing the same principal amount of the Prior First Mortgage
Bonds delivered to the Trustee by the NYSERDA Trustee or Xxxxxx Guaranty Trust
Company, as the Prior LC Issuer.
Section 2. Terms of the Bonds of the Eighty-ninth Series. The
Bonds of the Eighty-ninth Series shall mature according to their terms on
December 1, 2023 and, in the case of the initial authentication of the Bonds of
the Eighty-ninth Series, shall be dated the Effective Date and shall bear
interest from the Effective Date at the rate per annum sufficient to pay
interest accruing on the Series 1988A NYSERDA Bonds as it becomes due, payable
on the dates on which interest is payable on the SeriesΒ 1988A NYSERDA Bonds
under the SeriesΒ 1988A NYSERDA Indenture. The principal of, and premium,
if any, in respect of, the Bonds of the Eighty-ninth Series shall be payable on
the same date or dates and in the same amounts as set forth in the Series 1988A
NYSERDA Indenture for the payment of principal on, or premium, if any, in
respect of, the Series 1988A NYSERDA Bonds. Definitive Bonds of said series
shall be registered Bonds without coupons and shall be issued in denominations
of $1,000 and multiples thereof.
Subsequent to the initial authentication of the Bonds of the Eighty-ninth
Series, each Bond of the Eighty-ninth Series shall be dated as of the date of
its authentication and shall bear interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Bonds of the Eighty-ninth Series shall be fully or partially
satisfied and discharged, and the amount of any such payment shall be reduced,
to the extent that the Company shall have made the payment, in full or in part,
of principal and premium, if any, and interest then due on the Series 1988A
NYSERDA Bonds, and the Trustee shall not have received written notice from the
Company that the obligation of the Company shall not be so satisfied and
discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Bonds of the Eighty-ninth Series or, as that term is defined in
the Series 0000X XXXXXXX Xxxxxxxxx, with respect to the Series 1988A NYSERDA
Bonds, has occurred and no amounts are due under the Bonds of the Eighty-ninth
Series unless and until the Trustee shall have received from the Series 1988A
NYSERDA Trustee a notice of the occurrence of an Event of Default (as defined in
the Series 0000X XXXXXXX Xxxxxxxxx) or written demand from the Series 1988A
NYSERDA Trustee (which notice or demand has not been subsequently rescinded or
revoked by the Series 1988A NYSERDA Trustee), setting forth in detail the amount
then due with respect to such Series 1988A NYSERDA Bonds, which statement shall,
unless and until revoked, rescinded or amended by the Series 1988A NYSERDA
Trustee, be deemed to be correct, and the Trustee shall be entitled and
authorized to rely conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Bonds of the Eighty-ninth Series were registered at
the close of business on the record date for such payment of interest (except
any such Bond which has been called for redemption on a date fixed for such
redemption which is after such record date and prior to such interest payment
date) notwithstanding any cancellation of Bonds of the Eighty-ninth Series upon
any registration of transfer or exchange thereof between such record date and
such interest payment date; except that if the Company shall default in the
payment of any interest due on such interest payment date such defaulted
interest shall be paid to the persons in whose names Bonds of the Eighty-ninth
Series are registered either at the close of business on the date preceding the
date of payment of such defaulted interest or on a subsequent record date fixed
for the payment of such defaulted interest by notice given by mail by or on
behalf of the Company to holders of Bonds of the Eighty-ninth Series not less
than ten calendar days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to a regular
interest payment date, the close of business on the day that is ten calendar
days prior to such interest payment date or, if such day shall be a day on which
banking institutions in The City of New York are authorized by law to close, the
next preceding day which shall not be a day on which such institutions are so
authorized to close or, in the case of defaulted interest, the close of business
on any subsequent record date established as provided above.
All of the Bonds of the Eighty-ninth Series shall be executed in the name
and on behalf of the Company by a facsimile of the signature (or manual
signature) of its President or a Vice President, and imprinted with its
corporate seal (or a facsimile thereof), attested by a facsimile of the
signature (or manual signature) of its Secretary or an Assistant
Secretary.
Bonds of the Eighty-ninth Series shall be lettered "RU" and
numbered consecutively from RU-1 upwards, or shall bear such other letters as
may be provided therefor by the Board of Directors of the Company.
Both principal of and interest on the Bonds of the Eighty-ninth Series (as
well as any premium thereon applicable in case of any redemption thereof prior
to maturity) shall be payable at the office of the Companyβs paying agent,
which in the case of HSBC Bank USA, shall be its corporate trust office in the
Borough of Manhattan, The City of New York, State of New York, or at such other
office or agency in the Borough of Manhattan, The City of New York, State of New
York, as shall be maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts.
Section 3. Redemption of the Bonds of the Eighty-ninth Series. The
Bonds of the Eighty-ninth Series are subject to mandatory redemption, in whole
or in part, in the event of any optional or mandatory redemption of the Series
1988A NYSERDA Bonds, on the date fixed for such mandatory redemption of the
Series 1988A NYSERDA Bonds, upon notice given as hereinafter in this Section 3
provided, at the applicable redemption price specified in the Series 0000X
XXXXXXX Xxxxxxxxx for the Series 1988A NYSERDA Bonds being redeemed, in such
amount as, together with any moneys available therefor under the Series 1988A
NYSERDA Indenture, shall be required, in accordance with the provisions of the
Series 1988A NYSERDA Participation Agreement and the Series 0000X XXXXXXX
Xxxxxxxxx, to pay the principal of and premium, if any, and interest on the
Series 1988A NYSERDA Bonds so redeemed.
The Bonds of the Eighty-ninth Series are subject to mandatory redemption,
as a whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, together with interest accrued to the date fixed for redemption,
upon a declaration by the Series 1988A NYSERDA Trustee that the principal of all
Series 1988A NYSERDA Bonds then outstanding is immediately due and payable
pursuant to the Series 1988A NYSERDA Indenture and upon written notice thereof
by the Series 1988A NYSERDA Trustee to the Trustee at least 30 days prior to the
date fixed for redemption, provided that no written cancellation of such
declaration shall have been received by the Trustee and the Company prior to
notice of such redemption having been given to the Trustee.
No redemption of the Bonds of the Eighty-ninth Series, either as a whole
or in part, may be made except in connection with the payment of a like
principal amount of Series 1988A NYSERDA Bonds, either by redemption or at
maturity (stated or otherwise), which Series 1988A NYSERDA Bonds, shall not
thereafter be remarketed. The principal amount of the Series 1988A NYSERDA
Bonds and, therefore, the principal of the Bonds of the Eighty-ninth Series, may
be prepaid, and the due dates thereof shall be accelerated, in accordance with
the terms of the Series 1988A NYSERDA Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Bonds of the Eighty-ninth Series then outstanding, the
Company shall give to the Trustee notice in writing at least 45 days prior to
the redemption date fixed by the Company (unless a shorter notice is required
for the corresponding redemption under the Series 1988A NYSERDA Indenture or
shall be satisfactory to the Trustee) of the principal amount of Bonds of the
Eighty-ninth Series which it desires or is required to redeem, specifying the
date on which it desires or is required to make redemption. There shall be
furnished to the Trustee a certificate or opinion executed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company
stating that the conditions precedent specified in this Section 3 with respect
to such redemption have been complied with and notwithstanding anything to the
contrary contained herein or in the Indenture, prior to receipt of a notice of
default, the Trustee shall be entitled and authorized to rely conclusively
thereon. As soon as practicable thereafter, if the Bonds are to be redeemed in
part, the Trustee shall issue to the Series 1988A NYSERDA Trustee a new Bond or
Bonds of the Eighty-ninth Series in the principal amount not so redeemed in
exchange for the outstanding Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, accept the certificate of the President or any
Vice President or the Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption have been fully
complied with or the Trustee may, at its option and at the expense and on behalf
of the Company, give such notice and take any other action required of the
Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Bonds of
the Eighty-ninth Series called for redemption, which together with any moneys
available therefor under the Series 0000X XXXXXXX Xxxxxxxxx is sufficient to
redeem, at the redemption price payable as hereinbefore provided, the Bonds of
such series designated for redemption and the called part of any Bond of such
series called only in part, and to pay the interest accrued thereon up to said
redemption date, to be applied by the Trustee to the payment of such Bonds (and
the called part of any such Bond) and such accrued interest thereon upon
presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Bonds of the Eighty-ninth Series, for a
principal amount equal to the uncalled and unpaid balance of the principal
amount of such Bond, will be executed by the Company and shall be authenticated
and delivered by the Trustee to the owner of such Bond, without expense to such
owner. If the Series 1988A NYSERDA Bonds have been redeemed in whole or in
part, the Bonds of the Eighty-ninth Series shall be deemed to have been redeemed
in whole or in part in the equivalent principal amount. The Trustee shall be
entitled and authorized to rely conclusively on a certificate of the Company as
to such redemption, together with the surrender by the Bondholder of such
redeemed Bonds for cancellation or for exchange for one or more replacement
Bonds in the aggregate principal amount of such unredeemed portion of the Bonds
as evidence of such redemption. Notwithstanding the foregoing, the principal
and interest due on the Bonds of the Eighty-ninth Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Bonds of the Eighty-ninth Series or the Series 1988A
NYSERDA Bonds) is rescinded or must otherwise be returned by the Series 1988A
NYSERDA Trustee or the holders of the Series 1988A NYSERDA Bonds or any other
person upon the insolvency, bankruptcy or reorganization of the Company or by
operation of law, all as though payment had not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Bond of the Eighty-ninth Series may at any time surrender the same at the
corporate trust office of the Trustee, or at any other office or agency of the
Trustee or the Company maintained for such purpose, and with instruments of
transfer satisfactory to the Trustee, and, subject to the terms, conditions and
limitations specified in the Indenture, shall be entitled to receive in exchange
therefor an equal principal amount of Bonds of said series of other authorized
denominations; and the Company will provide, and the Trustee shall authenticate
and deliver, the Bonds necessary to make such exchange. The Bonds of the
Eighty-ninth Series are nontransferable except to effect transfer to any
successor to the Series 1988A NYSERDA Trustee, to the Bond Insurer or to any
successor to the Bond Insurer, any such transfer of a Bond of the Eighty-ninth
Series to be made at the principal corporate trust office of the Trustee, upon
surrender and cancellation of such Bond, accompanied by a written instrument of
transfer in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Bond or Bonds of the Eighty-ninth Series, for a like principal amount and
bearing interest at the same rates and having the same maturity date, will be
issued to the successor to the Series 1988A NYSERDA Trustee, the Bond Insurer or
the successor to the Bond Insurer, as the case may be, in exchange therefor, as
provided in the Indenture. The provisions of Section 12 of Article Second of
the Original Indenture to the contrary notwithstanding, no payment of a service
charge shall be required for any exchange or registration of transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Section 6. Form of Bonds of the Eighty-ninth Series. The
definitive Bonds of the Eighty-ninth Series, and the Trusteeβs certificate
to be inscribed on all Bonds of said series, are to be substantially in the
forms set forth in Exhibit A. Such Bonds of the Eighty-ninth Series
shall be issued to the NYSERDA Trustee, in the initial principal amount, and
with the description of the Bonds, identification of the series of NYSERDA Bonds
and the corresponding NYSERDA Trustee and the NYSERDA Indenture, all as
specified in SectionΒ 1 of this ArticleΒ V.
ARTICLE VI
AMENDMENT AND RESTATEMENT OF
THE SECOND SPLIT PORTION OF THE BONDS OF THE EIGHTY-THIRD SERIES
REDESIGNATED AS THE BONDS OF THE NINETIETH SERIES
AMENDMENT AND RESTATEMENT OF
THE SECOND SPLIT PORTION OF THE BONDS OF THE EIGHTY-THIRD SERIES
REDESIGNATED AS THE BONDS OF THE NINETIETH SERIES
Section 1. Exchange, Amendment and Restatement of Bonds of the
Ninetieth Series. At such time as Prior First Mortgage Bonds of the
Eighty-third Series in the principal amount of $25,000,000 issued under the
Prior Supplemental Indenture not heretofore cancelled by the Trustee or
delivered to the Trustee cancelled or for cancellation have been delivered to
the Trustee by the registered holder thereof to be exchanged for new Bonds under
this ArticleΒ VI (which shall be deemed to be the "Effective Date" of
this Article VI), such portion of the Prior First Mortgage Bonds of the
Eighty-third Series shall be split from the remaining Prior First Mortgage Bonds
of the Eighty-third Series, shall be amended and restated as set forth in this
Article VI, and shall be redesignated "First Mortgage Bonds, Floating Rate
SeriesΒ G due JulyΒ 1, 2027" (hereinafter sometimes referred to as
the "Bonds of the Ninetieth Series").
The Bonds of the Ninetieth Series shall be registered in the name of the
Series 1987B NYSERDA Trustee, as trustee on behalf of the holders of the Series
1987B-2 NYSERDA Bonds pursuant to the Series 1987B NYSERDA Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Bonds of the Ninetieth Series which may be amended and restated by the
Company and executed by the Company in connection therewith and authenticated by
the Trustee is limited so that at no time shall there be authenticated,
delivered or outstanding under the Indenture, Bonds of the Ninetieth Series for
a principal amount exceeding $25,000,000, except that Bonds of the Ninetieth
Series may always be issued as provided in Section 2 of Article Fourth of the
Indenture.
On the Effective Date of this Article VI, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Bonds of the
Ninetieth Series in an aggregate principal amount not exceeding $25,000,000, and
deliver the same to the Series 1987B NYSERDA Trustee, in exchange for
certificates representing the same principal amount of the Prior First Mortgage
Bonds delivered to the Trustee by the NYSERDA Trustee or Xxxxxx Guaranty Trust
Company, as the Prior LC Issuer.
Section 2. Terms of the Bonds of the Ninetieth Series. The Bonds
of the Ninetieth Series shall mature according to their terms on July 1, 2027,
and, in the case of the initial authentication of the Bonds of the Ninetieth
Series, shall be dated the Effective Date and shall bear interest from the
Effective Date at the rate per annum sufficient to pay interest accruing on the
Series 1987B-2 NYSERDA Bonds as it becomes due, payable on the dates on which
interest is payable on the Series 1987B-2 NYSERDA Bonds under the Series 1987B
NYSERDA Indenture. The principal of, and premium, if any, in respect of, the
Bonds of the Ninetieth Series shall be payable on the same date or dates and in
the same amounts as set forth in the Series 1987B NYSERDA Indenture for the
payment of principal on, or premium, if any, in respect of, the Series 1987B-2
NYSERDA Bonds. Definitive Bonds of said series shall be registered Bonds
without coupons and shall be issued in denominations of $1,000 and multiples
thereof.
Subsequent to the initial authentication of the Bonds of the Ninetieth
Series, each Bond of the Ninetieth Series shall be dated as of the date of its
authentication and shall bear interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Bonds of the Ninetieth Series shall be fully or partially
satisfied and discharged, and the amount of any such payment shall be reduced,
to the extent that the Company shall have made the payment, in full or in part,
of principal and premium, if any, and interest then due on the Series 1987B
NYSERDA Bonds, and the Trustee shall not have received written notice from the
Company that the obligation of the Company shall not be so satisfied and
discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Bonds of the Ninetieth Series or, as that term is defined in the
Series 1987B NYSERDA Indenture, with respect to the Series 1987B-2 NYSERDA
Bonds, has occurred and no amounts are due under the Bonds of the Ninetieth
Series unless and until the Trustee shall have received from the Series 1987B
NYSERDA Trustee a notice of the occurrence of an Event of Default (as defined in
the Series 1987B NYSERDA Indenture) or written demand from the Series 1987B
NYSERDA Trustee (which notice or demand has not been subsequently rescinded or
revoked by the Series 1987B NYSERDA Trustee), setting forth in detail the amount
then due with respect to such Series 1987B-2 NYSERDA Bonds, which statement
shall, unless and until revoked, rescinded or amended by the Series 1987B
NYSERDA Trustee, be deemed to be correct, and the Trustee shall be entitled and
authorized to rely conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Bonds of the Ninetieth Series were registered at the
close of business on the record date for such payment of interest (except any
such Bond which has been called for redemption on a date fixed for such
redemption which is after such record date and prior to such interest payment
date) notwithstanding any cancellation of Bonds of the Ninetieth Series upon any
registration of transfer or exchange thereof between such record date and such
interest payment date; except that if the Company shall default in the payment
of any interest due on such interest payment date such defaulted interest shall
be paid to the persons in whose names Bonds of the Ninetieth Series are
registered either at the close of business on the date preceding the date of
payment of such defaulted interest or on a subsequent record date fixed for the
payment of such defaulted interest by notice given by mail by or on behalf of
the Company to holders of Bonds of the Ninetieth Series not less than ten
calendar days preceding such subsequent record date. The term "record
date" as used herein shall mean, with respect to a regular interest payment
date, the close of business on the day that is ten calendar days prior to such
interest payment date or, if such day shall be a day on which banking
institutions in The City of New York are authorized by law to close, the next
preceding day which shall not be a day on which such institutions are so
authorized to close or, in the case of defaulted interest, the close of business
on any subsequent record date established as provided above.
All of the Bonds of the Ninetieth Series shall be executed in the name and
on behalf of the Company by a facsimile of the signature (or manual signature)
of its President or a Vice President, and imprinted with its corporate seal (or
a facsimile thereof), attested by a facsimile of the signature (or manual
signature) of its Secretary or an Assistant Secretary.
Bonds of the Ninetieth Series shall be lettered "RU" and numbered
consecutively from RU-1 upwards, or shall bear such other letters as may be
provided therefor by the Board of Directors of the Company.
Both principal of and interest on the Bonds of the Ninetieth Series (as
well as any premium thereon applicable in case of any redemption thereof prior
to maturity) shall be payable at the office of the Companyβs paying agent,
which in the case of HSBC Bank USA, shall be its corporate trust office in the
Borough of Manhattan, The City of New York, State of New York, or at such other
office or agency in the Borough of Manhattan, The City of New York, State of New
York, as shall be maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts.
Section 3. Redemption of the Bonds of the Ninetieth Series. The
Bonds of the Ninetieth Series are subject to mandatory redemption, in whole or
in part, in the event of any optional or mandatory redemption of the Series
1987B-2 NYSERDA Bonds, on the date fixed for such mandatory redemption of the
Series 1987B-2 NYSERDA Bonds, upon notice given as hereinafter in this Section 3
provided, at the applicable redemption price specified in the Series 1987B
NYSERDA Indenture for the Series 1987B-2 NYSERDA Bonds being redeemed, in such
amount as, together with any moneys available therefor under the Series 1987B
NYSERDA Indenture, shall be required, in accordance with the provisions of the
Series 1987B NYSERDA Participation Agreement and the Series 1987B NYSERDA
Indenture, to pay the principal of and premium, if any, and interest on the
Series 1987B-2 NYSERDA Bonds so redeemed.
The Bonds of the Ninetieth Series are subject to mandatory redemption, as a
whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, together with interest accrued to the date fixed for redemption,
upon a declaration by the Series 1987B NYSERDA Trustee that the principal of all
Series 1987B-2 NYSERDA Bonds then outstanding is immediately due and payable
pursuant to the Series 1987B NYSERDA Indenture and upon written notice thereof
by the Series 1987B NYSERDA Trustee to the Trustee at least 30 days prior to the
date fixed for redemption, provided that no written cancellation of such
declaration shall have been received by the Trustee and the Company prior to
notice of such redemption having been given to the Trustee.
No redemption of the Bonds of the Ninetieth Series, either as a whole or
in part, may be made except in connection with the payment of a like principal
amount of Series 1987B-2 NYSERDA Bonds, either by redemption or at maturity
(stated or otherwise), which Series 1987B-2 NYSERDA Bonds, shall not thereafter
be remarketed. The principal amount of the Series 1987B-2 NYSERDA Bonds and,
therefore, the principal of the Bonds of the Ninetieth Series, may be prepaid,
and the due dates thereof shall be accelerated, in accordance with the terms of
the Series 1987B NYSERDA Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Bonds of the Ninetieth Series then outstanding, the Company
shall give to the Trustee notice in writing at least 45 days prior to the
redemption date fixed by the Company (unless a shorter notice is required for
the corresponding redemption under the Series 1987B NYSERDA Indenture or shall
be satisfactory to the Trustee) of the principal amount of Bonds of the
Ninetieth Series which it desires or is required to redeem, specifying the date
on which it desires or is required to make redemption. There shall be furnished
to the Trustee a certificate or opinion executed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company
stating that the conditions precedent specified in this Section 3 with respect
to such redemption have been complied with and notwithstanding anything to the
contrary contained herein or in the Indenture, prior to receipt of a notice of
default, the Trustee shall be entitled and authorized to rely conclusively
thereon. As soon as practicable thereafter, if the Bonds are to be redeemed in
part, the Trustee shall issue to the Series 1987B NYSERDA Trustee a new Bond or
Bonds of the Ninetieth Series in the principal amount not so redeemed in
exchange for the outstanding Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, accept the certificate of the President or any
Vice President or the Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption have been fully
complied with or the Trustee may, at its option and at the expense and on behalf
of the Company, give such notice and take any other action required of the
Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Bonds of
the Ninetieth Series called for redemption, which together with any moneys
available therefor under the Series 1987B NYSERDA Indenture is sufficient to
redeem, at the redemption price payable as hereinbefore provided, the Bonds of
such series designated for redemption and the called part of any Bond of such
series called only in part, and to pay the interest accrued thereon up to said
redemption date, to be applied by the Trustee to the payment of such Bonds (and
the called part of any such Bond) and such accrued interest thereon upon
presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Bonds of the Ninetieth Series, for a
principal amount equal to the uncalled and unpaid balance of the principal
amount of such Bond, will be executed by the Company and shall be authenticated
and delivered by the Trustee to the owner of such Bond, without expense to such
owner. If the Series 1987B-2 NYSERDA Bonds have been redeemed in whole or in
part, the Bonds of the Ninetieth Series shall be deemed to have been redeemed in
whole or in part in the equivalent principal amount. The Trustee shall be
entitled and authorized to rely conclusively on a certificate of the Company as
to such redemption, together with the surrender by the Bondholder of such
redeemed Bonds for cancellation or for exchange for one or more replacement
Bonds in the aggregate principal amount of such unredeemed portion of the Bonds
as evidence of such redemption. Notwithstanding the foregoing, the principal
and interest due on the Bonds of the Ninetieth Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Bonds of the Ninetieth Series or the Series 1987B-2
NYSERDA Bonds) is rescinded or must otherwise be returned by the Series 1987B
NYSERDA Trustee or the holders of the Series 1987B-2 NYSERDA Bonds or any other
person upon the insolvency, bankruptcy or reorganization of the Company or by
operation of law, all as though payment had not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Bond of the Ninetieth Series may at any time surrender the same at the
corporate trust office of the Trustee, or at any other office or agency of the
Trustee or the Company maintained for such purpose, and with instruments of
transfer satisfactory to the Trustee, and, subject to the terms, conditions and
limitations specified in the Indenture, shall be entitled to receive in exchange
therefor an equal principal amount of Bonds of said series of other authorized
denominations; and the Company will provide, and the Trustee shall authenticate
and deliver, the Bonds necessary to make such exchange. The Bonds of the
Ninetieth Series are nontransferable except to effect transfer to any successor
to the Series 1987B NYSERDA Trustee, to the Bond Insurer or to any successor to
the Bond Insurer, any such transfer of a Bond of the Ninetieth Series to be made
at the principal corporate trust office of the Trustee, upon surrender and
cancellation of such Bond, accompanied by a written instrument of transfer in a
form approved by the Company and the Trustee, duly executed by the registered
holder of such Bond or by his duly authorized attorney, and thereupon a new Bond
or Bonds of the Ninetieth Series, for a like principal amount and bearing
interest at the same rates and having the same maturity date, will be issued to
the successor to the Series 1987B NYSERDA Trustee, the Bond Insurer or the
successor to the Bond Insurer, as the case may be, in exchange therefor, as
provided in the Indenture. The provisions of Section 12 of Article Second of
the Original Indenture to the contrary notwithstanding, no payment of a service
charge shall be required for any exchange or registration of transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Section 6. Form of Bonds of the Ninetieth Series. The definitive
Bonds of the Ninetieth Series, and the Trusteeβs certificate to be
inscribed on all Bonds of said series, are to be substantially in the forms set
forth in Exhibit A. Such Bonds of the Ninetieth Series shall be issued
to the NYSERDA Trustee, in the initial principal amount, and with the
description of the Bonds, identification of the series of NYSERDA Bonds and the
corresponding NYSERDA Trustee and the NYSERDA Indenture, all as specified in
SectionΒ 1 of this ArticleΒ VI.
ARTICLE VII
AMENDMENT AND RESTATEMENT OF
THE FIRST SPLIT PORTION OF THE BONDS OF THE EIGHTY-FOURTH SERIES
REDESIGNATED AS THE BONDS OF THE NINETY-FIRST SERIES
AMENDMENT AND RESTATEMENT OF
THE FIRST SPLIT PORTION OF THE BONDS OF THE EIGHTY-FOURTH SERIES
REDESIGNATED AS THE BONDS OF THE NINETY-FIRST SERIES
Section 1. Exchange, Amendment and Restatement of Bonds of the
Ninety-first Series. At such time as Prior First Mortgage Bonds of the
Eighty-fourth Series in the principal amount of $37,500,000 issued under the
Prior Supplemental Indenture not heretofore cancelled by the Trustee or
delivered to the Trustee cancelled or for cancellation have been delivered to
the Trustee by the registered holder thereof to be exchanged for new Bonds under
this Article VII (which shall be deemed to be the "Effective Date" of
this Article VII), such portion of the Prior First Mortgage Bonds of the
Eighty-fourth Series shall be split from the remaining Prior First Mortgage
Bonds of the Eighty-fourth Series, shall be amended and restated as set forth in
this Article VII, and shall be redesignated "First Mortgage Bonds, Floating
Rate Series H due December 1, 2025" (hereinafter sometimes referred to as
the "Bonds of the Ninety-first Series").
The Bonds of the Ninety-first Series shall be registered in the name of
the Series 1985B NYSERDA Trustee, as trustee on behalf of the holders of the
Series 1985B NYSERDA Bonds, pursuant to the Series 1985B NYSERDA
Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Bonds of the Ninety-first Series which may be amended and restated by the
Company and executed by the Company in connection therewith and authenticated by
the Trustee is limited so that at no time shall there be authenticated,
delivered or outstanding under the Indenture, Bonds of the Ninety-first Series
for a principal amount exceeding $37,500,000, except that Bonds of the
Ninety-first Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
On the Effective Date of this Article VII, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Bonds of the
Ninety-first Series in an aggregate principal amount not exceeding $37,500,000
and deliver the same to the NYSERDA Trustee, in exchange for certificates
representing the same principal amount of the Prior First Mortgage Bonds
delivered to the Trustee by the Series 1985B NYSERDA Trustee or Bank One, NA, as
the Prior LC Issuer.
Section 2. Terms of the Bonds of the Ninety-first Series. The
Bonds of the Ninety-first Series shall mature according to their terms on
December 1, 2025 and, in the case of the initial authentication of the Bonds of
the Ninety-first Series, shall be dated the Effective Date and shall bear
interest from the Effective Date at the rate per annum sufficient to pay
interest accruing on the Series 1985B NYSERDA Bonds as it becomes due, payable
on the dates on which interest is payable on the Series 1985B NYSERDA Bonds
under the Series 1985B NYSERDA Indenture. The principal of, and premium, if
any, in respect of, the Bonds of the Ninety-first Series shall be payable on the
same date or dates and in the same amounts as set forth in the Series 1985B
NYSERDA Indenture for the payment of principal on, or premium, if any, in
respect of, the Series 1985B NYSERDA Bonds. Definitive Bonds of said series
shall be registered Bonds without coupons and shall be issued in denominations
of $1,000 and multiples thereof.
Subsequent to the initial authentication of the Bonds of the Ninety-first
Series, each Bond of the Ninety-first Series shall be dated as of the date of
its authentication and shall bear interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Bonds of the Ninety-first Series shall be fully or partially
satisfied and discharged, and the amount of any such payment shall be reduced,
to the extent that the Company shall have made the payment, in full or in part,
of principal and premium, if any, and interest then due on the Series 1985B
NYSERDA Bonds, and the Trustee shall not have received written notice from the
Company that the obligation of the Company shall not be so satisfied and
discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Bonds of the Ninety-first Series or, as that term is defined in
the Series 1985B NYSERDA Indenture, with respect to the Series 1985B NYSERDA
Bonds, has occurred and no amounts are due under the Bonds of the Ninety-first
Series unless and until the Trustee shall have received from the Series 1985B
NYSERDA Trustee a notice of the occurrence of an Event of Default (as defined in
the Series 1985B NYSERDA Indenture) or written demand from the Series 1985B
NYSERDA Trustee (which notice or demand has not been subsequently rescinded or
revoked by the Series 1985B NYSERDA Trustee), setting forth in detail the amount
then due with respect to such Series 1985B NYSERDA Bonds, which statement shall,
unless and until revoked, rescinded or amended by the Series 1985B NYSERDA
Trustee, be deemed to be correct, and the Trustee shall be entitled and
authorized to rely conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Bonds of the Ninety-first Series were registered at
the close of business on the record date for such payment of interest (except
any such Bond which has been called for redemption on a date fixed for such
redemption which is after such record date and prior to such interest payment
date) notwithstanding any cancellation of Bonds of the Ninety-first Series upon
any registration of transfer or exchange thereof between such record date and
such interest payment date; except that if the Company shall default in the
payment of any interest due on such interest payment date such defaulted
interest shall be paid to the persons in whose names Bonds of the Ninety-first
Series are registered either at the close of business on the date preceding the
date of payment of such defaulted interest or on a subsequent record date fixed
for the payment of such defaulted interest by notice given by mail by or on
behalf of the Company to holders of Bonds of the Ninety-first Series not less
than ten calendar days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to a regular
interest payment date, the close of business on the day that is ten calendar
days prior to such interest payment date or, if such day shall be a day on which
banking institutions in The City of New York are authorized by law to close, the
next preceding day which shall not be a day on which such institutions are so
authorized to close or, in the case of defaulted interest, the close of business
on any subsequent record date established as provided above.
All of the Bonds of the Ninety-first Series shall be executed in the name
and on behalf of the Company by a facsimile of the signature (or manual
signature) of its President or a Vice President, and imprinted with its
corporate seal (or a facsimile thereof), attested by a facsimile of the
signature (or manual signature) of its Secretary or an Assistant
Secretary.
Bonds of the Ninety-first Series shall be lettered "RU" and
numbered consecutively from RU-1 upwards, or shall bear such other letters as
may be provided therefor by the Board of Directors of the Company.
Both principal of and interest on the Bonds of the Ninety-first Series (as
well as any premium thereon applicable in case of any redemption thereof prior
to maturity) shall be payable at the office of the Companyβs paying agent,
which in the case of HSBC Bank USA, shall be its corporate trust office in the
Borough of Manhattan, The City of New York, State of New York, or at such other
office or agency in the Borough of Manhattan, The City of New York, State of New
York, as shall be maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts.
Section 3. Redemption of the Bonds of the Ninety-first Series. The
Bonds of the Ninety-first Series are subject to mandatory redemption, in whole
or in part, in the event of any optional or mandatory redemption of the Series
1985B NYSERDA Bonds, on the date fixed for such mandatory redemption of the
Series 1985B NYSERDA Bonds, upon notice given as hereinafter in this Section 3
provided, at the applicable redemption price specified in the Series 1985B
NYSERDA Indenture for the Series 1985B NYSERDA Bonds being redeemed, in such
amount as, together with any moneys available therefor under the Series 1985B
NYSERDA Indenture, shall be required, in accordance with the provisions of the
SeriesΒ 1985B NYSERDA Participation Agreement and the Series 1985B NYSERDA
Indenture, to pay the principal of and premium, if any, and interest on the
Series 1985B NYSERDA Bonds so redeemed.
The Bonds of the Ninety-first Series are subject to mandatory redemption,
as a whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, together with interest accrued to the date fixed for redemption,
upon a declaration by the Series 1985B NYSERDA Trustee that the principal of all
Series 1985B NYSERDA Bonds then outstanding is immediately due and payable
pursuant to the Series 1985B NYSERDA Indenture and upon written notice thereof
by the Series 1985B NYSERDA Trustee to the Trustee at least 30 days prior to the
date fixed for redemption, provided that no written cancellation of such
declaration shall have been received by the Trustee and the Company prior to
notice of such redemption having been given to the Trustee.
No redemption of the Bonds of the Ninety-first Series, either as a whole
or in part, may be made except in connection with the payment of a like
principal amount of Series 1985B NYSERDA Bonds, either by redemption or at
maturity (stated or otherwise), which Series 1985B NYSERDA Bonds, shall not
thereafter be remarketed. The principal amount of the Series 1985B NYSERDA
Bonds and, therefore, the principal of the Bonds of the Ninety-first Series, may
be prepaid, and the due dates thereof shall be accelerated, in accordance with
the terms of the Series 1985B NYSERDA Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Bonds of the Ninety-first Series then outstanding, the
Company shall give to the Trustee notice in writing at least 45 days prior to
the redemption date fixed by the Company (unless a shorter notice is required
for the corresponding redemption under the Series 1985B NYSERDA Indenture or
shall be satisfactory to the Trustee) of the principal amount of Bonds of the
Ninety-first Series which it desires or is required to redeem, specifying the
date on which it desires or is required to make redemption. There shall be
furnished to the Trustee a certificate or opinion executed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company
stating that the conditions precedent specified in this Section 3 with respect
to such redemption have been complied with and notwithstanding anything to the
contrary contained herein or in the Indenture, prior to receipt of a notice of
default, the Trustee shall be entitled and authorized to rely conclusively
thereon. As soon as practicable thereafter, if the Bonds are to be redeemed in
part, the Trustee shall issue to the Series 1985B NYSERDA Trustee a new Bond or
Bonds of the Ninety-first Series in the principal amount not so redeemed in
exchange for the outstanding Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, accept the certificate of the President or any
Vice President or the Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption have been fully
complied with or the Trustee may, at its option and at the expense and on behalf
of the Company, give such notice and take any other action required of the
Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Bonds of
the Ninety-first Series called for redemption, which together with any moneys
available therefor under the Series 1985B NYSERDA Indenture is sufficient to
redeem, at the redemption price payable as hereinbefore provided, the Bonds of
such series designated for redemption and the called part of any Bond of such
series called only in part, and to pay the interest accrued thereon up to said
redemption date, to be applied by the Trustee to the payment of such Bonds (and
the called part of any such Bond) and such accrued interest thereon upon
presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Bonds of the Ninety-first Series, for a
principal amount equal to the uncalled and unpaid balance of the principal
amount of such Bond, will be executed by the Company and shall be authenticated
and delivered by the Trustee to the owner of such Bond, without expense to such
owner. If the Series 1985B NYSERDA Bonds have been redeemed in whole or in
part, the Bonds of the Ninety-first Series shall be deemed to have been redeemed
in whole or in part in the equivalent principal amount. The Trustee shall be
entitled and authorized to rely conclusively on a certificate of the Company as
to such redemption, together with the surrender by the Bondholder of such
redeemed Bonds for cancellation or for exchange for one or more replacement
Bonds in the aggregate principal amount of such unredeemed portion of the Bonds
as evidence of such redemption. Notwithstanding the foregoing, the principal
and interest due on the Bonds of the Ninety-first Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Bonds of the Ninety-first Series or the Series 1985B
NYSERDA Bonds) is rescinded or must otherwise be returned by the Series 1985B
NYSERDA Trustee or the holders of the Series 1985B NYSERDA Bonds or any other
person upon the insolvency, bankruptcy or reorganization of the Company or by
operation of law, all as though payment had not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Bond of the Ninety-first Series may at any time surrender the same at the
corporate trust office of the Trustee, or at any other office or agency of the
Trustee or the Company maintained for such purpose, and with instruments of
transfer satisfactory to the Trustee, and, subject to the terms, conditions and
limitations specified in the Indenture, shall be entitled to receive in exchange
therefor an equal principal amount of Bonds of said series of other authorized
denominations; and the Company will provide, and the Trustee shall authenticate
and deliver, the Bonds necessary to make such exchange. The Bonds of the
Ninety-first Series are nontransferable except to effect transfer to any
successor to the Series 1985B NYSERDA Trustee, to the Bond Insurer or to any
successor to the Bond Insurer, any such transfer of a Bond of the Ninety-first
Series to be made at the principal corporate trust office of the Trustee, upon
surrender and cancellation of such Bond, accompanied by a written instrument of
transfer in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Bond or Bonds of the Ninety-first Series, for a like principal amount and
bearing interest at the same rates and having the same maturity date, will be
issued to the successor to the Series 1985B NYSERDA Trustee, the Bond Insurer or
the successor to the Bond Insurer, as the case may be, in exchange therefor, as
provided in the Indenture. The provisions of Section 12 of Article Second of
the Original Indenture to the contrary notwithstanding, no payment of a service
charge shall be required for any exchange or registration of transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Section 6. Form of Bonds of the Ninety-first Series. The
definitive Bonds of the Ninety-first Series, and the Trusteeβs certificate
to be inscribed on all Bonds of said series, are to be substantially in the
forms set forth in Exhibit A. Such Bonds of the Ninety-first Series
shall be issued to the NYSERDA Trustee, in the initial principal amount, and
with the description of the Bonds, identification of the series of NYSERDA Bonds
and the corresponding NYSERDA Trustee and the NYSERDA Indenture, all as
specified in SectionΒ 1 of this ArticleΒ VII.
ARTICLE VIII
AMENDMENT AND RESTATEMENT OF
THE SECOND SPLIT PORTION OF THE BONDS OF THE EIGHTY-FOURTH SERIES
REDESIGNATED AS THE BONDS OF THE NINETY-SECOND SERIES
AMENDMENT AND RESTATEMENT OF
THE SECOND SPLIT PORTION OF THE BONDS OF THE EIGHTY-FOURTH SERIES
REDESIGNATED AS THE BONDS OF THE NINETY-SECOND SERIES
Section 1. Exchange, Amendment and Restatement of Bonds of the
Ninety-second Series. At such time as Prior First Mortgage Bonds of the
Eighty-fourth Series in the principal amount of $50,000,000 issued under the
Prior Supplemental Indenture not heretofore cancelled by the Trustee or
delivered to the Trustee cancelled or for cancellation have been delivered to
the Trustee by the registered holder thereof to be exchanged for new Bonds under
this Article VIII (which shall be deemed to be the "Effective Date" of
this Article VIII), such portion of the Prior First Mortgage Bonds of the
Eighty-fourth Series shall be split from the remaining Prior First Mortgage
Bonds of the Eighty-fourth Series, shall be amended and restated as set forth in
this Article VIII, and shall be redesignated "First Mortgage Bonds, Floating
Rate Series I due December 1, 2026" (hereinafter sometimes referred to as
the "Bonds of the Ninety-second Series").
The Bonds of the Ninety-second Series shall be registered in the name of
the Series 1986A NYSERDA Trustee, as trustee on behalf of the holders of the
Series 1986A NYSERDA Bonds, pursuant to the Series 1986A NYSERDA
Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Bonds of the Ninety-second Series which may be amended and restated by
the Company and executed by the Company in connection therewith and
authenticated by the Trustee is limited so that at no time shall there be
authenticated, delivered or outstanding under the Indenture, Bonds of the
Ninety-second Series for a principal amount exceeding $50,000,000, except that
Bonds of the Ninety-second Series may always be issued as provided in Section 2
of Article Fourth of the Indenture.
On the Effective Date of this Article VIII, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Bonds of the
Ninety-second Series in an aggregate principal amount not exceeding $50,000,000
and deliver the same to the Series 1986A NYSERDA Trustee, in exchange for
certificates representing the same principal amount of the Prior First Mortgage
Bonds delivered to the Trustee by the Series 1986A NYSERDA Trustee or Bank One,
NA, as the Prior LC Issuer.
Section 2. Terms of the Bonds of the Ninety-second Series. The
Bonds of the Ninety-second Series shall mature according to their terms on
December 1, 2026 and, in the case of the initial authentication of the Bonds of
the Ninety-second Series, shall be dated the Effective Date and shall bear
interest from the Effective Date at the rate per annum sufficient to pay
interest accruing on the Series 1986A NYSERDA Bonds as it becomes due, payable
on the dates on which interest is payable on the Series 1986A NYSERDA Bonds
under the Series 1986A NYSERDA Indenture. The principal of, and premium, if
any, in respect of, the Bonds of the Ninety-second Series shall be payable on
the same date or dates and in the same amounts as set forth in the Series 1986A
NYSERDA Indenture for the payment of principal on, or premium, if any, in
respect of, the Series 1986A NYSERDA Bonds. Definitive Bonds of said series
shall be registered Bonds without coupons and shall be issued in denominations
of $1,000 and multiples thereof.
Subsequent to the initial authentication of the Bonds of the Ninety-second
Series, each Bond of the Ninety-second Series shall be dated as of the date of
its authentication and shall bear interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Bonds of the Ninety-second Series shall be fully or partially
satisfied and discharged, and the amount of any such payment shall be reduced,
to the extent that the Company shall have made the payment, in full or in part,
of principal and premium, if any, and interest then due on the Series 1986A
NYSERDA Bonds, and the Trustee shall not have received written notice from the
Company that the obligation of the Company shall not be so satisfied and
discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Bonds of the Ninety-second Series or, as that term is defined in
the Series 0000X XXXXXXX Xxxxxxxxx, with respect to the Series 1986A NYSERDA
Bonds, has occurred and no amounts are due under the Bonds of the Ninety-second
Series unless and until the Trustee shall have received from the Series 1986A
NYSERDA Trustee a notice of the occurrence of an Event of Default (as defined in
the Series 0000X XXXXXXX Xxxxxxxxx) or written demand from the Series 1986A
NYSERDA Trustee (which notice or demand has not been subsequently rescinded or
revoked by the Series 1986A NYSERDA Trustee), setting forth in detail the amount
then due with respect to such Series 1986A NYSERDA Bonds, which statement shall,
unless and until revoked, rescinded or amended by the Series 1986A NYSERDA
Trustee, be deemed to be correct, and the Trustee shall be entitled and
authorized to rely conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Bonds of the Ninety-second Series were registered at
the close of business on the record date for such payment of interest (except
any such Bond which has been called for redemption on a date fixed for such
redemption which is after such record date and prior to such interest payment
date) notwithstanding any cancellation of Bonds of the Ninety-second Series upon
any registration of transfer or exchange thereof between such record date and
such interest payment date; except that if the Company shall default in the
payment of any interest due on such interest payment date such defaulted
interest shall be paid to the persons in whose names Bonds of the Ninety-second
Series are registered either at the close of business on the date preceding the
date of payment of such defaulted interest or on a subsequent record date fixed
for the payment of such defaulted interest by notice given by mail by or on
behalf of the Company to holders of Bonds of the Ninety-second Series not less
than ten calendar days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to a regular
interest payment date, the close of business on the day that is ten calendar
days prior to such interest payment date or, if such day shall be a day on which
banking institutions in The City of New York are authorized by law to close, the
next preceding day which shall not be a day on which such institutions are so
authorized to close or, in the case of defaulted interest, the close of business
on any subsequent record date established as provided above.
All of the Bonds of the Ninety-second Series shall be executed in the name
and on behalf of the Company by a facsimile of the signature (or manual
signature) of its President or a Vice President, and imprinted with its
corporate seal (or a facsimile thereof), attested by a facsimile of the
signature (or manual signature) of its Secretary or an Assistant
Secretary.
Bonds of the Ninety-second Series shall be lettered "RU" and
numbered consecutively from RU-1 upwards, or shall bear such other letters as
may be provided therefor by the Board of Directors of the Company.
Both principal of and interest on the Bonds of the Ninety-second Series
(as well as any premium thereon applicable in case of any redemption thereof
prior to maturity) shall be payable at the office of the Companyβs paying
agent, which in the case of HSBC Bank USA, shall be its corporate trust office
in the Borough of Manhattan, The City of New York, State of New York, or at such
other office or agency in the Borough of Manhattan, The City of New York, State
of New York, as shall be maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for public and private debts.
Section 3. Redemption of the Bonds of the Ninety-second Series.
The Bonds of the Ninety-second Series are subject to mandatory redemption, in
whole or in part, in the event of any optional or mandatory redemption of the
Series 1986A NYSERDA Bonds, on the date fixed for such mandatory redemption of
the Series 1986A NYSERDA Bonds, upon notice given as hereinafter in this Section
3 provided, at the applicable redemption price specified in the Series 0000X
XXXXXXX Xxxxxxxxx for the Series 1986A NYSERDA Bonds being redeemed, in such
amount as, together with any moneys available therefor under the Series 1986A
NYSERDA Indenture, shall be required, in accordance with the provisions of the
Series 1986A NYSERDA Participation Agreement and the Series 0000X XXXXXXX
Xxxxxxxxx, to pay the principal of and premium, if any, and interest on the
Series 1986A NYSERDA Bonds so redeemed.
The Bonds of the Ninety-second Series are subject to mandatory redemption,
as a whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, together with interest accrued to the date fixed for redemption,
upon a declaration by the Series 1986A NYSERDA Trustee that the principal of all
Series 1986A NYSERDA Bonds then outstanding is immediately due and payable
pursuant to the Series 1986A NYSERDA Indenture and upon written notice thereof
by the Series 1986A NYSERDA Trustee to the Trustee at least 30 days prior to the
date fixed for redemption, provided that no written cancellation of such
declaration shall have been received by the Trustee and the Company prior to
notice of such redemption having been given to the Trustee.
No redemption of the Bonds of the Ninety-second Series, either as a whole
or in part, may be made except in connection with the payment of a like
principal amount of Series 1986A NYSERDA Bonds, either by redemption or at
maturity (stated or otherwise), which Series 1986A NYSERDA Bonds, shall not
thereafter be remarketed. The principal amount of the Series 1986A NYSERDA
Bonds and, therefore, the principal of the Bonds of the Ninety-second Series,
may be prepaid, and the due dates thereof shall be accelerated, in accordance
with the terms of the Series 1986A NYSERDA Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Bonds of the Ninety-second Series then outstanding, the
Company shall give to the Trustee notice in writing at least 45 days prior to
the redemption date fixed by the Company (unless a shorter notice is required
for the corresponding redemption under the Series 1986A NYSERDA Indenture or
shall be satisfactory to the Trustee) of the principal amount of Bonds of the
Ninety-second Series which it desires or is required to redeem, specifying the
date on which it desires or is required to make redemption. There shall be
furnished to the Trustee a certificate or opinion executed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company
stating that the conditions precedent specified in this Section 3 with respect
to such redemption have been complied with and notwithstanding anything to the
contrary contained herein or in the Indenture, prior to receipt of a notice of
default, the Trustee shall be entitled and authorized to rely conclusively
thereon. As soon as practicable thereafter, if the Bonds are to be redeemed in
part, the Trustee shall issue to the Series 1986A NYSERDA Trustee a new Bond or
Bonds of the Ninety-second Series in the principal amount not so redeemed in
exchange for the outstanding Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, accept the certificate of the President or any
Vice President or the Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption have been fully
complied with or the Trustee may, at its option and at the expense and on behalf
of the Company, give such notice and take any other action required of the
Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Bonds of
the Ninety-second Series called for redemption, which together with any moneys
available therefor under the Series 0000X XXXXXXX Xxxxxxxxx is sufficient to
redeem, at the redemption price payable as hereinbefore provided, the Bonds of
such series designated for redemption and the called part of any Bond of such
series called only in part, and to pay the interest accrued thereon up to said
redemption date, to be applied by the Trustee to the payment of such Bonds (and
the called part of any such Bond) and such accrued interest thereon upon
presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Bonds of the Ninety-second Series, for a
principal amount equal to the uncalled and unpaid balance of the principal
amount of such Bond, will be executed by the Company and shall be authenticated
and delivered by the Trustee to the owner of such Bond, without expense to such
owner. If the Series 1986A NYSERDA Bonds have been redeemed in whole or in
part, the Bonds of the Ninety-second Series shall be deemed to have been
redeemed in whole or in part in the equivalent principal amount. The Trustee
shall be entitled and authorized to rely conclusively on a certificate of the
Company as to such redemption, together with the surrender by the Bondholder of
such redeemed Bonds for cancellation or for exchange for one or more replacement
Bonds in the aggregate principal amount of such unredeemed portion of the Bonds
as evidence of such redemption. Notwithstanding the foregoing, the principal
and interest due on the Bonds of the Ninety-second Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Bonds of the Ninety-second Series or the Series
1986A NYSERDA Bonds) is rescinded or must otherwise be returned by the Series
1986A NYSERDA Trustee or the holders of the Series 1986A NYSERDA Bonds or any
other person upon the insolvency, bankruptcy or reorganization of the Company or
by operation of law, all as though payment had not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Bond of the Ninety-second Series may at any time surrender the same at the
corporate trust office of the Trustee, or at any other office or agency of the
Trustee or the Company maintained for such purpose, and with instruments of
transfer satisfactory to the Trustee, and, subject to the terms, conditions and
limitations specified in the Indenture, shall be entitled to receive in exchange
therefor an equal principal amount of Bonds of said series of other authorized
denominations; and the Company will provide, and the Trustee shall authenticate
and deliver, the Bonds necessary to make such exchange. The Bonds of the
Ninety-second Series are nontransferable except to effect transfer to any
successor to the Series 1986A NYSERDA Trustee, to the Bond Insurer or to any
successor to the Bond Insurer, any such transfer of a Bond of the Ninety-second
Series to be made at the principal corporate trust office of the Trustee, upon
surrender and cancellation of such Bond, accompanied by a written instrument of
transfer in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Bond or Bonds of the Ninety-second Series, for a like principal amount and
bearing interest at the same rates and having the same maturity date, will be
issued to the successor to the Series 1986A NYSERDA Trustee, the Bond Insurer or
the successor to the Bond Insurer, as the case may be, in exchange therefor, as
provided in the Indenture. The provisions of Section 12 of Article Second of
the Original Indenture to the contrary notwithstanding, no payment of a service
charge shall be required for any exchange or registration of transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Section 6. Form of Bonds of the Ninety-second Series. The
definitive Bonds of the Ninety-second Series, and the Trusteeβs
certificate to be inscribed on all Bonds of said series, are to be substantially
in the forms set forth in Exhibit A. Such Bonds of the Ninety-second
Series shall be issued to the NYSERDA Trustee, in the initial principal amount,
and with the description of the Bonds, identification of the series of NYSERDA
Bonds and the corresponding NYSERDA Trustee and the NYSERDA Indenture, all as
specified in SectionΒ 1 of this ArticleΒ VIII.
ARTICLE IX
AMENDMENT AND RESTATEMENT OF
THE THIRD SPLIT PORTION OF THE BONDS OF THE EIGHTY-FOURTH SERIES
REDESIGNATED AS THE BONDS OF THE NINETY-THIRD SERIES
AMENDMENT AND RESTATEMENT OF
THE THIRD SPLIT PORTION OF THE BONDS OF THE EIGHTY-FOURTH SERIES
REDESIGNATED AS THE BONDS OF THE NINETY-THIRD SERIES
Section 1. Exchange, Amendment and Restatement of Bonds of the
Ninety-third Series. At such time as Prior First Mortgage Bonds of the
Eighty-fourth Series in the principal amount of $25,760,000 issued under the
Prior Supplemental Indenture not heretofore cancelled by the Trustee or
delivered to the Trustee cancelled or for cancellation have been delivered to
the Trustee by the registered holder thereof to be exchanged for new Bonds under
this Article IX (which shall be deemed to be the "Effective Date" of this
Article IX), such portion of the Prior First Mortgage Bonds of the
Eighty-fourth Series shall be split from the remaining Prior First Mortgage
Bonds of the Eighty-fourth Series, shall be amended and restated as set forth in
this Article IX, and shall be redesignated "First Mortgage Bonds, Floating
Rate Series J due March 1, 2027" (hereinafter sometimes referred to as the
"Bonds of the Ninety-third Series").
The Bonds of the Ninety-third Series shall be registered in the name of
the Series 1987A NYSERDA Trustee, as trustee on behalf of the holders of the
Series 1987A NYSERDA Bonds, pursuant to the Series 1987A NYSERDA
Indenture.
Following such redesignation and exchange, the permitted principal amount
of the Bonds of the Ninety-third Series which may be amended and restated by the
Company and executed by the Company in connection therewith and authenticated by
the Trustee is limited so that at no time shall there be authenticated,
delivered or outstanding under the Indenture, Bonds of the Ninety-third Series
for a principal amount exceeding $25,760,000, except that Bonds of the
Ninety-third Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
On the Effective Date of this Article IX, the Company shall execute and
deliver to the Trustee and the Trustee, without awaiting the filing or recording
of this Supplemental Indenture but upon receipt of evidence of due compliance by
the Company with the applicable provisions of the Indenture, shall authenticate
pursuant to Section 10 of Article Second of the Indenture, the Bonds of the
Ninety-third Series in an aggregate principal amount not exceeding $25,760,000
and deliver the same to the Series 1987A NYSERDA Trustee, in exchange for
certificates representing the same principal amount of the Prior First Mortgage
Bonds delivered to the Trustee by the Series 0000X XXXXXXX Xxxxxxx xx Xxxxxxx
Xxxxxxxx (Xxxxx), Inc., as the Prior LC Issuer.
Section 2. Terms of the Bonds of the Ninety-third Series. The
Bonds of the Ninety-third Series shall mature according to their terms on March
1, 2027 and, in the case of the initial authentication of the Bonds of the
Ninety-third Series, shall be dated the Effective Date and shall bear interest
from the Effective Date at the rate per annum sufficient to pay interest
accruing on the Series 1987A NYSERDA Bonds as it becomes due, payable on the
dates on which interest is payable on the Series 1987A NYSERDA Bonds under the
Series 1987A NYSERDA Indenture. The principal of, and premium, if any, in
respect of, the Bonds of the Ninety-third Series shall be payable on the same
date or dates and in the same amounts as set forth in the Series 1987A NYSERDA
Indenture for the payment of principal on, or premium, if any, in respect of,
the Series 1987A NYSERDA Bonds. Definitive Bonds of said series shall be
registered Bonds without coupons and shall be issued in denominations of $1,000
and multiples thereof.
Subsequent to the initial authentication of the Bonds of the Ninety-third
Series, each Bond of the Ninety-third Series shall be dated as of the date of
its authentication and shall bear interest from the Effective Date.
Notwithstanding any other provision contained herein, the obligation of
the Company to make payments of the principal of and premium, if any, and
interest on the Bonds of the Ninety-third Series shall be fully or partially
satisfied and discharged, and the amount of any such payment shall be reduced,
to the extent that the Company shall have made the payment, in full or in part,
of principal and premium, if any, and interest then due on the Series 1987A
NYSERDA Bonds, and the Trustee shall not have received written notice from the
Company that the obligation of the Company shall not be so satisfied and
discharged and the amount of any such payment so reduced.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Trustee may conclusively presume that no Event of Default with
respect to the Bonds of the Ninety-third Series or, as that term is defined in
the Series 0000X XXXXXXX Xxxxxxxxx, with respect to the Series 1987A NYSERDA
Bonds, has occurred and no amounts are due under the Bonds of the Ninety-third
Series unless and until the Trustee shall have received from the Series 1987A
NYSERDA Trustee a notice of the occurrence of an Event of Default (as defined in
the Series 0000X XXXXXXX Xxxxxxxxx) or written demand from the Series 1987A
NYSERDA Trustee (which notice or demand has not been subsequently rescinded or
revoked by the Series 1987A NYSERDA Trustee), setting forth in detail the amount
then due with respect to such Series 1987A NYSERDA Bonds, which statement shall,
unless and until revoked, rescinded or amended by the Series 1987A NYSERDA
Trustee, be deemed to be correct, and the Trustee shall be entitled and
authorized to rely conclusively thereon.
The interest payable on any interest payment date shall be paid to the
persons in whose names the Bonds of the Ninety-third Series were registered at
the close of business on the record date for such payment of interest (except
any such Bond which has been called for redemption on a date fixed for such
redemption which is after such record date and prior to such interest payment
date) notwithstanding any cancellation of Bonds of the Ninety-third Series upon
any registration of transfer or exchange thereof between such record date and
such interest payment date; except that if the Company shall default in the
payment of any interest due on such interest payment date such defaulted
interest shall be paid to the persons in whose names Bonds of the Ninety-third
Series are registered either at the close of business on the date preceding the
date of payment of such defaulted interest or on a subsequent record date fixed
for the payment of such defaulted interest by notice given by mail by or on
behalf of the Company to holders of Bonds of the Ninety-third Series not less
than ten calendar days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to a regular
interest payment date, the close of business on the day that is ten calendar
days prior to such interest payment date or, if such day shall be a day on which
banking institutions in The City of New York are authorized by law to close, the
next preceding day which shall not be a day on which such institutions are so
authorized to close or, in the case of defaulted interest, the close of business
on any subsequent record date established as provided above.
All of the Bonds of the Ninety-third Series shall be executed in the name
and on behalf of the Company by a facsimile of the signature (or manual
signature) of its President or a Vice President, and imprinted with its
corporate seal (or a facsimile thereof), attested by a facsimile of the
signature (or manual signature) of its Secretary or an Assistant
Secretary.
Bonds of the Ninety-third Series shall be lettered "RU" and
numbered consecutively from RU-1 upwards, or shall bear such other letters as
may be provided therefor by the Board of Directors of the Company.
Both principal of and interest on the Bonds of the Ninety-third Series (as
well as any premium thereon applicable in case of any redemption thereof prior
to maturity) shall be payable at the office of the Companyβs paying agent,
which in the case of HSBC Bank USA, shall be its corporate trust office in the
Borough of Manhattan, The City of New York, State of New York, or at such other
office or agency in the Borough of Manhattan, The City of New York, State of New
York, as shall be maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts.
Section 3. Redemption of the Bonds of the Ninety-third Series. The
Bonds of the Ninety-third Series are subject to mandatory redemption, in whole
or in part, in the event of any optional or mandatory redemption of the Series
1987A NYSERDA Bonds, on the date fixed for such mandatory redemption of the
Series 1987A NYSERDA Bonds, upon notice given as hereinafter in this Section 3
provided, at the applicable redemption price specified in the Series 0000X
XXXXXXX Xxxxxxxxx for the Series 1987A NYSERDA Bonds being redeemed, in such
amount as, together with any moneys available therefor under the Series 1987A
NYSERDA Indenture, shall be required, in accordance with the provisions of the
Series 1987A NYSERDA Participation Agreement and the Series 0000X XXXXXXX
Xxxxxxxxx, to pay the principal of and premium, if any, and interest on the
Series 1987A NYSERDA Bonds so redeemed.
The Bonds of the Ninety-third Series are subject to mandatory redemption,
as a whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, together with interest accrued to the date fixed for redemption,
upon a declaration by the Series 1987A NYSERDA Trustee that the principal of all
Series 1987A NYSERDA Bonds then outstanding is immediately due and payable
pursuant to the Series 1987A NYSERDA Indenture and upon written notice thereof
by the Series 1987A NYSERDA Trustee to the Trustee at least 30 days prior to the
date fixed for redemption, provided that no written cancellation of such
declaration shall have been received by the Trustee and the Company prior to
notice of such redemption having been given to the Trustee.
No redemption of the Bonds of the Ninety-third Series, either as a whole
or in part, may be made except in connection with the payment of a like
principal amount of Series 1987A NYSERDA Bonds, either by redemption or at
maturity (stated or otherwise), which Series 1987A NYSERDA Bonds, shall not
thereafter be remarketed. The principal amount of the Series 1987A NYSERDA
Bonds and, therefore, the principal of the Bonds of the Ninety-third Series, may
be prepaid, and the due dates thereof shall be accelerated, in accordance with
the terms of the Series 1987A NYSERDA Indenture.
In case the Company shall at any time desire or be required so to redeem
part or all of the Bonds of the Ninety-third Series then outstanding, the
Company shall give to the Trustee notice in writing at least 45 days prior to
the redemption date fixed by the Company (unless a shorter notice is required
for the corresponding redemption under the Series 1987A NYSERDA Indenture or
shall be satisfactory to the Trustee) of the principal amount of Bonds of the
Ninety-third Series which it desires or is required to redeem, specifying the
date on which it desires or is required to make redemption. There shall be
furnished to the Trustee a certificate or opinion executed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company
stating that the conditions precedent specified in this Section 3 with respect
to such redemption have been complied with and notwithstanding anything to the
contrary contained herein or in the Indenture, prior to receipt of a notice of
default, the Trustee shall be entitled and authorized to rely conclusively
thereon. As soon as practicable thereafter, if the Bonds are to be redeemed in
part, the Trustee shall issue to the Series 1987A NYSERDA Trustee a new Bond or
Bonds of the Ninety-third Series in the principal amount not so redeemed in
exchange for the outstanding Bonds.
The Trustee may, to the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, accept the certificate of the President or any
Vice President or the Treasurer of the Company as sufficient evidence that the
requirements as to mailing of notices of the call for redemption have been fully
complied with or the Trustee may, at its option and at the expense and on behalf
of the Company, give such notice and take any other action required of the
Company in connection with such redemption.
Section 4. Effect of Payment. On or prior to the redemption date
specified in any such notice, the Company shall deposit with the Trustee a sum
of money, of the character specified as the medium of payment in the Bonds of
the Ninety-third Series called for redemption, which together with any moneys
available therefor under the Series 0000X XXXXXXX Xxxxxxxxx is sufficient to
redeem, at the redemption price payable as hereinbefore provided, the Bonds of
such series designated for redemption and the called part of any Bond of such
series called only in part, and to pay the interest accrued thereon up to said
redemption date, to be applied by the Trustee to the payment of such Bonds (and
the called part of any such Bond) and such accrued interest thereon upon
presentation and surrender of such Bonds, together with duly executed
instruments of transfer, at the corporate trust office of the Trustee, or at
such other office or agency as shall be maintained by the Company for such
purpose; and, after such deposit shall have been made, such Bonds so called in
whole and the called part of any such Bonds called only in part, whether or not
presented for redemption shall cease to be entitled to any benefit, lien or
security under the Indenture, no interest will accrue thereon on or after the
redemption date duly specified in said notice, and claims for interest, if any,
appertaining to such Bonds, and the called part of any such Bond called only in
part, maturing after that date shall be void. All Bonds so redeemed shall
forthwith be cancelled and, upon its written request, delivered to the Company
or otherwise disposed of; and no Bonds shall be issued hereunder in place of any
such Bonds, except as otherwise provided in Article Fourth of the Indenture and
except that, if less than the entire principal amount of any Bond shall be so
redeemed, upon presentation of such Bond so called in part, with proper
instruments of transfer if required, at or after the time fixed for the payment
of said Bonds so called for redemption, payment of the principal amount of the
part thereof so called shall be made upon surrender and cancellation of said
Bond so presented, and one or more Bonds of the Ninety-third Series, for a
principal amount equal to the uncalled and unpaid balance of the principal
amount of such Bond, will be executed by the Company and shall be authenticated
and delivered by the Trustee to the owner of such Bond, without expense to such
owner. If the Series 1987A NYSERDA Bonds have been redeemed in whole or in
part, the Bonds of the Ninety-third Series shall be deemed to have been redeemed
in whole or in part in the equivalent principal amount. The Trustee shall be
entitled and authorized to rely conclusively on a certificate of the Company as
to such redemption, together with the surrender by the Bondholder of such
redeemed Bonds for cancellation or for exchange for one or more replacement
Bonds in the aggregate principal amount of such unredeemed portion of the Bonds
as evidence of such redemption. Notwithstanding the foregoing, the principal
and interest due on the Bonds of the Ninety-third Series shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether under the Bonds of the Ninety-third Series or the Series 1987A
NYSERDA Bonds) is rescinded or must otherwise be returned by the Series 1987A
NYSERDA Trustee or the holders of the Series 1987A NYSERDA Bonds or any other
person upon the insolvency, bankruptcy or reorganization of the Company or by
operation of law, all as though payment had not been made.
Section 5. Exchange of Bonds. The registered owner (or assigns) of
any Bond of the Ninety-third Series may at any time surrender the same at the
corporate trust office of the Trustee, or at any other office or agency of the
Trustee or the Company maintained for such purpose, and with instruments of
transfer satisfactory to the Trustee, and, subject to the terms, conditions and
limitations specified in the Indenture, shall be entitled to receive in exchange
therefor an equal principal amount of Bonds of said series of other authorized
denominations; and the Company will provide, and the Trustee shall authenticate
and deliver, the Bonds necessary to make such exchange. The Bonds of the
Ninety-third Series are nontransferable except to effect transfer to any
successor to the Series 1987A NYSERDA Trustee, to the Bond Insurer or to any
successor to the Bond Insurer, any such transfer of a Bond of the Ninety-third
Series to be made at the principal corporate trust office of the Trustee, upon
surrender and cancellation of such Bond, accompanied by a written instrument of
transfer in a form approved by the Company and the Trustee, duly executed by the
registered holder of such Bond or by his duly authorized attorney, and thereupon
a new Bond or Bonds of the Ninety-third Series, for a like principal amount and
bearing interest at the same rates and having the same maturity date, will be
issued to the successor to the Series 1987A NYSERDA Trustee, the Bond Insurer or
the successor to the Bond Insurer, as the case may be, in exchange therefor, as
provided in the Indenture. The provisions of Section 12 of Article Second of
the Original Indenture to the contrary notwithstanding, no payment of a service
charge shall be required for any exchange or registration of transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Section 6. Form of Bonds of the Ninety-third Series. The
definitive Bonds of the Ninety-third Series, and the Trusteeβs certificate
to be inscribed on all Bonds of said series, are to be substantially in the
forms set forth in Exhibit A. Such Bonds of the Ninety-third Series
shall be issued to the NYSERDA Trustee, in the initial principal amount, and
with the description of the Bonds, identification of the series of NYSERDA Bonds
and the corresponding NYSERDA Trustee and the NYSERDA Indenture, all as
specified in SectionΒ 1 of this ArticleΒ IX.
ARTICLE X
MAINTENANCE FUND PROVISIONS AND
RESTRICTIONS AS TO DIVIDENDS
MAINTENANCE FUND PROVISIONS AND
RESTRICTIONS AS TO DIVIDENDS
The Company covenants that so long as any of the Bonds of the
Eighty-third, Eighty-fourth, Eighty-fifth, Eighty-ninth, Ninetieth,
Ninety-first, Ninety-second or Ninety-third Series shall be outstanding, it will
comply with the provisions of Section 22 (providing for a maintenance fund for
the benefit of Bonds issued under the Indenture) and Section 23 (providing for
certain restrictions on the payment of dividends) of Article Fifth of the
Indenture as added by the Supplemental Indenture dated as of March 1,
1978.
ARTICLE XI
PROVISIONS RELATING TO INSTITUTIONAL HOLDERS
PROVISIONS RELATING TO INSTITUTIONAL HOLDERS
Section 1. Payments to Institutional Holders. Any term of the
Indenture or of the Bonds of the Eighty-third, Eighty-fourth, Eighty-fifth,
Eighty-ninth, Ninetieth, Ninety-first, Ninety-second or Ninety-third Series to
the contrary notwithstanding, so long as the NYSERDA Trustee (herein called the
"Original Holder") or any of its nominees shall be a holder of any of the
Bonds of the Eighty-third, Eighty-fourth, Eighty-fifth, Eighty-ninth, Ninetieth,
Ninety-first, Ninety-second or Ninety-third Series, or if any other
institutional holder or its nominee or nominees shall at any time be the holder
or holders of at least 5% in aggregate principal amount of the Bonds of the
Eighty-third, Eighty-fourth, Eighty-fifth, Eighty-ninth, Ninetieth,
Ninety-first, Ninety-second or Ninety-third Series then outstanding (any such
other institutional holder being herein called an "Institutional
Holder"), payment to such holder of the principal of and the premium, if
any, on any such Bond being redeemed in part and payment of the interest on such
Bond shall be made in such manner and at such place as shall be specified by the
Original Holder or such Institutional Holder in a written notice filed with the
Company, and without any requirement of surrendering such Bond to the Trustee or
noting payments thereon. As a condition to making any such payment, there shall
be filed with the Trustee an agreement by the Original Holder or other
Institutional Holder (designating its nominee or nominees, if any) that in the
event that it shall sell or transfer any such Bond it will (a) make a notation
thereon of all principal, if any, paid on such Bond and will also note the date
to which interest has been paid on such Bond, and (b) promptly notify the
Company and the Trustee of the name and address of the transferee of any such
Bond so sold or transferred by such holder. Upon request of the Trustee there
shall be furnished to the Trustee a certificate or opinion made by the President
or a Vice-President and the Treasurer or an Assistant Treasurer of the Company
whether the holder of any of the Bonds of the Eighty-third, Eighty-fourth,
Eighty-fifth, Eighty-ninth, Ninetieth, Ninety-first, Ninety-second or
Ninety-third Series, other than the Original Holder or its nominee or nominees,
is an Institutional Holder and the Trustee may conclusively rely thereon. The
Trustee shall not be liable or responsible to the Original Holder or any
Institutional Holder or to the Company or to any other person for any act or
omission to act on the part of the Company or the Original Holder or such
Institutional Holder in connection with the foregoing. The Company will
indemnify and save the Trustee harmless against any liabilities resulting from
any such act or omission.
Section 2. Redemption of Bonds from Institutional Holders. Any
term of the Indenture or of the Bonds of the Eighty-third, Eighty-fourth,
Eighty-fifth, Eighty-ninth, Ninetieth, Ninety-first, Ninety-second or
Ninety-third Series to the contrary notwithstanding, so long as the Original
Holder or any Institutional Holder, or a nominee of the Original Holder or such
Institutional Holder, shall be a holder of any of the Bonds of the Eighty-third,
Eighty-fourth, Eighty-fifth, Eighty-ninth, Ninetieth, Ninety-first,
Ninety-second or Ninety-third Series in case of any partial redemption of the
Bonds of the Eighty-third, Eighty-fourth, Eighty-fifth, Eighty-ninth,
Ninetieth, Ninety-first, Ninety-second or Ninety-third Series, the Trustee shall
prorate the principal amount of such Bonds to be redeemed among all holders of
Bonds of such series in proportion to the principal amount of such Bonds
registered in the name of each such holder and shall then designate for
redemption with respect to each such holder particular Bonds of such series or
portions thereof equal to the principal amount of Bonds to be redeemed so
prorated to such registered owner; provided, however, that in any such
prorating pursuant to this paragraph the Trustee shall, according to such method
as it shall deem proper in its discretion, make such adjustments by increasing
or decreasing by not more than $1,000 the amount which would be allocable on the
basis of exact proportion to any one or more holders of such Bonds, as may be
required to provide that the principal amount so prorated shall be in each
instance an integral multiple of $1,000.
ARTICLE XII
THE TRUSTEE
THE TRUSTEE
The Trustee hereby accepts the trusts hereby declared and provided,
and agrees to perform the same upon the terms and conditions set forth in the
Original Indenture and in the indentures supplemental thereto, including this
Supplemental Indenture and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture, or for or
in respect of the recitals contained herein, all of which recitals are made by
the Company solely. To the extent permitted by the provisions of Section 4 of
Article Tenth of the Indenture, the Trustee shall not be answerable or
accountable for anything whatsoever in connection with this Supplemental
Indenture except for its own willful misconduct or negligence.
ARTICLE XIII
AMENDMENT OF INDENTURE
AMENDMENT OF INDENTURE
Article Tenth of the Original Indenture as heretofore modified and
amended is further amended by adding thereto, following Section 18 thereof, a
new Section 19 which shall be and read as follows:
"SECTION 19. The Trustee may appoint an authenticating agent with power
to act on the Trusteeβs behalf and subject to its direction in the
authentication and delivery of Bonds in connection with transfers and exchanges
of Bonds under the provisions of this Indenture as fully to all intents and
purposes as though such authenticating agent had been expressly authorized by
said provisions to authenticate and deliver Bonds. For all purposes of this
Indenture, the authentication and delivery of Bonds by such authenticating agent
pursuant to this Section shall be deemed to be authentication and delivery of
such Bonds "by the Trustee". Such authenticating agent shall at all times be a
bank or trust company organized and doing business under the laws of the United
States or of any State, with a combined capital and surplus of at least
$5,000,000 and authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal or State authority. The
Trustee hereby appoints HSBC Bank USA (successor to Bankers Trust Company, in
turn, successor to Marine Midland Bank, N.A., a national banking association
and, in turn, successor to Marine Midland Bank, a corporation duly organized and
existing under the laws of the State of New York, formerly named The Marine
Midland Trust Company of New York, Marine Midland Grace Trust Company of New
York and Marine Midland Bank β New York), a banking association duly
organized and existing under the laws of the State of New York, as an
authenticating agent. Any corporation into which any authenticating agent so
appointed may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or conversion to which
any authenticating agent shall be a party, or any corporation succeeding to the
corporate trust business of any authenticating agent, shall be the successor of
an authenticating agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the parties hereto or such authenticating agent or
such successor corporation. Any authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the Company. The
Trustee may at any time terminate the agency of any authenticating agent by
giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any authenticating agent shall cease to be
eligible under this Section, the Trustee may appoint a successor authenticating
agent, in which case it shall give written notice of such appointment to the
Company and shall mail notice of such appointment. Any amounts paid by the
Trustee to the authenticating agent from time to time as reasonable compensation
for its services shall be included in the Trusteeβs Charges. The
provisions of Article Second, Section 8, and Article Tenth, Section 5 shall be
applicable to any authenticating agent."
ARTICLE XIV
FUTURE AMENDMENTS OF INDENTURE
FUTURE AMENDMENTS OF INDENTURE
Section 1. Certain Amendments to Article Fourth. The Company
reserves the right, without any consent or other action by holders of the Bonds
of the Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series,
Eighty-ninth Series, Ninetieth Series, Ninety-first Series, Ninety-second or
Ninety-third Series, or of any subsequently created series, to amend at any time
Article Fourth of the Indenture, as it may heretofore, hereby and hereafter be
or have been supplemented and amended, as follows:
1. by deleting the provisions of subparagraph 1(b) of Paragraph F of
Section 6 of Article Fourth thereof, of subparagraph 1(b) of Paragraph E of
Section 7 of Article Fourth thereof and of subsection 1(b) of Section 8 of
Article Fourth thereof;
2. by restating Paragraph A of Section 7 of Article Fourth of the
Indenture so that, as so restated, it shall be and read as follows:
"A. The Bonds, Underlying Mortgage Obligations and Constituent Corporation
Bonds, if any, for which Bonds are then to be issued under this Section 7, shall
not previously have been made the basis for the issuance of Bonds or for the
withdrawal of money under any provision of this Indenture, or retired out of
moneys paid out by the Trustee under the provisions of Section 9 of this Article
Fourth or Section 2 of Article Seventh hereof, or retired with moneys deposited
under an Underlying Mortgage or Constituent Corporation Mortgage and
representing the proceeds of any insurance on the Mortgaged Property or of any
part of the Mortgaged Property which shall have been released from the lien of
this Indenture, or used as the basis for a credit under Section 4 of Article
Third of this Indenture."; and
3. by restating subsection (a) of subparagraph 3 of Paragraph E of Section
7 of Article Fourth of the Indenture so that, as so restated, it shall be and
read as follows:
"(a) That the Bonds, Underlying Mortgage Obligations and Constituent
Corporation Bonds, if any, for which Bonds are then to be issued under this
Section 7, had not been made the basis for the issuance of Bonds or for the
withdrawal of money under any provision of this Indenture, and had not been
retired out of moneys paid out by the Trustee under the provisions of Section 9
of this Article Fourth or Section 2 of Article Seventh hereof, or retired with
moneys deposited under an Underlying Mortgage or Constituent Corporation
Mortgage and representing the proceeds of any insurance on the Mortgaged
Property or of any part of the Mortgaged Property which shall have been released
from the lien of this Indenture and had not been used as the basis for a credit
under Section 4 of Article Third of this Indenture."
Section 2. Amendment to Article Ninth. The Company reserves the
right, without any consent or other action by holders of the Bonds of the
Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series, Eighty-ninth
Series, Ninetieth Series, Ninety-first Series, Ninety-second or Ninety-third
Series, or of any subsequently created series, to amend at any time Article
Ninth of the Indenture, as it may heretofore, hereby and hereafter be or have
been supplemented and amended, by adding the following Section 19 at the end of
said ArticleΒ Ninth:
"SECTION 19. All Parties to this Indenture agree, and each holder of Bonds
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneysβ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any holder, or group of holders, of more than
10% in aggregate principal amount of the bonds outstanding, or to any suit
instituted by any holder of Bonds for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Bond on or after the
maturity date expressed in such Bond."
Section 3. Amendment to Article Eleventh. The Company reserves the
right, without any consent or other action by holders of the Bonds of the
Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series, Eighty-ninth
Series, Ninetieth Series, Ninety-first Series, Ninety-second or Ninety-third
Series, or of any subsequently created series, to amend at any time Article
Eleventh of the Indenture, as it may heretofore, hereby and hereafter be or have
been supplemented and amended, by amending the first paragraph of Section 2
thereof so that, as so amended, it shall be and read as follows:
"SECTION 2. Anything herein contained to the contrary notwithstanding, any
moneys at any time deposited with the Trustee pursuant to the provisions hereof
for the payment of the principal, premium or interest of or upon any Bond or
interest coupon and remaining unclaimed for three (3) years after the date upon
which such payment shall have become due shall, upon the request of the Company,
be repaid to it by the Trustee; provided, that, before being required to make
any such repayment, the Trustee may, at the expense of the Company, cause to be
published, once a week for four (4) successive calendar weeks, in a daily
newspaper, printed in the English language, published and of general circulation
in the Borough of Manhattan, The City of New York, State of New York, and in a
daily newspaper, printed in the English language, published and of general
circulation in each of the other cities (if any) in which such principal,
premium or interest, as the case may be, was payable in accordance with the
terms of the Bond or interest coupon with respect to which such moneys were
deposited, notice that the said moneys have not been claimed, and that after a
date named in such notice, the balance of such moneys then unclaimed will be
repaid to the Company."
Section 4. Certain Amendments to Article Twelfth. The Company
reserves the right, without any consent or other action by holders of the Bonds
of the Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series,
Eighty-ninth Series, Ninetieth Series, Ninety-first Series, Ninety-second or
Ninety-third Series, or of any subsequently created series, to amend at any time
Article Twelfth of the Indenture, as it may heretofore, hereby and hereafter be
or have been supplemented and amended, by amending Paragraph A of Section 2 of
Article Twelfth of the Indenture by the addition of the following:
"The Trustee may, and, upon written request of the Company or of the
holders of a majority in principal amount of the Bonds outstanding, shall, fix a
day, not less than ten (10) days prior to the date of first publication of
notice of such meeting, as a record date for the determination of holders of
Registered Bonds without coupons, and of Coupon Bonds registered as to principal
(otherwise than to bearer), entitled to notice of and to vote at such meeting
and any adjournment thereof, and only such registered holders who shall have
been such on the date so fixed shall be entitled to notice of and to vote such
Bonds at such meeting, and the Registered Bonds without coupons, and the Coupon
Bonds registered as to principal (otherwise than to bearer), on such record date
may be voted at such meeting and any adjournment thereof only by the persons who
shall have been registered holders of such Bonds on such record date or their
proxies, notwithstanding any registration of transfer of any such Bonds on the
books of the Company after such date. If any Registered Bonds without coupons
shall be transferred or shall be exchanged for Coupon Bonds after such record
date, or if any Coupon Bonds registered as to principal (otherwise than to
bearer) on such record date shall thereafter be registered to bearer, a suitable
notation shall be made upon such Bonds at the time of registration of transfer
from such registered holderβs name or exchange, as the case may be, to
record the fact that the registered holder of such Bonds on said record date or
his proxies shall be the only persons entitled to vote such Bonds at the
meeting. If any Coupon Bond not registered as to principal upon such record
date is thereafter so registered (otherwise than to bearer) or is thereafter
exchanged for a Registered Bond, the first registered holder in whose name such
Bond shall be so registered shall be deemed to have been the registered holder
of such Bond on the record date for the purposes of this section, and upon such
registration or exchange a notice of such meeting shall be delivered to such
registered holder. In any case where a record date is fixed as aforesaid, the
list of Bondholders referred to in Paragraph B of this Section 2 shall be based
upon the holdings of Bonds on such record date, but shall also include the
holder of Coupon Bonds registered as to principal (otherwise than to bearer)
after such record date and prior to such meeting and the holders of Registered
Bonds received in exchange for Coupon Bonds after such record date and prior to
such meeting."
Section 5. Additional Amendment to Article Twelfth. The Company
reserves the right, without any consent or other action by holders of the Bonds
of the Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series,
Eighty-ninth Series, Ninetieth Series, Ninety-first Series, Ninety-second Series
or Ninety-third Series, or of any subsequently created series, to amend at any
time Article Twelfth of the Indenture, as it may heretofore, hereby and
hereafter be or have been supplemented and amended, by adding the following
Paragraph G to Section 2 thereof:
"G. Whenever the Company shall deliver to the Trustee an instrument or
instruments executed by holders of at least sixty-six and two-thirds percent
(66-2/3%) in aggregate principal amount of the Bonds affected and outstanding at
the time of such delivery, consenting to the substance of a proposed
modification or amendment to the provisions hereof, thereupon the Trustee shall
execute a supplemental indenture in substantially the form provided for by or in
such instrument or instruments, and no holder of any Bond shall have any right
or interest to object to the execution of said supplemental indenture or to
object to any of the terms or provisions therein contained, or the operation
thereof, or in any manner to question the propriety of the execution thereof, or
to enjoin or restrain the Trustee or the Company from executing the same or from
taking any action pursuant to the provisions thereof, provided that, in
lieu of an instrument or instruments executed by holders of Bonds, the consent
of the holders of any series of Bonds to any such proposed modification or
amendment may be set forth in and evidenced by the supplemental indenture
establishing the terms and provisions of such series; and provided further that
no such change or modification shall (a) alter or impair the obligation of the
Company to pay the principal and interest on any Bond outstanding at the time
and place and at the rate and in the currency prescribed therein, without the
consent of the holder of such Bond, (b) permit the creation by the Company of
any mortgage, or lien in the nature of a mortgage, ranking prior to or pari
passu with the lien of the Indenture, or alter adversely to the Bondholders
the character of the lien of the Indenture, except as in the Indenture otherwise
expressly provided, unless the creation of such mortgage or lien, or such
alteration of the lien of the Indenture, be consented to by the holders of all
outstanding Bonds, (c) affect the Trustee unless consented to by the Trustee or
(d) permit a reduction of the percentage required for any change or modification
of the indenture, without the consent of the holders of all outstanding
Bonds.
It shall not be necessary for any consent of Bondholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent approves the substances of the
matters to which such consent relates. Any consent executed and delivered by
any Bondholder shall be binding upon all future holders of Bonds held by such
Bondholder at the time of execution of such consent, including without
limitation any Bonds issued in substitution or exchange therefor, whether upon
transfer or otherwise."
Section 6. Amendment to Article Thirteenth. The Company reserves
the right, without any consent or other action by holders of the Bonds of the
Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series, Eighty-ninth
Series, Ninetieth Series, Ninety-first Series, Ninety-second Series or
Ninety-third Series, or of any subsequently created series, to amend at any time
Article Thirteenth of the Indenture, as it may heretofore, hereby and hereafter
be or have been supplemented and amended, by amending the first paragraph of
Section 1 thereof so that, as so amended, it shall be and read as
follows:
"SECTION 1. Any demand, consent, waiver, request, notice or other
instrument in writing required or provided by this Indenture to be signed or
executed by the holders of any Bonds may be in any number of concurrent writings
of similar tenor, and may be signed or executed by such holders in person or by
attorney appointed in writing.
The fact and date of the execution by any person of any such instrument,
or of the writing appointing any such attorney, and of the ownership by any
person of any Bonds, may be proved in any manner deemed sufficient by the
Trustee, and such proof shall be conclusive in favor of the Trustee and the
Company.
Without limiting the generality of the foregoing paragraph:
A. The signature on a proxy, consent or other such instrument or writing,
if believed by the Trustee to be genuine, shall be sufficient to establish the
fact of the execution thereof.
B. The fact of the ownership of any Coupon Bond which shall not at the
time be registered as to principal or shall be registered to bearer, and the
denomination and serial number of such Bonds and the date of holding the same,
may be proved by a certificate executed by any trust company, bank, banker or
other depositary (wherever situated), showing that at the date therein mentioned
the person named in such certificate had on deposit with such depositary the
Bond described in such certificate. For all purposes of this Indenture and of
any proceedings pursuant hereto for the enforcement hereof or otherwise, to the
extent permitted by the provisions of Section 4 of Article Tenth, such person
shall be deemed to continue to be the owner of such Bond until the Trustee shall
have received notice in writing to the contrary. The ownership of any
Registered Bond or of any Coupon Bond which shall at the time be registered as
to principal (otherwise than to bearer) shall be proved by the register of Bonds
maintained for such purpose."
Section 7. Additional Amendment to Article Fourth. The Company
reserves the right, without any consent or other action by holders of the Bonds
of the Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series,
Eighty-ninth Series, Ninetieth Series, Ninety-first Series, Ninety-second or
Ninety-third Series, or of any subsequently created series, to amend at any time
Article Fourth of the Indenture, as it may heretofore, hereby and hereafter be
or have been supplemented and amended, by amending subparagraph (3) of Paragraph
E of Section 9 thereof so that, as so amended, it shall be and read as
follows:
"(3) A statement, in form satisfactory to the Trustee, signed by the
President or a Vice President and the Treasurer or an Assistant Treasurer of the
Company, and verified on information and belief by one of such officers not more
than sixty (60) days prior to the receipt thereof by the Trustee, certifying (a)
that the Bonds so delivered had previously been actually negotiated by the
Company for value; (b) that the Company had bona fide purchased or contracted to
purchase the said Bonds, Underlying Mortgage Obligations and Constituent
Corporation Bonds at prices (inclusive of accrued interest) to be set forth in
the statement, and that such prices were not in excess of 115% of the principal
amount of said Bonds, Underlying Mortgage Obligations and Constituent
Corporation Bonds; (c) that the Company is not, so far as known to the officers
signing such statement, in default with respect to the performance or observance
of any covenant or agreement contained in this Indenture; and (d) that it is not
then necessary to retire the Underlying Mortgage Obligations to be purchased to
eliminate any excess of the nature described in Paragraph D of Section 7
hereof."
Section 8. Amendment to Article Seventh. The Company reserves the
right, without any consent or other action by holders of the Bonds of the
Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series, Eighty-ninth
Series, Ninetieth Series, Ninety-first Series, Ninety-second or Ninety-third
Series, or of any subsequently created series, to amend at any time Article
Seventh of the Indenture, as it may heretofore, hereby and hereafter be or have
been supplemented and amended, by amending Paragraph E of Section 2 thereof so
that, as so amended, it shall be and read as follows:
"E. To the purchase of Bonds of any series issued and outstanding hereunder
or of Underlying Mortgage Obligations or of Constituent Corporation Bonds at not
in excess of 115% of the principal amount thereof, in accordance with the
provisions of Paragraph E of Section 9 of Article Fourth."
ARTICLE XV
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 1. Amendment of Indenture. This Supplemental Indenture
shall, pursuant to the provisions of Section 4 of Article Twelfth of the
Indenture, hereafter form a part of the Indenture; and all the terms and
conditions contained in this Supplemental Indenture as to any provision
authorized to be contained herein shall be and be deemed to be part of the terms
and conditions of the Indenture for any and all purposes. Except as expressly
amended and supplemented by this Supplemental Indenture, the Indenture is hereby
ratified and confirmed in all respects.
Section 2. Execution in Counterparts. This Supplemental Indenture
may be simultaneously executed in any number of counterparts, and each of such
counterparts shall for all purposes be deemed to be an originals and shall
remain in full force and effect, and all such counterparts shall together
constitute but one and the same instrument.
Section 3. Headings. Headings of Articles and Sections of this
Supplemental Indenture are intended for ease of reference and are not a part of
the terms of this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed in their respective corporate names by their respective
officers thereunto duly authorized, and their respective corporate seals to be
hereto attached and to be duly attested, all as of the day and year first above
written.
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NIAGARA MOHAWK POWER CORPORATION
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(SEAL)
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By: _________________________
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:
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Name
Title |
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Attest:
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______________________________
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Name:
Title:
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HSBC BANK USA
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(SEAL)
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By: _________________________
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Name
Title |
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Attest:
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______________________________
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Name:
Title:
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ___________ day of ________________, 2003, before me
personally came ________________________ and
________________________, each to me personally known, who, being by me duly
sworn, did depose and say that he/she resides at
________________________________ and
________________________________, respectively; that he/she is a/the
________________ and ____________ secretary, respectively, of
Niagara Mohawk Power Corporation, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he/she
signed his name thereto by like order.
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______________________________
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Notary Public
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My Commission Expires:
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ___________ day of ____________, 2003, before me
personally came ________________________ and
_________________________each to me personally known, who, being by me duly
sworn, did depose and say that he/she resides at
_____________________________________ and
_____________________________________, respectively; that he/she is a/the
___________________ and ________________ secretary,
respectively, of HSBC Bank USA, the ___________________ described in and
which executed the above instrument; that he/she knows the seal of said
_____________________; that the seal affixed to said instrument is such
________________ seal; that it was so affixed by order of the Board of Directors
of said ___________________, and that he/she signed his name thereto by like
order.
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______________________________
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Notary Public
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My Commission Expires:
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Exhibit A
Form of Bonds
Form of Bonds
THIS BOND MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A BOND REGISTERED,
AND NO TRANSFER OF THIS BOND IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN THE SERIES _____ NYSERDA TRUSTEE OR ITS SUCCESSOR OR
THE BOND INSURER OR ITS SUCCESSOR, AS DESCRIBED HEREIN AND ON THE REVERSE
HEREOF.
THIS BOND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES ("BLUE SKY
LAWS") AND RECORD OR BENEFICIAL OWNERSHIP OF THIS BOND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT, IN ACCORDANCE WITH ALL APPLICABLE
BLUE SKY LAWS AND IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH ON THE REVERSE
HEREOF.
| No. RU-__ | $___________ |
NIAGARA MOHAWK POWER CORPORATION
FIRST MORTGAGE BOND
FLOATING RATE SERIES ___ DUE _______
FLOATING RATE SERIES ___ DUE _______
NIAGARA MOHAWK POWER CORPORATION, a New York corporation (herein called the
"Company"), for value received, hereby promises to pay to _______________ or
registered assigns, the principal sum of __________________ Dollars ($________)
or, if less, such principal amount as is equal to the aggregate principal amount
of Series ________ NYSERDA Bonds (as defined in the Supplemental Indenture dated
as of May 1, 2003), on ____________ or such earlier date or dates on which the
principal amount of outstanding SeriesΒ _________ NYSERDA Bonds is stated to
be due and payable (whether due to optional prepayment or acceleration) under
the Series ________ NYSERDA Indenture, and to pay interest (as defined
below) as provided below and on the reverse hereof.
Both principal of and interest on this Bond and premium, if any, are
payable at the corporate trust office of the Trustee hereinafter named, in the
Borough of Manhattan, City and State of New York, or at such other office or
agency in said Borough as shall be maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts.
Reference is made to the further provisions of this Bond set forth on the
reverse hereof, which for all purposes have the same effect as though fully set
forth at this place.
This Bond shall not be valid or obligatory for any purpose until
authenticated by the execution by the Trustee of the certificate inscribed
hereon.
IN WITNESS WHEREOF, the Company has caused this Bond to be executed in its
corporate name by a facsimile of the signature (or manual signature) of its
President or a Vice President and imprinted with its corporate seal (or a
facsimile thereof), attested by a facsimile of the signature (or manual
signature) of its Secretary or an Assistant Secretary.
Dated: __________ __, 2003
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NIAGARA MOHAWK POWER CORPORATION
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By:____________________________
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Attest:
____________________________
Asst. Secretary
Asst. Secretary
This is one of the Bonds of the Series designated above described in the
within-mentioned Indenture.
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HSBC BANK USA
as Trustee |
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By:______________________________
Authorized Officer |
[Reverse of Bond of the _______________ Series]
This Bond is one of a duly authorized issue of Bonds of the Company, of an
unlimited (except as provided in the Indenture hereinafter mentioned) permitted
principal amount, all issued or to be issued in one or more series (the Bonds of
the series of which this Bond is a part being herein called the "Bonds of the
______________ Series"), all of the Bonds of all series being issued or to be
issued under and, irrespective of the time of issue, all equally secured by a
Mortgage Trust Indenture (herein, with all instruments stated to be supplemental
thereto to which the Trustee hereinafter named or its predecessor as Trustee
hereunder is or shall be a party, called the "Indenture"), dated as of October
1, 1937, to HSBC Bank USA (successor to Bankers Trust Company, in turn,
successor to Marine Midland Bank, in turn, successor to Marine Midland Bank,
N.A., a national banking association and, in turn, successor to Marine Midland
Bank, a corporation duly organized and existing under the laws of the State of
New York, formerly named the Marine Midland Trust Company of New York, Marine
Midland Grace Trust Company of New York and Marine Midland Bank β New York
and hereinafter, with its successors as defined in the Indenture, referred to as
the "Trustee"), to which Indenture, an executed counterpart of which is on file
with the Trustee, reference is hereby made for a description of the property
mortgaged and pledged to the Trustee, and for a statement of the nature and
extent of the security, the rights of the holders of the Bonds with respect to
such security, and the terms and conditions upon which said Bonds are or are to
be issued and secured; but neither the foregoing reference to the Indenture, nor
any provision of this Bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute and unconditional, to pay, at the
stated or accelerated maturities herein provided, the principal of and interest
on this Bond as herein provided.
The Bonds of the _____________ Series have been issued to The Bank of New
York, as trustee (the "Series ______ NYSERDA Trustee") under the Indenture of
Trust dated as of __________ (as the same may be amended, supplemented or
otherwise modified from time to time, the "Series ________ NYSERDA Indenture")
between the New York State Energy Research and Development Authority ("NYSERDA")
and the Series ______ NYSERDA Trustee in respect of the pollution control bonds
issued under the Series _____ NYSERDA Indenture (the Series _____ NYSERDA
Bonds"), (i) to evidence the obligation of the Company to make payments in
respect of the principal amount of the Series _______ NYSERDA Bonds, interest on
the principal amount of the Series _______ NYSERDA Bonds and premium, if any,
payable upon prepayment or redemption of the Series _______ NYSERDA Bonds and
(ii) to provide to the Series _____ NYSERDA Trustee the benefit of the security
provided for under the Indenture and by the Bonds in respect of the obligations
of the Company set forth in clause (i) of this sentence.
Interest on this Bond accrues and is payable at the same rates and on the
same dates as provided in the Series _____ NYSERDA Indenture for the accrual and
payment of interest in respect of outstanding principal of the Series ______
NYSERDA Bonds.
The obligation of the Company to make payments with respect to the
principal of, interest on, and premium, if any, with respect to Bonds of the
_____________ Series shall be fully or partially, as the case may be,
satisfied and discharged, and the amount of any such payments shall be reduced,
to the extent that the Company shall have made the payment, in full or in part,
of principal and premium, if any, and interest then due on the Series _______
NYSERDA Bonds, and the Trustee shall not have received written notice from the
Company that the obligation of the Company shall not be so satisfied and
discharged and the amount of any such payment so reduced. Notwithstanding the
foregoing, the principal and interest due on this Bond shall continue or be
reinstated, as the case may be, if at any time any payment of principal or
interest (whether paid under this Bond or the Series ______ NYSERDA Bonds) is
rescinded or must otherwise be returned by the Series _____ NYSERDA Trustee, the
holders of the Series ______ NYSERDA Bonds, or any other person upon the
insolvency, bankruptcy or reorganization of the Company or by operation of law,
all as though payment had not been made.
The Indenture and the rights and obligations of the Company and of the
holders of the Bonds thereunder may be changed or modified at any time upon the
consent and approval of the Company and of the holders of 66-2/3 per cent in
principal amount of the Bonds then outstanding affected by such change or
modification, given as provided in the Indenture, and in the manner and subject
to the limitations therein set forth; provided, that no such change or
modification shall (a) alter or impair the obligation of the Company to pay the
principal of, and premium, if any, and interest on any Bond at the time and
place and at the rate and in the currency provided therein, without the consent
of the holder of such Bond, (b) permit the creation by the Company of any
mortgage, or lien in the nature of a mortgage, ranking prior to or pari
passu with the lien of the Indenture, or alter adversely to the Bondholders
the character of the lien of the Indenture, except as in the Indenture otherwise
expressly provided, unless the creation of such mortgage or lien, or such
alteration of the lien of the Indenture, be consented to by the holders of all
outstanding Bonds, (c) affect the Trustee unless consented to by the Trustee or
(d) permit a reduction of the percentage required for any change or modification
of the Indenture, without the consent of the holders of all outstanding
Bonds.
The outstanding principal indebtedness evidenced by this Bond together with
accrued interest thereon may be declared, or may become, due and payable before
maturity in certain events, on the conditions, in the manner and with the effect
set forth in the Indenture.
Each Bond of the ______________ Series shall be dated as of the date of its
authentication, and shall bear interest from such date.
Upon surrender for cancellation, at any time or from time to time, of Bonds
of the ______ Series by the Series _____ NYSERDA Trustee to the Trustee, the
Bonds so surrendered shall be deemed fully paid and the obligations of the
Company thereunder shall be terminated, and such Bonds shall be
cancelled.
The Bonds of the _____________ Series are subject to mandatory redemption,
in whole or in part, in the event of any optional or mandatory redemption of the
Series ______ NYSERDA Bonds, in each case upon notice given as provided in the
Series ______ NYSERDA Indenture, at the applicable redemption price specified in
the Series _____ NYSERDA Indenture for the Series _______ NYSERDA Bonds being
redeemed, in such amount as, together with any moneys available therefor under
the Series ______ NYSERDA Indenture, shall be required, in accordance with the
provisions of the Participation Agreement dated as of ____________ between the
Company and NYSERDA, as amended, and the Series ______ NYSERDA Indenture, to pay
the principal of and premium, if any, and interest on the SeriesΒ ________
NYSERDA Bonds so redeemed.
The Bonds of the ___________ Series are subject to mandatory redemption, as
a whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, together with interest accrued to the date fixed for redemption,
upon a declaration by the Series _____ NYSERDA Trustee that the principal of all
Series _______ NYSERDA Bonds then outstanding is immediately due and payable
pursuant to the Series _____ NYSERDA Indenture and upon written notice thereof
by the Series _____ NYSERDA Trustee to the Trustee at least 30 days prior to the
date fixed for redemption, provided that no written cancellation of such
declaration shall have been received by the Trustee and the Company prior to
notice of such redemption having been given to the Trustee.
The Bonds of the ___________ Series may not be redeemed, either as a whole
or in part, except in connection with the payment of a like principal amount of
Series _______ NYSERDA Bonds, either by redemption or at maturity (stated or
otherwise). The principal amount of the Series _______ NYSERDA Bonds and,
therefore, the principal of the Bonds of the ____________ Series, may be
prepaid, and the due dates thereof shall be accelerated, in accordance with the
terms of the Series ______ NYSERDA Indenture.
No recourse shall be had for the payment of any part of principal of, or
interest on, this Bond, or for any claim based hereon or thereon, or otherwise
in any manner with respect hereto, or with respect to the Indenture, to or
against any incorporator or any past, present or future stockholder, officer or
director of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or other provision of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability being expressly waived
and released by the acceptance of this Bond and as part of the consideration for
the issue hereof, as provided in the Indenture.
If this Bond or any part thereof is called for redemption and payment duly
provided, this Bond or such part thereof shall cease to bear interest from and
after the date fixed for such redemption.
This Bond is nontransferable except to effect transfer to the Bond Insurer
or to any successor to either the Series ______ NYSERDA Trustee or the Bond
Insurer, registration of any such transfer of this Bond may be made by the
registered owner (or assigns) in person or by duly authorized attorney, at the
principal corporate trust office of the Trustee, or at such other offices or
agencies of the Trustee or the Company as shall be maintained for such purpose,
upon surrender and cancellation of this Bond, accompanied by a written
instrument of transfer in a form approved by the Company and the Trustee, duly
executed by the registered holder of this Bond or by his duly authorized
attorney, and thereupon a new Bond or Bonds of the _______________ Series, for a
like principal amount and having the same interest rate and maturity date, will
be issued to the Bond Insurer or to the successor to the
SeriesΒ ______NYSERDA Trustee or the Bond Insurer, as the case may be, in
exchange therefor, as provided in the Indenture. No service charge shall be
made for any exchange or registration of transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. The Company and the Trustee may deem and
treat the person in whose name this Bond is registered as the absolute owner
hereof for the purpose of receiving payment and for all other purposes and the
Company, the Trustee and any paying agent or agency may disregard any notice to
the contrary, whether this Bond or interest thereon shall be overdue or not.
This Bond, alone or with other Bonds of the ______________ Series, may in like
manner be exchanged at such office or agency for one or more new Bonds of the
_______________ Series of the same aggregate principal amount and having the
same interest rate and maturity date, all as provided in the
Indenture.
