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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NIAGARA MOHAWK POWER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEW YORK 15-0265555
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
300 ERIE BOULEVARD WEST
SYRACUSE, NEW YORK 13202
(315) 474-1511
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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WILLIAM F. EDWARDS
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
300 ERIE BOULEVARD WEST
SYRACUSE, NEW YORK 13202
(315) 474-1511
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
ROBERT E. BUCKHOLZ, JR., ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2)(3) PRICE(2)(4) REGISTRATION FEE(5)
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<S> <C> <C> <C> <C>
First Mortgage Bonds and Unsecured
Debt Securities.................... $432,000,000 100% $432,000,000 $114,048
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</TABLE>
(1) Or, if any debt securities (a) are denominated or payable in a foreign or
composite currency or currencies, such principal amount as shall result in
an aggregate initial offering price equivalent to $500,000,000 at the time
of the initial offering, (b) are issued at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $500,000,000, or (c) are issued with their principal amount payable
at maturity to be determined with reference to a currency exchange rate or
other index, such principal amount as shall result in an aggregate initial
offering price of $500,000,000.
(2) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(3) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with, and at the time of, the issuance
by the Registrant of the securities registered hereunder.
(4) Excluding accrued interest and accrued amortization of discount, if any, to
the date of delivery.
(5) Pursuant to Rule 429, $68,000,000 of debt securities are being carried
forward, for sale under the Prospectus filed herewith, from Registration
Statement No. 33-51073, for which the registrant paid a filing fee of
$23,448.46.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED --, 2000
$500,000,000
NIAGARA MOHAWK POWER CORPORATION
FIRST MORTGAGE BONDS
UNSECURED DEBT SECURITIES
-------------------------
By this prospectus, Niagara Mohawk Power Corporation may offer from time to
time up to $500,000,000 of its debt securities. These securities may be either
First Mortgage Bonds, secured by a mortgage on our assets, or unsecured debt
securities. When we offer these securities, we will provide you with a
prospectus supplement describing the terms of the specific issue, including the
offering price and whether the securities are secured.
You should read this prospectus and the prospectus supplement carefully
before you invest.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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Niagara Mohawk Power Corporation may sell these securities to underwriters,
through agents or directly to other purchasers. The prospectus supplement will
include the names of any underwriters or agents.
This prospectus is dated -- , 2000
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may sell
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $500,000,000. This prospectus provides you with a general
description of the First Mortgage Bonds and unsecured debt securities we may
offer.
Each time we sell Securities, we will provide a "PROSPECTUS SUPPLEMENT"
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information" on page 15.
For more detail, you may read the exhibits, financial statements, notes and
schedules filed with our registration statement.
ABOUT NIAGARA MOHAWK POWER CORPORATION
NIAGARA MOHAWK POWER CORPORATION
We were organized in 1937 under the laws of New York State and are engaged
principally in the regulated energy delivery business in New York State. We
provide electric service, and we sell, distribute and transport natural gas to
approximately 1,600,000 electric and 560,000 gas customers in areas of central,
northern and western New York State.
On March 18, 1999, we were reorganized into a holding company structure in
accordance with the Agreement and Plan of Exchange between Niagara Mohawk
Holdings, Inc. and us. Our outstanding common stock was exchanged on a
share-for-share basis for the common stock of Niagara Mohawk Holdings, Inc. Our
debt and preferred stock were not exchanged as a part of the share exchange and
continue as our obligations. See "Where You Can Find More Information" for how
you can find more information about the reorganization and about us.
RECENT DEVELOPMENT
In 1999, the New York State Public Service Commission approved our petition
to purchase up to $800 million of Niagara Mohawk Holdings, Inc. common stock. In
July 1999, the board of directors of Niagara Mohawk Holdings, Inc. approved a
program to repurchase 20 million shares through December 31, 2001 and in March
2000 the board of directors authorized and approved the repurchase of an
additional 20 million shares through December 31, 2002. As of December 31, 1999,
we repurchased 10 million shares of the common stock of Niagara Mohawk Holdings,
Inc. Additional 5 million shares were repurchased by an agent on our behalf, but
were not paid for by us (with the exception of $1.4 million in carrying charges)
and remain in the number of shares outstanding in computing the earnings per
share of Niagara Mohawk Holdings, Inc.
USE OF PROCEEDS
Unless we state otherwise in the prospectus supplement, we will use the
proceeds from the sale of the Securities offered under this prospectus and the
prospectus supplement for general corporate purposes. Our general corporate
purposes may include:
- the finance of our construction program;
- refund existing long term-debt and preferred stock;
- refund short term debt;
- the finance of termination or restructuring of Power Purchase Agreements
with Independent Power Producers; and
- repurchase common stock of Niagara Mohawk Holdings, Inc.
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RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges for each of the fiscal
years ended December 31, 1995 through 1999 are as follows:
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YEARS ENDED DECEMBER 31,
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1999 1998 1997 1996 1995
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<S> <C> <C> <C> <C>
x1.01 x.57 x2.02 x1.57 x2.29
</TABLE>
For purposes of computing these ratios, earnings consist of income before
income taxes plus fixed charges. Fixed charges consist of: (a) interest expenses
and amortization of debt expenses as reported in our consolidated financial
statements; (b) dividends on preferred stock of subsidiary companies; (c) the
portion of net rental expense which is deemed representative of the interest
factor inherent in rents and (d) the cumulative effect of accounting changes.
DESCRIPTION OF SECURITIES WE MAY OFFER
The Securities issued under this prospectus are governed by documents
called the "INDENTURES". The Indenture governing the First Mortgage Bonds is a
contract between us and HSBC. The Indenture governing our unsecured debt
securities is a contract between us and The Bank of New York. Each of these
banks currently acts as "TRUSTEE" under the Indenture to which it is a party.
Each Trustee has two main roles:
- First, the Trustee can enforce your rights against us if we default.
There are some limitations on the extent to which the Trustee acts on
your behalf, which we describe later under "Description of New
Bonds -- Events of Default" and "Description of New Debentures -- Events
of Default."
- Second, the Trustee performs administrative duties for us, which include
sending you interest payments, transferring your debt securities to a new
buyer if you sell and sending you notices.
In this description, we refer to the First Mortgage Bonds as "NEW BONDS"
and the unsecured debt securities as the "NEW DEBENTURES." When we say "BOND" we
mean any bond that has been, or will be, delivered under the Indenture that
governs the New Bonds. When we say "Securities" we collectively refer to the New
Bonds and the New Debenture. A copy of each Indenture is filed as an exhibit to
the registration statement relating to the Securities.
Each Indenture permits us to issue different series of Securities from time
to time. We may issue securities in such amounts, at such times and on such
terms as we wish. The Securities may differ from one another in their terms.
Securities may be sold at prices substantially below their face value, and
may be denominated in foreign currencies. The prospectus supplement will
describe:
- special United States federal income tax or other considerations, if any,
with respect to Securities sold at original issue discount.
- special United States federal income tax and other considerations, if
any, with respect to Securities which are denominated in a currency or
currency unit other than United States dollars.
Unless otherwise indicated in the prospectus supplement, the covenants
contained in the Indentures and the Securities will not afford holders of the
Securities protection in the event of a sudden decline in credit rating that
might result from a recapitalization, restructuring, or other highly leveraged
transaction.
THIS SECTION IS ONLY A SUMMARY
The Indentures and their associated documents, including your Securities,
contain the full legal text of the matters described in this section. A copy of
each Indenture has been filed with the SEC as part of our registration
statement. See "Where You Can Find More
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Information" on page 15 for information on how to obtain a copy.
This section summarizes the material terms that will apply generally to the
Securities. Each particular series of Securities will have financial and other
terms specific to it, and these specific terms will be described in the
prospectus supplement. As you read this section, therefore, please remember that
the specific terms of your Securities as described in your prospectus supplement
will supplement and, if applicable, may modify or replace the general terms
described in this section. The statements we make in this section may not apply
to your Securities.
IN THE REMAINDER OF THIS DESCRIPTION "YOU" MEANS DIRECT HOLDERS AND NOT
"STREET NAME" OR OTHER INDIRECT HOLDERS OF DEBT SECURITIES. INDIRECT
HOLDERS SHOULD READ THE SUBSECTION ON PAGE 12 ENTITLED "STREET NAME" AND
OTHER INDIRECT HOLDERS".
DESCRIPTION OF NEW BONDS
TERMS OF THE NEW BONDS
You should refer to the prospectus supplement for the following information
about a particular series of New Bonds:
- the designation and principal amounts of the New Bonds;
- the date on which the New Bonds mature;
- the interest rate;
- when the interest on the New Bonds accrues and is payable;
- the dates on which interest on the New Bonds will be payable;
- whether, when and at what price we can redeem the New Bonds; and
- any other specific terms of the New Bonds.
THE MORTGAGE
The New Bonds are secured by a "MORTGAGE" which will create a direct first
lien on substantially all gas and electric properties that we now own or use or
are useful in the operation of our properties as an integrated system. The
mortgage lien will also extend to all property of the same nature we acquire
after the effective date of the Mortgage. The Mortgage will not extend to
property that we acquire through merger or consolidation or a purchase of
substantially all the assets of other corporations, unless we decide otherwise.
This lien DOES NOT EXTEND to:
- revenues and profits of the mortgaged property;
- any bills;
- notes;
- accounts receivable;
- cash (except cash deposited with the trustee);
- agreements;
- securities;
- materials and supplies; and
- all oil, gas and other minerals and the right to this removal.
This lien is SUBJECT TO:
- liens for taxes and assessments not due and payable or being contested in
good-faith;
- obligations to public authorities as to any franchise, consent, grant,
license or permit;
- leases and other rights of tenants and of licensees; and
- the rights of others to property acquired after the effective date of the
Mortgage for transmission or distribution systems
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or right-of-way purposes (Granting Clause of the Mortgage).
The direct lien on our properties is also subject to other minor types of
encumbrances which do not materially interfere with the operation of our
business. These encumbrances may include:
- rights and claims of third parties in possession which are not disclosed
of record;
- any facts that can only be disclosed by an accurate survey;
- the effect of zoning ordinances;
- rights of public in the use of streets, roads and waterways; and
- leases, covenants, easements.
RANKING
The New Bonds will rank on an equal basis with all other mortgage Bonds
issued under the Mortgage.
CREDIT ENHANCEMENT
We will provide you further information in the prospectus supplement if any
series of New Bonds shall be entitled to the benefits of a surety bond or other
form of credit enhancement.
ADDITIONAL NEW BONDS
The Mortgage provides that we may not create any securities which will rank
senior to the New Bonds as to security. However, we may acquire property which
is subject to other liens and mortgage after-acquired property which is not
subject to the lien of the property.
Additional New Bonds which will rank equally as to security with the New
Bonds including prior lien New Bonds may be issued under the Mortgage in an
unlimited amount only as follows:
1. additional New Bonds may be issued in a principal amount equal to
60% of the net (which was in excess of $300 million on December 31, 1999)
of property additions that are not subject to an unfunded prior lien;
2. we may issue additional New Bonds in exchange for bonds
outstanding under the Mortgage or in substitution for bonds that were
retired (which was in excess of $1.0 billion on December 31, 1999); and
3. additional New Bonds may be issued in a principal amount equal to
the amount of cash we deposit with the Trustee for that purpose.
Additional New Bonds described in paragraphs 1 and 3 above MAY NOT be
issued unless our net earnings over a certain period (12 out of the 15 preceding
months) that are available for interest, after a provision for depreciation but
before income taxes, are at least 1.75 times the annual interest charges on all
Bonds and prior lien bonds then outstanding or applied for.
We expect to offer the New Bonds on the basis of property additions, cash
deposited with the Trustee or Bonds that have been retired or will be retired or
purchased pursuant to sinking fund payments.
RELEASES OF PROPERTY
We may release property subject to the lien of the Mortgage, other than
cash and prior lien bonds, upon any sale, exchange, condemnation or
expropriation of the property subject to the Mortgage without furnishing notice
to the bondholders. Any property, other than cash or securities, we received
upon the release of mortgaged property shall be subject to the lien of the
Mortgage, and any cash or securities received shall, unless we use it to satisfy
some prior lien, become part of the security for the Bonds issued under the
mortgage.
We may withdraw monies received by the Trustee as proceeds of released
property to reimburse us for retirement of Bonds and certain prior lien bonds,
or to pay, purchase or redeem these Bonds or prior lien bonds. We may also
withdraw cash in an amount equal to 166 2/3% of the principal amount of Bonds
which
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we could issue under the Mortgage in respect of Additional Property, provided we
forgo the right to issue these Bonds. In the ordinary course of business and
otherwise, we regularly obtain from the Trustee the release of various
properties from the lien of the Mortgage. In the case of exchanges of property,
no exchange shall be made if our Funded Indebtedness is increased as a result.
(Mortgage, Articles Sixth and Seventh.)
When we say "Additional Property" we refer to any property that we acquired
after July 31, 1937, that is used or useful in our business and which will
become subject to the first mortgage lien. Additional property will not include:
- property which is generally charged by us to operating expenses in
accordance with our accounting practices;
- equipment, material and supplies we acquire for the purpose of resale in
the usual course of business;
- goodwill, franchises or governmental permits;
- property we acquire as a substitute for a released property that is
subject to the Mortgage, but only to the extent of the consideration
received for the mortgaged property;
- cash, accounts receivables, stocks, bonds and other evidence of
indebtedness; and
- any insurance proceeds we receive from the Trustee as reimbursement for
loss or damage to property, but only to the extent of the insurance
proceeds received.
When we say "funded indebtedness" we refer to the aggregate unpaid
principal amount at any particular time of the Company's:
- issued and outstanding Bonds that we issue under the Mortgage, including
the additional Bonds that are about to be issued;
- all issued and outstanding bonds secured by a lien which is ranked prior
to, or equally with, the first mortgage lien; and
- all issued and outstanding bonds that are secured by any other lien and
are not subject to the first mortgage lien.
MAINTENANCE FUND PROVISIONS
We are required within 90 days after the close of each fiscal year, to (a)
certify the Costs of Additional Property (b) deposit with the Trustee cash,
Bonds or certain prior lien bonds; or (c) waive our right to the authentication
and delivery of the principal amount of Bonds to which we are then entitled
under the Mortgage, to the extent that the aggregate amount of expenditure for
maintenance, repairs, renewals and replacements for the period commencing
January 1, 1977 is less than the sum of 2.25% of our depreciable property (as
defined) on January 1 of each year during such period (Mortgage, Article Fifth,
section 22).
RESTRICTION ON COMMON STOCK DIVIDEND
To the extent that the aggregate amount of expenditure for maintenance and
repairs, plus the aggregate amount credited to depreciation, retirements and
other like reserves, for the period commencing January 1, 1977 is less than the
sum of 2.25% of our depreciable property on January 1 of each year during that
period, we must reserve an equivalent amount of surplus and hold it unavailable
for distribution as a dividend on our common stock. (Mortgage, Article Fifth,
section 23).
MERGERS AND SIMILAR EVENTS
We are generally permitted to consolidate or merge with another company or
sell substantially all of our assets to another company as long as the following
conditions are met:
- we are not in default under the Mortgage;
- the terms of the merger or consolidation or sale of the our assets may
not impair the lien, the security of the Mortgage, the rights and powers
of the Trustee or the rights and powers of the bondholders;
- if we are not the surviving corporation, or in the case of a sale of our
assets, the
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successor corporation assumes by supplemental indenture our obligations
under the Mortgage.
MODIFICATION
From time to time, we may unilaterally modify the Mortgage by entering into
a supplemental indenture with the Trustee to:
- correct property descriptions;
- modify the Mortgage or form of bonds and coupons to facilitate stock
exchange listing requirements; or
- cure any ambiguity or errors in the Mortgage;
but only if the amendments are not inconsistent with the terms of the Mortgage
and shall not impair the security of the Bonds.
The Mortgage also permits us and the Trustee to modify the Mortgage in any
manner whatsoever. A vote of the holders of Bonds owning 66 2/3% of the
principal amount of the total amount of outstanding Bonds, excluding Bonds owned
by us or by our affiliates, is required to effect this change to the Mortgage.
However, we and the Trustee may not modify the Mortgage in the following
ways without the consent of the holder of each outstanding Bonds:
- alter or impair our obligation to pay the principal and interest on the
Bonds;
- create a mortgage or a lien in the nature of a mortgage that ranks prior
to, or equally with, the first mortgage lien;
- any change to the Mortgage that adversely affects your rights; or
- reduce the percentage of bondholders that is required to consent to a
modification to the Mortgage.
We may not modify the Mortgage without the consent of the Trustee if the
Trustee is affected by the modification.
EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs and is not
cured, as described later in this subsection.
The term "EVENT OF DEFAULT" for the New Bonds means any of the following:
- we do not pay the principal of or any premium on a New Bond on its due
date;
- we do not pay interest on a New Bond within 60 days after its Due Date;
- we do not deposit any sinking, improvement, maintenance or similar fund
payment on its due date;
- we remain in breach of a covenant of the Mortgage for 90 days after we
receive a notice of default stating we are in breach. The notice must be
sent by the Trustee in its discretion or upon the written request of 25%
of the bondholders; and
- we file for bankruptcy, insolvency or reorganization events that involve
us.
If an Event of Default has occurred and has not been cured within 90 days,
the Trustee will notify the bondholders as to our default. The Mortgage allows
the Trustee to withhold notice of default if the Trustee determines in good
faith that withholding the notice is in the interests of the bondholders. The
Trustee may not withhold notice of any default in the payment of principal,
interest, installments upon retirement or any sinking or purchase fund.
Prior to exercising his powers to enforce the Mortgage, the Trustee is
entitled to reasonable protection from expenses and liability (called an
"INDEMNITY").
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A
REQUEST OF THE TRUSTEE.
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The Mortgage does not require us to furnish periodic evidence to the
trustee as to the absence of default or as to our compliance with the terms of
the mortgage. However, the Mortgage requires that as a condition to the issuance
of additional Bonds, including New Bonds, we will be in compliance with any
covenant contained in the mortgage.
DESCRIPTION OF THE NEW DEBENTURES
TERMS OF THE NEW DEBENTURES
You should refer to the prospectus supplement for the following information
about a particular series of New Debentures:
- the designation and principal amounts of the New Debentures;
- the date on which the New Debentures mature;
- the interest rate;
- when the interest on the New Debentures accrues and is payable;
- the dates on which interest on the New Debentures will be payable;
- whether, when and at what price we can redeem the New Debentures; and
- any other specific terms of the New Debentures.
CONVERSION
Your New Debentures may be convertible into or exchangeable for common
stock or other securities if your prospectus supplement so provides. If your New
Debentures are convertible or exchangeable, your prospectus supplement will
include provisions as to:
- whether the New Debentures are convertible or exchangeable into our
common stock or other securities we issue or into common stock or other
securities of other issuers;
- whether the conversion or exchange is mandatory, at your option or our
option;
- whether adjustments may be made in the number of shares of common stock
or other securities to be received by you upon conversion or exchange.
MERGERS AND SIMILAR EVENTS
We are generally permitted to consolidate or merge with another company or
sell substantially all of our assets to another company as long as the following
conditions are met:
- we are not in default under the Indenture;
- where we merge out of existence or sell our assets, the other firm may
not be organized under a foreign country's laws (that is, it must be a
corporation, partnership, trust or other entity organized under the laws
of a State or the District of Columbia or under federal law); and
- if we are not the surviving corporation, or in the case of a sale of our
assets, the successor corporation assumes by supplemental indenture our
obligations under the Indenture.
MODIFICATION AND WAIVER
There are three types of changes we can make to the Indenture and the New
Debentures.
CHANGES REQUIRING YOUR APPROVAL. First, there are changes that cannot be
made to your New Debentures without your specific approval.
Following is a list of those types of changes:
- change the Stated Maturity of the principal of or interest on any New
Debenture;
- reduce any amounts due on any New Debenture;
- reduce the amount of principal payable upon acceleration of the Maturity
of any New Debenture following a default;
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- change the place or currency of payment on any New Debenture;
- impair your right to sue for payment;
- reduce the percentage of holders of New Debentures whose consent is
needed to modify or amend the Indenture;
- reduce the percentage of holders of New Debentures whose consent is
needed to waive compliance with certain provisions of the Indenture or to
waive certain defaults; and
- modify any other aspect of the provisions dealing with modification and
waiver of the Indenture. (Section 902)
CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the
Indenture and the New Debentures is the kind that requires a vote in favor by
holders of New Debentures owning a majority amount of the particular series
affected. Most changes fall into this category, except for changes noted above
as requiring your specific vote, and, as we note below, changes which do not
require your approval. The same vote would be required for us to obtain a waiver
of any past defaults. However, we cannot obtain a waiver of a payment default or
any other aspect of the Indenture or the New Debentures listed in the first
category described above under "-- Changes Requiring Your Approval" unless we
obtain your individual consent to the waiver. (Section 513)
CHANGES NOT REQUIRING APPROVAL. The third type of change does not require
any approval by holders of New Debentures. This type is limited to
clarifications and certain other changes that would not adversely affect holders
of the New Debentures.
FURTHER DETAILS CONCERNING VOTING. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a New
Debenture:
- For Original Issue Discount Securities, we will use the principal amount
that would be due and payable on the voting date if the Maturity of the
New Debentures were accelerated to that date because of a default.
- For New Debentures whose principal amount is not known (for example,
because it is based on an index), we will use a special rule for that New
Debentures described in the prospectus supplement.
- For New Debentures denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
New Debentures will not be considered outstanding, and therefore are not
eligible to vote, if we have deposited or set aside in trust for you money for
their payment or redemption. New Debentures will also not be eligible to vote if
they have been fully defeased as described later on page 11 under "Full
Defeasance". (Section 101)
We generally will be entitled to set any day as a record date for the
purpose of determining the holders of outstanding New Debentures that are
entitled to vote or take other action under the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
holders. If we or the Trustee set a record date for a vote or other action to be
taken by holders of a particular series, that vote or action may be taken only
by persons who are holders of outstanding New Debentures of that series on the
record date and must be taken within 180 days following the record date or a
shorter period that we may specify (or as the Trustee may specify if it sets the
record date). We may shorten or lengthen (but not beyond 180 days) this period
from time to time. (Section 104)
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE
SEEK TO CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
8
<PAGE> 11
COVENANTS
The prospectus supplement for your series of New Debentures may set forth
restrictive covenants with respect to your New Debentures.
DEFEASANCE
The following discussion of full defeasance and covenant defeasance will be
applicable to your series of New Debentures only if we choose to have them apply
to that series. If we do so choose, we will inform you of this decision in the
prospectus supplement. (Section 1301)
FULL DEFEASANCE. If there is a change in federal tax law, as described
below, we can legally release ourselves from any payment or other obligations on
the New Debentures (called "FULL DEFEASANCE") if we put in place the following
other arrangements for you to be repaid:
- We must deposit in trust for your benefit and the benefit of all other
direct holders of the New Debentures a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the New
Debentures on their various due dates.
- There must be a change in current federal tax law or an IRS ruling that
lets us make the above deposit without causing you to be taxed on the New
Debentures any differently than if we did not make the deposit and just
repaid the New Debentures ourselves. (Under current federal tax law, the
deposit and our legal release from the New Debentures would be treated as
though we took back your New Debentures and gave you your share of the
cash and notes or bonds deposited in trust. In that event, you could
recognize gain or loss on the New Debentures you give back to us.)
- We must deliver to the Trustee a legal opinion of our counsel confirming
the tax law change described above. (Sections 1302 and 1304)
- If we ever did accomplish full defeasance, as described above, you would
have to rely solely on the trust deposit for repayment on the New
Debentures. You could not look to us for repayment in the unlikely event
of any shortfall. Conversely, the trust deposit would most likely be
protected from claims of our lenders and other creditors if we ever
become bankrupt or insolvent.
COVENANT DEFEASANCE. Under current federal tax law, we can make the same
type of deposit described above and be released from some of the restrictive
covenants in the New Debentures that may be described in the applicable
prospectus supplement. This is called "COVENANT DEFEASANCE". In that event, you
would lose the protection of those restrictive covenants but would gain the
protection of having money and securities set aside in trust to repay the New
Debentures. In order to achieve covenant defeasance, we must do the following:
- We must deposit in trust for your benefit and the benefit of all other
direct holders of the New Debentures a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the New
Debentures on their various due dates.
- We must deliver to the Trustee a legal opinion of our counsel confirming
that under current federal income tax law we may make the above deposit
without causing you to be taxed on the New Debentures any differently
than if we did not make the deposit and just repaid the New Debentures
ourselves.
If we accomplish covenant defeasance, the following provisions of the
Indenture and the New Debentures would no longer apply:
- Covenants applicable to the series of New Debentures and described in the
prospectus supplement.
9
<PAGE> 12
- The Events of Default relating to breach of covenants and acceleration of
the maturity of other debt, described later under "What Is an Event of
Default?"
If we accomplish covenant defeasance, you can still look to us for
repayment of the New Debentures if there is a shortfall in the trust deposit. In
fact, if one of the remaining Events of Default occurs (such as our bankruptcy)
and the New Debentures become immediately due and payable, there may be such a
shortfall. Depending on the event causing the default, you may not be able to
obtain payment of the shortfall. (Sections 1303 and 1304)
EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs and is not
cured, as described later in this subsection.
WHAT IS AN EVENT OF DEFAULT? The term "EVENT OF DEFAULT" for the New
Debentures means any of the following:
- We do not pay the principal of or any premium on New Debenture on its due
date.
- We do not pay interest on New Debenture within 30 days of its due date.
- We do not deposit any sinking fund payment on its due date.
- We remain in breach of a covenant of the Indenture for 60 days after we
receive a notice of default stating we are in breach. The notice must be
sent by either the Trustee or holders of 10% of the principal amount of
New Debentures of the affected series.
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or reorganization occur.
- Any other Event of Default described in the prospectus supplement occurs.
(Section 501)
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an Event of Default has occurred
and has not been cured, the Trustee or the holders of 25% in principal amount of
the New Debentures of the affected series may declare the entire principal
amount of all the New Debentures of that series to be due and immediately
payable. If an Event of Default occurs because of certain events in bankruptcy,
insolvency or reorganization, the principal amount of all the New Debentures of
that series will be automatically accelerated, without any action by the Trustee
or any holder. A declaration of acceleration of maturity may be canceled by the
holders of at least a majority in principal amount of the New Debentures of the
affected series. (Section 502)
Except in cases of default where the Trustee has some special duties, the
Trustee is not required to take any action under the Indenture at the request of
any holders unless the Holders offer the Trustee an indemnity. If reasonable
indemnity is provided, the holders of a majority in principal amount of the
outstanding New Debentures of the relevant series may direct the time, method
and place of conducting any lawsuit or other formal legal action seeking any
remedy available to the Trustee. These majority holders may also direct the
Trustee in performing any other action under the Indenture. (Section 512)
Before you bypass the Trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the New Debentures, the following must occur:
- You must give the Trustee written notice that an Event of Default has
occurred and remains uncured.
- The holders of 25% in principal amount of all outstanding New Debentures
of the relevant series must make a written request that the Trustee take
action because of the default, and must offer reasonable indemnity to the
Trustee against the cost and other liabilities of taking that action.
- The Trustee must have not taken action for 60 days after receipt of the
notice and offer of indemnity. (Section 507)
However, you are entitled at any time to bring a lawsuit for the payment of
money due
10
<PAGE> 13
on your New Debenture on or after its due date. (Section 508)
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A
REQUEST OF THE TRUSTEE AND TO MAKE OR CANCEL A DECLARATION OF
ACCELERATION.
We will furnish to the Trustee every year a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
Indenture and the New Debentures, or else specifying any default. (Section 1004)
REGARDING THE TRUSTEES
The Trustee under the Mortgage for the New Bonds is HSBC, with whom we
maintain normal banking arrangements. HSBC has also extended a line of credit to
us. We maintain bank accounts, borrow money and have other customary banking
relationships with HSBC in the ordinary course of business.
The Trustee under the Indenture for the New Debentures is The Bank of New
York, which has extended a line of credit to us and with whom we also maintain
normal banking arrangements.
If an event of default (or an event that would be an event of default if
the requirements for giving us default notice or for our default having to exist
for a specific period of time were disregarded) occurs, one or both of the
Trustees may be considered to have a conflicting interest for purposes of the
Trust Indenture Act of 1939 with respect to the Securities. In that case, one or
both of the Trustees may be required to resign as trustee and we would be
required to appoint one or more successor trustees.
DESCRIPTION OF TERMS COMMON TO NEW BONDS AND NEW DEBENTURES
Unless we provide otherwise in the prospectus supplement, the following
provisions apply equally to, both, New Bonds and New Debentures.
FORM, EXCHANGE AND TRANSFER
The Securities will be issued:
- only in fully registered form;
- without interest coupons; and
- in denominations that are multiples of $1,000.
You may have your Securities broken into more Securities of smaller
denominations or combined into fewer Securities of larger denominations, as long
as the total principal amount is not changed. This is called an "EXCHANGE".
You may exchange or transfer Securities at the office of the entity
performing the role of maintaining the list of registered holders, known as the
"SECURITY REGISTRAR", or at the office of any transfer agent designated by us
for that purpose.
You will not be required to pay a service charge to transfer or exchange
Securities, but you may be required to pay for any tax or other governmental
charge associated with the exchange or transfer. The transfer or exchange will
only be made if the Security Registrar or transfer agent, as applicable, is
satisfied with your proof of ownership.
If the Securities are redeemable and we redeem less than all of the
Securities of a particular series, we may block the transfer or exchange of
Securities during the period beginning 15 days before the day we mail the notice
of redemption and ending on the day of that mailing, in order to freeze the list
of holders to
11
<PAGE> 14
prepare the mailing. We may also refuse to register transfers or exchanges of
Securities selected for redemption, except that we will continue to permit
transfers and exchanges of the unredeemed portion of any Securities being
partially redeemed.
PAYMENT AND PAYING AGENTS
We will pay interest to you if you are a direct holder listed in the
records of the Security Registrar at the close of business on the "REGULAR
RECORD DATE." The prospectus supplement will specify the Regular Record Dates
for the Securities.
We will pay interest, principal and any other money due on the Securities
at the corporate trust offices of each of the designated Trustees. You must make
arrangements to have your payments picked up or wired from that office. We may
also choose to pay interest by mailing checks.
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS.
We may also arrange for additional payment offices and may cancel or change
those offices, including our use of the corporate trust offices of each of the
designated Trustees. These offices are called "PAYING AGENTS". We are required
to maintain a Paying Agent in each Place of Payment for the Securities. We must
notify you of changes in the Paying Agents for the Securities.
LEGAL OWNERSHIP
"STREET NAME" AND OTHER INDIRECT HOLDERS
Investors who hold Securities in accounts at banks or brokers will
generally not be recognized by us as legal holders of Securities. This is called
holding in "STREET NAME". Instead, we would recognize only the bank or broker,
or the financial institution the bank or broker uses to hold its securities.
These intermediary banks, brokers and other financial institutions pass along
principal, interest and other payments on the securities, either because they
agree to do so in their customer agreements or because they are legally required
to forfeit these securities payments. If your New Securities are in "Street
Name," you should check with your own institution to find out:
- How it handles securities payments and notices.
- Whether it imposes fees or charges.
- How it would handle voting if ever required.
- Whether and how you can instruct it to send you Debt Securities
registered in your own name so you can be a direct holder as described
below.
- How it would pursue rights under the Debt Securities if there were a
default or other event triggering the need for holders to act to protect
their interests.
DIRECT HOLDERS
Our obligations, as well as the obligations of the Trustee and those of any
third parties employed by us or either Trustee, run only to Persons who are
registered as holders of Securities. As noted above, we do not have obligations
to you if you hold in "Street Name" or other indirect means, either because you
choose to hold Securities in that manner or because the Securities are issued in
the form of Global Securities as described below. For example, once we make
payment to the registered holder, we have no further responsibility for the
payment even if that holder is legally required to pass the payment along to you
as a "Street Name" customer but does not fulfill this obligation.
12
<PAGE> 15
GLOBAL SECURITIES
WHAT IS A GLOBAL SECURITY? A Global Security is a special type of
indirectly-held Security, as described above under "Street Name' and Other
Indirect Holders". We may choose to issue some or all of the Securities in the
form of Global Securities, in which case the ultimate beneficial owners can only
be indirect holders. We do this by requiring that the Global Security be
registered in the name of a financial institution we select and by requiring
that the Securities included in the Global Security not be transferred to the
name of any other direct holder unless the special circumstances described below
occur. The financial institution that acts as the sole direct holder of the
Global Security is called the "Depositary". Any person wishing to own a Global
Security must do so indirectly through an account with a broker, bank or other
financial institution that in turn has an account with the Depositary. The
prospectus supplement will indicate whether your series of Securities will be
issued only in the form of Global Securities.
SPECIAL INVESTOR CONSIDERATIONS FOR GLOBAL SECURITIES. As an indirect
holder, an investor's rights relating to a Global Security will be governed by
the account rules of the investor's financial institution and of the Depositary,
as well as general laws relating to securities transfers. We do not recognize
this type of investor as a holder of Securities and instead deal only with the
Depositary that holds the Global Security.
An investor should be aware that if Securities are issued only in the form
of Global Securities:
The investor cannot get Securities registered in his or her own name.
- The investor cannot receive physical certificates for his or her interest
in the Securities.
- The investor will be a "Street Name" holder and must look to his or her
own bank or broker for payments on the Securities and protection of his
or her legal rights relating to the Securities. See the discussion above
"Street Name" and Other Indirect Holders".
- The Depositary's policies will govern payments, transfers, exchange and
other matters relating to the investor's interest in the Global Security.
We and each Trustee have no responsibility for any aspect of the
Depositary's actions or for its records of ownership interests in the
Global Security. We and each Trustee also do not supervise the Depositary
in any way.
- The laws of some jurisdictions require that certain purchasers receive
physical certificates for their interests in the securities. These laws
may impair the ability to transfer beneficial interests in a Global
Security.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described later, a Global Security will terminate and
interests in it will be exchanged for physical certificates representing
Securities. After that exchange, the choice of whether to hold Securities
directly or in "Street Name" will be up to the investor. Investors must consult
their own bank or brokers to find out how to have their interests in Securities
transferred to their own name so that they will be direct holders. The rights of
"Street Name" investors and direct holders in the Securities have been described
above under "Street Name" and Other Indirect Holders" and "Direct Holders" on
page 12.
The special situations for termination of a Global Security are:
- When the Depositary notifies us that it is unwilling, unable or no longer
qualified to continue as Depositary.
- When an event of default on the Securities has occurred and has not been
cured. (Defaults are discussed above)
The prospectus supplement may also list additional situations for
terminating a Global Security that would apply only to the particular
13
<PAGE> 16
series of Securities covered by the prospectus supplement. When a Global
Security terminates, the Depositary (and not the company or each Trustee) is
responsible for deciding the names of the institutions that will be the initial
direct holders.
PLAN OF DISTRIBUTION
We may sell Securities:
- to or through underwriting syndicates represented by managing
underwriters;
- through one or more underwriters without a syndicate for them to offer
and sell to the public;
- through dealers or agents; and
- to investors directly in negotiated sales or in competitively bid
transactions.
Any underwriter or agent involved in the offer and sale of any series of
the Securities will be named in the prospectus supplement.
The prospectus supplement for each series of Securities will describe:
- the terms of the offering of these Securities, including the name of the
agent or the name or names of any underwriters;
- the public offering or purchase price;
- any discounts and commissions to be allowed or paid to the agent or
underwriters and all other items constituting underwriting compensation;
- any discounts and commissions to be allowed or paid to dealers; and
- other specific terms of the particular Securities.
Only the agents or underwriters named in a prospectus supplement are agents
or underwriters in connection with the Securities being offered by that
prospectus supplement.
Underwriters, agents and dealers may be entitled, under agreements with us,
to indemnification against certain civil liabilities, including liabilities
under the Securities Act.
Underwriters to whom we sell Securities for public offering and sale are
obliged to purchase all of those particular Securities if any are purchased.
This obligation is subject to certain conditions and may be modified in the
applicable prospectus supplement.
Underwriters, dealers or agents may engage in transactions with, or perform
services for, us or our affiliates in the ordinary course of business.
VALIDITY OF DEBT SECURITIES
Sullivan & Cromwell, New York, New York, will pass upon the validity of the
Securities for us.
EXPERTS
Our financial statements as of December 31, 1999 and 1998 and for each of
the three years in the period ended December 31, 1999 incorporated in this
Prospectus by reference to Niagara Mohawk Holdings, Inc., and our Combined
Annual Report on Form 10-K for the year ended December 31, 1999, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as expert in
auditing and accounting.
14
<PAGE> 17
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document that we file at:
- SEC Public Reference Room
450 Fifth Street, N.W.
Washington, D.C. 20549;
- Citicorp Center
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2411; or
- Seven World Trade Center
Suite 1300
New York, New York 10048.
You may also obtain copies of these documents at prescribed rates from the
Public Reference Section of the SEC at its Washington address.
Please call the SEC at 1-800-SEC-0330 for further information.
Our filings are also available to the public through:
- The SEC web site at http://www.sec.gov
- The New York Stock Exchange
20 Broad Street
New York, New York 10005
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which information incorporated by reference is considered to be
part of this prospectus supplement and the accompanying prospectus, and later
information that we file with the SEC will automatically update and supersede
that information as well as the information included in this prospectus
supplement and the accompanying prospectus. We incorporate by reference the
documents listed in the box below and any future filings made with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities and Exchange Act of 1934
filed prior to the termination of this offering.
Annual Report on Form 10-K for the year ended December 31, 1999.
We will provide without charge a copy of these filings, other than any
exhibits, unless the exhibits are specifically incorporated by reference into
this prospectus supplement and the accompanying prospectus. You may request your
copy by writing or telephoning us at the following address:
Leon T. Mazur
Director, Investor Relations
Niagara Mohawk Power Corporation
300 Erie Boulevard West
Syracuse, New York 13202
(315) 428-5876
Information in this prospectus may add to, update or change information in
a previously filed document incorporated by reference in this prospectus. In
that case, you should rely on the information in this prospectus. Information in
a document filed after the date of this prospectus may add to, update or change
information in this prospectus or in a previously filed document incorporated by
reference in this prospectus. In that case, you should rely on the information
in the later filed document.
15
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
ESTIMATED
AMOUNTS
----------
<S> <C>
Filing fee, Securities and Exchange Commission.............. $ 114,048
New York State Mortgage Recording Tax....................... $5,000,000
Rating agency fees.......................................... $ 212,000
Cost of printing and engraving.............................. $ 120,000
Services of counsel......................................... $ 300,000
Depositary's and Trustees' fees and expenses................ $ 30,000
Services of independent accountants......................... $ 90,000
Miscellaneous............................................... $ 60,000
----------
Total....................................................... $5,926,048
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721 through 726 of the Business Corporation Law of the State of
New York (the "BCL") provide for indemnification of the officers and directors
of Niagara Mohawk Power Corporation (the "Company") under certain conditions and
subject to specific limitations. The BCL permits New York corporations to
supplement the statutory indemnification with additional "non-statutory"
indemnification for directors and officers meeting a specified standard of
conduct and to advance to officers and directors litigation expenses under
certain circumstances. As permitted by the BCL, Article VI of the Company's
By-Laws provides for indemnification of, and advancement of litigation expenses
incurred by, directors and officers of the Company.
The Company has also obtained insurance providing for indemnification of
directors and officers against certain expenses and liabilities. In addition,
pursuant to a 1986 amendment to the BCL, the Company has entered into agreements
with certain of the officers and directors of the Company providing for
indemnification for the liability of officers and directors not covered by the
policy mentioned above and the Company has agreed to enter into similar
arrangements with its officers who are not directors of the Company. Such
additional indemnification does not cover acts committed in bad faith or acts
which were the result of active and deliberate dishonesty. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that, in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Furthermore, Section 402(b) of the BCL provides that a corporation may
include a provision in its certificate of incorporation limiting the liability
of its directors to the corporation or its shareholders for damages for the
breach of any duty, except for a breach involving intentional misconduct, bad
faith, a knowing violation of law or receipt of an improper personal benefit for
certain illegal dividends, loans or stock repurchases. Article XIIA of the
Certificate of Amendment of the Certificate of Incorporation of the Company
limits, with certain exceptions, the personal liability
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<PAGE> 19
of a director of the Company to the Company or its shareholders for damages for
any breach of duty in such capacity to the fullest extent permitted by the BCL.
ITEM 16. EXHIBITS.
In the following exhibit list, NMPC refers to the Company and CNYP refers
to Central New York Power Corporation, a predecessor company. Each document
referred to below is incorporated by reference to the files of the Commission,
unless the reference to the document in the list is preceded by an asterisk. As
permitted by Item 10(d) of Regulation S-K, certain Exhibits are incorporated by
reference to periodic reports filed by NMPC more than five (5) years ago which
have not been disposed of by the Commission pursuant to its Records Control
Schedule. As set forth below, each of such periodic reports is located in
Commission File Number 0-1. Previous filings with the Commission are indicated
as follows:
<TABLE>
<CAPTION>
REFERENCE REPORT NAME
- --------- -----------
<C> <S>
A NMPC Registration Statement No. 2-8214
C NMPC Registration Statement No. 2-8634
F CNYP Registration Statement No. 2-3414
G CNYP Registration Statement No. 2-5490
V NMPC Registration Statement No. 2-10501
X NMPC Registration Statement No. 2-12443
CC NMPC Registration Statement No. 2-16193
GG NMPC Registration Statement No. 2-25526
HH NMPC Registration Statement No. 2-26918
II NMPC Registration Statement No. 2-29575
VV NMPC Registration Statement No. 2-59500
CCC NMPC Registration Statement No. 2-70860
III NMPC Registration Statement No. 2-90568
OOO NMPC Registration Statement No. 33-32475
PPP NMPC Registration Statement No. 33-38093
QQQ NMPC Registration Statement No. 33-47241
RRR NMPC Registration Statement No. 33-59594
SSS NMPC Registration Statement No. 33-49541
d NMPC Annual Report on Form 10-K for year ended December 31,
1993
e NMPC Annual Report on Form 10-K for year ended December 31,
1994
j NMPC Quarterly Report on Form 10-Q for quarter ended
September 30, 1993
k NMPC Quarterly Report on Form 10-Q for quarter ended June
30, 1995
l NMPC Annual Report on Form 10-K for year ended December 31,
1999
</TABLE>
In accordance with Paragraph 4(iii) of Item 601(b) of Regulation S-K, the
Company agrees to furnish to the Securities and Exchange Commission upon request
a copy of the agreement comprising of the $804 million senior bank financing
that the Company completed with a bank group during March 1996 and subsequently
amended (effective June 30, 1998). The total amount of long-term
II-2
<PAGE> 20
debt authorized under such agreements does not exceed 10 percent of the total
consolidated assets of the Company and its subsidiaries.
<TABLE>
<CAPTION>
EXHIBIT PREVIOUS EXHIBIT
NUMBER DESCRIPTION OF INSTRUMENT FILING DESIGNATION
---------- ------------------------- -------- -----------
<S> <C> <C> <C>
*1(a) Form of Standard Underwriting Agreement -- First 1(a)
Mortgage Bonds
*1(b) Form of Standard Underwriting Agreement -- Debt 1(b)
Securities
*4(a) Indenture relating to the New Debentures 4(a)
4(b)(1) Mortgage Trust Indenture dated as of October 1, 1937 F **
between NMPC (formerly CNYP) and Marine Midland Bank,
N.A. (formerly named The Marine Midland Trust Company of
New York), as Trustee
4(b)(2) Supplemental Indenture dated as of December 1, 1938, VV 2-3
supplemental to Exhibit 4(1)
4(b)(3) Supplemental Indenture dated as of April 15, 1939, VV 2-4
supplemental to Exhibit 4(1)
4(b)(4) Supplemental Indenture dated as of July 1, 1940, VV 2-5
supplemental to Exhibit 4(1)
4(b)(5) Supplemental Indenture dated as of October 1, 1944, G 7-6
supplemental to Exhibit 4(1)
4(b)(6) Supplemental Indenture dated as of June 1, 1945, VV 2-8
supplemental to Exhibit 4(1)
4(b)(7) Supplemental Indenture dated as of August 17, 1948, VV 2-9
supplemental to Exhibit 4(1)
4(b)(8) Supplemental Indenture dated as of December 31, 1949, A 7-9
supplemental to Exhibit 4(1)
4(b)(9) Supplemental Indenture dated as of January 1, 1950, A 7-10
supplemental to Exhibit 4(1)
4(b)(10) Supplemental Indenture dated as of October 1, 1950, C 7-11
supplemental to Exhibit 4(1)
4(b)(11) Supplemental Indenture dated as of October 19, 1950, C 7-12
supplemental to Exhibit 4(1)
4(b)(12) Supplemental Indenture dated as of February 20, 1953, V 4-16
supplemental to Exhibit 4(1)
4(b)(13) Supplemental Indenture dated as of April 25, 1956, X 4-19
supplemental to Exhibit 4(1)
4(b)(14) Supplemental Indenture dated as of March 15, 1960, CC 2-23
supplemental to Exhibit 4(1)
4(b)(15) Supplemental Indenture dated as of October 1, 1966, GG 2-27
supplemental to Exhibit 4(1)
4(b)(16) Supplemental Indenture dated as of July 15, 1967, HH 4-29
supplemental to Exhibit 4(1)
4(b)(17) Supplemental Indenture dated as of August 1, 1967, HH 4-30
supplemental to Exhibit 4(1)
4(b)(18) Supplemental Indenture dated as of August 1, 1968, II 2-30
supplemental to Exhibit 4(1)
</TABLE>
II-3
<PAGE> 21
<TABLE>
<CAPTION>
EXHIBIT PREVIOUS EXHIBIT
NUMBER DESCRIPTION OF INSTRUMENT FILING DESIGNATION
---------- ------------------------- -------- -----------
<S> <C> <C> <C>
4(b)(19) Supplemental Indenture dated as of March 15, 1977, VV 2-39
supplemental to Exhibit 4(1)
4(b)(20) Supplemental Indenture dated as of August 1, 1977, CCC 4(b)(40)
supplemental to Exhibit 4(1)
4(b)(21) Supplemental Indenture dated as of March 1, 1978, CCC 4(b)(42)
supplemental to Exhibit 4(1)
4(b)(22) Supplemental Indenture dated as of June 15, 1980, CCC 4(b)(46)
supplemental to Exhibit 4(1)
4(b)(23) Supplemental Indenture dated as of November 1, 1985, III 4(b)(64)
supplemental to Exhibit 4(1)
4(b)(24) Supplemental Indenture dated as of October 1, 1989, OOO 4(b)(73)
supplemental to Exhibit 4(1)
4(b)(25) Supplemental Indenture dated as of June 1, 1990, PPP 4(b)(74)
supplemental to Exhibit 4(1)
4(b)(26) Supplemental Indenture dated as of November 1, 1990, PPP 4(b)(75)
supplemental to Exhibit 4(1)
4(b)(27) Supplemental Indenture dated as of March 1, 1991, QQQ 4(b)(76)
supplemental to Exhibit 4(1)
4(b)(28) Supplemental Indenture dated as of October 1, 1991, QQQ 4(B)(77)
supplemental to Exhibit 4(1)
4(b)(29) Supplemental Indenture dated as of April 1, 1992, QQQ 4(b)(78)
supplemental to Exhibit 4(1)
4(b)(30) Supplemental Indenture dated as of June 1, 1992, RRR 4(b)(79)
supplemental to Exhibit 4(1)
4(b)(31) Supplemental Indenture dated as of July 1, 1992, RRR 4(b)(80)
supplemental to Exhibit 4(1)
4(b)(32) Supplemental Indenture dated as of August 1, 1992, RRR 4(b)(81)
supplemental to Exhibit 4(1)
4(b)(33) Supplemental Indenture dated as of April 1, 1993, l 4(b)(82)
supplemental to Exhibit 4(1)
4(b)(34) Supplemental Indenture dated as of July 1, 1993, j 4(b)(83)
supplemental to Exhibit 4(1)
4(b)(35) Supplemental Indenture dated as of September 1, 1993, j 4(b)(84)
supplemental to Exhibit 4(1)
4(b)(36) Supplemental Indenture dated as of March 1, 1994, l 4(b)(36)
supplemental to Exhibit 4(1)
4(b)(37) Supplemental Indenture dated as of July 1, 1994, e 4(86)
supplemental to Exhibit 4(1)
4(b)(38) Supplemental Indenture dated as of May 1, 1995, k 4(87)
supplemental to Exhibit 4(1)
4(b)(39) Supplemental Indenture dated as of March 20, 1996, SSS 4(a)(39)
supplemental to Exhibit 4(1)
4(b)(40) Supplemental Indenture dated as of November 1, 1998, l 4(b)(40)
supplemental to Exhibit 4(l)
</TABLE>
II-4
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT PREVIOUS EXHIBIT
NUMBER DESCRIPTION OF INSTRUMENT FILING DESIGNATION
---------- ------------------------- -------- -----------
<S> <C> <C> <C>
4(b)(41) Agreement dated as of August 16, 1940, between CNYP, The G 7-23
Chase National Bank of the City of New York, as
Successor Trustee, and The Marine Midland Trust Company
of New York, as Trustee
4(b)(42) Form of Indenture relating to the Senior Notes dated SSS 4(a)-41
June 30, 1998
*4(c) Form of New Debentures (contained in the Indenture 4(a)
designated as 4(a))
*4(d) Form of New Bonds (contained in the Indenture designated 4(d)
4(b)(1))
*5 Opinion of Sullivan & Cromwell 5
*12 Statement re: Computation of Ratios 12
*23(a) Consent of Independent Accountants, 23(a)
PricewaterhouseCoopers LLP
*23(b) Consent of Sullivan & Cromwell (filed as part of Exhibit 5
5 hereto)
*25(a) Form T-1 Statement of Eligibility under the Trust 25(a)
Indenture Act of 1939 of HSBC
*25(b) Form T-1 Statement of Eligibility under the Trust 25(b)
Indenture Act of 1939 of The Bank of New York
</TABLE>
- -------------------------
** Filed October 15, 1937 after effective date of Registration Statement No.
2-34121
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
II-5
<PAGE> 23
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the start of
any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the
Act need not be furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information necessary
to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding the
foregoing, with respect to a registration statement of Form F-3, a
post-effective amendment need not be filed to include financial statements
and information required by Section 10(a)(3) of the Act or Rule 3-19 of
this chapter if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-6
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 31st day of
March, 2000.
NIAGARA MOHAWK POWER CORPORATION
By: /s/ STEVEN W. TASKER
-------------------------------------
STEVEN W. TASKER
Vice President -- Controller and
Principal Accounting Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Niagara Mohawk Power Corporation, a New York corporation, for
himself or herself and not for one another, does hereby constitute and appoint
WILLIAM F. EDWARDS and ARTHUR W. ROOS and each of them, a true and lawful
attorney in his or her name, place and stead, in any and all capacities, to sign
his or her name to any and all amendments, including post-effective amendments,
to this Registration Statement, and to cause the same to be filed with the
Securities and Exchange Commission, granting unto said attorneys and agent(s)
and each of them full power and authority to do and perform any act and thing
necessary and proper to be done in the premises, as fully and to all intents and
purposes as the undersigned could do if personally present, and each of the
undersigned for himself or herself hereby ratifies and confirms all that said
attorneys and agent(s) or any one of them shall lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on March 31, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM E. DAVIS Chairman of the Board Chief March 31, 2000
- --------------------------------------------------- Executive Officer
William E. Davis
/s/ DARLENE D. KERR Executive Vice President and March 31, 2000
- --------------------------------------------------- Chief Operating Officer
Darlene D. Kerr
/s/ DAVID J. ARRINGTON Senior Vice President and March 31, 2000
- --------------------------------------------------- Chief Administrative
David J. Arrington Officer
/s/ WILLIAM F. EDWARDS Senior Vice President and March 31, 2000
- --------------------------------------------------- Chief Financial Officer
William F. Edwards
</TABLE>
II-7
<PAGE> 25
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM E. DAVIS Director March 31, 2000
- ---------------------------------------------------
William E. Davis
/s/ DARLENE D. KERR Director March 31, 2000
- ---------------------------------------------------
Darlene D. Kerr
/s/ JOHN H. MUELLER Director March 31, 2000
- ---------------------------------------------------
John H. Mueller
/s/ STEVEN W. TASKER Vice President -- Controller March 31, 2000
- --------------------------------------------------- and Principal Accounting
Steven W. Tasker Officer
</TABLE>
II-8
<PAGE> 26
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<C> <S>
1(a) Form of Standard Underwriting Agreement -- First Mortgage
Bonds.
1(b) Form of Standard Underwriting Agreement -- Debt Securities.
4(a) Indenture relating to the New Debentures.
4(b) Indenture relating to the New Bonds dated as of October 1,
1937 and certain supplemental Indentures (incorporated by
reference as designated in II-2-II-6 above).
4(c) Form of New Debenture (contained in the Indenture designated
as 4(a)).
4(d) Form of New Bonds.
5 Opinion of Sullivan & Cromwell.
12 Statement re: Computation of Ratios.
23(a) Consent of Independent Accountants, PricewaterhouseCoopers
LLP.
23(b) Consent of Sullivan & Cromwell (filed as part of Exhibit 5
hereto).
25(a) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of HSBC.
25(b) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York.
</TABLE>
II-9
<PAGE> 1
EXHIBIT 1(a)
NIAGARA MOHAWK POWER CORPORATION
FORM OF FIRST MORTGAGE BONDS UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representative(s)
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Ladies and Gentlemen:
Niagara Mohawk Power Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters") for whom you are acting as representatives (the
"Representatives"), its First Mortgage Bonds of the designations, with the
terms, the initial public offering price, the purchase prices to the
Underwriters and in the aggregate principal amounts specified in Schedule I
hereto (the "Securities") to be issued under its Mortgage Trust Indenture, dated
as of October 1, 1937, from the Company to Marine Midland Bank, N.A., Trustee
(the "Trustee"), as heretofore supplemented and amended by supplemental
indentures and as to be further supplemented and amended by a supplemental
indenture relating to the Securities (such Mortgage Trust Indenture as so
supplemented and amended and as to be so supplemented and amended being
hereinafter referred to as the "Mortgage"), and Schedule I hereto sets forth the
date, time and manner of delivery of the Securities.
<PAGE> 2
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (with the file number set forth on Schedule I
hereto) on such Form, including a prospectus, for the registration
under the Act of the Securities, which registration statement has
become effective. Such registration statement and prospectus may have
been amended or supplemented from time to time prior to the date of
this Agreement. Any such amendment or supplement was or will be timely
filed with the Commission and any such amendment has become effective.
The Company will file with the Commission a prospectus supplement (the
"Prospectus Supplement") relating to the Securities pursuant to Rule
424 under the Act. Copies of such registration statement and
prospectus, any such amendment or supplement, the Prospectus Supplement
and all documents incorporated by reference therein which were filed
with the Commission on or prior to the date of this Agreement have been
delivered to you. Such registration statement and such prospectus or
any prospectus used in place thereof pursuant to Rule 429 under the
Act, as amended or supplemented prior to the date of this Agreement and
as supplemented by the Prospectus Supplement, are hereinafter called
the "Registration Statement," and the "Prospectus," respectively. Any
reference herein to the Registration Statement or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934 (the "Exchange Act") on or
before the date of this Agreement, and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act deemed to
be incorporated by reference therein after the date of this Agreement.
(b) (i) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Prospectus, at the date of this Agreement and at the
Closing Date (as hereinafter defined), any amendments thereof and
supplements thereto and the Mortgage complied or will comply in all
material respects with the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement nor the
Prospectus nor any amendment thereof or supplement thereto contained or
will contain any untrue statement of a material fact or omitted or will
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(A) that part of the
2
<PAGE> 3
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(B) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives expressly for use in the Prospectus as amended or
supplemented.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission or became effective, conformed
in all material respects to the requirements of the Act or the Exchange
Act and the rules and regulations of the Commission thereunder, and any
documents so filed and incorporated by reference subsequent to the date
of this Agreement will, when they are filed with the Commission,
conform in all material respects to the requirements of the Act and the
Exchange Act, and the rules and regulations of the Commission
thereunder, and none of such documents include or will include any
untrue statement of a material fact or omit or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that such representation
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished by an Underwriter through
the representatives expressly for use in the Prospectus as supplemented
or amended.
(d) The accountants who have certified or shall certify the
audited financial statements incorporated by reference as parts of the
Registration Statement and the Prospectus are independent accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
(e) The financial statements and information included or
incorporated by reference in the Registration Statement present fairly,
in all material respects, the financial position, results of operations
and changes in financial position of the Company at the respective
dates and for the respective periods indicated, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved except as therein stated. The Company
has no material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition (financial or
other), earnings, business or
3
<PAGE> 4
properties of the Company, whether or not arising from transactions in
the ordinary course of business.
(g) The Securities have been duly authorized, and, when are
issued and delivered pursuant to this Agreement, such securities will
have been duly executed, authenticated, issued and delivered in
accordance with the Mortgage and sold to the Underwriters as provided
herein, will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Mortgage.
(h) The Company has been duly incorporated and validly
existing corporation in good standing under the laws of the State of
New York; the Company holds all material licenses, certificates and
permits from governmental authorities necessary for the conduct of its
business; and the Company has the corporate power and authority to own
its properties and conduct its business as described in the Prospectus.
(i) Neither the issuance or sale of the Securities, nor the
consummation of any other of the transactions herein contemplated, nor
the fulfillment of the terms hereof, will conflict with, result in a
breach of or constitute a default under the terms of any indenture, or
other agreement or instrument to which the Company is a party or by
which it is bound or, to the best knowledge of the Company, any order
or regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company.
(j) The Company has filed a petition with the Public Service
Commission of the State of New York ("PSC") with respect to the issue
and sale of the Securities. The PSC has authorized the issue and sale
thereof but upon the express condition that the Company shall file with
the PSC for its consideration a copy of this Agreement and a statement
setting forth (i) the interest rate for the Securities, (ii) any
initial public offering price thereof, (iii) the price to be paid to
the Company for the Securities, (iv) any underwriting commissions, (v)
any sinking fund or other mandatory redemption provisions, and (vi) any
redemption prices and dates with respect to redemption of the
Securities at the option of the Company.
(k) The Company and each material subsidiary of the Company
have good and valid title to all or substantially all of their
permanent fixed properties (including the specified undivided interests
in generating units and plants referred to in the Prospectus), except
as otherwise indicated in the Prospectus, subject only to the
respective liens of the indentures securing its mortgage debt.
4
<PAGE> 5
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to you and each other Underwriter, and you and each other
Underwriter agree, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the respective principal
amounts of the Securities set forth opposite your respective names in Schedule I
hereto and Schedule II hereto and Schedule I hereto sets forth the date, time
and manner of delivery of the Securities.
Upon authorization by the Representatives of the release of
the Securities, the several Underwriters propose to offer the Securities for
sale upon the terms and conditions set forth in the Prospectus.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the place, date and time specified in Schedule I
hereto. The Securities shall be in definitive form and shall be registered in
such names and in such authorized denominations as the Representatives may
request not less than forty-eight hours in advance of the Closing Date, and
shall be delivered by or on behalf of the Company to the Representatives for the
account of such underwriter, against payment by such underwriter or on its
behalf of the purchase price therefor by wire transfer of federal (same day)
funds to the account specified by the Company to the Representatives at least
forty-eight hours in advance of the Closing Date.
4. Agreements. The Company agrees with each of the several
Underwriters that:
(a) The Company will cause the Prospectus Supplement to be
filed or mailed for filing, in a form approved by the Representatives,
pursuant to Rule 424 under the Act and will notify you promptly of such
filing or mailing. During the period for which a prospectus relating to
the Securities is required to be delivered under the Act, the Company
will promptly advise the Representatives (i) when any amendment to the
Registration Statement shall have become effective, (ii) when any
subsequent supplement to the Prospectus has been filed or mailed for
filing, (iii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceedings for that purpose,
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus (other than any
prospectus supplement relating to the offering of securities registered
under the Registration Statement other than the Securities and
permitted by Section 4(g) hereof, or any document required to
5
<PAGE> 6
be filed under the Exchange Act which upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus)
unless the Company has furnished to you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object after receiving a reasonable notice from
the Representatives thereof. The Company will furnish to you prior to
the filing thereof a copy of any such prospectus supplement and any
document which upon filing is deemed to be incorporated by reference in
the Registration Statement or Prospectus. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement (which need not be audited) of the Company, for a
twelve-month period beginning after the date of the Prospectus
Supplement filed pursuant to Rule 424 under the Act, which will satisfy
the provisions of Section 11(a) of the Act.
(d) The Company has previously furnished to each of the
Representatives, upon request, a signed copy of the Registration
Statement as originally filed and of each amendment thereto, including
the statement on Form T-1 of the Trustee and all powers of attorney,
consents and exhibits filed therewith (other than exhibits incorporated
by reference), and will deliver to the Representatives conformed copies
of the Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, all
amendments of and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives may
reasonably request.
6
<PAGE> 7
(e) The Company will furnish such information, execute such
instruments and take such action as may be required to qualify the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service
of process in any jurisdiction where it is not now so subject.
(f) So long as the Securities are outstanding, the Company
will furnish (or cause to be furnished) to each of the Representatives,
upon request, copies of (i) all reports to stockholders of the Company
and (ii) all reports and financial statements filed with the Commission
or any national securities exchange.
(g) During the period beginning from the date of this
Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Securities, as notified to
the Company by the Representatives, or (ii) the thirtieth day after the
Closing Date for the Securities, not to offer, sell, or otherwise
dispose of any first mortgage bonds of the Company (except under prior
contractual commitments which have been disclosed to you), without the
prior written consent of the Representatives, which consent shall not
be unreasonably withheld.
5. Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issue and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus and any amendments thereof or supplements thereto, all costs and
expenses incurred in connection with "blue sky" qualifications, the legality of
the Securities for investment and the rating of the Securities, and all costs
and expenses of the printing and distribution of all documents in connection
with this underwriting. Except as provided in this Section 5 and Section 8
hereof, the Underwriters will pay all their own costs and expenses, including
the fees of their counsel and any advertising expenses in connection with any
offer they may make.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions
7
<PAGE> 8
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or the Representatives, threatened.
(b) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of
__________, the Company's General Counsel to the effect that (i) the
Company has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its own business as now
conducted; (ii) To such counsel's knowledge, no consent, waiver,
approval, authorization or order of, or filing, registration,
qualification license or permit of or with, any Federal or New York
State court or governmental agency, body or administrative agency is
required for the execution, delivery and performance by the Company of
the Underwriting Agreement and the Mortgage, the issuance and sale of
the Securities, and the consummation of the transactions contemplated
thereby, except (a) such as have been obtained and made under the
Act and the Trust Indenture Act and from the PSC, or have been obtained
as described in the Prospectus, (b) such as are required under state
securities of Blue Sky laws and regulations, and (c) such as to which
the failure to be obtained or made would not reasonably be expected,
either individually or in the aggregate, to have a material adverse
effect on the business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole; provided, that
insofar as performance by the Company of its obligations under the
Underwriting Agreement, the Mortgage and the Securities is concerned,
such counsel expresses no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights; provided further that such
counsel express no opinion as to any laws, rules, regulations
applicable to the Company in its capacity as an electric and gas
utility and as an operator, owner, or operator and owner of nuclear
powered generating facilities, including the New York Public Service
Law, the Federal Power Act, the Public Utility Holding Company Act of
1935 (the "Holding Company Act"), as amended, the Atomic Energy Act of
1954 (the "AEA") and the rules and regulations of the PSC and, solely
with respect to jurisdiction granted by the Holding Company Act, the
Commission, and the Nuclear Regulatory Commission (the "NRC"); and
(iii) To such counsel's knowledge, there is not action, suit,
investigation, litigation or proceeding affecting the Company or any of
its subsidiaries pending or threatened before any court, governmental
authority, governmental agency, regulatory body or arbitrator that
would be reasonably likely to have a material adverse effect.
8
<PAGE> 9
(c) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of
__________, the Company's regulatory counsel to the effect that the PSC
has approved the Power Choice Settlement, including the MRA, and has
issued the Financing Order granting consent to the Company's issuance
and sale of the Securities, subject to the conditions contained in that
Order. Based upon the Financing Order, the Company does not require
authorization from the Federal Energy Regulatory Commission to issue
and sell the Securities as provided for in the Underwriting Agreement
and the Mortgage. There is not other Federal or New York State
regulatory regime naming the Company's securities issuances solely in
its capacity as an electric and gas company under which the Company is
required to obtain consent and authorization to issue and sell the
Security in accordance with the Underwriting Agreement and the
Mortgage.
(d) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of
__________, the Company's nuclear regulatory counsel to the effect that
the Company's execution of the Underwriting Agreement and the Mortgage
and the issuance and sale of the Securities would neither contravene
the AEA nor the regulations of the NRC in 10 Code of Federal
Regulations, Chapter I, nor would such actions require any application
for approval by the NRC.
(e) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of Sullivan &
Cromwell, counsel for the Company, to the effect that (i) the Company
has been duly incorporated and is existing corporation in good standing
under the laws of the State of New York, with full corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; (ii) the Mortgage has been duly authorized executed
and delivered by the Company and, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid, binding and
enforceable instrument, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally from time to time in effect
and general principles of equity and except that certain laws and
judicial decisions of the United States and the State of New York may
limit the remedies provided for in the Mortgage in connection with the
security provided for therein and, as to nuclear facilities, such
remedies may also be limited or rendered unavailable by the AEA, as
amended, and regulations thereunder; (iii) the Securities have been
duly authorized, executed and issued by the Company and, assuming due
authentication thereof by the Trustee, and upon payment and delivery in
accordance with this Agreement, and subject to the qualification in
(ii) above with respect to the validity, binding effect and
enforceability of the Mortgage, will constitute valid and binding
obligations of the Company entitled to the benefit and
9
<PAGE> 10
the security afforded by the Mortgage; (iv) all regulatory consents,
authorizations, approvals and filings required to be made or obtained
by the Company under the Federal laws of the United States and the laws
of the State of New York for the issuance, sale and delivery of the
Securities by the Company in accordance with this Agreement have been
obtained or made (other than any such regulatory consents,
authorizations, approvals or filings arising out of, relating to, or
required to be taken pursuant to, those regulatory regimes that govern
the Company in its capacity as an electric and gas utility and as an
operator, owner, or operator and owner of nuclear powered generating
facilities, including the New York Public Service Law, the Federal
Power Act, the Holding Company Act, the AEA and the rules and
regulations of the PSC, and, solely with respect to jurisdiction
granted by the Holding Company Act, the Securities and Exchange
Commission, and the NRC ("Utility Related Approvals") or any blue sky
or state securities laws or regulations, as to which such counsel need
express no opinion); (v) the Mortgage is qualified under the Trust
Indenture Act; (vii) this Agreement has been duly authorized, executed
and delivered by the Company; (viii) the Registration Statement, as of
its effective date and the Prospectus, as of the date of the
Prospectus, appear on their face to be appropriately responsive in all
material respects to the requirements of the Act, the Exchange Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder; (ix) such counsel have no reason to believe that either the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus, contained or on the
Closing Date contains an untrue statement of a material fact or on the
Closing Date omits to state a material fact necessary to make the
statements therein, in the light of the circumstance under which they
were made, not misleading (except for financial statements and other
financial data included or incorporated by reference therein as to
which such counsel need express no opinion); and (x) neither the issue
or sale of the Securities nor the consummation of any other of the
transactions contemplated by this Agreement will result in a breach by
the Company of any terms of, or constitute a default under, the
Certificate of Incorporation, as amended, or By-Laws of the Company or
any indenture or other agreement or undertaking of the Company known to
such counsel.
(f) The Representatives shall receive from counsel for the
Underwriters such opinion or opinions dated the Closing Date with
respect to the validity of the Securities, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
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<PAGE> 11
(g) The Company shall furnish to the Representatives a
certificate of a Vice President, the Treasurer or the Controller of the
Company and a Vice President, the Assistant Controller or the Assistant
Treasurer of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been instituted, or, to their knowledge,
threatened; and
(iii) the Registration Statement, as of the later of
the date it became effective or the date of filing of the
Company's most recent Annual Report on Form 10-K, does not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
Prospectus, including any supplements or amendments thereto
and the documents incorporated by reference therein, does not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
since the effective date of the Registration Statement there
has not occurred any event required to be set forth in an
amended or supplemented prospectus which has not been so set
forth and there has been no document required to be filed
under the Exchange Act and the rules and regulations
thereunder, which would be deemed to be incorporated by
reference in the Prospectus, which has not been so filed.
(h) The Representatives (i) shall have received at or prior to
the time of execution of this Agreement a letter to the Board of
Directors of the Company dated the date of such delivery and (ii) shall
receive at the Closing Date, a letter dated the date of delivery
thereof from the independent accountants of the Company who have
certified the financial statements of the Company included or
incorporated by reference in the Registration Statement stating that
(1) with respect to the Company and its subsidiaries they are
independent accountants within the meaning of the Act and the
applicable published rules and regulations
11
<PAGE> 12
thereunder; (2) in their opinion the unaudited consolidated financial
statements of the Company and subsidiary companies included or
incorporated by reference in the Registration Statement and examined by
such firm comply as to form in all material respects with the
applicable accounting requirements of the Act and the published rules
and regulations thereunder; (3) on the basis of the following
procedures (but not an examination in accordance with generally
accepted auditing standards a reading of the minutes of meetings of the
Board of Directors and stockholders of the Company and its subsidiaries
since the date of the last audited Balance Sheet as set forth in the
minute books through a specified date not more than five business days
prior to the date of delivery of such letter, (B) performance of the
procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described
in SAS 71, Interim Financial Information, on the unaudited condensed
consolidated interim financial statements of the Company and its
subsidiaries as incorporated by reference in the Registration Statement
and the Prospectus, (C) if applicable, a reading of the latest
available unaudited interim financial data, and (D) inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters, nothing has come to their attention which
caused them to believe that (I) the unaudited condensed consolidated
interim financial statements, incorporated by reference in the
Registration Statement and the Prospectus, do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder; (II) any
material modifications should be made to the unaudited condensed
consolidated interim financial statements, incorporated by reference in
the Registration Statement and the Prospectus, for them to be in
conformity with generally accepted accounting principles; and (III) on
the basis of inquiries of certain officials of the Company who have
responsibilities for financial and accounting matters and a reading of
the minutes as stated above, nothing has come to their attention which
caused them to believe that there was any change at the date of the
latest available interim financial data and at a specified date not
more than five business days prior to the date of delivery of such
letter in the capital stock, other than changes arising as a result of
sales of Common Stock under the Company's Dividend Reinvestment and
Stock Purchase Plan and Employee Savings Fund Plan, or long-term debt
of the Company and its consolidated subsidiaries as compared with
amounts shown on the latest balance sheet included or incorporated by
reference in the Registration Statement, or for the period from the
date of the Company's latest balance sheet included or incorporated by
reference in the Registration Statement to the end of the preceding
calendar month for which balance sheet data is available, there were
any decreases, as compared with the corresponding period in the
preceding year, in consolidated operating revenues or net income, or
any decreases in unconsolidated capitalization, as compared with
amounts shown on the latest balance sheet included or incorporated by
reference in the Registration Statement, except in all instances for
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<PAGE> 13
changes or decreases which the Registration Statement discloses have
occurred or may occur. The letters of such independent accountants also
shall be to the effect that they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are derived from the
general accounting records of the Company, which appear or are
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Representatives, and have compared such
amounts, percentages and financial information with the accounting
records of the Company and have found them to be in agreement.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall
not have been any change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 which makes it
impractical or inadvisable in the judgment of the Representatives to
proceed with the public offering or the delivery of the Securities as
contemplated by the Prospectus.
(j) Prior to the Closing Date, the Company shall furnish to
the Representatives such further information, certificates and
documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects satisfactory in form and substance to the
Representatives and their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the
Company to sell and deliver the Securities are subject to the following
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, threatened.
(b) The PSC shall have granted authorization, and on the
Closing Date such authorization shall be in full force and effect,
permitting the issuance and sale of the Securities upon the terms and
conditions hereunder set forth or contemplated and containing no
provision unacceptable to the Company.
13
<PAGE> 14
(c) The Underwriters shall have furnished to the Company
completed underwriters' questionnaires from each underwriter named in
Schedule II hereto, in form and substance satisfactory to counsel for
the Company, which disclose no relationship between any such
underwriter, or its directors, officers or partners, and the Company or
the Trustee, or the directors, officers or partners thereof, which
would require, in the opinion of such counsel, an amendment of the
Statement of Eligibility under the Trust Indenture Act on Form T-l
filed by the Trustee and disqualification of the Trustee.
If any of the conditions specified in this Section 7 shall not
have been fulfilled, this Agreement and all obligations of the Company hereunder
may be canceled on or at any time prior to the Closing Date by the Company.
Notice of such cancellation shall be given to the Underwriters in writing or by
telephone or telegraph confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
fees and disbursements of counsel not to exceed $30,000) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
9. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the
Prospectus or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in
14
<PAGE> 15
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in connection
with the preparation thereof; and provided, further, that such indemnity with
respect to a prospectus included in the Registration Statement or any amendment
thereto prior to the supplementing thereof with the Prospectus Supplement shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Prospectus as amended or supplemented (but without
the documents incorporated by reference therein) at or prior to the confirmation
of the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Prospectus was corrected in the Prospectus as amended or
supplemented. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriters but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity, and agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party, or parties shall have the right to select separate counsel to assume such
legal defenses and to
15
<PAGE> 16
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Representatives in the case of
subparagraph (a), representing the indemnified parties under subparagraphs (a)
or (b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). In any case to which an exception set forth in (i), (ii) or
(iii) above applies, the fees and expenses of counsel shall be at the expense of
the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) is
due in accordance with its terms but is for any reason unavailable from the
Company or insufficient to hold the Underwriters harmless in respect of any
losses claims, damages or liabilities (or actions in respect thereof) referred
to therein, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (or actions in respect thereof) to which
the Company and one or more of the Underwriters may be subject, as a result of
such losses, claims, damages or liabilities (or actions in respect thereof), in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other equitable
considerations, including relative benefit. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the offering of the
Securities, in each case as set forth in the table on the cover page of the
Prospectus Supplement. Notwithstanding the foregoing, no
16
<PAGE> 17
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subparagraph (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subparagraph (d). The amount paid or payable by a
party entitled to contribution as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subparagraph (d) shall be deemed to include any legal or other expenses
reasonably incurred by such party in connection with investigating or defending
any such action or claim. The Underwriters' obligations under this subparagraph
(d) are several in proportion to their respective underwriting obligations and
not joint. For purposes of this subparagraph (d), each person, if any, who
controls an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person,
if any, who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject to the fourth sentence of this subparagraph
(d).
10. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for all of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed l0% of the aggregate amount of
Securities set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any of, the Securities, and if such nondefaulting Underwriters do not
purchase all of the Securities, this Agreement will terminate without liability
on the part of any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter, as set forth in this Section 10, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Nothing herein contained shall relieve any
defaulting Underwriter of its liability, if any, to the Company or any
nondefaulting Underwriter for damages occasioned by its default hereunder.
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<PAGE> 18
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for all Securities, (a) if prior
to such time trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established, or (b) if a banking moratorium shall have been declared either by
Federal or New York State authorities, or (c) if trading in any securities of
the Company shall have been suspended or halted, or (d) if there shall have
occurred any new outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets in the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities.
12. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of its officers or directors or any controlling person within the
meaning of the Act, and will survive delivery of and payment for the Securities.
The provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and, if sent to the Representatives, will be mailed, delivered or telegraphed
and confirmed to them at their address set forth for that purpose in Schedule I
hereto or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 300 Erie Boulevard West, Syracuse, New York 13202, attention
of [ ], Vice President -- Law and General Counsel.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9 hereof,
and no other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal substantive laws and not the choice of
law rules of the State of New York.
16. Counterparts. This Agreement may be executed in
counterparts, all of which, taken together, shall constitute a single agreement
among the parties to such counterparts.
17. Representation of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the
18
<PAGE> 19
Underwriters in connection with this financing and that the execution and
delivery of this Agreement and any action under this Agreement taken by such
Representatives will be binding upon all Underwriters.
18. Interpretation When No Representatives. In the event no
Underwriters are named in Schedule II hereto, the term "Underwriters" shall be
deemed for all purposes of this Agreement to be the Underwriter or Underwriters
named as such in Schedule I hereto, the principal amount of the Securities to be
purchased by any such Underwriter shall refer to that set opposite its name in
Schedule I hereto and all references to the "Representatives" shall be deemed to
refer to the Underwriter or Underwriters named in Schedule I.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters in accordance with its terms.
Very truly yours,
NIAGARA MOHAWK POWER CORPORATION
By: ________________________________
Title: Treasurer
19
<PAGE> 20
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
For themselves and as Representatives of the several Underwriters, if any, named
in Schedule II hereto.
By _____________________________________,
as representative
By _____________________________________
Title:
20
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No.
Representatives and Address:
Bonds:
Designation:
Principal Amount:
Supplemental Indenture: Dated as of
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Redemption Provisions:
Closing Date and Location:
<PAGE> 22
SCHEDULE II
Name of Underwriter Principal
Amount of
New Bonds
<PAGE> 1
EXHIBIT 1(b)
NIAGARA MOHAWK POWER CORPORATION
FORM OF SENIOR DEBT SECURITIES UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representative(s)
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Ladies and Gentlemen:
Niagara Mohawk Power Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters") for whom you are acting as representatives (the
"Representatives"), its Senior Debt Securities of the designations, with the
terms, the initial public offering price, the purchase prices to the
Underwriters and in the aggregate principal amounts specified in Schedule I
hereto (the "Securities") to be issued under its Indenture, dated as of
_________, 2000, from the Company to The Bank of New York (the "Trustee"), as to
be further supplemented and amended by a supplemental indenture relating to the
Securities (such Indenture as so supplemented and amended and as to be so
supplemented and amended being hereinafter referred to as the "Indenture"), and
Schedule I hereto sets forth the date, time and manner of delivery of the
Securities.
<PAGE> 2
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (with the file number set forth on Schedule I
hereto) on such Form, including a prospectus, for the registration
under the Act of the Securities, which registration statement has
become effective. Such registration statement and prospectus may have
been amended or supplemented from time to time prior to the date of
this Agreement. Any such amendment or supplement was or will be timely
filed with the Commission and any such amendment has become effective.
The Company will file with the Commission a prospectus supplement (the
"Prospectus Supplement") relating to the Securities pursuant to Rule
424 under the Act. Copies of such registration statement and
prospectus, any such amendment or supplement, the Prospectus Supplement
and all documents incorporated by reference therein which were filed
with the Commission on or prior to the date of this Agreement have been
delivered to you. Such registration statement and such prospectus or
any prospectus used in place thereof pursuant to Rule 429 under the
Act, as amended or supplemented prior to the date of this Agreement and
as supplemented by the Prospectus Supplement, are hereinafter called
the "Registration Statement," and the "Prospectus," respectively. Any
reference herein to the Registration Statement or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934 (the "Exchange Act") on or
before the date of this Agreement, and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act deemed to
be incorporated by reference therein after the date of this Agreement.
(b) (i) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Prospectus, at the date of this Agreement and at the
Closing Date (as hereinafter defined), any amendments thereof and
supplements thereto and the Indenture complied or will comply in all
material respects with the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement nor the
Prospectus nor any amendment thereof or supplement thereto contained or
will contain any untrue statement of a material fact or omitted or will
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however,
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<PAGE> 3
that the Company makes no representations or warranties as to (A) that
part of the Registration Statement which shall constitute the Statement
of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee
or (B) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives expressly for use in the Prospectus as amended or
supplemented.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission or became effective, conformed
in all material respects to the requirements of the Act or the Exchange
Act and the rules and regulations of the Commission thereunder, and any
documents so filed and incorporated by reference subsequent to the date
of this Agreement will, when they are filed with the Commission,
conform in all material respects to the requirements of the Act and the
Exchange Act, and the rules and regulations of the Commission
thereunder, and none of such documents include or will include any
untrue statement of a material fact or omit or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that such representation
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished by an Underwriter through
the representatives expressly for use in the Prospectus as supplemented
or amended.
(d) The accountants who have certified or shall certify the
audited financial statements incorporated by reference as parts of the
Registration Statement and the Prospectus are independent accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
(e) The financial statements and information included or
incorporated by reference in the Registration Statement present fairly,
in all material respects, the financial position, results of operations
and changes in financial position of the Company at the respective
dates and for the respective periods indicated, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved except as therein stated. The Company
has no material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has
not been any material
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<PAGE> 4
adverse change in the condition (financial or other), earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business.
(g) The Securities have been duly authorized, and, when are
issued and delivered pursuant to this Agreement, such securities will
have been duly executed, authenticated, issued and delivered in
accordance with the Indenture and sold to the Underwriters as provided
herein, will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture.
(h) The Company has been duly incorporated and validly
existing corporation in good standing under the laws of the State of
New York; the Company holds all material licenses, certificates and
permits from governmental authorities necessary for the conduct of its
business; and the Company has the corporate power and authority to own
its properties and conduct its business as described in the Prospectus.
(i) Neither the issuance or sale of the Securities, nor the
consummation of any other of the transactions herein contemplated, nor
the fulfillment of the terms hereof, will conflict with, result in a
breach of or constitute a default under the terms of any indenture, or
other agreement or instrument to which the Company is a party or by
which it is bound or, to the best knowledge of the Company, any order
or regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company.
(j) The Company has filed a petition with the Public Service
Commission of the State of New York ("PSC") with respect to the issue
and sale of the Securities. The PSC has authorized the issue and sale
thereof but upon the express condition that the Company shall file with
the PSC for its consideration a copy of this Agreement and a statement
setting forth (i) the interest rate for the Securities, (ii) any
initial public offering price thereof, (iii) the price to be paid to
the Company for the Securities, (iv) any underwriting commissions, (v)
any sinking fund or other mandatory redemption provisions, and (vi) any
redemption prices and dates with respect to redemption of the
Securities at the option of the Company.
(k) The Company and each material subsidiary of the Company
have good and valid title to all or substantially all of their
permanent fixed properties (including the specified undivided interests
in generating units and plants referred to in the Prospectus), except
as otherwise indicated in the Prospectus, subject only to the
respective liens of the indentures securing its mortgage debt.
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<PAGE> 5
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to you and each other Underwriter, and you and each other
Underwriter agree, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the respective principal
amounts of the Securities set forth opposite your respective names in Schedule I
hereto and Schedule II hereto and Schedule I hereto sets forth the date, time
and manner of delivery of the Securities.
Upon authorization by the Representatives of the release of
the Securities, the several Underwriters propose to offer the Securities for
sale upon the terms and conditions set forth in the Prospectus.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the place, date and time specified in Schedule I
hereto. The Securities shall be in definitive form and shall be registered in
such names and in such authorized denominations as the Representatives may
request not less than forty-eight hours in advance of the Closing Date, and
shall be delivered by or on behalf of the Company to the Representatives for the
account of such underwriter, against payment by such underwriter or on its
behalf of the purchase price therefor by wire transfer of federal (same day)
funds to the account specified by the Company to the Representatives at least
forty-eight hours in advance of the Closing Date.
4. Agreements. The Company agrees with each of the several
Underwriters that:
(a) The Company will cause the Prospectus Supplement to be
filed or mailed for filing, in a form approved by the Representatives,
pursuant to Rule 424 under the Act and will notify you promptly of such
filing or mailing. During the period for which a prospectus relating to
the Securities is required to be delivered under the Act, the Company
will promptly advise the Representatives (i) when any amendment to the
Registration Statement shall have become effective, (ii) when any
subsequent supplement to the Prospectus has been filed or mailed for
filing, (iii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceedings for that purpose,
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus (other than any
prospectus supplement relating to the offering of securities registered
under the Registration Statement
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<PAGE> 6
other than the Securities and permitted by Section 4(g) hereof, or any
document required to be filed under the Exchange Act which upon filing
is deemed to be incorporated by reference in the Registration Statement
or Prospectus) unless the Company has furnished to you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object after receiving a reasonable
notice from the Representatives thereof. The Company will furnish to
you prior to the filing thereof a copy of any such prospectus
supplement and any document which upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus.
The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement (which need not be audited) of the Company, for a
twelve-month period beginning after the date of the Prospectus
Supplement filed pursuant to Rule 424 under the Act, which will satisfy
the provisions of Section 11(a) of the Act.
(d) The Company has previously furnished to each of the
Representatives, upon request, a signed copy of the Registration
Statement as originally filed and of each amendment thereto, including
the statement on Form T-1 of the Trustee and all powers of attorney,
consents and exhibits filed therewith (other than exhibits incorporated
by reference), and will deliver to the Representatives conformed copies
of the Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, all
amendments of and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives may
reasonably request.
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<PAGE> 7
(e) The Company will furnish such information, execute such
instruments and take such action as may be required to qualify the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service
of process in any jurisdiction where it is not now so subject.
(f) So long as the Securities are outstanding, the Company
will furnish (or cause to be furnished) to each of the Representatives,
upon request, copies of (i) all reports to stockholders of the Company
and (ii) all reports and financial statements filed with the Commission
or any national securities exchange.
(g) During the period beginning from the date of this
Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Securities, as notified to
the Company by the Representatives, or (ii) the thirtieth day after the
Closing Date for the Securities, not to offer, sell, or otherwise
dispose of any debt securities of the Company (except under prior
contractual commitments which have been disclosed to you), without the
prior written consent of the Representatives, which consent shall not
be unreasonably withheld.
5. Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issue and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus and any amendments thereof or supplements thereto, all costs and
expenses incurred in connection with "blue sky" qualifications, the legality of
the Securities for investment and the rating of the Securities, and all costs
and expenses of the printing and distribution of all documents in connection
with this underwriting. Except as provided in this Section 5 and Section 8
hereof, the Underwriters will pay all their own costs and expenses, including
the fees of their counsel and any advertising expenses in connection with any
offer they may make.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the
7
<PAGE> 8
statements of Company officers made in any certificates given pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or the Representatives, threatened.
(b) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of
__________, the Company's General Counsel to the effect that (i) the
Company has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its own business as now
conducted; (ii) To such counsel's knowledge, no consent, waiver,
approval, authorization or order of, or filing, registration,
qualification license or permit of or with, any Federal or New York
State court or governmental agency, body or administrative agency is
required for the execution, delivery and performance by the Company of
the Underwriting Agreement and the Indenture, the issuance and sale of
the Securities, and the consummation of the transactions contemplated
thereby, except (a) such as have been obtained and made under the
Securities Act and the Trust Indenture Act and from the PSC, or have
been obtained as described in the Prospectus, (b) such as are required
under state securities of Blue Sky laws and regulations, and (c) such
as to which the failure to be obtained or made would not reasonably be
expected, either individually or in the aggregate, to have a material
adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole;
provided, that insofar as performance by the Company of its obligations
under the Underwriting Agreement, the Indenture and the Securities is
concerned, such counsel expresses no opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights; provided
further that such counsel express no opinion as to any laws, rules,
regulations applicable to the Company in its capacity as an electric
and gas utility and as an operator, owner, or operator and owner of
nuclear powered generating facilities, including the New York Public
Service Law, the Federal Power Act, the Public Utility Holding Company
Act of 1935 (the "Holding Company Act"), as amended, the Atomic Energy
Act of 1954 (the "AEA") and the rules and regulations of the PSC and,
solely with respect to jurisdiction granted by the Holding Company Act,
the Commission, and the Nuclear Regulatory Commission (the "NRC"); and
(iii) To such counsel's knowledge, there is not action, suit,
investigation, litigation or proceeding affecting the Company or any of
its subsidiaries pending or threatened before any court,
8
<PAGE> 9
governmental authority, governmental agency, regulatory body or
arbitrator that would be reasonably likely to have a material adverse
effect.
(c) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of
__________, the Company's regulatory counsel to the effect that the PSC
has approved the Power Choice Settlement, including the MRA, and has
issued the Financing Order granting consent to the Company's issuance
and sale of the Securities, subject to the conditions contained in that
Order. Based upon the Financing Order, the Company does not require
authorization from the Federal Energy Regulatory Commission to issue
and sell the Securities as provided for in the Underwriting Agreement
and the Indenture. There is not other Federal or New York State
regulatory regime naming the Company's securities issuances solely in
its capacity as an electric and gas company under which the Company is
required to obtain consent and authorization to issue and sell the
Security in accordance with the Underwriting Agreement and the
Indenture.
(d) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of
__________, the Company's nuclear regulatory counsel to the effect that
the Company's execution of the Underwriting Agreement and the Indenture
and the issuance and sale of the Securities would neither contravene
the AEA nor the regulations of the NRC in 10 Code of Federal
Regulations, Chapter I, nor would such actions require any application
for approval by the NRC.
(e) The Company shall furnish to the Representatives opinions,
addressed to the Underwriters and dated the Closing Date, of Sullivan &
Cromwell, counsel for the Company, to the effect that (i) the Company
has been duly incorporated and is existing corporation in good standing
under the laws of the State of New York, with full corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; (ii) the Indenture has been duly authorized executed
and delivered by the Company and, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid, binding and
enforceable instrument, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally from time to time in effect
and general principles of equity and except that certain laws and
judicial decisions of the United States and the State of New York may
limit the remedies provided for in the Indenture in connection with the
security provided for therein and, as to nuclear facilities, such
remedies may also be limited or rendered unavailable by the AEA, as
amended, and regulations thereunder; (iii) the Securities have been
duly authorized, executed and issued by the Company and, assuming due
authentication thereof by the Trustee, and upon payment and delivery in
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<PAGE> 10
accordance with this Agreement, and subject to the qualification in
(ii) above with respect to the validity, binding effect and
enforceability of the Indenture, will constitute valid and binding
obligations of the Company entitled to the benefit and the security
afforded by the Indenture; (iv) all regulatory consents,
authorizations, approvals and filings required to be made or obtained
by the Company under the Federal laws of the United States and the laws
of the State of New York for the issuance, sale and delivery of the
Securities by the Company in accordance with this Agreement have been
obtained or made (other than any such regulatory consents,
authorizations, approvals or filings arising out of, relating to, or
required to be taken pursuant to, those regulatory regimes that govern
the Company in its capacity as an electric and gas utility and as an
operator, owner, or operator and owner of nuclear powered generating
facilities, including the New York Public Service Law, the Federal
Power Act, the Holding Company Act, the AEA and the rules and
regulations of the PSC, and, solely with respect to jurisdiction
granted by the Holding Company Act, the Securities and Exchange
Commission, and the NRC ("Utility Related Approvals") or any blue sky
or state securities laws or regulations, as to which such counsel need
express no opinion); (v) the Indenture is qualified under the Trust
Indenture Act; (vii) this Agreement has been duly authorized, executed
and delivered by the Company; (viii) the Registration Statement, as of
its effective date and the Prospectus, as of the date of the
Prospectus, appear on their face to be appropriately responsive in all
material respects to the requirements of the Act, the Exchange Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder; (ix) such counsel have no reason to believe that either the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus, contained or on the
Closing Date contains an untrue statement of a material fact or on the
Closing Date omits to state a material fact necessary to make the
statements therein, in the light of the circumstance under which they
were made, not misleading (except for financial statements and other
financial data included or incorporated by reference therein as to
which such counsel need express no opinion); and (x) neither the issue
or sale of the Securities nor the consummation of any other of the
transactions contemplated by this Agreement will result in a breach by
the Company of any terms of, or constitute a default under, the
Certificate of Incorporation, as amended, or By-Laws of the Company or
any indenture or other agreement or undertaking of the Company known to
such counsel.
(f) The Representatives shall receive from counsel for the
Underwriters such opinion or opinions dated the Closing Date with
respect to the validity of the Securities, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably require, and the Company
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<PAGE> 11
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) The Company shall furnish to the Representatives a
certificate of a Vice President, the Treasurer or the Controller of the
Company and a Vice President, the Assistant Controller or the Assistant
Treasurer of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been instituted, or, to their knowledge,
threatened; and
(iii) the Registration Statement, as of the later of
the date it became effective or the date of filing of the
Company's most recent Annual Report on Form 10-K, does not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
Prospectus, including any supplements or amendments thereto
and the documents incorporated by reference therein, does not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
since the effective date of the Registration Statement there
has not occurred any event required to be set forth in an
amended or supplemented prospectus which has not been so set
forth and there has been no document required to be filed
under the Exchange Act and the rules and regulations
thereunder, which would be deemed to be incorporated by
reference in the Prospectus, which has not been so filed.
(h) The Representatives (i) shall have received at or prior to
the time of execution of this Agreement a letter to the Board of
Directors of the Company dated the date of such delivery and (ii) shall
receive at the Closing Date, a letter dated the date of delivery
thereof from the independent accountants of the Company who have
certified the financial statements of the Company included or
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<PAGE> 12
incorporated by reference in the Registration Statement stating that
(1) with respect to the Company and its subsidiaries they are
independent accountants within the meaning of the Act and the
applicable published rules and regulations thereunder; (2) in their
opinion the unaudited consolidated financial statements of the Company
and subsidiary companies included or incorporated by reference in the
Registration Statement and examined by such firm comply as to form in
all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder; (3) on the
basis of the following procedures (but not an examination in accordance
with generally accepted auditing standards a reading of the minutes of
meetings of the Board of Directors and stockholders of the Company and
its subsidiaries since the date of the last audited Balance Sheet as
set forth in the minute books through a specified date not more than
five business days prior to the date of delivery of such letter, (B)
performance of the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS 71, Interim Financial Information, on
the unaudited condensed consolidated interim financial statements of
the Company and its subsidiaries as incorporated by reference in the
Registration Statement and the Prospectus, (C) if applicable, a reading
of the latest available unaudited interim financial data, and (D)
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters, nothing has come to their
attention which caused them to believe that (I) the unaudited condensed
consolidated interim financial statements, incorporated by reference in
the Registration Statement and the Prospectus, do not comply as to form
in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder; (II) any
material modifications should be made to the unaudited condensed
consolidated interim financial statements, incorporated by reference in
the Registration Statement and the Prospectus, for them to be in
conformity with generally accepted accounting principles; and (III) on
the basis of inquiries of certain officials of the Company who have
responsibilities for financial and accounting matters and a reading of
the minutes as stated above, nothing has come to their attention which
caused them to believe that there was any change at the date of the
latest available interim financial data and at a specified date not
more than five business days prior to the date of delivery of such
letter in the capital stock, other than changes arising as a result of
sales of Common Stock under the Company's Dividend Reinvestment and
Stock Purchase Plan and Employee Savings Fund Plan, or long-term debt
of the Company and its consolidated subsidiaries as compared with
amounts shown on the latest balance sheet included or incorporated by
reference in the Registration Statement, or for the period from the
date of the Company's latest balance sheet included or incorporated by
reference in the Registration Statement to the end of the preceding
calendar month for which balance sheet data is available, there were
any decreases, as compared with the corresponding period in the
preceding year, in consolidated operating
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<PAGE> 13
revenues or net income, or any decreases in unconsolidated
capitalization, as compared with amounts shown on the latest balance
sheet included or incorporated by reference in the Registration
Statement, except in all instances for changes or decreases which the
Registration Statement discloses have occurred or may occur. The
letters of such independent accountants also shall be to the effect
that they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are derived from the general accounting
records of the Company, which appear or are incorporated by reference
in the Registration Statement and Prospectus and which are specified by
the Representatives, and have compared such amounts, percentages and
financial information with the accounting records of the Company and
have found them to be in agreement.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall
not have been any change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 which makes it
impractical or inadvisable in the judgment of the Representatives to
proceed with the public offering or the delivery of the Securities as
contemplated by the Prospectus.
(j) Prior to the Closing Date, the Company shall furnish to
the Representatives such further information, certificates and
documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects satisfactory in form and substance to the
Representatives and their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the
Company to sell and deliver the Securities are subject to the following
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, threatened.
(b) The PSC shall have granted authorization, and on the
Closing Date such authorization shall be in full force and effect,
permitting the issuance and
13
<PAGE> 14
sale of the Securities upon the terms and conditions hereunder set
forth or contemplated and containing no provision unacceptable to the
Company.
(c) The Underwriters shall have furnished to the Company
completed underwriters' questionnaires from each underwriter named in
Schedule II hereto, in form and substance satisfactory to counsel for
the Company, which disclose no relationship between any such
underwriter, or its directors, officers or partners, and the Company or
the Trustee, or the directors, officers or partners thereof, which
would require, in the opinion of such counsel, an amendment of the
Statement of Eligibility under the Trust Indenture Act on Form T-l
filed by the Trustee and disqualification of the Trustee.
If any of the conditions specified in this Section 7 shall not
have been fulfilled, this Agreement and all obligations of the Company hereunder
may be canceled on or at any time prior to the Closing Date by the Company.
Notice of such cancellation shall be given to the Underwriters in writing or by
telephone or telegraph confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
fees and disbursements of counsel not to exceed $30,000) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
9. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the
Prospectus or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating
14
<PAGE> 15
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof; and provided, further, that such indemnity with respect to a prospectus
included in the Registration Statement or any amendment thereto prior to the
supplementing thereof with the Prospectus Supplement shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Prospectus as amended or supplemented (but without the documents
incorporated by reference therein) at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in the
Prospectus was corrected in the Prospectus as amended or supplemented. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriters but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity, and agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however,
15
<PAGE> 16
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party, or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraphs (a) or (b), as the
case may be, who are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). In any case to
which an exception set forth in (i), (ii) or (iii) above applies, the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) is
due in accordance with its terms but is for any reason unavailable from the
Company or insufficient to hold the Underwriters harmless in respect of any
losses claims, damages or liabilities (or actions in respect thereof) referred
to therein, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (or actions in respect thereof) to which
the Company and one or more of the Underwriters may be subject, as a result of
such losses, claims, damages or liabilities (or actions in respect thereof), in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other equitable
considerations, including relative benefit. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
16
<PAGE> 17
omission. The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the offering of the
Securities, in each case as set forth in the table on the cover page of the
Prospectus Supplement. Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subparagraph
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subparagraph (d). The amount paid or payable by a party entitled to
contribution as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subparagraph (d) shall be
deemed to include any legal or other expenses reasonably incurred by such party
in connection with investigating or defending any such action or claim. The
Underwriters' obligations under this subparagraph (d) are several in proportion
to their respective underwriting obligations and not joint. For purposes of this
subparagraph (d), each person, if any, who controls an Underwriter within the
meaning of either the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject to the fourth sentence of this subparagraph (d).
10. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for all of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed l0% of the aggregate amount of
Securities set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any of, the Securities, and if such nondefaulting Underwriters do not
purchase all of the Securities, this Agreement will terminate without liability
on the part of any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter, as set forth in this Section 10, the Closing Date
shall be
17
<PAGE> 18
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability, if any, to the Company or any nondefaulting Underwriter for damages
occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for all Securities, (a) if prior
to such time trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established, or (b) if a banking moratorium shall have been declared either by
Federal or New York State authorities, or (c) if trading in any securities of
the Company shall have been suspended or halted, or (d) if there shall have
occurred any new outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets in the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities.
12. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of its officers or directors or any controlling person within the
meaning of the Act, and will survive delivery of and payment for the Securities.
The provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and, if sent to the Representatives, will be mailed, delivered or telegraphed
and confirmed to them at their address set forth for that purpose in Schedule I
hereto or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 300 Erie Boulevard West, Syracuse, New York 13202, attention
of [ ], Vice President -- Law and General Counsel.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9 hereof,
and no other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal substantive laws and not the choice of
law rules of the State of New York.
18
<PAGE> 19
16. Counterparts. This Agreement may be executed in
counterparts, all of which, taken together, shall constitute a single agreement
among the parties to such counterparts.
17. Representation of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the execution and delivery of this Agreement and any action under this Agreement
taken by such Representatives will be binding upon all Underwriters.
18. Interpretation When No Representatives. In the event no
Underwriters are named in Schedule II hereto, the term "Underwriters" shall be
deemed for all purposes of this Agreement to be the Underwriter or Underwriters
named as such in Schedule I hereto, the principal amount of the Securities to be
purchased by any such Underwriter shall refer to that set opposite its name in
Schedule I hereto and all references to the "Representatives" shall be deemed to
refer to the Underwriter or Underwriters named in Schedule I.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters in accordance with its terms.
Very truly yours,
NIAGARA MOHAWK POWER CORPORATION
By: ________________________________
Title: Treasurer
19
<PAGE> 20
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
For themselves and as Representatives of the several Underwriters, if any, named
in Schedule II hereto.
By __________________________,
as representative
By ______________________________
Title:
20
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No.
Representatives and Address:
Bonds:
Designation:
Principal Amount:
Supplemental Indenture: Dated as of
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Redemption Provisions:
Closing Date and Location:
<PAGE> 22
SCHEDULE II
Name of Underwriter Principal
Amount of
New Bonds
<PAGE> 1
Exhibit 4(a)
================================================================================
NIAGARA MOHAWK POWER CORPORATION
TO
.........................................................
Trustee
--------------
INDENTURE
Dated as of - 2000
--------------
Senior Debt Securities
--------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act........................................................ 2
Affiliate; control......................................... 2
Authenticating Agent....................................... 2
Board of Directors......................................... 2
Board Resolution........................................... 2
Business Day............................................... 2
Commission................................................. 2
Company.................................................... 2
Company Request; Company Order............................. 2
Corporate Trust Office..................................... 3
corporation................................................ 3
Covenant Defeasance........................................ 3
Defaulted Interest......................................... 3
Defeasance................................................. 3
Depositary................................................. 3
Event of Default........................................... 3
Exchange Act............................................... 3
Expiration Date............................................ 3
Global Security............................................ 3
Holder..................................................... 3
Indenture.................................................. 3
interest................................................... 3
Interest Payment Date...................................... 4
Investment Company Act..................................... 4
Maturity................................................... 4
Notice of Default.......................................... 4
Officers' Certificate...................................... 4
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Opinion of Counsel......................................... 4
Original Issue Discount Security........................... 4
Outstanding................................................ 4
Paying Agent............................................... 5
Person..................................................... 5
Place of Payment........................................... 5
Predecessor Security....................................... 5
Redemption Date............................................ 6
Redemption Price........................................... 6
Regular Record Date........................................ 6
Securities................................................. 6
Securities Act............................................. 6
Security Register and Security Registrar................... 6
Special Record Date........................................ 6
Stated Maturity............................................ 6
Subsidiary................................................. 6
Trust Indenture Act........................................ 7
Trustee.................................................... 7
U.S. Government Obligation................................. 7
Vice President............................................. 7
SECTION 102. Compliance Certificates and Opinions....................... 7
SECTION 103. Form of Documents Delivered to Trustee..................... 8
SECTION 104. Acts of Holders; Record Dates.............................. 8
SECTION 105. Notices, Etc., to Trustee and Company...................... 11
SECTION 106. Notice to Holders; Waiver.................................. 12
SECTION 107. Conflict with Trust Indenture Act.......................... 12
SECTION 108. Effect of Headings and Table of Contents................... 12
SECTION 109. Successors and Assigns..................................... 12
SECTION 110. Separability Clause........................................ 13
SECTION 111. Benefits of Indenture...................................... 13
SECTION 112. Governing Law.............................................. 13
SECTION 113. Legal Holidays............................................. 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................ 13
SECTION 202. Form of Face of Security................................... 14
SECTION 203. Form of Reverse of Security................................ 16
SECTION 204. Form of Legend for Global Securities....................... 21
</TABLE>
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<TABLE>
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SECTION 205. Form of Trustee's Certificate of Authentication............ 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series....................... 21
SECTION 302. Denominations.............................................. 25
SECTION 303. Execution, Authentication, Delivery and Dating............. 25
SECTION 304. Temporary Securities....................................... 27
SECTION 305. Registration, Registration of Transfer and Exchange........ 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........... 29
SECTION 307. Payment of Interest; Interest Rights Preserved............. 30
SECTION 308. Persons Deemed Owners...................................... 31
SECTION 309. Cancellation............................................... 31
SECTION 310. Computation of Interest.................................... 31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.................... 32
SECTION 402. Application of Trust Money................................. 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.......................................... 33
SECTION 502. Acceleration of Maturity; Rescission and Annulment......... 35
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 36
SECTION 504. Trustee May File Proofs of Claim........................... 37
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.......................................... 38
SECTION 506. Application of Money Collected............................. 38
SECTION 507. Limitation on Suits........................................ 38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................... 39
</TABLE>
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<TABLE>
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SECTION 509. Restoration of Rights and Remedies......................... 39
SECTION 510. Rights and Remedies Cumulative............................. 39
SECTION 511. Delay or Omission Not Waiver............................... 40
SECTION 512. Control by Holders......................................... 40
SECTION 513. Waiver of Past Defaults.................................... 40
SECTION 514. Undertaking for Costs...................................... 41
SECTION 515. Waiver of Usury, Stay or Extension Laws.................... 41
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................ 41
SECTION 602. Notice of Defaults......................................... 41
SECTION 603. Certain Rights of Trustee.................................. 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities..... 43
SECTION 605. May Hold Securities........................................ 43
SECTION 606. Money Held in Trust........................................ 43
SECTION 607. Compensation and Reimbursement............................. 43
SECTION 608. Conflicting Interests...................................... 44
SECTION 609. Corporate Trustee Required; Eligibility.................... 44
SECTION 610. Resignation and Removal; Appointment of Successor.......... 44
SECTION 611. Acceptance of Appointment by Successor..................... 46
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business............................................ 47
SECTION 613. Preferential Collection of Claims Against Company.......... 47
SECTION 614. Appointment of Authenticating Agent........................ 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders............................................. 49
SECTION 702. Preservation of Information; Communications
to Holders............................................. 49
SECTION 703. Reports by Trustee......................................... 50
SECTION 704. Reports by Company......................................... 50
</TABLE>
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<TABLE>
<S> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.......................................... 51
SECTION 802. Successor Substituted...................................... 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders......... 52
SECTION 902. Supplemental Indentures with Consent of Holders............ 53
SECTION 903. Execution of Supplemental Indentures....................... 54
SECTION 904. Effect of Supplemental Indentures.......................... 54
SECTION 905. Conformity with Trust Indenture Act........................ 55
SECTION 906. Reference in Securities to Supplemental Indentures......... 55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.................. 55
SECTION 1002. Maintenance of Office or Agency............................. 55
SECTION 1003. Money for Securities Payments to Be Held in Trust........... 56
SECTION 1004. Statement by Officers as to Default......................... 57
SECTION 1005. Existence................................................... 57
SECTION 1006. Maintenance of Properties................................... 57
SECTION 1007. Payment of Taxes and Other Claims........................... 58
SECTION 1008. Waiver of Certain Covenants................................. 58
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................... 58
SECTION 1102. Election to Redeem; Notice to Trustee....................... 59
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........... 59
</TABLE>
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<TABLE>
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SECTION 1104. Notice of Redemption........................................ 60
SECTION 1105. Deposit of Redemption Price................................. 60
SECTION 1106. Securities Payable on Redemption Date....................... 61
SECTION 1107. Securities Redeemed in Part................................. 61
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................... 61
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....... 62
SECTION 1203. Redemption of Securities for Sinking Fund................... 62
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance................................ 63
SECTION 1302. Defeasance and Discharge.................................... 63
SECTION 1303. Covenant Defeasance......................................... 63
SECTION 1304. Conditions to Defeasance or Covenant Defeasance............. 64
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions...... 66
SECTION 1306. Reinstatement............................................... 67
</TABLE>
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<PAGE> 8
Niagara Mohawk Power Corporation
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1)..................................................... 609
(a)(2)..................................................... 609
(a)(3)..................................................... Not Applicable
(a)(4)..................................................... Not Applicable
(b) ..................................................... 608
610
Section 311(a) ..................................................... 613
(b) ..................................................... 613
Section 312(a) ..................................................... 701
702
(b) ..................................................... 702
(c) ..................................................... 702
Section 313(a) ..................................................... 703
(b) ..................................................... 703
(c) ..................................................... 703
(d) ..................................................... 703
Section 314(a) ..................................................... 704
(a)(4)..................................................... 101
1004
(b) ..................................................... Not Applicable
(c)(1)..................................................... 102
(c)(2)..................................................... 102
(c)(3)..................................................... Not Applicable
(d) ..................................................... Not Applicable
(e) ..................................................... 102
Section 315(a) ..................................................... 601
(b) ..................................................... 602
(c) ..................................................... 601
(d) ..................................................... 601
(e) ..................................................... 514
Section 316(a) ..................................................... 101
(a)(1)(A) ................................................. 502
512
</TABLE>
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<PAGE> 9
<TABLE>
<S> <C>
(a)(1)(B).................................................. 513
(a)(2) .................................................. Not Applicable
(b) .................................................. 508
(c) .................................................. 104
Section 317(a)(1) .................................................. 503
(a)(2) .................................................. 504
(b) .................................................. 1003
Section 318(a) .................................................. 107
</TABLE>
- -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-9-
<PAGE> 10
INDENTURE, dated as of -, 2000, between NIAGARA MOHAWK POWER
CORPORATION, a corporation duly organized and existing under the laws of the
State of New York (herein called the "Company"), having its principal office at
300 Erie Boulevard West, Syracuse, New York 13202, and ......................, a
........................... duly organized and existing under the laws of
........, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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<PAGE> 11
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this
-11-
<PAGE> 12
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
................................................................ at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
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<PAGE> 13
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
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<PAGE> 14
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302;
(4) Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been duly provided for); and
(5) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and
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<PAGE> 15
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer , the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee
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<PAGE> 16
customarily performing functions similar to those performed by any of the above
designated officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
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<PAGE> 17
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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<PAGE> 18
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
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<PAGE> 19
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which
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<PAGE> 20
a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: .................,
or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed,
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<PAGE> 21
first-class postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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<PAGE> 22
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
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<PAGE> 23
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Niagara Mohawk Power Corporation
..........................................................................
<TABLE>
<S> <C>
No. ......... $ ........
</TABLE>
Niagara Mohawk Power Corporation, a corporation duly organized and
existing under the laws of the State of New York (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ....................
............................, or registered assigns, the principal sum of ......
.................................. Dollars on
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<PAGE> 24
........................................................ [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [if applicable,
insert -- , provided that any principal and premium, and any such instalment of
interest, which is overdue shall bear interest at the rate of ...% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforce able), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts [if applicable, insert -- ; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the
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<PAGE> 25
address of the Person entitled thereto as such address shall appear in the
Security Register [or by an electronic funds transfer to a bank account of the
Person entitled thereto as such account shall appear in the Security Register]].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
NIAGARA MOHAWK POWER CORPORATION
By.......................................
Attest:
.........................................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ......, 2000 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $...........].
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<PAGE> 26
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 20..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
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<PAGE> 27
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or other wise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events
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<PAGE> 28
of Default with respect to this Security] [, in each case] upon compliance with
certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at
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<PAGE> 29
the time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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<PAGE> 30
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
........................................,
As Trustee
By.......................................
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
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<PAGE> 31
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
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<PAGE> 32
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective
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<PAGE> 33
Depositaries for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition to or in lieu of
that set forth in Section 204 and any circumstances in addition to or in lieu
of those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or
in part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(17) any provision necessary to permit or facilitate the issuance, payment
or conversion of any Securities of the series that may be converted into
securities or other property of the Company or other issuers, whether in
addition to, or in lieu of, any payment of principal or other amount and
whether at the option of the Company or otherwise;
(18) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(20) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series,
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<PAGE> 34
the Securities of such series shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
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<PAGE> 35
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for
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<PAGE> 36
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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<PAGE> 37
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and
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<PAGE> 38
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the Depositary for
such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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<PAGE> 39
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any
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securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Security) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediate preceding sentence, in the case of
any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable. Notwithstanding the
foregoing, the terms of any Security that may be converted may provide that the
provisions of this paragraph do not apply, or apply with such additions, changes
or omissions as may be provided thereby, to such Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in
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any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
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(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series
when it becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order
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for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(5)
or 501 (6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a
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majority in principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be
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legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
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(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the
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Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
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SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list here any prior
indentures between the Company and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of the
Trust Indenture Act].
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail
to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who
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has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such
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Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust
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Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination,
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or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 106 to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
........................................,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than ............... and ................... in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding .............. or .............., as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
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SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of
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America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the corporation surviving the merger or consolidation or purchase of
all or substantially all of the Company's assets has delivered to the Trustee
a supplemental Indenture, in a form satisfactory to the Trustee, whereby such
corporation shall effectually assume the due and punctual payment of the
principal and interest of all outstanding Securities and the due and punctual
performance and observance of all covenants and agreements contained in the
Indenture on the part of the Company to be performed and observed.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more
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indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirement of Section 10...
or otherwise; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611;
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(9) to add or change any of the provisions of the Indenture with respect to
any Securities that by their terms may be converted into securities or other
property of the Company or other issuers, in order to facilitate the
issuance, payment or conversion of such securities; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supple mental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
[1008], except to increase any such percentage or to provide that certain
other provisions of this
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Indenture cannot be modified or waived without the consent of the Holder of
each Out standing Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with respect
to changes in the references to "the Trustee" and concomitant changes in this
Section and Section [1008], or the deletion of this proviso, in accordance
with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for pay ment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of
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any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any
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Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
One of the officers signing an Officers' Certificate given pursuant to this
Section shall be the principal executive, financial or accounting officer of the
Company.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series or in either of Sections 1006 or
1007, if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from
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the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purposes of such selection.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of
more than a single Security are to be redeemed, the identification (and, in
the case of partial redemption of any such Securities, the principal amounts)
of the particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of
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a single Security are to be redeemed, the principal amount of the particular
Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior
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to the Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 40 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 35 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or
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1303, in accordance with any applicable requirements provided pursuant to
Section 301 and upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 [and 1007], and any covenants provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and
(2) the occurrence of any event specified in Sections 501(4) (with respect to
any of Section 801(3), Sections 1006 [and 1007], and any such covenants provided
pursuant to Section 301(18), 901(2) or 901(7)), and 501(7) shall be deemed not
to be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in
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any such specified Section (to the extent so specified in the case of Section
501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank for
the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required
by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary
receipt.
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(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment
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Company Act unless such trust shall be registered under such Act or exempt
from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court
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or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 1302 or
1303 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
Section 1305 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
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-----------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
NIAGARA MOHAWK POWER CORPORATION
By..........................................
Attest:
.....................
.......................................................
By.......................................................
Attest:
.....................
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., 2000, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of NIAGARA MOHAWK POWER
CORPORATION, one of the corporations described in and which executed the
foregoing 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
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
...............................................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of ...........................,
one of the corporations described in and which executed the foregoing
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 authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
...............................................
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Exhibit 4(d)
[FORM OF FACE OF DEFINITIVE BOND
OF THE ________________SERIES]
$ ______________ No. RU- ___________
NIAGARA MOHAWK POWER CORPORATION
FIRST MORTGAGE BOND,
% SERIES DUE __________1, ____
NIAGARA MOHAWK POWER CORPORATION, a New York corporation (herein called
the "Company"), for value received, hereby promises to pay to , or registered
assigns, the principal sum of Dollars on _____1, __________, and to pay interest
from _____ 1, 20__ or from the _______ 1 or _____ 1, as the case may be, next
preceding the date of this Bond to which interest has been paid or provided for
on such principal sum at the rate per annum specified in the title of this Bond
semi-annually on ____ 1 and ________1 in each year (computed on the basis of a
360-day year of twelve 30-day months), until payment of such principal sum has
been made or duly provided for, to the registered owner hereof as of the close
of business on the fifteenth day of the month next preceding the month in which
an interest payment is due, except as otherwise provided on the reverse hereof
or in the Indenture.
Both principal of and interest on this Bond (as well as any premium
hereon in case of the redemption hereof prior to maturity) 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.
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<PAGE> 2
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) or its Secretary or an Assistant Secretary.
Dated: NIAGARA MOHAWK POWER CORPORATION
By __________________________
President
Attest:
______________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the Bonds of the Series designated above described in
the within-mentioned Indenture.
as Trustee
By _________________________
Authorized Officer
[FORM OF REVERSE OF DEFINITIVE BOND OF THE
_____________ SERIES]
This Bond is one of a duly authorized issue of Bonds of the Company, of
an unlimited (except as provided in the Indenture hereinafter mentioned)
permitted principal amount, all issued or to be issued in one or more series
(the Bonds of the series of which this Bond is a part being herein called the
"Bonds of the _________ Series"), all of the Bonds of all series being issued or
to be issued under and, irrespective of the time of issue, all equally secured
by a Mortgage Trust Indenture (herein, with all instruments stated to be
supplemental thereto to which the Trustee hereinafter named is
-2-
<PAGE> 3
or shall be a party, called the "Indenture"), dated as of October 1, 1937, to
Marine Midland Bank, N.A. (successor to Marine Midland Bank which was formerly
named The Marine Midland Trust Company of New York and thereafter 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 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 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 principal of this Bond together with accrued interest thereon may
be declared, or may become, due and
-3-
<PAGE> 4
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
____________ Series, each Bond of the _________ Series shall be dated as of the
date of its authentication, and shall bear interest from the _____ 1 or _______
1, as the case may be, next preceding the date of such Bond to which interest
has been paid or provided for (unless the date of such Bond is a ________ 1 or a
________ 1 to which interest has been paid or provided for, in which case such
Bond shall bear interest from its date, or unless the date of such Bond is prior
to the payment of any interest on the Bonds of the ____________ Series, in which
case such Bond shall bear interest from ____ 1, 20__). However, so long as there
is no existing default in the payment of interest on the Bonds of the __________
Series, any such Bond authenticated by the Trustee after the close of business
on the record date for any interest payment date and prior to such interest
payment date shall be dated the date of its authentication, but shall bear
interest from such interest payment date; provided, however, that if and to the
extent that the Company shall default in the payment of interest on such
interest payment date, then such Bond shall bear interest from the ____ 1 or
____ 1, as the case may be, next preceding the date of such Bond to which
interest has previously been paid or made available for payment on the
outstanding Bonds of the __________ Series or, if no interest has been paid on
such Bonds, from the date of initial authentication of Bonds of the ___________
Series.
The Bonds of the __________ Series are entitled to the benefit of a
maintenance fund referred to in Part II of the Supplemental Indenture creating
the Bonds of the __________ Series. Except as hereinafter provided, the Bonds of
the ____________ Series may be redeemed at the option of the Company, either as
a whole or in part, on any date, whether or not an interest payment date, at the
following general redemption prices (expressed in percentages of principal
amount) and are subject to the redemption as a whole or in part by operation of
said maintenance fund at the following special redemption prices (expressed in
percentages or principal amount):
-4-
<PAGE> 5
<TABLE>
<S> <C> <C> <C> <C> <C>
In the 12
In the 12 Months' Special Months' Period General
Period Ending General Redemption Ending Redemption Special
1 Redemption Price Price 1 Price Redemption Price
</TABLE>
together, in each case, with interest accrued to the date fixed for redemption,
upon notice mailed to the respective registered owners of the Bonds of the
_________ Series designated for redemption at least 30 days and not more than 90
days prior to the date of redemption, at their addresses appearing upon the Bond
resignation books, all subject to the conditions more fully set forth in the
Indenture. No redemption of any of the Bonds of the ______________ Series shall
be made at the option of the Company (other than pursuant to the maintenance
fund referred to above) prior to _______ 1, 20__ as part of or in anticipation
of any refunding operation, by the application, directly or indirectly, of
borrowed funds having an effective interest cost to the Company or any
subsidiary of the Company (calculated in accordance with accepted financial
practice) of less than ____% per annum.
No recourse shall be had for the payment of any part of principal of,
or interest on, this Bond (as well as any premium hereon in case of the
redemption hereof prior to maturity), or for any claim based hereon or thereon,
or otherwise in any manner with respect hereto, or with respect to the
Indenture, to or against any incorporator or any past, present or future
stockholder, officer or director of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or other provision of law, or by the
enforcement of any assessment or penalty, or otherwise, all such liability being
expressly waived and released by the acceptance of this Bond and as part of the
consideration for the issue hereof, as provided in the Indenture.
If this Bond or any part thereof is called for redemption and payment
duly provided, this Bond or such part thereof shall cease to bear interest from
and after the date for such redemption.
-5-
<PAGE> 6
Registration of transfer of this Bond may be made by the registered
owner in person or by duly authorized attorney, at the corporate trust office of
the Trustee, or at such other offices or agencies of the Trustee or the Company
as shall be maintained for such purpose, upon the surrender of this Bond, and
thereupon a new Bond or Bonds of authorized denominations of the same series for
a like aggregate principal amount will be issued to the registered transferee,
all in the manner and subject to the terms, conditions and limitations specified
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 of or on account of the principal and interest due hereon
(subject to the provisions of the first paragraph of this Bond) and for all
other purposes, and neither the Company, the Trustee nor any paying agent or
agency shall be affected by any notice to the contrary, whether this Bond or
such interest shall be overdue or not.
-6-
<PAGE> 1
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
Exhibit 5
March 31, 2000
Niagara Mohawk Power Corporation,
300 Erie Boulevard West,
Syracuse, New York 13202.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of $500,000 of: (i) your First Mortgage Bonds (the "Bonds"), to be
issued from time to time pursuant to a Mortgage Trust Indenture (the "Mortgage")
between Niagara Mohawk Power Corporation (the "Company") and Marine Midland
Bank, N.A. (the "Mortgage Trustee"), and (ii) Senior Debt Securities (the
"Debentures" and together with the Bonds, the "Securities") to be issued from
time to time pursuant to an Indenture (the "Debentures Indenture") between the
Company and Bank of New York (the "Debentures Trustee"), we, as your counsel,
have examined such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion.
NIAGARA MOHAWK POWER CORPORATION
Upon the basis of such examination, we advise you that, in our opinion:
(i) when the Registration Statement has become effective under
the Act, the Debentures Indenture has been duly authorized, executed
and delivered, the terms of the Debentures and of their issuance and
sale have been duly established so as not to violate any applicable law
or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, and the Debentures have been duly
executed and authenticated in accordance with the Debentures Indenture
and issued and sold as contemplated in the Registration Statement, the
Debentures will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
<PAGE> 2
(ii) when the Registration Statement has become effective
under the Act, the terms of the Bonds and of their issuance and sale
have been duly established so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, and the Bonds have been duly executed
and authenticated in accordance with the Mortgage and issued and sold
as contemplated in the Registration Statement, the Bonds will
constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
In rendering the foregoing opinion, we are expressing no
opinion as to Federal or state laws relating to fraudulent transfers.
The foregoing opinion is limited to the Federal laws of the
United States and the laws of the state of New York and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained
from public officials, officers of the Company and other sources believed by us
to be responsible.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to us under the heading
"Validity of Debt Securities" in the Prospectus. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell
<PAGE> 1
EXHIBIT 12
NIAGARA MOHAWK POWER CORPORATION AND SUBSIDIARY COMPANIES
STATEMENT SHOWING COMPUTATIONS OF RATIO OF EARNINGS TO FIXED CHARGES AND RATIO
OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(in thousands of dollars)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------------------------
1999 1998 1997 1996 1995
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
A. Net Income (Loss) per
Statements of Income $ (2,061) $(120,825) $183,335 $110,390 $248,036
B. Taxes Based on Income or
Profits 6,064 (66,728) 126,595 66,221 159,393
-----------------------------------------------------------------
C. Earnings, Before Income
Taxes 4,003 (187,553) 309,930 176,611 407,429
D. Fixed Charges(a) 518,165 433,313 304,451 308,323 314,973
-----------------------------------------------------------------
E. Earnings Before Income
Taxes and Fixed Charges 522,168 245,760 614,381 484,934 722,402
=================================================================
PREFERRED DIVIDEND FACTOR:
F. Preferred Dividend
Requirements $ 36,808 $ 36,555 $ 37,397 $ 38,281 $ 39,596
=================================================================
G. Ratio of Pre-Tax Income
to Net Income (C/A) N/A N/A 1.69 1.60 1.64
H. Preferred Dividend Factor
(FxG) $ 36,808 $ 36,555 $ 63,201 $ 61,250 $ 64,937
I. Fixed Charges 518,165 433,313 304,451 308,323 314,973
-----------------------------------------------------------------
J. Fixed Charges and Preferred
Dividends Combined $554,973 $ 469,868 $367,652 $369,573 $379,910
=================================================================
K. Ratio of Earnings to
Fixed Charges (E/D) 1.01 0.57 (b) 2.02 1.57 2.29
=================================================================
L. Ratio of Earnings to Fixed
Charges and Preferred
Dividends Combined (E/J) 0.94 (c) 0.52 (c) 1.67 1.31 1.90
=================================================================
</TABLE>
(a) Includes a portion of rentals deemed representative of the interest
factor: $25,673, $25,907 for 1998, $26,149 for 1997, $26,600 for 1996,
and $27,312 for 1995.
(b) Fixed charges exceed earnings before income taxes and fixed charges by
$187.6 million
(c) Fixed charges and preferred dividends combined, exceed earnings before
income taxes and fixed charges by $32.8 million in 1999 and $224.1
million in 1998.
N/A - Not applicable due to net loss displayed in line A.
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Niagara Mohawk Power Corporation of our report dated
January 27, 2000 relating to the financial statements appearing in the Niagara
Mohawk Holdings, Inc., and the Niagara Mohawk Power Corporation's combined
Annual Report on Form 10-K for the year ended December 31, 1999. We also consent
to the incorporation by reference of our report dated January 27, 2000 relating
to the financial statement schedules appearing in such Annual Report on Form
10-K. We also consent to the reference to us under the heading "Experts" in such
Registration Statements.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Syracuse, New York
March 31, 2000
<PAGE> 1
Exhibit 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
HSBC BANK USA
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
New York 13-2774727
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, NY 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
</TABLE>
Warren L. Tischler
Senior Vice President
HSBC Bank USA
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-5167
(Name, address and telephone number of agent for service)
NIAGARA MOHAWK POWER CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
New York 15-0265555
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
300 Erie Boulevard West
Syracuse, New York 13202
(315) 474-1511 (Zip Code)
(Address of principal executive offices)
</TABLE>
Debt Securities
(Title of Indenture Securities)
<PAGE> 2
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
<PAGE> 3
Item 16. List of Exhibits
Exhibit
T1A(i) (1) Copy of the Organization Certificate of HSBC Bank USA.
T1A(ii) (1) Certificate of the State of New York Banking Department
dated December 31, 1993 as to the authority of HSBC Bank
USA to commence business as amended effective on March
29, 1999.
T1A(iii) Not applicable.
T1A(iv) (1) Copy of the existing By-Laws of HSBC Bank USA as adopted
on January 20, 1994 as amended on October 23, 1997.
T1A(v) Not applicable.
T1A(vi) (2) Consent of HSBC Bank USA required by Section 321(b) of
the Trust Indenture Act of 1939.
T1A(vii) Copy of the latest report of condition of the trustee
(December 31, 1999), published pursuant to law or the
requirement of its supervisory or examining authority.
T1A(viii) Not applicable.
T1A(ix) Not applicable.
(1) Exhibits previously filed with the Securities and Exchange Commission
with registration No. 022-22429 and incorporated herein by reference
thereto.
(2) Exhibit previously filed with the Securities and Exchange Commission
with Registration No. 33-53693 and incorporated herein by reference
thereto.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HSBC Bank USA, a banking corporation and trust company organized under the laws
of the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York on the 29h day of March, 2000.
HSBC BANK USA
By: /s/ James M. Foley
----------------------------
James M. Foley
Assistant Vice President
<PAGE> 5
EXHIBIT T1A (VII)
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 2000
Please refer to page i,
Table of Contents, /1/
for the required disclosure -
of estimated burden.
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
REPORT AT THE CLOSE OF BUSINESS DECEMBER 31, 1999 19980930
------------
RCRI 9999
This report is required by law; 12 U.S.C. Section324 (State member banks); 12
U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section161 (National
banks).
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested accordance to by not less
than two directors (trustees) for State nonmember banks and three directors for
State member and National Banks.
I, Gerald A. Ronning, Executive VP & Controller
- --------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and believe.
/s/ Gerald A. Ronning
- --------------------------------------------------------
Signature of Officer Authorized to Sign Report
2/9/00
- -----------------------------------------------------------------
Date of Signature
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
The Reports of Condition and Income are to be prepared in with Federal
regulatory authority instructions.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ Youssef Nasr
- -----------------------------------------------------------------
Director (Trustee)
/s/ Bernard J. Kennedy
- -----------------------------------------------------------------
Director (Trustee)
/s/ Sal H. Alfiero
- -----------------------------------------------------------------
Director (Trustee)
SUBMISSION OF REPORTS
Each Bank must prepare its Reports of Condition and Income
either:
(a) in electronic form and then file the computer data file directly with the
banking agencies' collection agent, Electronic Data System Corporation
(EDS), by modem or computer diskette; or
b) in hard-copy (paper) form and arrange for another party to convert the
paper report to automated for. That party (if other than EDS) must
transmit the bank's computer data file to EDS.
For electronic filing assistance, contact EDS Call report Services, 2150 N.
Prospect Ave., Milwaukee, WI 53202, telephone (800) 255-1571.
To fulfill the signature and attestation requirement for the Reports of
Condition and Income for this report date, attach this signature page to the
hard-copy f the completed report that the bank places in its files.
FDIC Certificate Number 0 0 5 8 9
(RCRI 9030)
http://WWW.BANKING.US.HSBC.COM
- ----------------------------------------------------
Primary Internet Web Address of Bank (Home Page), if any (TEXT 4087)
(Example: www.examplebank.com)
HSBC Bank USA
- ----------------------------------------------------
Legal Title of Bank (TEXT 9010)
Buffalo
- ----------------------------------------------------
City (TEXT 9130)
N.Y. 14203
- ----------------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE> 6
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
<TABLE>
<S> <C>
HSBC Bank USA of Buffalo
Name of Bank City
</TABLE>
in the state of New York, at the close of business December 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
<S> <C> <C>
Non-interest-bearing balances currency and coin $ 1,927,492
Interest-bearing balances 3,997,445
Held-to-maturity securities 4,535,288.00
Available-for-sale securities 18,309,649
Federal funds sold and securities purchased under agreements to resell 2,318,361
Loans and lease financing receivables:
Loans and leases net of unearned income $ 36,623,321
LESS: Allowance for loan and lease losses 622,000
LESS: Allocated transfer risk reserve -
Loans and lease, net of unearned income, allowance, and reserve $ 36,001,321
Trading assets 4,204,059
Premises and fixed assets (including capitalized leases) 727,649
Other real estate owned 11,298
Investments in unconsolidated subsidiaries and associated companies 2,512,034
Customers' liability to this bank on acceptances outstanding 234,582
Intangible assets 2,998,913
Other assets 1,841,298
Total assets 79,619,389
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C> <C>
In domestic offices 34,894,384
Non-interest-bearing 5,741,654
Interest-bearing 29,152,730
In foreign offices, Edge and Agreement subsidiaries, and IBFs 23,623,038
Non-interest-bearing 187,760
Interest-bearing 23,435,278
Federal funds purchased and securities sold under agreements to repurchase 1,414,868
Demand notes issued to the U.S. Treasury 100,497
Trading Liabilities 2,427,971
Other borrowed money (including mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less 3,038,961
With a remaining maturity of more than one year through three years 699,905
With a remaining maturity of more than three years 524,195
Bank's liability on acceptances executed and outstanding 234,756
Subordinated notes and debentures 1,648,278
Other liabilities 1,620,681
Total liabilities 70,227,534
EQUITY CAPITAL
Perpetual preferred stock and related surplus -
Common Stock 205,000
Surplus 9,080,868
Undivided profits and capital reserves 158,870
Net unrealized holding gains (losses) on available-for-sale securities (52,893)
Accumulated net gain (losses) on cash flow hedges -
Cumulative foreign currency translation adjustments -
Total equity capital 9,391,845
Total liabilities and equity capital 79,619,379
</TABLE>
<PAGE> 1
Exhibit 25(b)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
NIAGARA MOHAWK POWER CORPORATION
(Exact name of obligor as specified in its charter)
New York 15-0265555
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Erie Boulevard West
Syracuse, New York 13202
(Address of principal executive offices) (Zip code)
---------------------------
Unsecured Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(a).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
-2-
<PAGE> 3
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 28th day of March, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
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Dollar Amounts
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ASSETS In Thousands Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $3,247,576
Interest-bearing balances........................... 6,207,543
Securities:
Held-to-maturity securities......................... 827,248
Available-for-sale securities....................... 5,092,464
Federal funds sold and Securities purchased under
agreements to resell................................ 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income............... ............................ 37,734,000
LESS: Allowance for loan and
lease losses............ ......................... 575,224
LESS: Allocated transfer risk
reserve........................ .................. 13,278
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,145,498
Trading Assets......................................... 8,573,870
Premises and fixed assets (including capitalized
leases)............................................. 723,214
Other real estate owned................................ 10,962
Investments in unconsolidated subsidiaries and
associated companies................................ 215,006
Customers' liability to this bank on acceptances
outstanding......................................... 682,590
Intangible assets...................................... 1,219,736
Other assets........................................... 2,542,157
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Total assets........................................... $71,794,790
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LIABILITIES
Deposits:
In domestic offices................................. $27,551,017
Noninterest-bearing....................... ......... 11,354,172
Interest-bearing.......................... ......... 16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,950,004
Noninterest-bearing.......................... ...... 639,410
Interest-bearing.......................... ......... 27,310,594
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,349,708
Demand notes issued to the U.S.Treasury................ 300,000
Trading liabilities.................................... 2,339,554
Other borrowed money:
With remaining maturity of one year or less......... 638,106
With remaining maturity of more than one year
through three years............................... 449
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 684,185
Subordinated notes and debentures...................... 1,552,000
Other liabilities...................................... 3,704,252
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Total liabilities...................................... 66,100,355
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EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 866,947
Undivided profits and capital reserves................. 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities....................... (44,599)
Cumulative foreign currency translation adjustments.... (29,097)
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Total equity capital................................... 5,694,435
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Total liabilities and equity capital................... $71,794,790
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I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
