Execution Copy NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY AND NIAGARA MOHAWK POWER CORPORATION FIRST SUPPLEMENTAL PARTICIPATION AGREEMENT Dated as of December 1, 2003 to PARTICIPATION AGREEMENT Dated as of October 1, 1991 relating to $45,600,000 Pollution Control Refunding Revenue Bonds (Niagara Mohawk Power Corporation Project), 1991 Series A _____________________________________________________________________________________________________________________ THIS FIRST SUPPLEMENTAL PARTICIPATION AGREEMENT, made and dated as of December 1, 2003 (the "First Supplemental Participation Agreement") to the PARTICIPATION AGREEMENT made and dated as of October 1, 1991, by and between NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and politic, constituting a public benefit corporation, and NIAGARA MOHAWK POWER CORPORATION, a corporation duly organized and existing and qualified to do business as a public utility under the laws of the State of New York (the "Corporation"), WITNESSETH THAT: WHEREAS, pursuant to special act of the Legislature of the State of New York (Title 9 of Article 8 of the Public Authorities Law of New York, as from time to time amended and supplemented, herein called the "Act"), the Authority has been established as a body corporate and politic, constituting a public benefit corporation; and WHEREAS, pursuant to the Act, the Authority is empowered to contract with any power company to participate in the incorporation of features in power plants and the construction of associated facilities to the extent required by the public interest in development, health, recreation, safety, conservation of natural resources and aesthetics; and WHEREAS, the Legislature of the State of New York has determined that, because interest costs incurred by public utilities are reflected in the rates paid by the customers of such utilities and because governmental action has mandated the installation of pollution control facilities, it is in the public interest to enable utilities to obtain the lowest possible interest rate on bonds sold to provide pollution control facilities; and WHEREAS, pursuant to the Act, the Authority has also been empowered to extend credit and make loans from bond and note proceeds to any person for the construction, acquisition and installation of, or for the reimbursement to any person for costs in connection with, any special energy project (as defined in the Act), including, but not limited to, any land, works, system, building or other improvement, and all real and personal properties of any nature or any interest in any of them which are suitable for or related to the furnishing, generation or production of energy; and WHEREAS, the Authority is also authorized under the Act to borrow money and issue its negotiable bonds and notes to provide sufficient monies for achieving its corporate purposes, including the refunding of outstanding obligations of the Authority; and WHEREAS, the Authority is also authorized under the Act to enter into any contracts and to execute all instruments necessary or convenient for the exercise of its corporate powers and the fulfillment of its corporate purposes, including the refunding of outstanding bonds and notes of the Authority; and WHEREAS, the Authority and the Corporation have entered into an Original Participation Agreement, dated as of October 1, 1991 (herein referred to as the "Original Participation Agreement"), providing for the financing or refinancing of certain costs related to the acquisition, construction, and installation of certain pollution control, sewage and other facilities identified and described in Exhibit A to the Original Participation Agreement, and, as part of such participation, that the Authority issue bonds pursuant to the Act to provide funds for such financing or refinancing; and WHEREAS, on October 29, 1991, the Authority issued $45,600,000 aggregate principal amount of its Pollution Control Refunding Revenue Bonds (Niagara Mohawk Power Corporation Project), 1991 Series A (the "Bonds"), under and pursuant to Resolution No. 766 of the Authority, adopted September 30, 1991, and an Indenture of Trust dated as of October 1, 1991 (the "Original Indenture"), between the Authority and The Bank of New York as trustee (the "Trustee"), as amended and supplemented by a First Supplemental Indenture of Trust dated November 14, 2003 (the "First Supplemental Indenture" and, together with the Original Indenture, the "1991 Series A Indenture"), to provide funds for the financing or refinancing described in the preceding whereas clause; and WHEREAS, the Corporation directed that the Bonds be called for redemption on December 16, 2003 (the "Redemption Date"), pursuant to Section 8.01 of the 1991 Series A Indenture, and notice advising of such redemption and of the Corporation's right to purchase in lieu of redemption any Bonds on the Redemption Date, was delivered pursuant to Section 8.03 of the 1991 Series A Indenture; and WHEREAS, on the Redemption Date, the Corporation purchased the Bonds called for redemption in lieu of redemption pursuant to Section 8.07 of the 1991 Series A Indenture; and WHEREAS, Section 6.04 of the Original Participation Agreement and Section 4.02 of the 1991 Series A Indenture provide that the Authority and the Trustee may, in accordance with the terms thereof, modify, amend or supplement the Original Participation Agreement; and WHEREAS, the Corporation has requested that upon acquiring the Bonds, the 1991 Series A Indenture be amended and restated and that the Original Participation Agreement be amended to (i) permit the Bonds to bear interest at various variable interest rates, including, without limitation, at daily, weekly, monthly, semi-annual, term, commercial paper and auction rates, (ii) provide for new provisions made necessary or desirable by the issuance of a municipal bond insurance policy, and (iii) otherwise conform certain terms of the 1991 Series A Indenture relating to the Bonds while they bear interest at variable interest rates and certain other terms of the 1991 Series A Indenture with the current market standard for multi-modal bonds; and WHEREAS, on December 17, 2003, the Corporation, as registered owner of all the Bonds, consented to the amendments to the 1991 Series A Indenture and the Agreement, and waived any and all rights to any notification or filing procedures or requirements under the 1991 Series A Indenture in addition to the consent provided thereby; and WHEREAS, simultaneously with the execution and delivery of this First Supplemental Participation Agreement, the Authority and the Trustee have executed and delivered an Amended and Restated Indenture of Trust, dated as of December 1, 2003 (the "Amended and Restated Indenture"), which amends and restates the 1991 Series A Indenture; and WHEREAS, simultaneously with the execution and delivery of this First Supplemental Participation Agreement, an Opinion of Bond Counsel described in Section 4.01.3(C) of the Amended and Restated Indenture has been delivered to the Trustee; and WHEREAS, simultaneously with the execution and delivery of the Amended and Restated Indenture, without any further notice, the Bonds will bear interest at an Auction Period Rate; and WHEREAS, all acts, conditions and things necessary or required by the Constitution and statutes of the State of New York, or otherwise, to exist, happen, and be performed as prerequisites to the passage of this First Supplemental Participation Agreement, do exist, have happened, and have been performed; and NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the Authority agrees with the Corporation, with the written consent of the Trustee and the Financial Guaranty Insurance Company, as follows: ARTICLE I AUTHORIZATION; DEFINITIONS Section 1.01. Supplemental Agreement. This First Supplemental Participation Agreement is amendatory and supplemental to the Original Participation Agreement, and is entered into in accordance with Section 6.04 of the Original Participation Agreement and Article IV of the 1991 Series A Indenture; and except as modified, amended and supplemented by this First Supplemental Participation Agreement, the provisions of the Original Participation Agreement are in all respects ratified and confirmed and shall remain in full force and effect. Section 1.02. Definitions. Capitalized terms used herein and not otherwise defined herein or in the Original Participation Agreement shall have the meaning given to such terms in the Amended and Restated Indenture. ARTICLE II REPRESENTATIONS Section 2.01 Representations of the Authority. The Authority represents and warrants as follows: (a) The Authority is a body corporate and politic, constituting a public benefit corporation, established and existing under the laws of the State of New York; (b) The Authority has full power and authority to execute and deliver this First Supplemental Participation Agreement and the Amended and Restated Indenture and to consummate the transactions contemplated hereby and thereby and perform its obligations hereunder and thereunder; (c) The Authority is not in default under any of the provisions of the laws of the State of New York which would affect its existence or its powers referred to in the preceding paragraph (b); and (d) The Authority has duly authorized the execution and delivery of this First Supplemental Participation Agreement, the Supplemental Tax Regulatory Agreement and the Amended and Restated Indenture. Section 2.02. Representations of the Corporation. The Corporation represents and warrants as follows: (a) The Corporation is a corporation duly incorporated and in good standing under the laws of the State of New York, is duly qualified and authorized to engage in business as a public utility in the State of New York, has power to enter into, execute and deliver this First Supplemental Participation Agreement, the Supplemental Tax Regulatory Agreement, and the Corporation Obligation and by proper corporate action has duly authorized the execution and delivery of this First Supplemental Participation Agreement, the Supplemental Tax Regulatory Agreement and the Corporation Obligation; (b) The execution, delivery and performance of this First Supplemental Participation Agreement, the Supplemental Tax Regulatory Agreement and the Corporation Obligation and the consummation of the transactions herein contemplated will not conflict with or constitute a breach of or a default under the Corporation's Certificate of Consolidation or By-Laws or any judgment, decree, order, statute, rule or regulation applicable to the Corporation or any indenture, mortgage, loan agreement or other contract or instrument to which the Corporation is a party or by which it is bound; (c) The execution and delivery of this First Supplemental Participation Agreement and the issuance of the Corporation Obligation by the Corporation in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (d) All necessary authorizations for or approvals of the execution and delivery of this First Supplemental Participation Agreement, the Supplemental Tax Regulatory Agreement and the Corporation Obligation have been obtained by the Corporation. The Corporation additionally represents and warrants that the representations and warranties of the Corporation set forth in the Supplemental Tax Regulatory Agreement are true and correct in all material respects as of the date hereof and as of the Effective Date. ARTICLE III AMENDMENTS TO THE ORIGINAL PARTICIPATION AGREEMENT Section 3.01. Amendment to Section 1.01 of the Original Participation Agreement. Section 1.01 of the Original Participation Agreement is hereby amended and restated to read as follows: Section 1.01. Definitions. Capitalized terms used in this Participation Agreement and not otherwise defined herein shall have the meanings set forth in Section 1.01 of the Amended and Restated Indenture. Capitalized terms used in this Participation Agreement and not otherwise defined herein or in Section 1.01 of the Amended and Restated Indenture shall have the meanings set forth in Section 1.01 of the Original Indenture. Section 3.02. Replacement of certain terms in the Original Participation Agreement. The Original Participation Agreement is hereby amended to replace throughout the Original Participation Agreement any reference to a term set forth under the Old Term column below with a corresponding term set forth under the New Term column below. Old Term New Term Paying Agent Registrar and Paying Agent Indenture Amended and Restated Indenture Section 3.03. Amendment to Section 3.01 of the Original Participation Agreement. Section 3.01 of the Original Participation Agreement is hereby amended and restated to read as follows: Section 3.01. Construction of the Project. The Corporation hereby represents that it has caused the Project to be completed and acknowledges that it shall not be entitled to any reimbursement for the cost of construction of the Project from the Authority, the Trustee or the Holders of the Bonds, nor shall it be entitled to any diminution or postponement of the payments required to be paid by the Corporation pursuant to this Participation Agreement or the Corporation Obligation. Section 3.04. Amendment to Section 3.03 of the Original Participation Agreement. Section 3.03 of the Original Participation Agreement is hereby amended and restated to read as follows: Section 3.03. Application of proceeds of the Bonds. The Corporation has applied the proceeds of sale of the Bonds in accordance with the Original Indenture and the Original Participation Agreement. Section 3.05. Amendments to Sections 3.04, 3.05 and 3.06 of the Original Participation Agreement. Sections 3.04, 3.05 and 3.06 of the Original Participation Agreement are hereby deleted. Section 3.06. Amendment to Section 3.07 of the Original Participation Agreement. Section 3.07 of the Original Participation Agreement is hereby amended and restated to read as follows: Section 3.07. Sale of the Project . Pursuant to an Asset Sales Agreement relating to Huntley Steam Station ("Huntley") and Dunkirk Steam Station ("Dunkirk"), dated as of December 23, 1998, between the Corporation, and NRG Energy, Inc. (the "Huntley/Dunkirk Purchaser"), the Corporation has sold Huntley and Dunkirk of which certain portions of the Project are a part to the Huntley/Dunkirk Purchaser. Pursuant to an Asset Sales Agreement relating to Oswego Steam Station ("Oswego"), dated as of April 1, 1999, by and among the Corporation, Rochester Gas and Electric Corporation, Oswego Harbor Power LLC, and NRG Energy, Inc. (the "Oswego Purchaser"), the Corporation has sold its interest in Oswego of which certain portions of the Project are a part to the Oswego Purchaser. Pursuant to an Asset Purchase and Sale Agreement relating to Roseton Generating Station ("Roseton"), dated August 7, 2000, by and among the Corporation, Central Hudson Gas and Electric Corporation, Consolidated Edison Company of New York, Inc. and Dynegy Power Corp. (the "Roseton Purchaser"), the Corporation has sold its interest in Roseton of which certain portions of the Project are a part to the Roseton Purchaser. Section 3.07. Amendment to Section 3.09 of the Original Participation Agreement. Section 3.09 of the Original Participation Agreement is hereby amended and restated to read as follows: Section 3.09. Investment of moneys in funds under the Amended and Restated Indenture. Any moneys held as part of any fund created under the Amended and Restated Indenture shall, at the direction of an Authorized Corporation Representative, be invested or reinvested by the Trustee as provided in Section 9.04 of the Amended and Restated Indenture. Section 3.08. Amendment to Section 4.01 of the Original Participation Agreement. Section 4.01 of the Original Participation Agreement is hereby amended and restated to read as follows: Section 4.01. Execution and delivery of Corporation Obligation to Trustee. In order to evidence the obligation of the Corporation to the Authority to repay the advance of the proceeds of the Bonds, the Authority hereby directs the Corporation, and the Corporation hereby agrees, to deliver or cause to be delivered the First Mortgage Bonds to the Trustee on the Effective Date. The First Mortgage Bonds shall be the amended and restated first mortgage bonds of the Corporation issued under the Corporation Indenture and relating to the Bonds in substantially the form included in the Supplemental Corporation Indenture attached hereto as Exhibit B, with only such changes, omissions and insertions thereto as shall have been approved by the Authority. Section 3.09. Amendment to Section 4.04 of the Original Participation Agreement. Section 4.04 of the Original Participation Agreement is hereby amended to add the following paragraph between the first and second paragraph in such section: In addition, the Corporation shall wire to the State of New York on the Effective Date a bond issuance charge fee applicable to the Bonds pursuant to Section 2976 of the Public Authorities Law of the State of New York in the amount specified by such section on the Effective Date. The Corporation shall also pay to the Authority on the Effective Date an additional Administration Fee in the amount of $114,000.00. Section 3.10. Addition of Section 4.12 to Article IV of the Original Participation Agreement. The Original Participation Agreement is hereby amended to add the following Section 4.12 to Article IV of the Original Participation Agreement: Section 4.12. Payment to Registrar and Paying Agent. The Corporation shall pay, or cause to be paid, to the Registrar and Paying Agent for deposit in the Bond Purchase Fund and credit to the Company Account therein an amount sufficient to provide for the payment of the Purchase Price of any Bond tendered for purchase pursuant to the Amended and Restated Indenture and the Bond Purchase Trust Agreement to the extent that sufficient moneys are not available for the payment of such Purchase Price from the other sources described therein. Section 3.11. Addition of Section 4.13 to Article IV of the Original Participation Agreement. The Original Participation Agreement is hereby amended to add the following Section 4.13 to Article N of the Original Participation Agreement: Section 4.13. Agreements of the Corporation relating to Support Facilities. The Corporation agrees not to request that the interest rate mode applicable to the Bonds be adjusted to an Adjustable Rate or a Fixed Rate unless on the effective date of the applicable Change in the Interest Rate Mode the Bonds shall be rated at least "A" by S and P or "A" by Moody's or an equivalent rating by any nationally recognized rating agency. Such rating of the Bonds may, but is not required to, be achieved by obtaining a Support Facility which meets the requirements of Article VI of the Amended and Restated Indenture. The Corporation further agrees that it will maintain a Liquidity Facility issued by a financial institution rated not less than "A" by at least one nationally recognized rating agency in effect with respect to the Bonds at all times, except with respect to Bonds bearing an Auction Period Rate, a Term Rate for a Calculation Period of greater than 13 months or a Fixed Rate. Notwithstanding the foregoing, so long as the conditions set forth in Section 6.05 of the Amended and Restated Indenture are met by the Bond Insurer and with respect to the Policy, and unless otherwise agreed by the Bond Insurer, the Corporation shall maintain a Liquidity Facility issued by a financial institution rated not less than "A" by at least one nationally recognized rating agency in effect with respect to the Bonds at all times, except with respect to Bonds bearing an Auction Period Rate or a Fixed Rate. Section 3.12. Addition of Section 4.14 to Article IV of the Original Participation Agreement. The Original Participation Agreement is hereby amended to add the following Section 4.14 at the end of Article IV of the Original Participation Agreement: Section 4.14. Corporation liable to owners of Bonds in the case of certain events of taxability. The Corporation confirms and agrees that if as result of action by the Corporation, the owner of the Project as of the date hereof, or any successor owner of the Project, the interest on the Bonds is determined to be included for federal income tax purposes in the gross income of any owner of a Bond (other than a "substantial user" of the Project or a "related person" within the meaning of section 147(a)(1) of the Code), as evidenced by a published or private ruling of the Internal Revenue Service or a final, nonappealable judicial decision by a court of competent jurisdiction, then the Corporation, in addition to its obligation to redeem the Bonds pursuant to Section 5.06 of the Amended and Restated Indenture, shall be liable to the affected owners of the Bonds for any taxes, penalties and interest assessed against such owners by the Internal Revenue Service and attributable to the Bonds. The Authority and the Trustee agree not to object to the intervention in or participation by the Corporation at its own expense in any proceedings by or before the Internal Revenue Service or any court relating to whether interest on the Bonds is includable for federal income tax purposes in the gross income of any owner of a Bond (other than a "substantial user" of the Project or a "related person" within the meaning of Section 147(a)(1) of the Code). Section 3.13. Addition of Section 5.u8 to Article V of the Original Participation Agreement. The Original Participation Agreement is hereby amended to add the following Section 5.08 at the end of Article V of the Original Participation Agreement: Section 5.08. Recording and Filing. The Corporation hereby covenants that it will cause all financing statements related to the Amended and Restated Indenture and all supplements thereto and this Participation Agreement and all supplements thereto, as well as such other security agreements, financing statements and all supplements thereto and other instruments as may be required from time to time to be kept, to be recorded and filed in such manner and in such places as may from time to time be required by law in order to preserve and protect fully the security of Holders and the rights of the Trustee hereunder, and to take or cause to be taken any and all other action necessary to perfect the security interest created by the Amended and Restated Indenture and shall, within ten (10) days after such filing, cause there to be furnished to the Trustee an opinion of counsel as to the adequacy and details of such filing and specifying any re-filing to be effected in the future. Section 3.14. Addition and insertion of Article VI to the Original Participation Agreement. The Original Participation Agreement is hereby amended to add and insert the following Article VI, Sections 6.01, 6.02, 6.03 and 6.04 after Article V of the Original Participation Agreement: ARTICLE VI DEFAULTS BY CORPORATION; REMEDIES Section 6.01. Events of Default; Acceleration. In case one or more of the following events of default shall have occurred and be continuing; (a) failure by the Corporation to pay when due any amount required to be paid under this Participation Agreement or the Corporation Obligation, which failure causes a default in the payment when due of the principal of, or premium, if any, or interest on, any of the Bonds; or (b) failure by the Corporation to pay when due any amount required to be paid under Section 4.11 of this Participation Agreement, which failure causes an Event of Default to occur pursuant to paragraph (a) of Section 12.01 of the Amended and Restated Indenture; or (c) failure on the part of the Corporation duly to observe or perform any other of the covenants or agreements on the part of the Corporation contained in the Participation Agreement (other than failure to pay amounts required to be paid under Sections 4.04, 4.05 and 4.08), the Tax Regulatory Agreement or in the Corporation Obligation for a period of ninety (90) days after the date on which written notice of such failure, requiring the Corporation to remedy the same, shall have been given to the Corporation by the Authority or the Trustee; or (d) the occurrence of an Event of Bankruptcy of the Corporation or failure by the Corporation generally to pay its debts in the Corporation Indenture; then, and in any such event, the Trustee (as assignee of the Authority), may with the consent of the Bond Insurer (assuming the Bond Insurer is not in default under the Policy), and/or the direction of the Bond Insurer (assuming the Bond Insurer is not in default under the Policy) or upon the written request or direction of the owners of not less than twenty-five percent (25%) in aggregate principal amount of the Bonds then outstanding with the consent of the Bond Insurer shall, by notice in writing to the Corporation and provided that the default has not theretofore been cured, declare the Corporation Obligation to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Corporation Obligation to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken here shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Corporation Obligation shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being annulled pursuant to Section 12.03 of the Amended and Restated Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Corporation Obligation which shall have become due and payable otherwise than by such declaration, and all other sums payable under this Participation Agreement, except the principal of, and interest on, the Corporation Obligation which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefore, then and in every such case, the Bond Insurer (unless the Bond Insurer is then in default under the Policy), or the owners of a majority in aggregate principal amount of the Bonds then outstanding, with the consent of the Bond Insurer, by written notice to the Authority and to the Trustee, may rescind such declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least twenty-five percent (25%) in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of a majority in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Corporation Obligation and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in every such case the Corporation, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation, the Authority and the Trustee shall continue as though no such proceedings had been taken. Section 6.02. Events of Default relating to fees or indemnification. In case the Corporation shall have failed to pay amounts required to be paid under Sections 4.04, 4.05 and 4.08, which event shall have continued for a period of ninety (90) days after the date on which written notice of such failure, requiring the Corporation to remedy the same, shall have been given to the Corporation by the Authority or the Trustee, the Authority or the Trustee may take whatever action at law or in equity as may appear necessary or desirable to enforce performance or observance of any obligations or agreements of the Corporation under said Sections 4.04, 4.05 and 4.08. Section 6.03. Judicial proceedings by Trustee. Upon the occurrence and continuance of an event of default under this Article, the Trustee may, and upon the written request of the owners of at least twenty-five percent (25%) in aggregate principal amount of the Bonds then outstanding shall, institute any actions or proceedings at law or in equity for the collection of any amounts then due and unpaid on the Corporation Obligation, and may prosecute any such action or proceeding to judgment or final decree, and may collect in the manner provided by law the moneys adjudged or decreed to be payable. Section 6.04. Rights of the Credit Facility Issuer; Other rights of the Trustee to enforce this Participation Agreement. Notwithstanding anything herein to the contrary, any judicial proceedings of the Trustee under Section 6.03 may be instituted only with the written consent of the Credit Facility Issuer and shall be instituted by the Trustee at the written direction of the Credit Facility Issuer. Nothing in this Participation Agreement shall limit any other rights of the Trustee to enforce this Participation Agreement. Section 3.15. Amendment to Article VI of the Original Participation Agreement. Article VI of the Original Participation Agreement is hereby redesignated as Article VII, and all Sections therein and cross-references to such Sections therein are redesignated accordingly (e.g., Section 6.01 is hereby redesignated as Section 7.01, etc.). Sections 6.02, and 6.04, in addition to being redesignated as Sections 7.02 and 7.04, respectively, are further amended and restated to read as follows: Section 7.02. Notices. All notices, certificates, requests or other communications between the Authority, the Corporation and the Trustee required to be given under this Participation Agreement or under the Amended and Restated Indenture shall be sufficiently given and shall be deemed given when delivered by hand or first class mail, postage prepaid, addressed as follows: if to the Authority, at 17 Columbia Circle, Albany, New York 12203, Attention: President; if to the Corporation, at 300 Erie Boulevard West, Syracuse, New York 13202, Attention: Treasurer, with a copy to Niagara Mohawk Power Corporation, 25 Research Drive, Westborough, Massachusetts 01582, Attention: Assistant Treasurer; and if to the Trustee or the Registrar and Paying Agent, at The Bank of New York, 101 Barclay Street - 21W, New York, New York 10286, Attention: Corporate Trust Administration. A duplicate copy of each notice, certificate, request or other communication given hereunder to the Authority, the Company or the Trustee shall also be given to the others. The Corporation, the Authority and the Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. Section 7.04. Amendment of Participation Agreement. This Participation Agreement may not be amended except by an instrument in writing signed by the parties hereto and, if such amendment occurs after the issuance of the Bonds, upon compliance with the provisions of Article XIV of the Amended and Restated Indenture. Section 3.16. Addition of Exhibit B to the Original Participation Agreement. The Original Participation Agreement is hereby amended to add Exhibit B, as attached to this First Supplemental Participation Agreement. ARTICLE IV MISCELLANEOUS Section 4.01. Law and Place of Enforcement of this First Supplemental Participation Agreement. This First Supplemental Participation Agreement shall be construed and interpreted in accordance with the laws of the State of New York and all suits and actions arising out of this First Supplemental Participation Agreement shall be instituted in a court of competent jurisdiction in the State of New York. Section 4.02. Effective Date; Counterparts. This First Supplemental Participation Agreement may be simultaneously executed in counterparts. Each such counterpart so executed shall be deemed to be an original, and all together shall constitute but one and the same instrument. This First Supplemental Participation Agreement shall become effective on the Effective Date. Notwithstanding the Effective Date, for convenience and purposes of reference this First Supplemental Participation Agreement shall be dated as of December 1, 2003 and may be cited and referred to as the "First Supplemental Participation Agreement dated as of December 1, 2003." None of the rights, covenants, interests, duties or obligations accruing to or required of any Bondholder, the Authority, the Corporation, the Trustee, or any Support Facility Issuer prior to the Effective Date shall be affected by the execution and delivery of this First Supplemental Participation Agreement. [Signature Page of this Supplemental Agreement Follows] IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Agreement to be duly executed as of the day and year first written above. NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY By___________________________________ Acting President (SEAL) Attest: _______________________________ Assistant Secretary NIAGARA MOHAWK POWER CORPORATION By_____________________________________ Name: Robert G. Seega Title: Assistant Treasurer (SEAL) Attest: _______________________________ Assistant Secretary [Signature Page of Supplemental Agreement relating to Pollution Control Refunding Reveneu Bonds (Niagara Mohawk Power Corporation Project), 1991 Series A] __________________________________________________________________________________________ EXHIBIT B Corporation Supplemental Indenture [See Item Number 31 of this Record of Proceedings]
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10-K Filing
Niagara Mohawk Power (NMKBP) 10-K2004 FY Annual report
Filed: 29 Jun 04, 12:00am