EXHIBIT 4(b)(39)
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NIAGARA MOHAWK POWER CORPORATION
to
BANKERS TRUST COMPANY, as Trustee
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Supplemental Indenture
Dated as of March 20, 1996
Providing for creation of $255,000,000 principal amount of First Mortgage Bonds,
Floating Rate Series A due June 30, 1999, $125,000,000 principal amount of First
Mortgage Bonds, Floating Rate Series B due June 30, 1999, $163,000,000 principal
amount of First Mortgage Bonds, Floating Rate Series C due June 30, 1999,
$213,260,000 principal amount of First Mortgage Bonds, Floating Rate Series D
due June 30, 1999, $37,500,000 principal amount of First Mortgage Bonds,
Floating Rate Series E due June 30, 1999 and $20,000,000 principal amount of
First Mortgage Bonds, 3% Series due June 30, 1999
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TABLE OF CONTENTS*
PARTIES
RECITALS
CONSIDERATION
PART I. Creation of a Series of First
Mortgage Bonds, Floating Rate
Series A Due June 30, 1999
[Form of Face of Definitive Bond of the
Eighty-first Series]
[Form of Trustee's Certificate]
[Form of Reverse of Definitive Bond
of the Eighty-first Series]
PART II. Creation of a Series of First
Mortgage Bonds, Floating Rate
Series B Due June 30, 1999
[Form of Face of Definitive
Bond of the Eighty-second
Series]
[Form of Trustee's
Certificate]
[Form of Reverse of Definitive
Bond of the Eighty-second
Series]
PART III. Creation of a Series of First
Mortgage Bonds, Floating Rate
Series C Due June 30, 1999
[Form of Face of Definitive
Bond of the Eighty-third
Series
[Form of Trustee's
Certificate]
[Form of Reverse of Definitive
Bond of the Eighty-third
Series]
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* This Table of Contents does not constitute part of the supplemental
indenture or have any bearing upon the interpretation of any of its terms
and provisions.
PART IV. Creation of a Series of First
Mortgage Bonds, Floating Rate
Series D Due June 30, 1999
[Form of Face of Definitive
Bond of the Eighty-fourth
Series]
[Form of Trustee's
Certificate]
[Form of Reverse of Definitive
Bond of the Eighty-fourth
Series]
PART V. Creation of a Series of First
Mortgage Bonds, Floating Rate
Series E Due June 30, 1999
[Form of Face of Definitive
Bond of the Eighty-fifth
Series]
[Form of Trustee's
Certificate]
[Form of Reverse of Definitive
Bond of the Eighty-fifth
Series]
PART VI. Creation of a Series of First
Mortgage Bonds, 3% Series Due June
30, 1999
[Form of Face of Definitive
Bond of the Eighty-sixth
Series]
[Form of Trustee's
Certificate]
[Form of Reverse of Definitive
Bond of the Eighty-sixth
Series]
PART VII. Information to Trustee
PART VIII. Future Amendments of Indenture and
Loan Agreements
PART IX. Amendment of Indenture
PART X. The Trustee
PART XI. Miscellaneous Provisions
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
SUPPLEMENTAL INDENTURE dated as of March 20, 1996, 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 BANKERS TRUST COMPANY (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 -- New York), a banking corporation and trust company duly
organized and existing under the laws of the State of New York, having its
principal corporate trust office at Four Albany Street, New York, New York
(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 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 April
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 11 1982, as of April 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 and as of May 1, 1995 (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, terms, 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 Company desires to enter into this indenture
supplemental to the Original Indenture with the Trustee for the purpose of
establishing the form, terms, provisions and conditions of six new series of
Bonds under the Indenture and for the purpose of providing the terms and
conditions of redemption of the Bonds of such new series, all as determined by
resolution or resolutions of the Board of Directors of the Company; 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 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:
PART I.
CREATION OF A SERIES OF FIRST MORTGAGE BONDS,
FLOATING RATE SERIES A DUE JUNE 30, 1999
SECTION 1. The Company hereby creates and establishes a new
series of Bonds to be issued under and secured by the Indenture to be designated
"First Mortgage Bonds, Floating Rate Series A due June 30, 1999" (hereinafter
sometimes referred to as the "Bonds of the Eighty-first Series").
The Bonds of the Eighty-first Series shall be registered in
the name of Citibank N.A., as master creditor agent (the "Master Creditor
Agent") under the Master Creditor Agreement dated as of March 20, 1996 (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Master Creditor Agreement"), on behalf and for the ratable benefit of the
lenders (the "Term Lenders") named as Lenders in the Term Loan Agreement dated
as of March 20, 1996 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Term Loan Agreement")
among the Company, the Term Lenders and Citibank N.A., as agent.
The permitted principal amount of the Bonds of the
Eighty-first Series which may be executed by the Company 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-first Series
for a principal amount exceeding $255,000,000, except that Bonds of the
Eighty-first Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the Company
may execute and deliver to the Trustee from time to time not in excess of
$255,000,000 aggregate principal amount of Bonds of the Eighty-first Series, and
thereupon the Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of specified evidence of due compliance
by the Company with the applicable provisions of the Indenture, shall
authenticate the said $255,000,000 principal amount of Bonds of the Eighty-first
Series and deliver the same upon the written order of the Company signed in its
name by its President or one of its Vice Presidents or its Treasurer or an
Assistant Treasurer.
SECTION 2. Each Bond of the Eighty-first Series shall be dated
as of the date of its authentication. The Bonds of the Eighty-first Series are
to be issued to the Master Creditor Agent (i) to evidence the obligation of the
Company to make payments in respect of the principal amount of Advances (as
defined in the Term Loan Agreement), interest on such principal amount and
commitment fees on Unused Commitment (as defined in the Term Loan Agreement) in
each case stated to be due under the Term Loan Agreement and (ii) to provide to
the Master Creditor Agent on behalf of and for the ratable benefit of the Term
Lenders, the benefits 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.
The Bonds of the Eighty-first Series are to be issued in an
aggregate principal amount equal to $255,000,000, being the amount of the
aggregate original Commitments under (and as defined in) the Term Loan Agreement
and are to mature on June 30, 1999. The principal of the Bonds of the
Eighty-first Series shall be payable on the same date or dates and in the same
amounts as set forth in the Term Loan Agreement for the payment of principal on
Advances thereunder. "Interest" shall accrue and be payable on the Bonds of the
Eighty-first Series from the date thereof until such Bonds are repaid in full,
payable at the same rates, in the same amounts and on the same payment dates as
provided in the Term Loan Agreement for the accrual and payment of interest in
respect of outstanding principal of Advances and for the accrual and payment of
commitment fees in respect of Unused Commitment. The rate of Interest payable on
the Bonds of the Eighty-first Series shall not exceed 15% per annum (calculated
on the basis of a 360-day year of twelve (12) 30-day months). Definitive Bonds
of said series shall be registered Bonds without coupons and shall be issued in
denominations of $1,000 and multiples thereof.
The Interest payable on any Interest payment date shall be
paid to the persons in whose names the Bonds of the Eighty-first Series were
registered at the close of business on the record date for such payment of
Interest notwithstanding any cancellation of Bonds of the Eighty-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 Eighty-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 the Trustee and holders of Bonds of the Eighty-first
Series not less than ten days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to an Interest payment
date, the earlier of (i) the close of business on the last day of the calendar
month next preceding such Interest payment date or, if such last 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 and (ii) 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-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 Eighty-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
Eighty-first Series shall be payable at the office of the Trustee, which in the
case of Bankers Trust Company, 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. The Bonds of the Eighty-first Series are not
subject to redemption, either as a whole or in part. The principal amount of the
Advances under the Term Loan Agreement and, therefore, the principal of the
Bonds of the Eighty-First Series may be prepaid, and the due dates thereof shall
be accelerated, in accordance with the terms of the Term Loan Agreement.
If an event of default, as defined in the Indenture, shall
occur, the outstanding principal indebtedness evidenced by the Bonds of the
Eighty-first Series may be declared or may be due and payable, in the manner and
with the effect provided in the Indenture.
SECTION 4. Notwithstanding the foregoing provisions of this
Part I or any provisions of the Bonds of the Eighty-first Series, the obligation
of the Company to make payments with respect to the principal of and Interest on
the Bonds of the Eighty-first Series shall be fully or partially, as the case
may be, satisfied and discharged, to the extent of any such
full or partial payment of the then due principal of Advances (as defined in the
Term Loan Agreement), interest due thereon and commitment fees due in respect of
Unused Commitment under the Term Loan Agreement. The Trustee may conclusively
presume that the obligation of the Company to make payments with respect to the
principal of and Interest on the Bonds of the Eighty-first Series shall have
been duly satisfied and discharged unless and until the Trustee shall have
received notice of nonpayment thereof from the Master Creditor Agent. The Master
Creditor Agreement, in Section 2.06(a) thereof, provides that, at such time as
any portion of the outstanding principal amount of any Advances together with
all accrued and unpaid interest thereon and all accrued and unpaid commitment
fees then due under the Term Loan Agreement shall have been fully and finally
paid, whether upon the prepayment or upon the maturity or acceleration thereof,
upon the request of the Company and following confirmation of such by the Term
Loan Agent (as defined in the Master Creditor Agreement), a principal amount of
Bonds of the Eighty-first Series equal to such principal amount of the Advances
so paid shall be surrendered by the Master Creditor Agent to the Trustee for
cancellation, and upon such surrender shall be deemed fully paid.
Notwithstanding the foregoing, the principal and Interest due on the Bonds of
the Eighty-first Series shall continue or be reinstated, as the case may be, if
at any time any payment of principal or Interest (whether paid under the Bonds
of the Eighty-first Series or the Term Loan Agreement) is rescinded or must
otherwise be returned by the Master Creditor Agent or any Term Lender 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. The registered owner (or assigns) of any Bond of
the Eighty-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 like tenor and 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-first Series are nontransferable except to effect
transfer to any
successor to the Master Creditor Agent or to one or more Term Lenders, any such
transfer of a Bond of the Eighty-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
Eighty-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 Master Creditor Agent or to one or more Term Lenders, 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. The definitive Bonds of the Eighty-first Series,
and the Trustee's Certificate to be inscribed on all Bonds of said series, are
to be substantially in the forms following, respectively:
[Form of Face of Definitive Bond of the Eighty-first series]
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 Master Creditor
Agent, a successor thereto or one or more Lenders, 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 A DUE JUNE 30, 1999
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby promises to pay to
CITIBANK N.A., as Master Creditor Agent under the Master Creditor Agreement
hereinafter described, or registered assigns, the principal sum of
__________________ Dollars or, if less, such principal amount as is equal to the
aggregate principal amount of Advances (as defined in and) outstanding under the
Term Loan Agreement hereinafter described, on June 30, 1999, or such earlier
date or dates on which the principal amount of outstanding Advances is stated to
be due and payable (whether due to optional prepayment or acceleration) under
the Term Loan Agreement, and to pay Interest (as defined below) as provided
below and on the reverse hereof. The rate of Interest payable on this Bond shall
not exceed 15% per annum (calculated on the basis of a 360-day year of twelve
(12) 30-day months).
Both principal of and Interest on this Bond 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: NIAGARA MOHAWK POWER
CORPORATION
By
Attest:
Secretary
[Form of Trustee's Certificate]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture
BANKERS TRUST COMPANY
as Trustee
By
Authorized Officer
[Form of Reverse of Definitive Bond of the Eighty-first 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 Eighty-first 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
Bankers Trust Company (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 -- 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 Eighty-first Series have been issued to
Citibank N.A., as master creditor agent (the "Master Creditor Agent") under the
Master Creditor Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Master
Creditor Agreement"), on behalf of the lenders (the "Lenders") named as Lenders
in the Term Loan Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Term Loan
Agreement") among the Company, the Lenders and Citibank N.A. as agent for the
Lenders, (i) to evidence the obligation of the Company to make payments in
respect of principal, interest on such principal and commitment fees on the
Unused Commitment (as defined in and) stated to be due under the Term Loan
Agreement and (ii) to provide to the Master Creditor Agent, on behalf of and for
the benefit of the Lenders, the benefits of the security provided for under the
Indenture and by this Bond 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 Term Loan Agreement for the
accrual and payment of interest on the outstanding principal amount of Advances
and for the accrual and payment of commitment fees on the Unused Commitment. The
rate of Interest payable on this Bond shall not exceed 15% per annum (calculated
on the basis of a 360-day year of twelve (12) 30-day months).
The obligation of the Company to make payments with respect to
the principal of and Interest on Bonds of the Eighty-first Series shall be fully
or partially, as the case may be, satisfied and discharged to the extent that,
at any time that any such payment shall be due, the Company shall have paid
fully or partially the then due principal of, interest due thereon and
commitment fees in respect of Unused Commitment under the Term Loan Agreement.
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 Term Loan Agreement)
is rescinded or must otherwise be returned by the Master Creditor Agent or any
Lender 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 Eighty-first Series shall be dated as of the
date of its authentication.
Upon surrender for cancellation, at any time or from time to
time, of Bonds of the Eighty-first Series by the Master Creditor Agent 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 Eighty-first Series are not subject to
redemption, either as a whole or in part. The principal amount of the Advances
under the Term Loan Agreement and, therefore, the principal of the Bonds of the
Eighty-first Series may be prepaid, and the due dates thereof shall be
accelerated, in accordance with the terms of the Term Loan Agreement.
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.
This Bond is nontransferable except to effect transfer to any
successor to the Master Creditor Agent or to one or more Lenders, any such
transfer to be made at the principal corporate trust office of the Trustee, 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
Eighty-first Series, for a like principal amount and having the same interest
rate and maturity date, will be issued to the successor to the Master Creditor
Agent or to one or more Lenders, 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 Eighty-first Series, may in like manner be exchanged at such
office or agency for one or more new Bonds of the Eighty-first Series of the
same aggregate principal amount and having the same interest rate and maturity
date, all as provided in the Indenture.
PART II.
CREATION OF A SERIES OF FIRST MORTGAGE BONDS, FLOATING RATE SERIES B DUE
JUNE 30, 1999
SECTION 1. The Company hereby creates and establishes a new
series of Bonds to be issued under and secured by the Indenture to be designated
"First Mortgage Bonds, Floating Rate Series B due June 30, 1999" (hereinafter
sometimes referred to as the "Bonds of the Eighty-second Series").
The Bonds of the Eighty-second Series shall be registered in
the name of Citibank N.A., as Master Creditor Agent on behalf of the lenders and
issuing banks (collectively, the "Revolving Lender Parties") named as Lenders
and Issuing Banks in the Revolving Credit Agreement dated as of March 20, 1996
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement") among the Company, the Revolving Lender
Parties and Citibank N.A., as agent.
The permitted principal amount of the Bonds of the
Eighty-second Series which may be executed by the Company 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-second Series
for a principal amount exceeding $125,000,000, except that Bonds of the
Eighty-second Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the Company
may execute and deliver to the Trustee from time to time not in excess of
$125,000,000 aggregate principal amount of Bonds of the Eighty-second Series,
and thereupon the Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of specified evidence of due compliance
by the Company with the applicable provisions of the Indenture, shall
authenticate the said $125,000,000 principal amount of Bonds of the
Eighty-second Series and deliver the same upon the written order of the Company
signed in its name by its President or one of its Vice Presidents or its
Treasurer or an Assistant Treasurer.
SECTION 2. Each Bond of the Eighty-second Series shall be
dated as of the date of its authentication. The Bonds of the Eighty-second
Series are to be issued to the Master Creditor Agent (i) to evidence the
obligation of the Company to make payments in respect of the principal amount of
Advances (as defined in the Revolving Credit Agreement), interest on such
principal, commitment fees on the Unused Revolving Credit Commitment (as defined
in the Revolving Credit Agreement) and letter of credit fees on all outstanding
Letters of Credit (as defined in the Revolving Credit Agreement) in each case
stated to be due under the Revolving Credit Agreement and (ii) to provide to the
Master Creditor Agent, on behalf of and for the ratable benefit of the Revolving
Lender Parties, the benefits 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.
The Bonds of the Eighty-second Series are to be issued in an
aggregate principal amount equal to $125,000,000, being the amount of the
aggregate original Revolving Credit Commitments under (and as defined in) the
Revolving Credit Agreement and are to mature on June 30, 1999. The principal of
the Bonds of the Eighty-second Series shall be payable on the same date or dates
and in the same amounts as set forth in
the Revolving Credit Agreement for the payment of principal on Advances.
"Interest" shall accrue and be payable on the Bonds of the Eighty-second Series
from the date thereof until such Bonds are paid in full, payable at the same
rates and on the same payment dates as provided in the Revolving Credit
Agreement for the accrual and payment of interest in respect of the outstanding
principal of Advances and the accrual and payment of commitment fees in respect
of Unused Revolving Credit Commitment and letter of credit fees in respect of
outstanding Letters of Credit. The rate of Interest payable on the Bonds of the
Eighty-second Series shall not exceed 15% per annum (calculated on the basis of
a 360-day year of twelve (12) 30-day months). Definitive Bonds of said series
shall be registered Bonds without coupons and shall be issued in denominations
of $1,000 and multiples thereof.
The Interest payable on any Interest payment date shall be
paid to the persons in whose names the Bonds of the Eighty-second Series were
registered at the close of business on the record date for such payment of
Interest notwithstanding any cancellation of Bonds of the Eighty-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 Eighty-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 the Trustee and holders of Bonds of the Eighty-second
Series not less than ten days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to an Interest payment
date, the earlier of (i) the close of business on the last day of the calendar
month next preceding such Interest payment date or, if such last 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 and (ii) 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-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 Eighty-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
Eighty-second Series shall be payable at the office of the Trustee, which in the
case of Bankers Trust Company, 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. The Bonds of the Eighty-second Series are not
subject to redemption, either as a whole or in part. The principal amount of the
Advances under the Revolving Credit Agreement and, therefore, the principal of
the Bonds of the Eighty-second Series may be prepaid, and the due dates thereof
shall be accelerated, in accordance with the terms of the Revolving Credit
Agreement.
If an event of default, as defined in the Indenture, shall
occur, the outstanding principal indebtedness evidenced by the Bonds of the
Eighty-second Series may be declared or may be due and payable, in the manner
and with the effect provided in the Indenture.
SECTION 4. Notwithstanding the foregoing provisions of this
Part II or any provisions of the Bonds of the Eighty-second Series, the
obligation of the Company to make payments with respect to the principal of and
Interest on the Bonds of the Eighty-second Series shall be fully or partially,
as the case
may be, satisfied and discharged, to the extent of any such full or partial
payment of the then due principal of Advances, interest due thereon, commitment
fees due in respect of Unused Revolving Credit Commitment and letter of credit
fees due in respect of outstanding Letters of Credit in each case under the
Revolving Credit Agreement; provided, however, that such payment shall not
reduce the principal amount of the Bonds of the Eighty-second Series then
outstanding unless the Revolving Credit Commitment shall have been permanently
reduced by the amount of such principal amount so paid. The Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of and Interest on the Bonds of the Eighty-second
Series shall have been duly satisfied and discharged unless and until the
Trustee shall have received a notice of nonpayment thereof from the Master
Creditor Agent. The Master Creditor Agreement, in Section 2.06(b) thereof,
provides that, at such time as any portion of the outstanding principal amount
of any Advances together with all accrued and unpaid interest thereon and all
accrued and unpaid commitment fees and letter of credit fees then due under the
Revolving Credit Agreement shall have been fully and finally paid, whether upon
the prepayment or upon the maturity or acceleration thereof, and the Revolving
Credit Commitment shall have been permanently reduced by an amount equal to such
principal amount so paid, upon the request of the Company and following
confirmation of such by the Revolving Credit Agent (as defined in the Master
Creditor Agreement), a principal amount of Bonds of the Eighty-second Series
equal to such principal amount so paid shall be surrendered by the Master
Creditor Agent to the Trustee for cancellation, and upon such surrender shall be
deemed fully paid. Notwithstanding the foregoing, the principal and Interest due
on the Bonds of the Eighty-second Series shall continue or be reinstated, as the
case may be, if at any time any payment of principal or Interest (whether paid
under the Bonds of the Eighty-second Series or the Revolving Credit Agreement)
is rescinded or must otherwise be returned by the Master Creditor Agent or any
Revolving Lender Party 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. The registered owner (or assigns) of any Bond of
the Eighty-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 like tenor and 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-second Series are nontransferable
except to effect transfer to any successor to the Master Creditor Agent or to
one or more Revolving Lender Parties, any such transfer of a Bond of the
Eighty-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 Eighty-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 Master Creditor Agent or
to one or more Revolving Lender Parties, 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. The definitive Bonds of the Eighty-second Series,
and the Trustee's Certificate to be inscribed on all Bonds of said series, are
to be substantially in the forms following, respectively:
[Form of Face of Definitive Bond of the Eighty-second series]
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 Master Creditor
Agent, a successor thereto or one or more Lender Parties, 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 B DUE JUNE 30, 1999
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby promises to pay to
CITIBANK N.A., as Master Creditor Agent under the Master Creditor Agreement
hereinafter described, or registered assigns, the principal sum of
________________ Dollars or, if less, such principal amount as is equal to the
sum of the aggregate principal amount of Advances (as defined in and)
outstanding under the Revolving Credit Agreement hereinafter described, on June
30, 1999 or such earlier date or dates on which the principal amount of
outstanding Advances is stated to be due and payable (whether due to optional
prepayment or acceleration) under the Revolving Credit Agreement, and to pay
Interest (as defined below) as provided below and on the reverse hereof. The
rate of Interest payable on this Bond shall not exceed 15% per annum (calculated
on the basis of a 360-day year of twelve (12) 30-day months).
Both principal of and Interest on this Bond 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: NIAGARA MOHAWK POWER
CORPORATION
By
Attest:
Secretary
[Form of Trustee's Certificate]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture
BANKERS TRUST COMPANY
as Trustee
By
Authorized Officer
[Form of Reverse of Definitive Bond of the Eighty-second 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 Eighty-second 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 Bankers Trust Company (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 -- 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 Eighty-second Series have been issued to
Citibank N.A., as master creditor agent (the "Master Creditor Agent") under the
Master Creditor Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Master
Creditor Agreement"), on behalf of the lenders and the issuing banks
(collectively, the "Lender Parties") named as Lenders
and Issuing Banks in the Revolving Credit Agreement dated as of March 20, 1996
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement") among the Company, the Lender Parties
and Citibank N.A., as agent, (i) to evidence the obligation of the Company to
make payments in respect of the principal amount of Advances (as defined in the
Revolving Credit Agreement), interest on such principal, commitment fees on the
Unused Revolving Credit Commitment (as defined in the Revolving Credit
Agreement) and letter of credit fees on all outstanding Letters of Credit (as
defined in the Revolving Credit Agreement) in each case stated to be due under
the Revolving Credit Agreement and (ii) to provide to the Master Creditor Agent,
on behalf of and for the ratable benefit of the Lender Parties, the benefits 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 Revolving Credit Agreement for
the accrual and payment of interest on the outstanding principal amount of
Advances and for the accrual and payment of commitment fees on Unused Revolving
Credit Commitment and letter of credit fees in respect of outstanding Letters of
Credit. The rate of Interest payable on this Bond shall not exceed 15% per annum
(calculated on the basis of a 360-day year of twelve (12) 30-day months).
The obligation of the Company to make payments with respect to
the principal of and Interest on Bonds of the Eighty-second Series shall be
fully or partially, as the case may be, satisfied and discharged to the extent
that, at any time that any such payment shall be due, the Company shall have
paid fully or partially the then due principal of Advances (as defined in the
Revolving Credit Agreement), interest due thereon, commitment fees due in
respect of Unused Revolving Credit Commitment and letter of credit fees due in
respect of outstanding Letters of Credit, in each case under the Revolving
Credit Agreement; provided, however, that such payment shall not reduce the
principal amount of the Bonds of the Eighty-second Series then outstanding
unless the Revolving Credit Commitment (as defined in the Revolving Credit
Agreement) shall have been permanently reduced by the amount of such principal
amount so paid. Notwithstanding the foregoing, the principal and Interest
(whether paid under the Bonds of the Eighty-second Series or the Revolving
Credit Agreement) due on this Bond shall continue or be reinstated, as the case
may be, if at any time any payment of principal or Interest is rescinded or must
otherwise be returned by the Master Creditor Agent or any Lender Party 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 Eighty-second Series shall be dated as of the
date of its authentication.
Upon surrender for cancellation, at any time or from time to
time, of Bonds of the Eighty-second Series by the Master Creditor Agent 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 Eighty-second Series are not subject to
redemption, either as a whole or in part. The principal amount of the Advances
under the Revolving Credit Agreement and, therefore, the principal of the Bonds
of the Eighty-Second Series may be prepaid, and the due dates thereof shall be
accelerated, in accordance with the terms of the Revolving Credit Agreement.
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.
This Bond is nontransferable except to effect transfer to any
successor to the Master Creditor Agent or to one or more Lender Parties, any
such transfer to be made at the principal corporate trust office of the Trustee,
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 Eighty-second Series, for a
like principal amount and having the same interest rate and maturity date, will
be issued to the successor to the Master Creditor Agent or to one or more Lender
Parties, 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 Eighty-second Series, may in like manner
be exchanged at such office or agency for one or more new Bonds of the
Eighty-second Series of the same aggregate principal amount and having the same
interest rate and maturity date, all as provided in the Indenture.
PART III.
CREATION OF A SERIES OF FIRST MORTGAGE BONDS,
FLOATING RATE SERIES C DUE JUNE 30, 1999
SECTION 1. The Company hereby creates and establishes a new
series of Bonds to be issued under and secured by the Indenture to be designated
"First Mortgage Bonds, Floating Rate Series C due June 30, 1999" (hereinafter
sometimes referred to as the "Bonds of the Eighty-third Series").
The Bonds of the Eighty-third Series shall be registered in
the name of Citibank N.A., as Master Creditor Agent on behalf of the lenders and
the issuing bank (the "Xxxxxx XX Credit Parties") named as Lenders and the
Issuing Bank in the Amended and Restated Letter of Credit and Reimbursement
Agreement dated as of March 20, 1996 (as the same may be amended, supplemented
or otherwise modified from time to time, the "Xxxxxx XX Agreement") among the
Company, the Xxxxxx XX Credit Parties and Xxxxxx Guaranty Trust Company of New
York, as agent.
The permitted principal amount of the Bonds of the
Eighty-third Series which may be executed by the Company 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-third Series
for a principal amount exceeding $163,000,000 except that Bonds of the
Eighty-third Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the Company
may execute and deliver to the Trustee from time to time not in excess of
$163,000,000 aggregate principal amount of Bonds of the Eighty-third Series, and
thereupon the Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of specified evidence of due compliance
by the Company with the applicable provisions of the Indenture, shall
authenticate the said $163,000,000
principal amount of Bonds of the Eighty-third Series and deliver the same upon
the written order of the Company signed in its name by its President or one of
its Vice Presidents or its Treasurer or an Assistant Treasurer.
SECTION 2. Each Bond of the Eighty-third Series shall be dated
as of the date of its authentication. The Bonds of the Eighty-third Series are
to be issued to the Master Creditor Agent (i) to evidence the obligation of the
Company to make payments in respect of the principal amount of Advances (as
defined in the Xxxxxx XX Agreement), interest on the principal amount of such
Advances and fronting fees and letter of credit commissions in each case stated
to be due under the Xxxxxx XX Agreement and (ii) to provide to the Master
Creditor Agent, on behalf of and for the ratable benefit of the Xxxxxx XX Credit
Parties, 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.
The Bonds of the Eighty-third Series are to be issued in an
aggregate principal amount equal to $163,000,000, being the amount of the
aggregate original Available Amount (as defined in the Xxxxxx XX Agreement) of
all the Letters of Credit (as defined in the Xxxxxx XX Agreement) to be
outstanding under the Xxxxxx XX Agreement minus the aggregate portion thereof
available for the payment of Interest Drafts (as defined in the Xxxxxx XX
Agreement) and are to mature on June 30, 1999. The principal of the 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 Xxxxxx XX Agreement for the payment of principal on
Advances thereunder. "Interest" shall accrue and be payable on the Bonds of the
Eighty-third Series from the date thereof until maturity, payable at the same
rates and on the same payment dates as provided in the Xxxxxx XX Agreement for
the accrual and payment of interest in respect of outstanding Advances and the
accrual and payment of fronting fees and letter of credit commissions. The rate
of Interest payable on the Bonds of the Eighty-third Series shall not exceed 15%
per annum (calculated on the basis of a 360-day year of twelve (12) 30-day
months). Definitive Bonds of said series shall be registered Bonds without
coupons and shall be issued in denominations of $1,000 and multiples thereof.
The Interest payable on any Interest payment date shall be
paid to the persons in whose names the Bonds of the Eighty-third Series were
registered at the close of business on the record date for such payment of
Interest notwithstanding any cancellation of 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 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 the Trustee and holders of Bonds of the Eighty-third
Series not less than ten days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to an Interest payment
date, the earlier of (i) the close of business on the last day of the calendar
month next preceding such Interest payment date or, if such last 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 and (ii) 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-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 Eighty-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
Eighty-third Series shall be payable at the office of the Trustee, which in the
case of Bankers Trust Company, 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. The Bonds of the Eighty-third Series are not
subject to redemption, either as a whole or in part. The principal amount of the
Advances under the Xxxxxx XX Agreement 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 Xxxxxx XX Agreement.
If an event of default, as defined in the Indenture, shall
occur, the outstanding principal indebtedness evidenced by the Bonds of the
Eighty-third Series may be declared or may be due and payable, in the manner and
with the effect provided in the Indenture.
SECTION 4. Notwithstanding the foregoing provisions of this
Part III or any provisions of the Bonds of the Eighty-third Series, the
obligation of the Company to make payments with respect to the principal of and
Interest on the Bonds of the Eighty-third Series shall be fully or partially, as
the case may be, satisfied and discharged, to the extent that, at any time that
any such payment shall be due, the Company shall have paid fully or partially
the then due principal of Advances, interest then due on such amounts and
fronting fees and letter of credit commissions then due under the Xxxxxx XX
Agreement; provided, however, that such payment shall not reduce the principal
amount of the Bonds of the Eighty-third Series then outstanding unless the
aggregate Available Amount of the Letters of Credit outstanding under the Xxxxxx
XX Agreement shall have been permanently reduced by an amount equal to such
principal so paid. The Trustee may conclusively presume that the obligation of
the Company to make payments with respect to the principal of and Interest on
the Bonds of the Eighty-third Series shall have been duly satisfied and
discharged unless and until the Trustee shall have received a notice of
nonpayment thereof from the Master Creditor Agent. The Master Creditor
Agreement, in
Section 2.06(c) thereof, provides that, at such time as any portion of the
outstanding principal amount of any Advances together with all accrued and
unpaid interest thereon and all accrued and unpaid fronting fees and letter of
credit commissions then due under the Xxxxxx XX Agreement shall have been fully
and finally paid, whether upon the prepayment or upon the maturity or
acceleration thereof, and the aggregate Available Amount of the Letters of
Credit outstanding under the Xxxxxx XX Agreement shall have been permanently
reduced by an amount equal to such principal amount so paid, upon the request of
the Company and following confirmation of such by the Xxxxxx L/C Agent (as
defined in the Master Creditor Agreement), a principal amount of Bonds of the
Eighty-third Series equal to the principal amount so paid shall be surrendered
by the Master Creditor Agent to the Trustee for cancellation, and upon such
surrender shall be deemed fully paid. Notwithstanding the foregoing, the
principal and Interest due on the 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 Bonds of the Eighty-third Series or the
Xxxxxx XX Agreement) is rescinded or must otherwise be returned by the Master
Creditor Agent or any Xxxxxx XX Credit Parties 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. The registered owner (or assigns) of any 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 like tenor and 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-third Series are nontransferable except to effect
transfer to any successor to the Master Creditor Agent or to one or more Xxxxxx
XX Credit Parties, any such transfer of a 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 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 Master Creditor Agent or to one or more Xxxxxx XX
Credit Parties, 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. The definitive Bonds of the Eighty-third Series,
and the Trustee's Certificate to be inscribed on all Bonds of said series, are
to be substantially in the forms following, respectively:
[Form of Face of Definitive Bond of the Eighty-third series]
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 Master Creditor
Agent, a successor thereto or one or more Xxxxxx XX Credit Parties, 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 C DUE JUNE 30, 1999
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby promises to pay to
CITIBANK N.A., as Master Creditor Agent under the Master Creditor Agreement
hereinafter described, or registered assigns, the principal sum of
_________________ Dollars or, if less, such principal amount as is equal to the
aggregate principal amount of Advances (as defined in the Xxxxxx XX Agreement,
as hereinafter defined), on June 30, 1999 or such earlier date or dates on which
the principal amount of outstanding Advances is stated to be due and payable
(whether due to optional prepayment or acceleration) under the Xxxxxx XX
Agreement, and to pay Interest (as defined below) as provided below and on the
reverse hereof. The rate of Interest payable on this Bond shall not exceed 15%
per annum (calculated on the basis of a 360-day year of twelve (12) 30-day
months).
Both principal of and Interest on this Bond 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: NIAGARA MOHAWK POWER
CORPORATION
By
Attest:
Secretary
[Form of Trustee's Certificate]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture
BANKERS TRUST COMPANY
as Trustee
By
Authorized Officer
[Form of Reverse of Definitive Bond of the Eighty-third 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 Eighty-third 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 Bankers Trust Company (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 -- 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 Eighty-third Series have been issued to
Citibank N.A., as master creditor agent (the "Master Creditor Agent") under the
Master Creditor Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Master
Creditor Agreement"), on behalf of the lenders and issuing bank (the "Xxxxxx XX
Credit Parties") named as Lenders and the Issuing Bank
in the Amended and Restated Letter of Credit and Reimbursement Agreement dated
as of March 20, 1996 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Xxxxxx XX Agreement") among the Company, the
Xxxxxx XX Credit Parties and Xxxxxx Guaranty Trust Company of New York, as
agent, (i) to evidence the obligation of the Company to make payments in respect
of the principal amount of Advances (as defined in the Xxxxxx XX Agreement),
interest on the principal amount of such Advances and fronting fees and letter
of credit commissions in each case stated to be due under the Xxxxxx XX
Agreement and (ii) to provide to the Master Creditor Agent, on behalf of and for
the ratable benefit of the Xxxxxx XX Credit Parties, 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 Xxxxxx XX Agreement for the
accrual and payment of interest in respect of outstanding principal of Advances
and the accrual and payment of fronting fees and letter of credit commissions.
The rate of Interest payable on this Bond shall not exceed 15% per annum
(calculated on the basis of a 360-day year of twelve (12) 30-day months).
The obligation of the Company to make payments with respect to
the principal of and Interest on Bonds of the Eighty-third Series shall be fully
or partially, as the case may be, satisfied and discharged to the extent that,
at any time that any such payment shall be due, the Company shall have paid
fully or partially the then due principal of Advances, interest due thereon and
fronting fees and letter of credit commissions due in respect of outstanding
Letters of Credit (as defined in the Xxxxxx XX Agreement), in each case under
the Xxxxxx XX Agreement; provided, however, that such payment shall not reduce
the principal amount of the Bonds of the Eighty-third Series then outstanding
unless the aggregate Available Amount of the Letters of Credit outstanding under
the Xxxxxx XX Agreement shall have been permanently reduced by an amount equal
to such principal amount so paid. 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 Xxxxxx XX Agreement) is rescinded or must otherwise be returned by
the Master Creditor Agent
or any Xxxxxx XX Credit Party 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 Eighty-third Series shall be dated as of the
date of its authentication.
Upon surrender for cancellation, at any time or from time to
time, of Bonds of the Eighty-third Series by the Master Creditor Agent 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 Eighty-third Series are not subject to
redemption, either as a whole or in part.
The principal amount of the Advances under the Xxxxxx XX Agreement 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 Xxxxxx XX Agreement.
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.
This Bond is nontransferable except to effect transfer to any
successor to the Master Creditor Agent or to one or more Xxxxxx XX Credit
Parties, any such transfer to be made at the principal corporate trust office of
the Trustee, 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 Eighty-third
Series, for a like principal amount and having the same interest rate and
maturity date, will be issued to the successor to the Master Creditor Agent or
to one or more Xxxxxx XX Credit Parties, 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 Eighty-third Series, may in like manner be exchanged
at such office or agency for one or more new Bonds of the Eighty-third Series of
the same aggregate principal amount and having the same interest
rate and maturity date, all as provided in the Indenture.
PART IV.
CREATION OF A SERIES OF FIRST MORTGAGE BONDS,
FLOATING RATE SERIES D DUE JUNE 30, 1999
SECTION 1. The Company hereby creates and establishes a new
series of Bonds to be issued under and secured by the Indenture to be designated
"First Mortgage Bonds, Floating Rate Series D due June 30, 1999" (hereinafter
sometimes referred to as the "Bonds of the Eighty-fourth Series").
The Bonds of the Eighty-fourth Series shall be registered in
the name of Citibank N.A., as Master Creditor Agent on behalf of the lenders and
the issuing bank (the "Toronto LC Credit Parties") named as Lenders and the
Issuing Bank in the Amended and Restated Letter of Credit and Reimbursement
Agreement dated as of March 20, 1996 (as the same may be amended, supplemented
or otherwise modified from time to time, the "Toronto LC Agreement") among the
Company, the Toronto LC Credit Parties and Toronto Dominion (Texas) Inc., as
agent.
The permitted principal amount of the Bonds of the
Eighty-fourth Series which may be executed by the Company 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-fourth Series
for a principal amount exceeding $213,260,000 except that Bonds of the
Eighty-fourth Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the Company
may execute and deliver to the Trustee from time to time not in excess of
$213,260,000 aggregate principal amount of Bonds of the Eighty-fourth Series,
and thereupon the Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of specified evidence of due compliance
by the Company with the applicable provisions of the Indenture, shall
authenticate the said $213,260,000 principal amount of Bonds of the
Eighty-fourth Series and deliver the same upon the written order of the Company
signed in its name by its President or one of its Vice Presidents or its
Treasurer or an Assistant Treasurer.
SECTION 2. Each Bond of the Eighty-fourth Series shall be
dated as of the date of its authentication. The Bonds of the Eighty-fourth
Series are to be issued to the Master Creditor Agent (i) to evidence the
obligation of the Company to make payments in respect of the principal amount of
Advances (as defined in the Toronto LC Agreement), interest on the principal
amount of such Advances and fronting fees and letter of credit commissions in
each case stated to be due under the Toronto LC Agreement and (ii) to provide to
the Master Creditor Agent, on behalf of and for the ratable benefit of the
Toronto LC Credit Parties, 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.
The Bonds of the Eighty-fourth Series are to be issued in an
aggregate principal amount equal to $213,260,000, being the amount of the
aggregate original Available Amount (as defined in the Toronto LC Agreement) of
all the Letters of Credit (as defined in the Toronto LC Agreement) to be
outstanding under the Toronto LC Agreement minus the aggregate portion thereof
available for the payment of Interest Drafts (as defined in the Toronto LC
Agreement) and are to mature on June 30, 1999. The principal of the 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 Toronto LC Agreement for the payment of principal on
Advances thereunder. "Interest" shall accrue and be payable on the Bonds of the
Eighty-fourth Series from the date thereof until maturity, payable at the same
rates and on the same payment dates as provided in the Toronto LC Agreement for
the accrual and payment of interest in respect of outstanding Advances and the
accrual and payment of fronting fees and letter of credit commissions. The rate
of Interest payable on the Bonds of the Eighty-fourth Series shall not exceed
15% per annum (calculated on the basis of a 360-day year of twelve (12) 30-day
months). Definitive Bonds of said series shall be registered Bonds without
coupons and shall be issued in denominations of $1,000 and multiples thereof.
The Interest payable on any Interest payment date shall be
paid to the persons in whose names the Bonds of the Eighty-fourth Series were
registered at the close of business on the record date for such payment of
Interest notwithstanding any cancellation of 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 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 the Trustee and holders of Bonds of the Eighty-fourth
Series not less than ten days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to an Interest payment
date, the earlier of (i) the close of business on the last day of the calendar
month next preceding such Interest payment date or, if such last 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 and (ii) 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-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.
Bonds of the Eighty-fourth 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-fourth Series shall be payable at the office of the Trustee, which in the
case of Bankers Trust Company, 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. The Bonds of the Eighty-fourth Series are not
subject to redemption, either as a whole or in part. The principal amount of the
Advances under the Toronto LC Agreement 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 Toronto LC Agreement.
If an event of default, as defined in the Indenture, shall
occur, the outstanding principal indebtedness evidenced by the Bonds of the
Eighty-fourth Series may be declared or may be due and payable, in the manner
and with the effect provided in the Indenture.
SECTION 4. Notwithstanding the foregoing provisions of this
Part IV or any provisions of the Bonds of the Eighty-fourth Series, the
obligation of the Company to make payments with respect to the principal of and
Interest on the Bonds of the Eighty-fourth Series shall be fully or partially,
as the case may be, satisfied and discharged, to the extent that, at any time
that any such payment shall be due, the Company shall have paid fully or
partially the then due principal of Advances, interest then due on such amounts
and fronting fees and letter of credit commissions then due under the Toronto LC
Agreement; provided, however, that such payment shall not reduce the principal
amount of the Bonds of the Eighty-fourth Series then outstanding unless the
aggregate Available Amount of the Letters of Credit outstanding under the
Toronto LC Agreement shall have been permanently reduced by an amount equal to
such principal so paid. The Trustee may conclusively presume that the obligation
of the Company to make payments with respect to the principal of and Interest on
the Bonds of the Eighty-fourth Series shall have been duly satisfied and
discharged unless and until the Trustee shall have received a notice of
nonpayment thereof from the Master Creditor Agent. The Master Creditor
Agreement, in Section 2.06(d) thereof, provides that, at such time as any
portion of the outstanding principal amount of any Advances together with all
accrued and unpaid interest thereon and all accrued and unpaid fronting fees and
letter of credit commissions then due under the Toronto LC Agreement shall have
been fully and finally paid, whether upon the prepayment or upon the maturity or
acceleration thereof, and the aggregate Available Amount of the Letters of
Credit outstanding under the Toronto LC Agreement shall have been permanently
reduced by an amount equal to such principal amount so paid, upon the request of
the Company and following confirmation of such by the TD L/C Agent (as defined
in the Master Creditor Agreement), a principal amount of Bonds of the
Eighty-fourth Series equal to the principal amount so paid shall be surrendered
by the Master Creditor Agent to the Trustee for cancellation, and upon such
surrender shall be deemed fully paid. Notwithstanding the foregoing, the
principal and Interest due on the 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 Bonds of the Eighty-fourth Series or
the Toronto LC Agreement) is rescinded or must otherwise be returned by the
Master Creditor Agent or any Toronto LC Credit Parties 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. The registered owner (or assigns) of any 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 like tenor and 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-fourth Series are nontransferable except to effect transfer
to any successor to the Master Creditor Agent or to one or more Toronto LC
Credit Parties, any such transfer of a 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 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 Master Creditor Agent or to one or more Toronto LC Credit
Parties, 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. The definitive Bonds of the Eighty-fourth Series,
and the Trustee's Certificate to be inscribed on all Bonds of said series, are
to be substantially in the forms following, respectively:
[Form of Face of Definitive Bond of the Eighty-fourth series]
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 Master Creditor
Agent, a successor thereto or one or more Toronto LC Credit Parties, 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 D DUE JUNE 30, 1999
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby promises to pay to
CITIBANK N.A., as Master Creditor Agent under the Master Creditor
Agreement hereinafter described, or registered assigns, the principal sum of
_________________ Dollars or, if less, such principal amount as is equal to the
aggregate principal amount of Advances (as defined in the Toronto LC Agreement,
as hereinafter defined), on June 30, 1999 or such earlier date or dates on which
the principal amount of outstanding Advances is stated to be due and payable
(whether due to optional prepayment or acceleration) under the Toronto LC
Agreement, and to pay Interest (as defined below) as provided below and on the
reverse hereof. The rate of Interest payable on this Bond shall not exceed 15%
per annum (calculated on the basis of a 360-day year of twelve (12) 30-day
months).
Both principal of and Interest on this Bond 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: NIAGARA MOHAWK POWER
CORPORATION
By
Attest:
Secretary
[Form of Trustee's Certificate]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture
BANKERS TRUST COMPANY
as Trustee
By
Authorized Officer
[Form of Reverse of Definitive Bond of the Eighty-fourth 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 Eighty-fourth 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 Bankers Trust Company (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 -- 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 Eighty-fourth Series have been issued to
Citibank N.A., as master creditor agent (the "Master Creditor Agent") under the
Master Creditor Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Master
Creditor Agreement"), on behalf of the lenders and issuing bank (the "Toronto LC
Credit Parties") named as Lenders and the Issuing Bank in the Amended and
Restated Letter of Credit and Reimbursement Agreement dated as of March 20, 1996
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Toronto LC Agreement") among the Company, the Toronto LC Credit
Parties and Toronto Dominion (Texas) Inc., as agent, (i) to evidence the
obligation of the Company to make payments in respect of the principal amount of
Advances (as defined in the Toronto LC Agreement), interest on the principal
amount of such Advances and fronting fees and letter of credit commissions in
each case stated to be due under the Toronto LC Agreement and (ii) to provide to
the Master Creditor Agent, on behalf of and for the ratable benefit of the
Toronto LC Credit Parties, 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 Toronto LC Agreement for the
accrual and payment of interest in respect of outstanding principal of Advances
and the accrual and payment of fronting fees and letter of credit commissions.
The rate of Interest payable on this Bond shall not exceed
15% per annum (calculated on the basis of a 360-day year of twelve (12) 30-day
months).
The obligation of the Company to make payments with respect to
the principal of and Interest on Bonds of the Eighty-fourth Series shall be
fully or partially, as the case may be, satisfied and discharged to the extent
that, at any time that any such payment shall be due, the Company shall have
paid fully or partially the then due principal of Advances, interest due thereon
and fronting fees and letter of credit commissions due in respect of outstanding
Letters of Credit (as defined in the Toronto LC Agreement), in each case under
the Toronto LC Agreement; provided, however, that such payment shall not reduce
the principal amount of the Bonds of the Eighty-fourth Series then outstanding
unless the aggregate Available Amount of the Letters of Credit outstanding under
the Toronto LC Agreement shall have been permanently reduced by an amount equal
to such principal amount so paid. 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 Toronto LC Agreement) is rescinded or must otherwise be returned by
the Master Creditor Agent or any Toronto LC Credit Party 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 Eighty-fourth Series shall be dated as of the
date of its authentication.
Upon surrender for cancellation, at any time or from time to
time, of Bonds of the Eighty-fourth Series by the Master Creditor Agent 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 Eighty-fourth Series are not subject to
redemption, either as a whole or in part. The principal amount of the Advances
under the Toronto LC Agreement 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 Toronto LC Agreement.
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.
This Bond is nontransferable except to effect transfer to any
successor to the Master Creditor Agent or to one or more Toronto LC Credit
Parties, any such transfer to be made at the principal corporate trust
office of the Trustee, 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 Eighty-fourth
Series, for a like principal amount and having the same interest rate and
maturity date, will be issued to the successor to the Master Creditor Agent or
to one or more Toronto LC Credit Parties, 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 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 Eighty-fourth Series, may in like manner be exchanged
at such office or agency for one or more new Bonds of the Eighty-fourth Series
of the same aggregate principal amount and having the same interest rate and
maturity date, all as provided in the Indenture.
PART V.
CREATION OF A SERIES OF FIRST MORTGAGE BONDS,
FLOATING RATE SERIES E DUE JUNE 30, 1999
SECTION 1. The Company hereby creates and establishes a new
series of Bonds to be issued under and secured by the Indenture to be designated
"First Mortgage Bonds, Floating Rate Series E due June 30, 1999" (hereinafter
sometimes referred to as the "Bonds of the Eighty-fifth Series").
The Bonds of the Eighty-fifth Series shall be registered in
the name of Citibank N.A., as Master Creditor Agent on behalf of the lenders and
the issuing bank (the "CIBC LC Credit Parties") named as Lenders and the Issuing
Bank in the Amended and Restated Letter of Credit and Reimbursement Agreement
dated as of March 20, 1996 (as the same may be amended, supplemented or
otherwise modified from time to time, the "CIBC LC Agreement") among the
Company, the CIBC LC Credit
Parties and Canadian Imperial Bank of Commerce, as agent.
The permitted principal amount of the Bonds of the
Eighty-fifth Series which may be executed by the Company 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-fifth Series
for a principal amount exceeding $37,500,000 except that Bonds of the
Eighty-fifth Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the Company
may execute and deliver to the Trustee from time to time not in excess of
$37,500,000 aggregate principal amount of Bonds of the Eighty-fifth Series, and
thereupon the Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of specified evidence of due compliance
by the Company with the applicable provisions of the Indenture, shall
authenticate the said $37,500,000 principal amount of Bonds of the Eighty-fifth
Series and deliver the same upon the written order of the Company signed in its
name by its President or one of its Vice Presidents or its Treasurer or an
Assistant Treasurer.
SECTION 2. Each Bond of the Eighty-fifth Series shall be dated
as of the date of its authentication. The Bonds of the Eighty-fifth Series are
to be issued to the Master Creditor Agent (i) to evidence the obligation of the
Company to make payments in respect of the principal amount of Advances (as
defined in the CIBC LC Agreement), interest on the principal amount of such
Advances and fronting fees and letter of credit commissions in each case stated
to be due under the CIBC LC Agreement and (ii) to provide to the Master Creditor
Agent, on behalf of and for the ratable benefit of the CIBC LC Credit Parties,
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.
The Bonds of the Eighty-fifth Series are to be issued in an
aggregate principal amount equal to $37,500,000, being the original Available
Amount (as defined in the CIBC LC Agreement) of the Letter of Credit (as defined
in the CIBC LC Agreement) to be outstanding under the CIBC LC Agreement minus
the portion thereof available for the payment of Interest
Drafts (as defined in the CIBC LC Agreement) and are to mature on June 30, 1999.
The principal of the 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 CIBC LC Agreement
for the payment of principal on Advances thereunder. "Interest" shall accrue and
be payable on the Bonds of the Eighty-fifth Series from the date thereof until
maturity, payable at the same rates and on the same payment dates as provided in
the CIBC LC Agreement for the accrual and payment of interest in respect of
outstanding Advances and the accrual and payment of fronting fees and letter of
credit commissions. The rate of Interest payable on the Bonds of the
Eighty-fifth Series shall not exceed 15% per annum (calculated on the basis of a
360-day year of twelve (12) 30-day months). Definitive Bonds of said series
shall be registered Bonds without coupons and shall be issued in denominations
of $1,000 and multiples thereof.
The Interest payable on any Interest payment date shall be
paid to the persons in whose names the Bonds of the Eighty-fifth Series were
registered at the close of business on the record date for such payment of
Interest notwithstanding any cancellation of 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 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 the Trustee and holders of Bonds of the Eighty-fifth
Series not less than ten days preceding such subsequent record date. The term
"record date" as used herein shall mean, with respect to an Interest payment
date, the earlier of (i) the close of business on the last day of the calendar
month next preceding such Interest payment date or, if such last 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 and (ii) 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-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.
Bonds of the Eighty-fifth 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-fifth Series shall be payable at the office of the Trustee, which in the
case of Bankers Trust Company, 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. The Bonds of the Eighty-fifth Series are not
subject to redemption, either as a whole or in part. The principal amount of the
Advances under the CIBC LC Agreement 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 CIBC LC Agreement.
If an event of default, as defined in the Indenture, shall
occur, the outstanding principal indebtedness evidenced by the Bonds of the
Eighty-fifth Series may be declared or may be due and payable, in the manner and
with the effect provided in the Indenture.
SECTION 4. Notwithstanding the foregoing provisions of this
Part V or any provisions of the Bonds of the Eighty-fifth Series, the obligation
of the Company to make payments with respect to the principal of and Interest on
the Bonds of the Eighty-fifth Series shall be fully or partially, as the case
may be,
satisfied and discharged, to the extent that, at any time that any such payment
shall be due, the Company shall have paid fully or partially the then due
principal of Advances, interest then due on such amounts and fronting fees and
letter of credit commissions then due under the CIBC LC Agreement provided,
however, that such payment shall not reduce the principal amount of the Bonds of
the Eighty-fifth Series then outstanding unless Available Amount of the Letter
of Credit outstanding under the CIBC LC Agreement shall have been permanently
reduced by an amount equal to such principal so paid. The Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of and Interest on the Bonds of the Eighty-fifth Series
shall have been duly satisfied and discharged unless and until the Trustee shall
have received a notice of nonpayment thereof from the Master Creditor Agent. The
Master Creditor Agreement, in Section 2.06(e) thereof, provides that, at such
time as any portion of the outstanding principal amount of any Advances together
with all accrued and unpaid interest thereon and all accrued and unpaid fronting
fees and letter of credit commissions then due under the CIBC LC Agreement shall
have been fully and finally paid, whether upon the prepayment or upon the
maturity or acceleration thereof, and the Available Amount of the Letter of
Credit outstanding under the CIBC LC Agreement shall have been permanently
reduced by an amount equal to such principal amount so paid, upon the request of
the Company and following confirmation of such by the CIBC L/C Agent (as defined
in the Master Creditor Agreement), a principal amount of Bonds of the
Eighty-fifth Series equal to the principal amount so paid shall be surrendered
by the Master Creditor Agent to the Trustee for cancellation, and upon such
surrender shall be deemed fully paid. Notwithstanding the foregoing, the
principal and Interest due on the 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 Bonds of Eighty-fifth Series or the
CIBC LC Agreement) is rescinded or must otherwise be returned by the Master
Creditor Agent or any CIBC LC Credit Parties 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. The registered owner (or assigns) of any 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 like tenor and 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-fifth Series are nontransferable except to effect transfer
to any successor to the Master Creditor Agent or to one or more CIBC LC Credit
Parties, any such transfer of a 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 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 Master Creditor Agent or to one or more CIBC LC Credit
Parties, 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. The definitive Bonds of the Eighty-fifth Series,
and the Trustee's Certificate to be inscribed on all Bonds of said series, are
to be substantially in the forms following, respectively:
[Form of Face of Definitive Bond of the Eighty-fifth series]
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 Master Creditor
Agent, a successor thereto or one or more CIBC LC Credit Parties, 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 E DUE JUNE 30, 1999
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby promises to pay to
CITIBANK N.A., as Master Creditor Agent under the Master Creditor Agreement
hereinafter described, or registered assigns, the principal sum of
_________________ Dollars or, if less, such principal amount as is equal to the
aggregate principal amount of Advances (as defined in the CIBC LC Agreement, as
hereinafter defined), on June 30, 1999 or such earlier date or dates on which
the principal amount of outstanding Advances is stated to be due and payable
(whether due to optional prepayment or acceleration) under the CIBC LC
Agreement, and to pay Interest (as defined below) as provided below and on the
reverse hereof. The rate of Interest payable on this Bond shall not exceed 15%
per annum (calculated on the basis of a 360-day year of twelve (12) 30-day
months).
Both principal of and Interest on this Bond 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: NIAGARA MOHAWK POWER
CORPORATION
By
Attest:
Secretary
[Form of Trustee's Certificate]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture
BANKERS TRUST COMPANY
as Trustee
By
Authorized Officer
[Form of Reverse of Definitive Bond of the Eighty-fifth 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 Eighty-fifth 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 Bankers Trust Company (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 -- 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 Eighty-fifth Series have been issued to
Citibank N.A., as master creditor agent (the "Master Creditor Agent") under the
Master Creditor Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Master
Creditor Agreement"), on behalf of the lenders and issuing bank (the "CIBC LC
Credit Parties") named as Lenders and the Issuing Bank in the Amended and
Restated Letter of Credit and
Reimbursement Agreement dated as of March 20, 1996 (as the same may be amended,
supplemented or otherwise modified from time to time, the "CIBC LC Agreement")
among the Company, the CIBC LC Credit Parties and Canadian Imperial Bank of
Commerce, as agent, (i) to evidence the obligation of the Company to make
payments in respect of the principal amount of Advances (as defined in the CIBC
LC Agreement), interest on the principal amount of such Advances and fronting
fees and letter of credit commissions in each case stated to be due under the
CIBC LC Agreement and (ii) to provide to the Master Creditor Agent, on behalf of
and for the ratable benefit of the CIBC LC Credit Parties, 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 CIBC LC Agreement for the accrual
and payment of interest in respect of outstanding principal of Advances and the
accrual and payment of fronting fees and letter of credit commissions. The rate
of Interest payable on this Bond shall not exceed 15% per annum (calculated on
the basis of a 360-day year of twelve (12) 30-day months).
The obligation of the Company to make payments with respect to
the principal of and Interest on Bonds of the Eighty-fifth Series shall be fully
or partially, as the case may be, satisfied and discharged to the extent that,
at any time that any such payment shall be due, the Company shall have paid
fully or partially the then due principal of Advances, interest due thereon and
fronting fees and letter of credit commissions due in respect of the outstanding
Letter of Credit (as defined in the CIBC LC Agreement), in each case under the
CIBC LC Agreement; provided, however, that such payment shall not reduce the
principal amount of the Bonds of the Eighty-fifth Series then outstanding unless
the Available Amount of the Letter of Credit outstanding under the CIBC LC
Agreement shall have been permanently reduced by an amount equal to such
principal amount so paid. 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 CIBC LC Agreement) is rescinded or must otherwise be returned by the
Master Creditor Agent or any CIBC LC Credit Party 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 Eighty-fifth Series shall be dated as of the
date of its authentication.
Upon surrender for cancellation, at any time or from time to
time, of Bonds of the Eighty-fifth Series by the Master Creditor Agent 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 Eighty-fifth Series are not subject to
redemption, either as a whole or in part. The principal amount of the Advances
under the CIBC LC Agreement 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 CIBC LC Agreement.
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.
This Bond is nontransferable except to effect transfer to any
successor to the Master Creditor Agent or to one or more CIBC LC Credit Parties,
any such transfer to be made at the principal corporate trust office of the
Trustee, 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 Eighty-fifth Series, for a
like principal amount and having the same interest rate and maturity date, will
be issued to the successor to the Master Creditor Agent or to one or more CIBC
LC Credit Parties, 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
Eighty-fifth Series, may in like manner be exchanged at such office or agency
for one or more new Bonds of the Eighty-fifth Series of the same aggregate
principal amount and having the same interest rate and maturity date, all as
provided in the Indenture.
PART VI.
CREATION OF A SERIES OF FIRST MORTGAGE BONDS,
3% SERIES DUE JUNE 30, 1999
SECTION 1. The Company hereby creates and establishes a new
series of Bonds to be issued under and secured by the Indenture to be designated
"First Mortgage Bonds, 3% Series due June 30, 1999" (hereinafter sometimes
referred to as the "Bonds of the Eighty-sixth Series").
The Bonds of the Eighty-sixth Series shall be registered in
the name of Citibank N.A., as Master Creditor Agent on behalf of itself and the
Lender Parties (as defined in the Master Creditor Agreement).
The permitted principal amount of the Bonds of the
Eighty-sixth Series which may be executed by the Company 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-sixth Series
for a principal amount exceeding $20,000,000 except that Bonds of the
Eighty-sixth Series may always be issued as provided in Section 2 of Article
Fourth of the Indenture.
Upon the execution of this Supplemental Indenture, the Company
may execute and deliver to the Trustee from time to time not in excess of
$20,000,000 aggregate principal amount of Bonds of the Eighty-sixth Series, and
thereupon the Trustee, without awaiting the filing or recording of this
Supplemental Indenture but upon receipt of specified evidence of due compliance
by the Company with the applicable provisions of the Indenture, shall
authenticate the said $20,000,000 principal amount of Bonds of the Eighty-sixth
Series and deliver the same upon the written order of the Company signed in its
name by its President or one of its Vice Presidents or its Treasurer or an
Assistant Treasurer.
SECTION 2. The Bonds of the Eighty-sixth Series are to be
issued to the Master Creditor Agent to secure the payment of up to $20,000,000
of Senior Bank Expense Obligations (as defined in the Master Creditor Agreement)
payable to the Lender Parties and the Master Creditor Agent. The Bonds of the
Eighty-sixth Series shall mature according to their terms on June 30, 1999 and,
in the case of the initial authentication of the Bonds of the Eighty-sixth
Series, shall be dated March
21, 1996 and shall bear interest at the rate of 3% per annum during any period
when Senior Bank Expense Obligations have not been paid as required by the
Senior Bank Financing Agreements (as defined in the Master Creditor Agreement)
or the Master Creditor Agreement, as the case may be. The Bonds of the
Eighty-sixth Series are to be issued in an aggregate principal amount of
$20,000,000. 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-sixth Series, each Bond of the Eighty-sixth Series shall be dated as of
the date of its authentication.
All of the Bonds of the Eighty-sixth 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-sixth 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-sixth Series shall be payable at the office of the Trustee, which in the
case of Bankers Trust Company, 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. The Bonds of the Eighty-sixth Series are not
subject to redemption, either as a whole or in part. The maturity of the Bonds
of the Eighty-sixth Series is subject to acceleration in the same manner and
under the same conditions that the Senior Bank Expense Obligations under the
Senior Bank Financing Agreements and the Master Creditor Agreement are subject
to acceleration.
If an event of default, as defined in the Indenture, shall
occur, the outstanding principal indebtedness evidenced by the Bonds of the
Eighty-sixth Series may be declared or may be due and payable, in the manner and
with the effect provided in the Indenture.
SECTION 4. Notwithstanding the foregoing provisions of this
Part VI or any provisions of the Bonds of the Eighty-sixth Series, the
obligation of the Company to make payments with respect to the principal of and
interest on the Bonds of the Eighty-sixth Series shall be fully or partially, as
the case may be, satisfied and discharged, to the extent of any such full or
partial payment of Senior Bank Expense Obligations under the Senior Bank
Financing Agreements and the Master Creditor Agreement. The Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of and interest on the Bonds of the Eighty-sixth Series
shall have been duly satisfied and discharged unless and until the Trustee shall
have received notice of nonpayment thereof from the Master Creditor Agent. The
Master Creditor Agreement, in Section 2.06(f) thereof, provides that, whenever
the principal of any Senior Bank Expense Obligations together with all accrued
interest thereon shall have been fully and finally paid, whether upon the
prepayment or upon the maturity or acceleration thereof, upon the request of the
Company and following confirmation of such by each of the Term Loan Agent, the
Revolving Credit Agent, the Xxxxxx L/C Agent, the TD L/C Agent, the CIBC L/C
Agent and the Master Creditor Agent, a principal amount of Bonds of the
Eighty-sixth Series equal to the principal amount of Senior Bank Expense
Obligations paid shall be surrendered by the Master Creditor Agent to the
Trustee for cancellation, and upon such surrender shall be deemed fully paid.
Notwithstanding the foregoing, the principal and interest due on the Bonds of
the Eighty-sixth Series shall continue or be reinstated, as the case may be, if
at any time any payment of principal or interest (whether paid under the Bonds
of the Eighty-sixth Series, the Senior Bank Financing Agreements or the Master
Creditor Agreement) is rescinded or must otherwise be returned by the Master
Creditor Agent or any Lender Party 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. The registered owner (or assigns) of any Bond of
the Eighty-sixth 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 like tenor and 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-sixth Series are nontransferable
except to effect transfer to any successor to the Master Creditor Agent or to
one or more Lender Parties, any such transfer of a Bond of the Eighty-sixth
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-sixth Series, for a like principal amount and
having the same interest rate and maturity date, will be issued to the successor
to the Master Creditor Agent or to one or more Lender Parties, 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. The definitive Bonds of the Eighty-sixth Series,
and the Trustee's Certificate to be inscribed on all Bonds of said series, are
to be substantially in the forms following, respectively:
[Form of Face of Definitive Bond of the Eighty-sixth series]
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 Master Creditor
Agent, a successor thereto or one or more Lender Parties, 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
3% SERIES DUE JUNE 30, 1999
NIAGARA MOHAWK POWER CORPORATION, a New York corporation
(herein called the "Company"), for value received, hereby promises to pay to
CITIBANK N.A., as Master Creditor Agent under the Master Creditor Agreement
hereinafter described, or registered assigns, the principal sum of
_________________ Dollars or, if less, such principal amount as is equal to the
aggregate principal amount of all outstanding Senior Bank Expense Obligations
(as hereinafter described) on June 30, 1999, or such earlier date or dates on
which the principal amount of outstanding Senior Bank Expense Obligations is
stated to be due and payable (whether due to prepayment or acceleration) under
the Senior Bank Financing Agreements (as defined in the Master Creditor
Agreement) or the Master Creditor Agreement, as the case may be, and to pay
interest thereon at the rate of 3% per annum during any period when Senior Bank
Expense Obligations have not been paid as required by the Senior Bank Financing
Agreements or the Master Creditor Agreement, as the case may be.
Both principal of and interest on this Bond 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: NIAGARA MOHAWK POWER
CORPORATION
By
Attest:
Secretary
[Form of Trustee's Certificate]
This is one of the Bonds of the Series designated above
described in the within-mentioned Indenture
BANKERS TRUST COMPANY
as Trustee
By
Authorized Officer
[Form of Reverse of Definitive Bond of the Eighty-sixth 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 Eighty-sixth 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 Bankers Trust Company (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 -- 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 Eighty-sixth Series have been issued to
Citibank N.A., as master creditor agent (the "Master Creditor Agent") under the
Master Creditor Agreement dated as of March 20, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Master
Creditor Agreement"), on behalf of itself and the lender parties (the "Lender
Parties") named as Lender Parties in the Master Credit Agreement, to secure the
payment of the principal of
and interest, if any, due on up to $20,000,000 principal amount of Senior Bank
Expense Obligations (as defined in the Master Creditor Agreement) payable to the
Lender Parties or the Master Creditor Agent, or order.
The obligation of the Company to make payments with respect to
the principal of and interest on Bonds of the Eighty-sixth Series shall be fully
or partially, as the case may be, satisfied and discharged to the extent that,
at any time that any such payment shall be due, the Company shall have paid
fully or partially the then due principal of and interest, if any, on the Senior
Bank Expense Obligations. Notwith standing 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, the Senior Bank Financing Agreements or the Master Creditor Agreement) is
rescinded or must otherwise be returned by the Master Creditor Agent or any
Lender Party 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, if any, 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.
Subsequent to the initial authentication of the Bonds of the
Eighty-sixth Series, each Bond of the Eighty-sixth Series shall be dated as of
the date of its authentication.
Upon surrender for cancellation, at any time or from time to
time, of Bonds of the Eighty-sixth Series by the Master Creditor Agent 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 Eighty-sixth Series are not subject to
redemption, either as a whole or in part. The maturity of the Bonds of the
Eighty-sixth Series is subject to acceleration in the same manner and under the
same conditions that the Senior Bank Expense Obligations under the Senior Bank
Financing Agreements or the Master Creditor Agreement, as the case may be, are
subject to acceleration.
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.
This Bond is nontransferable except to effect transfer to any
successor to the Master Creditor Agent or to one or more Lender Parties, any
such transfer to be made at the principal corporate trust office of the Trustee,
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
Eighty-sixth Series, for a like principal amount and having the same interest
rate and maturity date, will be issued to the successor to the Master Creditor
Agent or to one or more Lender Parties, 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 Eighty-sixth Series, may in like manner be exchanged
at such office or agency for one or more new Bonds of the Eighty-sixth Series of
the same aggregate principal amount and having the same interest rate and
maturity date, all as provided in the Indenture.
PART VII.
INFORMATION TO TRUSTEE
SECTION 1. The Company covenants that so long as of any of the
Bonds of the Eighty-first Series, Eighty-second Series, Eighty-third Series,
Eighty-fourth Series, Eighty-fifth Series or Eighty-sixth Series shall be
outstanding, the Company (i) will request the Master Creditor Agent or its
successor to provide the Trustee with information concerning any of the Term
Loan Agreement, the Revolving Credit Agreement, the Xxxxxx XX Agreement, the
Toronto LC Agreement or the CIBC LC Agreement (collectively, the "Loan
Agreements") or Senior Bank Expense Obligations thereunder (including, without
limitation, information on amounts outstanding thereunder and interest due
thereon) that the Trustee may from time to time reasonably request and (ii) will
not amend or agree to amend Section 5.02(b) of the Master Creditor Agreement.
The Trustee may presume the correctness of the information provided to it
pursuant to this Section 1 and may conclusively rely thereon for all purposes of
the Indenture and the Bonds of the Eighty-first Series, Eighty-second Series,
Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series and Eighty-sixth
Series.
SECTION 2. The Company shall lodge with the Trustee copies of
the Loan Agreements and covenants that so long as of any of the Bonds of the
Eighty-first Series, Eighty-second Series, Eighty-third Series, Eighty-fourth
Series, Eighty-fifth Series or Eighty-sixth Series shall be outstanding, it
shall lodge with the Trustee any amendments to the Loan Agreements.
PART VIII.
FUTURE AMENDMENTS OF INDENTURE AND LOAN AGREEMENTS
SECTION 1. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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 Article 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 attorneys,
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 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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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 holder's 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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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 per cent (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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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 Bond 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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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. The Company reserves the right, without any consent
or other action by holders of the Bonds of the Eighty-first Series,
Eighty-second Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth
Series, Eighty-sixth 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."
SECTION 9. The Company covenants that so long as of any of the
Bonds of the Eighty-first Series, Eighty-second Series, Eighty-third Series,
Eighty-fourth Series, Eighty-fifth Series or Eighty-sixth Series shall be
outstanding, it will not make any amendment to the Loan Agreements that will
amend or modify the contractual rights of the owners of Bonds of any series
other than the owners of the Bonds of the Eighty-first Series, Eighty-second
Series, Eighty-third Series, Eighty-fourth Series, Eighty-fifth Series or
Eighty-sixth Series.
PART IX.
AMENDMENT OF INDENTURE
SECTION 1. 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 Trustee's 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 Marine Midland Bank, a banking
corporation and trust company organized 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 Trustee's Charges. The provisions of Article Second,
Section 8, and Article Tenth, Section 5 shall be applicable to
any authenticating agent."
PART X.
THE TRUSTEE
SECTION 1. 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 wilful misconduct or negligence.
PART XI.
MISCELLANEOUS PROVISIONS
SECTION 1. 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. 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 original and shall remain in full force and
effect, and all such counterparts shall together constitute but one and the same
instrument.
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.
NIAGARA MOHAWK POWER
CORPORATION
[CORPORATE SEAL]
By
Name: Xxxxxx X. Xxxx
Title: Vice President-
Treasurer
Attest:
Title:
BANKERS TRUST COMPANY
[CORPORATE SEAL] By
Name: Xxxxx X.
XxXxxxxxx
Title: Assistant Vice
President
Attest:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF ONONDAGA )
On this ____ day of March, 1996, before me personally came
Xxxxxx X. Xxxx, to me personally known, who, being by me duly sworn, did depose
and say that he resides at 0000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000; that
he is the Vice President-Treasurer of NIAGARA MOHAWK POWER CORPORATION, the
corporation described in and which executed the above instrument; that he 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 signed his name thereto by like order.
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of March, 1996, before me personally came Xxxxx X.
XxXxxxxxx, to me personally known, who, being by me duly sworn, did depose and
say that he resides at 000 Xxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000; that he is
an Assistant Vice President of BANKERS TRUST COMPANY, the corporation described
in and which executed the above instrument; that he 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 signed his name thereto by like order.
Notary Public
