0000912057-01-533674.txt : 20011009
0000912057-01-533674.hdr.sgml : 20011009
ACCESSION NUMBER: 0000912057-01-533674
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 3
CONFORMED PERIOD OF REPORT: 20010925
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20010927
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: NIAGARA MOHAWK POWER CORP /NY/
CENTRAL INDEX KEY: 0000071932
STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931]
IRS NUMBER: 150265555
STATE OF INCORPORATION: NY
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-02987
FILM NUMBER: 1746382
BUSINESS ADDRESS:
STREET 1: 300 ERIE BLVD W
CITY: SYRACUSE
STATE: NY
ZIP: 13202
BUSINESS PHONE: 3154741511
MAIL ADDRESS:
STREET 1: 300 ERIE BLVD W
CITY: SYRACUSE
STATE: NY
ZIP: 13202
FORMER COMPANY:
FORMER CONFORMED NAME: CENTRAL NEW YORK POWER CORP
DATE OF NAME CHANGE: 19710419
8-K
1
a2060095z8-k.txt
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) September 25, 2001
------------------------------
NIAGARA MOHAWK POWER CORPORATION
--------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
NEW YORK 1-2987 15-0265555
--------------------------------------------------------------------------------
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
300 Erie Boulevard West, Syracuse, NY 13202
--------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code 315-474-1511
----------------------------
--------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS.
On September 25, 2001, Niagara Mohawk Power Corporation (the
"Company") entered into an underwriting agreement (the "Underwriting Agreement")
with Salomon Smith Barney Inc., as Representative of the several underwriters
named in Schedule I to the Underwriting Agreement, related to the offering and
sale of $300,000,000 aggregate principal amount of 5.375% Senior Notes due 2004
(the "Notes").
The Notes will be issued as a separate series of debt securities
under an indenture dated as of May 12, 2000, by and between the Company and The
Bank of New York as Trustee (the "Trustee"), as supplemented by a Second
Supplemental Indenture by and between the Company and the Trustee scheduled to
be executed on September 28, 2001, in the form attached as Exhibit 1.2 hereto.
The offering and sale of the Notes is scheduled to be consummated on September
28, 2001, with the total proceeds to the Company being $298,809,000. Expenses
payable by the Company in connection with the offering of the Notes are
estimated at approximately $435,000.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
Exhibits
1.1 Underwriting Agreement, dated September 25, 2001, by
and between Niagara Mohawk Power Corporation and
Salomon Smith Barney Inc., as Representative of the
several underwriters named in Schedule I to the
Underwriting Agreement.
1.2 Form of Second Supplemental Indenture, between
Niagara Mohawk Power Corporation and The Bank of New
York, as Trustee.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly authorized.
NIAGARA MOHAWK
POWER CORPORATION
Dated: September 27, 2001 By: /s/ Steven W. Tasker
----------------------------
Name: Steven W. Tasker
Title: Vice-President-Controller
INDEX TO EXHIBITS
EXHIBIT NO. EXHIBIT
----------- -------
1.1 Underwriting Agreement, dated September 25, 2001, by
and between Niagara Mohawk Power Corporation and
Salomon Smith Barney Inc., as Representative of the
several underwriters named in Schedule I to the
Underwriting Agreement.
1.2 Form of Second Supplemental Indenture, by and between
Niagara Mohawk Power Corporation and The Bank of New
York, as Trustee.
EX-1.1
3
a2060095zex-1_1.txt
EXHIBIT 1.1
EXHIBIT 1.1
NIAGARA MOHAWK POWER CORPORATION
SENIOR DEBT SECURITIES UNDERWRITING AGREEMENT
New York, New York
September 25, 2001
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
as Representative of the several underwriters
named in Schedule I to this Underwriting
Agreement (this "Agreement")
Dear Ladies and Gentlemen:
Niagara Mohawk Power Corporation, a New York corporation (the "Company"),
proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters") for whom you are acting as the representative (the
"Representative"), and the Underwriters hereby agree, severally and not jointly,
to purchase from the Company, the Company's 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 from the
Company to The Bank of New York, as trustee (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.
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; (ii) the Registration Statement, at the time
and date it was declared effective by the Commission, did 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 not misleading; and
(iii) and the Prospectus, at the date of this Agreement and at the Closing Date
(as hereinafter defined), did not and will not contain any untrue statement of a
material fact and did not and will omit to state a material fact 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 Registration
Statement which shall constitute the Statement of Eligibility and Qualification
on Form T-1 (the "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 Representative specifically for inclusion
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 includes or will include
any untrue statement of a material fact or omits 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 Representative 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.
2
(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 or
contemplated in the Registration Statement and the Prospectus, (1) there has not
been any material adverse change on the condition (financial or otherwise),
earnings, business or properties of the Company, whether or not arising from
transactions in the ordinary course of business and (2) there has been no
transaction entered into by the Company which is material to the Company, other
than transactions in the ordinary course of business.
(g) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable.
(h) The Securities have been duly authorized by the Company, and,
when issued and authenticated in the manner provided for in the Indenture and
delivered against payment of the required consideration therefor, will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture.
(i) The Securities conform in all material respects to the
description thereof in the Prospectus.
(j) Each of the Company and its material subsidiaries has been duly
incorporated and is a validly existing corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized; each of the
Company and its material subsidiaries holds all material licenses, certificates
and permits from governmental authorities necessary for the conduct of its
business; and the Company and each such material subsidiary has the corporate
power and authority to own its properties and conduct its business as described
in the Prospectus.
(k) Neither the Company nor any of its material subsidiaries is in
violation of its respective certificate of incorporation or by-laws or in
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its material subsidiaries,
taken as a whole, to which the Company or any of its material subsidiaries is a
party or by which the Company or any of its material subsidiaries or their
respective property is bound, except for such violation which, singly or in the
aggregate, would not have a material adverse effect on the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole.
(l) The Indenture (A) has been duly qualified under the Trust
Indenture Act, the Company has duly authorized the Indenture and, when the
Company has duly executed and
3
delivered the Indenture (assuming the due authorization, execution and delivery
thereof by the Trustee) it will be a valid and binding agreement of the Company,
enforceable against it in accordance with its terms, except as the
enforceability thereof may be limited (i) by the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors generally and (ii) by the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceedings may be brought; and (B)
conforms in all material respects to the description thereof in the Prospectus.
(m) 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 any
of the terms or provisions of, or constitute a default under, the certificate of
incorporation or the by-laws of the Company or any of its material subsidiaries,
any indenture, or other agreement or instrument to which the Company or any of
its material subsidiaries is a party or by which it or they is bound or, to the
best knowledge of the Company, any law, order or regulation applicable to the
Company of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or any of its material subsidiaries or
any of their assets, properties or operations.
(n) 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 or is expected to authorize the issue
and sale thereof on or prior to the Closing Date (as hereinafter defined) 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. No other consent, waiver,
approval, authorization or order of, or filing, registration, qualification,
license or permit of or with, any court or governmental agency, body or
administrative agency [or other person] is required for the execution, delivery
and performance by the Company of this Agreement, the issuance and sale of the
Securities, and the consummation of the transactions contemplated hereby, except
(i) such as are required under state securities or Blue Sky laws and
regulations, and (ii) 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 condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries taken as a whole.
(o) 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.
(p) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, including, without limitation,
the corporate power and authority to issue, sell and deliver the Securities as
provided herein.
4
(q) This Agreement has been duly authorized and validly executed by
the Company.
(s) Except as disclosed in the Prospectus and subject to such
qualifications as may be set forth therein, neither the Company nor any of its
subsidiaries has violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or any provisions of the Foreign Corrupt
Practices Act or the rules and regulations promulgated thereunder, except for
such violation which, singly or in the aggregate, would not have a material
adverse effect on the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole.
(t) Except as disclosed in the Prospectus and subject to such
qualifications as may be set forth therein, there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any authorization, any related constrains
on operating activities and any potential liabilities to third parties) which
would singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole.
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 sets forth the date, time and manner of delivery
of the Securities.
Upon authorization by the Representative 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 10:00 a.m., New York City time, on September 28, 2001 (or such
other date and time not later than three business days thereafter as the
Representative and the Company shall designate), which date and time may be
postponed by agreement between the Representative and the Company (such date and
time being herein called the "Closing Date"). The Securities shall be in
definitive form and shall be registered in such names and in such authorized
denominations as the Representative 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 Representative 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 Representative at least forty-eight hours in advance of the
Closing Date. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representative shall otherwise instruct.
4. AGREEMENTS. The Company agrees with each of the several Underwriters
that:
5
(a) The Company will cause the Prospectus Supplement to be filed or
transmitted for filing, in a form approved by the Representative, 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
Representative (i) when any amendment to the Registration Statement shall have
become effective, (ii) when any subsequent supplement to the Prospectus has been
filed or transmitted 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 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. 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 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 Representative 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.
(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 (1) notify the
Representative of such event, (2) prepare and file with the Commission, subject
to paragraph (a) of this Section 4, an amendment or supplement that will correct
such statement or omission or an amendment or supplement that will effect such
compliance and (3) supply any supplemented Prospectus to the Representative in
such quantities as they may reasonably request.
(c) The Company will make generally available to its security
holders and to the Representative 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 earning statement (which
need not be audited) of the Company and its subsidiaries, 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 the Representative 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
6
therewith (other than exhibits incorporated by reference), and will deliver to
the Representative 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 Representative may reasonably
request.
(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 Representative 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 the Representative, 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
Representative, or (ii) the thirtieth day after the Closing Date for the
Securities, the Company shall not offer, sell, contract to 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 Representative, 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
cost, 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, the expenses in
connection with the qualification of the Securities under securities laws in
accordance with the provisions of subparagraph (e) of Section 4 hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith, 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
of the representations and warranties on the part of the Company contained
herein as of the date hereof and the Closing
7
Date, to the accuracy of the 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 Representative,
threatened.
(b) On the date hereof through the Closing Date (i) there shall not
have been any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined for the
purposes of Rule 436(g) under the Act) and (ii) no such organization shall have
officially communicated to the Company that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's debt
securities.
(c) The Company shall furnish to the Representative opinions,
addressed to the Underwriters and dated the Closing Date, of the Company's
General Counsel to the effect that (i) the Company and each of its material
subsidiaries has been duly incorporated and is in good standing in the
jurisdiction in which it is chartered or organized, with all requisite corporate
power and authority to own or lease and operate its properties and to carry on
its own business as now conducted and as described in the Prospectus; (ii) 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 this 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 Act and the Trust Indenture Act and from the PSC under a
Financing Order granting consent to the Company's issuance and sale of the
Securities, subject to the conditions contained in that Financing Order, or have
been obtained as described in the Prospectus, (b) such as are required under
state securities or 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
condition (financial or otherwise), business or properties of the Company and
its subsidiaries, considered as a whole; (iii) to such counsel's knowledge,
there is no 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, of a
character required to be disclosed but not adequately disclosed in the
Prospectus, that would be reasonably likely to have a material adverse effect on
the condition (financial or otherwise), business or properties of the Company
and its subsidiaries, considered as a whole; and (iv) to such counsel's
knowledge, the Company's execution of this Agreement and the Indenture and the
issuance and sale of the Securities would neither contravene the Atomic Energy
Act of 1954 (the "AEA") nor the regulations of the Nuclear Regulatory
Commission, or NRC, in 10 Code of Federal Regulations, Chapter I, nor would such
actions require any application for approval by the NRC; PROVIDED, that as to
enforceability of the Company's obligations under this Agreement, the Indenture
and the Securities is concerned, such counsel expresses no opinion except for
those matters specifically set forth in (ii)(a) and (iv), as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights.
8
(d) The Company shall furnish to the Representative 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 an existing corporation in good standing under the laws
of the State of New York; (ii) the Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the Trust Indenture Act of
1939; the Securities have been duly authorized, executed, authenticated, issued
and delivered; and the Indenture and the Securities 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; (iii) all regulatory
consents, authorizations, approvals and filings required to be obtained or made
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 to the Underwriters have been obtained or made; PROVIDED that such
counsel will express no opinion as to 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 Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), the AEA and the rules and regulations
of the PSC, the NRC, and, solely with respect to jurisdiction granted by the
1935 Act, the Commission, or any Blue Sky or state securities laws or
regulations; (iv) this Agreement has been duly authorized, executed and
delivered by the Company; (v) the issuance and sale of the Securities in
accordance with the Indenture and the sale of the Securities to the Underwriters
pursuant to the Underwriting Agreement do not, and the performance of the
Company of its obligations under the Indenture, the Underwriting Agreement and
the Securities will not, (A) violate the Company's Certificate of Incorporation
or By-Laws or (B) result in a default under or breach of any indenture or other
agreement or undertaking of the Company specified in such counsel's opinion and
acceptable to counsel for the Underwriters; PROVIDED that insofar as performance
by the Company of its obligations under the Indenture, this Agreement and the
Securities is concerned, such counsel will express no opinion under this
subparagraph (d) as to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; (vi) the Registration Statement, as of its
effective date, and the Prospectus, as of the date of the Prospectus Supplement,
appear on their face to be appropriately responsive in all material respects
relevant to the offering of the Securities, to the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder; and (vii) such counsel has no reason to believe that, insofar as is
relevant to the offering of the Securities, any part of the Registration
Statement, when such part became effective, 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 Supplement and as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
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 opinions).
9
(e) The Representative 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 Representative 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.
(f) The Company shall furnish to the Representative 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, 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.
(g) The Representative (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 and the Underwriters 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 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)(A) on the basis of the following procedures (but not
an examination in
10
accordance with generally accepted auditing standards), and 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 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 (x) 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; (y) 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 (z) 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 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 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 Representative, and have compared such amounts, percentages and financial
information with the accounting records of the Company and have found them to be
in agreement.
(h) 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 (g) of this Section 6 which makes it impractical or inadvisable in the
judgment of the Representative to proceed with the public offering or the
delivery of the Securities as contemplated by the Prospectus.
11
(i) Prior to the Closing Date, the Company shall furnish to the
Representative such further information, certificates and documents as they may
reasonably request.
(j) The PSC shall have issued a written order or orders (the "PSC
Orders") authorizing the issuance by the Company of the Securities on the terms
and conditions herein set forth or contemplated and the PSC Orders shall remain
in full force and effect on the Closing Date.
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 Representative 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
Representative. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sullivan & Cromwell, counsel for the Company, at 125
Broad Street, New York, New York 10004, on the Closing Date.
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 Representative, threatened.
(b) The PSC Orders shall on the Closing Date be in full force and
effect, permitting the issuance and sale of the Securities upon the terms and
conditions herein 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 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,
because of any termination pursuant to Section 11 hereof 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
12
of the Underwriters, the Company will reimburse the Underwriters severally
through the Representative upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) 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 or in any amendment thereof, 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 arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus or in any amendment thereof or supplement thereto, or 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, as incurred, 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 conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representative
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 provided
such corrected Prospectus was delivered promptly by the Company to the
Underwriters. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally and not jointly 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 each Underwriter but only
with reference to written information furnished to the Company by or on behalf
of such Underwriter through the Representative 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
13
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth under the
heading "Underwriting" in the first, second and fourth paragraphs under the
table and the third and fourth sentences of the fifth paragraph under the table
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Prospectus.
(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 failure to so notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, 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, (iii) 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 the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(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
14
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 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. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute in
excess of the amount equal to the excess of (i) the total price at which the
Securities underwritten by it were offered to the public, over (ii) the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission. 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 I 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 10% 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
15
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 to any non-defaulting 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 Representative 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 and
any non-defaulting Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representative, 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 outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representative,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus.
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 Representative, 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 Leslie E. LoBaugh, Jr., 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.
16
17. REPRESENTATION OF THE UNDERWRITERS. The Representative represents
and warrants to the Company that it is authorized to act as the representative
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
Representative will be binding upon all Underwriters.
17
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: /s/ William F. Edwards
-----------------------
Title: Senior Vice President and
Chief Financial Officer
18
The foregoing Agreement is hereby confirmed and
accepted as of the date first
above written.
For themselves and as Representative of the several
Underwriters, if any, named in Schedule I hereto.
By: Salomon Smith Barney Inc.,
as Representative
By: /s/ Howard L. Hiller
---------------------
Title: Managing Director
19
SCHEDULE II
Underwriting Agreement dated: September 25, 2001
Registration Statement No.333-33826
Representative and Address: Salomon Smith Barney Inc., 390 Greenwich Street, New
York, New York 10013
Securities:
Designation: 5.375 % Senior Notes due 2004
Principal Amount: $300,000,000
Supplemental Indenture: Dated as of September 28, 2001
Date of Maturity: October 1, 2004
Interest Rate: 5.375 %
Purchase Price: $298,809,000
Public Offering Price: $299,859,000
Redemption Provisions: Redeemable by the Company at any time, at a
redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest thereon through the redemption date plus the
excess of (i)the discounted future cash flow on such Security (discounted
at a rate equal to that Security by comparable U.S. Treasury obligation
plus 0.25%), over (ii) the principal amount of such Security.
Closing Date and Location: September 28, 2001; Sullivan & Cromwell, 125 Broad
Street, New York, NY 10004
SCHEDULE I
Principal Amount
Name of Underwriter of Securities
---------------------------------------------------------- ------------------
Salomon Smith Barney Inc. $180,000,000
Banc One Capital Markets, Inc. 60,000,000
Credit Suisse First Boston Corporation 60,000,000
Total............................................... $300,000,000
============
EX-1.2
4
a2060095zex-1_2.txt
EXHIBIT 1.2
EXHIBIT 1.2
================================================================================
NIAGARA MOHAWK POWER CORPORATION
TO
THE BANK OF NEW YORK
Trustee
----------
SECOND SUPPLEMENTAL INDENTURE
Dated as of September __, 2001
TO
INDENTURE
Dated as of May 12, 2000
----------
5.375% SENIOR NOTES DUE 2004
================================================================================
TABLE OF CONTENTS
----------
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions............................................2
Capital Lease Obligation...............................3
Credit Facility........................................3
First Mortgage Bonds...................................3
Guarantee..............................................3
Hedging Obligations....................................3
Indebtedness...........................................3
Initial Issuance Date..................................4
Lien...................................................4
Make Whole Premium.....................................4
Treasury Rate..........................................4
Medium Term Notes......................................5
Non-Recourse Debt......................................5
Notes..................................................5
Note...................................................5
Other Indebtedness.....................................5
Permitted Refinancing Indebtedness.....................6
PSC....................................................7
Receivables Financing..................................7
Restricted Subsidiary..................................7
Securitization Transaction.............................7
Senior Indebtedness....................................7
Senior Discount Notes..................................7
Senior Notes...........................................8
Series A Senior Notes..................................8
Series B Senior Notes..................................8
Series C Senior Notes..................................8
Series D Senior Notes..................................8
Series E Senior Notes..................................8
Series F Senior Notes..................................8
Series G Senior Notes..................................8
Subordinated Indebtedness..............................8
Subsidiary.............................................9
TIPES Transaction......................................9
Unrestricted Subsidiary................................9
Weighted Average Life to Maturity.....................10
ARTICLE TWO
Security Forms
Section 201. Form of Notes.........................................10
ARTICLE THREE
The Series of Notes
Section 301. Title and Terms.......................................11
ARTICLE FOUR
Modifications and Additions to the Indenture
Section 401. Additional Covenant...................................12
Section 402. Modification to Defeasance and Covenant Defeasance;
Covenant Defeasance...................................13
Section 403. Modification of Supplemental Indentures; Supplemental
Indentures Without Consent of the
Holders...............................................13
ARTICLE FIVE
MISCELLANEOUS
Section 501. Miscellaneous.........................................14
--------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Second Supplemental Indenture.
-ii-
SECOND SUPPLEMENTAL INDENTURE, dated as of September __, 2001, made
by and between NIAGARA MOHAWK POWER CORPORATION, a corporation duly organized
and existing under the laws of the State of New York, having its principal
place of business at No. 300 Erie Boulevard West, Syracuse, New York
(hereinafter sometimes referred to as the "Company"), and The Bank of New York,
a New York Banking corporation, having its corporate trust principal executive
office at 2 North LaSalle Street, Chicago, Illinois (hereinafter sometimes
referred to as the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of May 12, 2000 (the "Indenture"), providing for the
issuance from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein and therein called the "Securities"), to be
issued in one or more series as in the Indenture provided.
Section 201 of the Indenture permits the form of the Securities of
any series to be established pursuant to an indenture supplemental to the
Indenture.
Section 301 of the Indenture permits the terms of the Securities of
any series to be established in an indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides that, 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
indentures supplemental to the Indenture for the purpose of curing any
ambiguity, correcting or supplementing any provision in the Indenture which may
be inconsistent with any other provision therein, or making any other provisions
with respect to matters or questions arising under the Indenture, provided that
such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
The Company, pursuant to the foregoing authority, proposes in and by
this Supplemental Indenture to establish the terms and form of the Securities of
a new series and to amend and supplement the Indenture in certain respects with
respect to the Securities of such series.
All things necessary to make this Supplemental Indenture a valid
agreement of the Company, and a valid amendment of and supplement to the
Indenture, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL 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 of the series to be
created hereby, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
(a) For all purposes of this Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture and, where so specified, to the Articles and
Sections of the Indenture as supplemented by this Supplemental Indenture;
and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder"
and "herewith" refer to this Supplemental Indenture.
(b) For all purposes of the Indenture and this Supplemental
Indenture, with respect to the Securities of the series created hereby, except
as otherwise expressly provided or unless the context otherwise requires
(Section references contained in the following definitions are to Sections of
the Indenture as supplemented by this Supplemental Indenture unless otherwise
specified):
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"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet of such
Person in accordance with generally acceptable accounting principles.
"Credit Facility" means the Company's $804.4 million credit facility
dated as of March 20, 1996 with a group of banks and Citibank as agent, as such
agreement is amended, modified, restated, extended, renewed, replaced or
refinanced from time to time.
"First Mortgage Bonds" means the securities and other indebtedness
issued from time to time pursuant to the Company's Mortgage Trust Indenture
dated as of October 1, 1937 and the supplemental indentures thereto.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instrument for collection in the ordinary course of business), direct
or indirect, in any manner (including, without limitation, letters of credit,
reimbursement agreements and support, "keep well" or similar agreement in
respect thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under any interest rate, currency or commodity swap
agreement, interest rate, currency or commodity future agreement, interest rate
cap or collar agreement, interest rate, currency or commodity hedge agreement,
and any put, call or other agreement designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations of such Person or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations of such Person, except any such balance that constitutes an accrued
expense or trade payable, if and to the extent any of the foregoing indebtedness
(other than
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letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of such Person prepared in accordance with generally acceptable
accounting principles (provided, that any debt instrument issued by the Company
or a Restricted Subsidiary in a TIPES Transaction shall be deemed Indebtedness
of the Company regardless of its characterization on any such balance sheet), as
well as any Indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the extent
not otherwise included, any Guarantees by such Person of any indebtedness of any
other Person.
"Initial Issuance Date" means June 30, 1998.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
encumbrance, charge, or adverse claim affecting title or resulting in a charge
against real or personal property, or a security interest of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option, other agreement to sell
or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes of
any jurisdiction).
"Make Whole Premium" means with respect to any prepayment of such
Note in circumstances requiring the payment of a Make Whole Premium, an amount
equal to the excess of (a) the aggregate present value as of the date of such
prepayment of the expected future cash flows of such Notes (for the avoidance of
doubt, such amounts shall include all principal and interest payable with
respect to such Note)(exclusive of interest accrued to the date of prepayment)
that, but for such prepayment, would have been payable if such prepayment had
not been made, all determined by discounting such amounts at a rate which is
equal to the Treasury Rate plus 0.25% over (b) the aggregate principal amount of
the Note to be prepaid. For purposes of any determination of the Make Whole
Premium:
"Treasury Rate" means at any time with respect to the Notes being
prepaid (a) the yield reported on page C4 of the Bloomberg Financial Markets
Service (or, if not available, any other nationally recognized trading screen
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reporting online intra day trading in United States government securities) at
11:00 A.M. (New York, New York time) for those actively traded United States
government securities having a maturity rounded to the nearest month)
corresponding to the remaining Weighted Average Life to Maturity of the Notes
being prepaid or (b) in the event that no nationally recognized trading screen
reporting online intra day trading in United States government securities is
available, Treasury Rate shall mean the weekly average of the yield to maturity
on the United States Treasury obligations with a constant maturity (as compiled
by and published in the most recent published issue of the United States Federal
Reserve Statistical Release designated H.15(519) or its successor publication)
most nearly equal to (by rounding to the nearest month) the Weighted Average
Life to Maturity of the Notes being prepaid.
"Medium Term Notes" means the unsecured variable rate notes issued
pursuant to an indenture between the Company and IBJ Schroder Bank & Trust
Company, as trustee.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender; (ii) no default with respect to
which would permit (upon notice, lapse of time or both) any Holder of any other
Indebtedness of the Company or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"Note" or "Notes" means the Company's 5.375% Senior Notes due 2004,
issued pursuant to the Indenture, as supplemented by this Supplemental
Indenture.
"Other Indebtedness" shall mean Senior Indebtedness incurred after
the Initial Issuance Date, except (a) Permitted Refinancing Indebtedness with
respect to First Mortgage Bonds issued and outstanding at the closing on the
Initial Issuance Date; (b) Permitted
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Refinancing Indebtedness with respect to the Credit Facility; and (c)
Indebtedness under the Securitization Transaction and the Receivables Financing
and any Permitted Refinancing Indebtedness with respect thereto.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to renew, extend, refinance, replace (including the
replacement at any time following their stated maturity of First Mortgage Bonds
or Senior Notes that are repaid at maturity, or the replacement at any time
following its stated maturity of the Credit Facility or the Receivables
Financing), defease or refund, in whole or in part, other Indebtedness of the
Company or any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that (i) the
principal amount of such Permitted Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness so renewed, extended, refinanced, replaced,
defeased or refunded (plus the amount of accrued interest and premiums
(including premium paid on open market purchases), if any, thereon and the
reasonable expenses incurred in connection therewith); (ii) Permitted
Refinancing Indebtedness that is incurred prior to the maturity of the
Indebtedness that it is renewing, extending, refinancing, replacing, defeasing
or refunding must be on terms at least as favorable to the holders of Notes as
those contained in the documentation governing the Indebtedness being renewed,
extended, refinanced, replaced, defeased or refunded and: (a) if such
Indebtedness has a final maturity date earlier than the final maturity date of
the series of Senior Notes with the latest final maturity date, then such
Permitted Refinancing Indebtedness must have a final maturity date the same as
or later than the final maturity date of, and a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being renewed, extended, refinanced, replaced, defeased or
refunded, and (b) if such Indebtedness has a final maturity date later than the
final maturity date of the series of Senior Notes with the latest final maturity
date, then such Permitted Refinancing Indebtedness must have a final maturity
date the same as or later than the final maturity date of, and a Weighted
Average Life to Maturity equal to or greater than the maturity of, the series of
Senior Notes with the latest final maturity date; (iii) if the Indebtedness
being renewed, extended, refinanced, replaced,
-6-
defeased or refunded is subordinated in right of payment to the Senior Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and is subordinated in right of payment to, the
Senior Notes on terms at least as favorable to the holders of Senior Notes as
those contained in the documentation governing the Indebtedness being
refinanced, replaced, defeased or refunded; and (iv) such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary (or, in the
case of the Receivables Financing, the special purpose entity) that is the
obligor on the Indebtedness being renewed, extended, refinanced, replaced,
defeased or refunded.
"PSC" means the New York State Public Service Commission, or any
successor agency or other governmental entity performing the same function.
"Receivables Financing" means the obligations of the Company
pursuant to the Trade Receivables Purchase and Sale Agreement, dated as of
August 30, 1996, among NM Receivables Corp., Corporate Receivables
Corporation, Citibank, N.A., Citibank North America, Inc. and the Company, as
such agreement is amended or modified from time to time.
"Restricted Subsidiary" of a Person means any Subsidiary of such a
Person that is not an Unrestricted Subsidiary.
"Securitization Transaction" means a transaction in which the
Company, pursuant to authorization of the PSC, or other appropriate governmental
authorizations, transfers rights or other property to a Person formed as a
special purpose entity in conjunction with a financing based on the Company's
right to collect a non-by passable wires or similar fee.
"Senior Indebtedness" means any senior Indebtedness of the Company,
including the First Mortgage Bonds, the Credit Facility, the Senior Notes and
the Medium-Term Notes.
"Senior Discount Notes" means the Company's 8.500% Senior Discount
Notes due 2010, which were issued pursuant to the Indenture from the Company to
IBJ Schroder
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Bank & Trust Company, dated June 30, 1998 (the "Senior Notes Indenture").
"Senior Notes" means the Company's Senior Discount Notes, the Series
A through G Senior Notes issued under the Senior Notes Indenture, the Senior
Notes Due 2007, and any other series of Senior Notes issued under the Senior
Notes Indenture or any supplemental indenture thereto.
"Senior Notes Due 2007" means the Company's 8?% Senior Notes due
2007, issued pursuant to the Indenture, as supplemented by the First
Supplemental Indenture, dated as of May 12, 2000.
"Series A Senior Notes" means the Company's 6.500% Series A Senior
Notes due 1999, which were issued pursuant to the Senior Notes Indenture.
"Series B Senior Notes" means the Company's 7.00% Series B Senior
Notes due 2000, which were issued pursuant to the Senior Notes Indenture.
"Series C Senior Notes" means the Company's 7.125% Series C Senior
Notes due 2001, which were issued pursuant to the Senior Notes Indenture.
"Series D Senior Notes" means the Company's 7.250% Series D Senior
Notes due 2002, which were issued pursuant to the Senior Notes Indenture.
"Series E Senior Notes" means the Company's 7.375% Series E Senior
Notes due 2003, which were issued pursuant to the Senior Notes Indenture.
"Series F Senior Notes" means the Company's 7.625% Series F Senior
Notes due 2005, which were issued pursuant to the Senior Notes Indenture.
"Series G Senior Notes" means the Company's 7.750% Series G Senior
Notes due 2001, which were issued pursuant to the Senior Notes Indenture.
"Subordinated Indebtedness" means Indebtedness of the Company
(whether outstanding on the date hereof or hereafter created, incurred, assumed
or Guaranteed by the Company or its Restricted Subsidiaries) which is
-8-
subordinate to the Notes in right of payment or rights upon liquidation of the
Company, whether pursuant to the terms of the instrument creating or evidencing
such Indebtedness or otherwise.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIPES Transaction" means a financing transaction or transactions in
which the Company establishes a trust or other pass-through entity whose common
equity interests are owned by the Company or a Subsidiary and whose assets
consist of debt securities of the Company or any Restricted Subsidiary for the
purpose of issuing preferred interests in such trust or other entity to
investors.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that any such Subsidiary: (a) has no
Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; and (d) has not Guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company
-9-
or any of its Restricted Subsidiaries. Any such designation by the Board of
Directors will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to
meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date. The Board of Directors may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if no Default or Event
of Default would be in existence following such designation.
"Weighted Average Life to Maturity" means, with respect to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
ARTICLE TWO
Security Forms
SECTION 201. FORM OF NOTES.
The Notes shall be in the form attached as Exhibit A to this
Supplemental Indenture.
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ARTICLE THREE
The Series of Notes
SECTION 301. TITLE AND TERMS.
There shall be a series of Securities designated as the "5.375%
Senior Notes due 2004" of the Company. Their Stated Maturity shall be October 1,
2004, and they shall bear interest at the rate of 5.375% per annum from
September 28, 2001.
Interest on the Securities will be payable semi-annually on April 1
and October 1 of each year, commencing April 1, 2002, until the principal
thereof is made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will be paid to the
Person in whose name the Notes (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date immediately
preceding the applicable Interest Payment Date, which Regular Record Date shall
be initially fixed as the Business Day immediately preceding the applicable
Interest Payment Date.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Supplemental Indenture is limited to
$300,000,000, except for Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture as supplemented
by this Supplemental Indenture and except for any Notes which, pursuant to
Section 303 of the Indenture, are deemed never to have been authenticated and
delivered under the Indenture.
The Place of Payment for the principal of (and premium, if any) and
interest on the Notes shall be the office or agency of the Company in the City
of New York, State of New York, maintained for such purpose, which shall be the
Corporate Trust Office of the Trustee, and at any other office or agency
maintained by the Company for such purpose; PROVIDED, HOWEVER, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
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The Notes shall be redeemable by the Company at any time, in whole
or in part, upon not less than 30 nor more than 60 days' notice, in cash at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest through the redemption date plus the Make Whole Premium.
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. Notes 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
Notes or did not hold such offices at the date of such Notes.
ARTICLE FOUR
Modifications and Additions to the Indenture
SECTION 401. ADDITIONAL COVENANT.
With respect to the Notes and solely for the benefit of the Notes,
the following Section 1009 shall be added to the Indenture:
"Section 1009. LIMITATION ON LIENS
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, secure with a
Lien on the property or assets of the Company or such Restricted
Subsidiary, Other Indebtedness or Subordinated Indebtedness without
making, or causing such Restricted Subsidiary to make, effective
provision for securing the Notes (i) in the case of a Lien Securing
Other Indebtedness, on an equal and ratable basis with the Lien
securing such Other Indebtedness and (ii) in the case of a Lien
securing Subordinated Indebtedness, on a basis such that the Lien
securing the Notes is senior in priority to the Lien securing such
Subordinated Indebtedness, in each case until such time as such
Other Indebtedness or Subordinated Indebtedness is no longer secured
by a Lien."
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Section 402. MODIFICATION TO DEFEASANCE AND COVENANT
DEFEASANCE; COVENANT DEFEASANCE
With respect to the Notes, Section 1303 of the Indenture shall be
substituted for the following:
"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 1009,
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 1009, 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 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 403. MODIFICATION OF SUPPLEMENTAL INDENTURES;
SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF THE HOLDERS
With respect to the Notes, Section 901(6) of the Indenture shall be
substituted with the following:
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"(6) to secure the Notes on an equal and ratable or senior basis
with Other Indebtedness or Subordinated Indebtedness, respectively, as
required by Section 1009 hereof;"
ARTICLE FIVE
Miscellaneous
SECTION 501. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture, as
supplemented by this Supplemental Indenture, and agrees to perform the same upon
the terms and conditions of the Indenture, as supplemented by this Supplemental
Indenture.
(b) The recitals contained herein shall be taken as statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
(d) Each of the Company and the Trustee makes and reaffirms as of
the date of execution of this Supplemental Indenture all of its respective
representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this Supplemental Indenture by
the Company or the Trustee shall bind its respective successors and assigns,
whether so expressed or not.
(f) In case any provisions in this Supplemental Indenture 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.
(g) Nothing in this Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto and their successors
under the Indenture
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and the Holders of the series of Securities created hereby, any benefit or any
legal or equitable right, remedy or claim under the Indenture.
(h) If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act of 1939, as may be amended from time to
time, that is required under such Act to be a part of and govern this
Supplemental Indenture, the latter provision shall control. If any provision
hereof modifies or excludes any provision of such Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Supplemental
Indenture as so modified or excluded, as the case may be.
(i) This Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflicts-of-law rules thereof.
(j) All amendments to the Indenture made hereby shall have effect
only with respect to the series of Securities created hereby.
(k) All provisions of this Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by this Supplemental Indenture, shall be read, taken and construed
as one and the same instrument.
This instrument may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-----------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the day and year first above written.
NIAGARA MOHAWK POWER CORPORATION
By ___________________________
Name:
Title:
THE BANK OF NEW YORK,
As Trustee
By ___________________________
Name:
Title:
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EXHIBIT A CUSIP NO:
$300,000,000
5.375% Senior Note due 2004
No. 1 $300,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to Cede & Co.
or its registered assigns, the principal sum of Three Hundred Million Dollars
($300,000,000) on October 1, 2004.
Interest Payment Dates: April 1 and October 1, commencing April 1, 2002.
Regular Record Dates: Business Day next preceding the applicable Interest
Payment Date.
Dated: September 28, 2001
NIAGARA MOHAWK POWER CORPORATION
By:
-------------------------------------
Name: William F. Edwards
Title: Vice President and Chief
Financial Officer
By:
-------------------------------------
Name: Arthur W. Roos
Title: Vice President and Treasurer
This is one of the Securities of the series
designated therein referred to in
the within-mentioned Indenture:
THE BANK OF NEW YORK,
As Trustee
By: ______________________________
Authorized Signatory
(Back of Note)
5.375% Senior Note due October 2004
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Niagara Mohawk Power Corporation, a New York
corporation (the "Company"), promises to pay interest on the principal amount of
this 5.375% Senior Note due 2004 (the "Note") at the rate and in the manner
specified below.
The Company shall pay interest on the principal amount of this Note
in cash at the rate per annum shown above. The Company shall pay interest
semi-annually on each April 1 and October 1, commencing April 1, 2002, or if any
such day is not a Business Day (as defined in the Indenture referred to below),
on the next succeeding Business Day (each, an "Interest Payment Date").
Interest will be computed on the basis of a 360-day year consisting
of twelve 30-day months for the actual number of days elapsed. Interest shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date hereof. To the extent lawful, the Company
shall pay interest on overdue principal and premium at the rate of 1% per annum
in excess of the then applicable interest rate on the Note, it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) at the same rate to the extent lawful. The rates of interest
specified in the Indenture and this Note are nominal rates and all interest
payments and computations are to be made without allowance or deduction for
deemed reinvestment of interest.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes to
the Persons who are registered Holders of the Notes at the close of business on
the Business Day next preceding the applicable Interest Payment Date, even if
such Notes are canceled after such record date and on or before such Interest
Payment Date. The Notes will be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders. Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
or co-registrar without prior notice to any Holder. The Company may act in any
such capacity.
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4. INDENTURE. The Company issued the Notes under an Indenture dated
as of May 12, 2000, as supplemented by the Second Supplemental Indenture dated
September 28, 2001 (as so supplemented, the "Indenture") between the Company and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes. Capitalized terms used but
not defined herein shall have the meaning assigned to them in the Indenture. The
Notes are senior unsecured obligations of the Company limited to $300 million in
aggregate principal amount.
5. OPTIONAL REDEMPTION. The Notes are redeemable by the Company at
any time, in whole or in part, upon not less than 30 nor more than 60 days'
prior notice, in cash at a redemption price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest thereon through the redemption
date plus the Make-Whole Premium.
6. MANDATORY REDEMPTION. The Company is not required to make
mandatory repurchase, redemption or sinking fund payments with respect to the
Notes.
7. NOTICE OF REDEMPTION. Notice of Redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at his registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1000, unless all Notes held by a Holder are to be redeemed. On or
after the redemption date interest ceases to accrue on the Notes or portions
thereof called for redemption.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture.
9. PERSONS DEEMED LEGAL OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Note, the Trustee, any agent
and the Company may deem and treat the person in whose name this Note is
registered as its legal and absolute owner for the purpose of receiving payment
of principal of, premium, if any, and interest on this Note and for all other
purposes whatsoever, whether or not this Note is overdue, and neither the
Trustee, any Agent nor the company shall be affected by notice to the contrary.
10. AMENDMENT, SUPPLEMENT AND WAIVER. 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 Notes at any time by the
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Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, 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 Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note 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 Note.
11. DEFAULTS AND REMEDIES. If an Event of Default with respect to
the Notes shall occur and be continuing, the principal of the Notes may be
declared and become due and payable in the manner and with the effect provided
in the Indenture.
12. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
14. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or any assignee, such as: TEN COM (= TENANTS IN COMMON), TEN ENT
(=Tenants by the entireties). JT TEN (=joint tenants with right of survivorship
and not as tenants in common). CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Indemnification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
17. DEPOSITORY TRUST COMPANY. Unless this certificate is presented
by an authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate
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issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Niagara Mohawk Power Corporation
300 Erie Boulevard West
Syracuse, New York 13202
Attention: Director, Investor Relations
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
Your signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.*
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* Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee.
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