EXHIBIT A
FORM OF ___% SERIES A SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$300,000,000
__ % Series A Senior Note due 1999
No. $300,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________
Dollars ($ ) on July 1, 1999.
Interest Payment Dates: January 1 and July 1, commencing January 1, 1999
Record Dates: December 15 and June 15
Dated: _______________ ___, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:______________________________
Authorized Signature
(Back of Senior Note)
___% Series A Senior Note due 1999
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 ___%
Series A Senior Note due 1999 (the "Senior Note") at the rate and in the
manner specified below.
The Company shall pay interest on the principal amount of this
Senior Note in cash at the rate per annum shown above. The Company shall pay
interest semi-annually on each January 1 and July 1, commencing January 1,
1999, 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 of the original issuance of this
Senior Note. 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 this Senior 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 Senior 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 Senior
Notes to the Persons who are registered Holders of Senior Notes at the close
of business on the December 15 and June 15 next preceding the Interest
Payment Date, even if such Senior Notes are cancelled after such record date
and on or before such Interest Payment Date. The Senior 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 payment of public and
private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to $300
million in aggregate.
5. OPTIONAL REDEMPTION.
The Senior 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.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
2
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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 Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes. Without the consent of any Holder of a
Senior Note, the Indenture or the Senior Notes may be amended or
supplemented, and the Company and the Trustee may enter into Supplemental
Indentures which shall thereafter form a part of the Indenture, to cure any
ambiguity, defect or inconsistency, to secure the Senior Notes under
circumstances set forth in the Indenture, to establish and create new series
of Senior Notes, to provide that the Company shall not issue any additional
series of Senior Notes, to add additional covenants and agreements of the
Company to the Indenture, to provide for alterative methods or forms for
evidencing and recording ownership of Senior Notes, to provide for the
assumption of the Company's obligations to Holders of the Senior Notes in
case of a merger, amalgamation, consolidation or sale of all or substantially
all of the Company's assets, to make any change that would provide any
additional rights or benefits to the Holders of the Senior Notes or that does
not adversely affect the legal rights under the Indenture of any such Holder,
or to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with
3
any of the provisions of Sections 4.07, 4.09 or 5.01 of the Indenture; (iv)
failure by either the Company for 60 days after written notice by the Trustee
or the Holders of at least 25 % or more in aggregate principal amount of the
Senior Notes to comply with its other agreements in the Indenture or the
Senior Notes involves non-payment of principal or interest or; (v) default
under certain other agreements relating to Indebtedness of the Company which
default involves non-payment of principal or interest, or results in the
acceleration of such Indebtedness prior to its stated maturity; (vi) certain
final judgments for the payment of money that remain undischarged for a
period of 60 days; and (vii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries. If any Event
of Default occurs and is continuing, the Trustee or the Holders of at least
25 % in principal amount of the then outstanding Senior Notes may declare all
the Senior Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Notes will become due and payable without
further action or notice. Holders may not enforce the Indenture or the
Senior Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Senior Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Senior Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding by notice to
the Trustee may on behalf of the Holders of all of the Senior Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of principal
of, or interest on, the Senior Notes, except a payment default resulting from
an acceleration that has been rescinded. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and the Company is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or
Event of Default.
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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
14. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
4
15. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an 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 Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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
Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on
this Senior Note)
Tax Identification No.:_____________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
EXHIBIT B
FORM OF __% SERIES B SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$450,000,000
__ % Series B Senior Note due 2000
No. $450,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________
Dollars ($ ) on October 1, 2000.
Interest Payment Dates: April 1 and October commencing October 1, 1998
Record Dates: March 15 and September 15
Dated: ___________ __, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:______________________________
Authorized Signature
(Back of Senior Note)
___% Series B Senior Note due 2000
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 ___%
Series B Senior Note due 2000 (the "Senior Note") at the rate and in the
manner specified below.
The Company shall pay interest on the principal amount of this
Senior 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 October 1,
1998, 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 of the original issuance of this
Senior Note. 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 this Senior 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 Senior 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 Senior
Notes to the Persons who are registered Holders of Senior Notes at the close
of business on the March 15 and September 15 next preceding the Interest
Payment Date, even if such Senior Notes are cancelled after such record date
and on or before such Interest Payment Date. The Senior 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 payment of public and
private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to $450
million in aggregate.
5. OPTIONAL AND SPECIAL OPTIONAL REDEMPTION.
The Senior 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.
Notwithstanding the foregoing, the Company may, at its option, by
delivering a notice of redemption at any time during the period from April 1,
1999 through December 31, 2000, use all or a portion of the Net Proceeds from
any sale or sales of Fossil and Hydro Generating Assets to redeem up to
$500,000,000 aggregate principal amount of the Notes in Series B through F at
a cash redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of redemption, in
the manner and subject to the limitations set forth in the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
2
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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 Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes. Without the consent of any Holder of a
Senior Note, the Indenture or the Senior Notes may be amended or
supplemented, and the Company and the Trustee may enter into Supplemental
Indentures which shall thereafter form a part of the Indenture, to cure any
ambiguity, defect or inconsistency, to secure the Senior Notes under
circumstances set forth in the Indenture, to establish and create new series
of Senior Notes, to provide that the Company shall not issue any additional
series of Senior Notes, to add additional covenants and agreements of the
Company to the Indenture, to provide for alternative methods or forms for
evidencing and
3
recording ownership of Senior Notes, to provide for the assumption of the
Company's obligations to Holders of the Senior Notes in case of a merger,
amalgamation, consolidation or sale of all or substantially all of the
Company's assets, to make any change that would provide any additional rights
or benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes; (v)
default under certain other agreements relating to Indebtedness of the
Company which default involves non-payment of principal or interest, or
results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25 % in principal amount of the then outstanding
Senior Notes may declare all the Senior Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Senior Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Senior Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders
of a majority in aggregate principal amount of the Senior Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
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.
4
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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
14. AUTHENTICATION. This Senior 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 an 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 Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
5
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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 Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on
this Senior Note)
Tax Identification No.:_____________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
EXHIBIT C
FORM OF ___% SERIES C SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$400,000,000
__ % Series C Senior Note due 2001
No. $400,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________
Dollars ($ ) on July 1, 2001.
Interest Payment Dates: January 1 and July 1, commencing January 1, 1999
Record Dates: December 15 and June 15
Dated: __________ __, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:______________________________
Authorized Signature
(Back of Senior Note)
___% Series C Senior Note due 2001
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 ___%
Series C Senior Note due 2001 (the "Senior Note") at the rate and in the
manner specified below.
The Company shall pay interest on the principal amount of this
Senior Note in cash at the rate per annum shown above. The Company shall pay
interest semi-annually on each January 1 and July 1, commencing January,
1999, 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 of the original issuance of this
Senior Note. 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 this Senior 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 Senior 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 Senior
Notes to the Persons who are registered Holders of Senior Notes at the close
of business on the December 15 and June 15 next preceding the Interest
Payment Date, even if such Senior Notes are cancelled after such record date
and on or before such Interest Payment Date. The Senior 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 payment of public and
private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to $400
million in aggregate.
5. OPTIONAL AND SPECIAL OPTIONAL REDEMPTION.
The Senior 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.
Notwithstanding the foregoing, the Company may, at its option, by
delivering a notice of redemption at any time during the period from April 1,
1999 through December 31, 2000, use all or a portion of the Net Proceeds from
any sale or sales of Fossil and Hydro Generating Assets to redeem up to
$500,000,000 aggregate principal amount of the Notes in Series B through F at
a cash redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of redemption, in
the manner and subject to the limitations set forth in the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
2
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. 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 Senior Notes are to be redeemed at his registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Senior Notes held by a Holder
are to be redeemed. On and after the redemption date interest ceases to
accrue on Senior Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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.
10. PERSONS DEEMED LEGAL OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding
3
Senior Notes. Without the consent of any Holder of a Senior Note, the
Indenture or the Senior Notes may be amended or supplemented, and the Company
and the Trustee may enter into Supplemental Indentures which shall thereafter
form a part of the Indenture, to cure any ambiguity, defect or inconsistency,
to secure the Senior Notes under circumstances set forth in the Indenture, to
establish and create new series of Senior Notes, to provide that the Company
shall not issue any additional series of Senior Notes, to add additional
covenants and agreements of the Company to the Indenture, to provide for
alterative methods or forms for evidencing and recording ownership of Senior
Notes, to provide for the assumption of the Company's obligations to Holders
of the Senior Notes in case of a merger, amalgamation, consolidation or sale
of all or substantially all of the Company's assets, to make any change that
would provide any additional rights or benefits to the Holders of the Senior
Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder, or to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes; (v)
default under certain other agreements relating to Indebtedness of the
Company which default involves non-payment of principal or interest, or
results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25 % in principal amount of the then outstanding
Senior Notes may declare all the Senior Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Senior Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Senior Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders
of a majority in aggregate principal amount of the Senior Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the
4
Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. 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.
14. 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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an 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).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
5
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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 Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on this
Senior Note)
Tax Identification
No.:________________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
EXHIBIT D
FORM OF ____% SERIES D SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$400,000,000
__ % Series D Senior Note due 2002
No. $400,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________
Dollars ($ ) on October 1, 2002.
Interest Payment Dates: April 1 and October 1, commencing October 1, 1998
Record Dates: March 15 and September 15
Dated: ____________ ___, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:______________________________
Authorized Signature
(Back of Senior Note)
___% Series D Senior Note due 2002
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 ___%
Series D Senior Note due 2002 (the "Senior Note") at the rate and in the
manner specified below.
The Company shall pay interest on the principal amount of this
Senior 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 October 1,
1998, 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 of the original issuance of this
Senior Note. 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 this Senior 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 Senior 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 Senior
Notes to the Persons who are registered Holders of Senior Notes at the close
of business on the March 15 and September 15 next preceding the Interest
Payment Date, even if such Senior Notes are cancelled after such record date
and on or before such Interest Payment Date. The Senior 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 payment of public and
private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to $400
million in aggregate.
5. OPTIONAL AND SPECIAL OPTIONAL REDEMPTION.
The Senior 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.
Notwithstanding the foregoing, the Company may, at its option, by
delivering a notice of redemption at any time during the period from April 1,
1999 through December 31, 2000, use all or a portion of the Net Proceeds from
any sale or sales of Fossil and Hydro Generating Assets to redeem up to
$500,000,000 aggregate principal amount of the Notes in Series B through F at
a cash redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of redemption, in
the manner and subject to the limitations set forth in the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
2
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. 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 Senior Notes are to be redeemed at his registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Senior Notes held by a Holder
are to be redeemed. On and after the redemption date interest ceases to
accrue on Senior Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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.
10. PERSONS DEEMED LEGAL OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding
3
Senior Notes. Without the consent of any Holder of a Senior Note, the
Indenture or the Senior Notes may be amended or supplemented, and the Company
and the Trustee may enter into Supplemental Indentures which shall thereafter
form a part of the Indenture, to cure any ambiguity, defect or inconsistency,
to secure the Senior Notes under circumstances set forth in the Indenture, to
establish and create new series of Senior Notes, to provide that the Company
shall not issue any additional series of Senior Notes, to add additional
covenants and agreements of the Company to the Indenture, to provide for
alterative methods or forms for evidencing and recording ownership of Senior
Notes, to provide for the assumption of the Company's obligations to Holders
of the Senior Notes in case of a merger, amalgamation, consolidation or sale
of all or substantially all of the Company's assets, to make any change that
would provide any additional rights or benefits to the Holders of the Senior
Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder, or to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes; (v)
default under certain other agreements relating to Indebtedness of the
Company which default involves non-payment of principal or interest, or
results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25 % in principal amount of the then outstanding
Senior Notes may declare all the Senior Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Senior Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Senior Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders
of a majority in aggregate principal amount of the Senior Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the
4
Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. 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.
14. 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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an 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).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
5
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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
Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on this
Senior Note)
Tax Identification
No.:________________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
EXHIBIT E
FORM OF ___% SERIES E SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$400,000,000
__ % Series E Senior Note due 2003
No. $400,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________
Dollars ($ ) on July 1, 2003.
Interest Payment Dates: January 1 and July 1, commencing January 1, 1999
Record Dates: December 15 and June 15
Dated: _______________ ___, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:______________________________
Authorized Signature
(Back of Senior Note)
___% Series E Senior Note due 2003
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 ___%
Series E Senior Note due 2003 (the "Senior Note") at the rate and in the
manner specified below.
The Company shall pay interest on the principal amount of this
Senior Note in cash at the rate per annum shown above. The Company shall pay
interest semi-annually on each January 1 and July 1, commencing January 1,
1999, 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 of the original issuance of this
Senior Note. 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 this Senior 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 Senior 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 Senior
Notes to the Persons who are registered Holders of Senior Notes at the close
of business on the December 15 and June 15 next preceding the Interest
Payment Date, even if such Senior Notes are cancelled after such record date
and on or before such Interest Payment Date. The Senior 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 payment of public and
private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to $400
million in aggregate.
5. OPTIONAL AND SPECIAL OPTIONAL REDEMPTION.
The Senior 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.
Notwithstanding the foregoing, the Company may, at its option, by
delivering a notice of redemption at any time during the period from April 1,
1999 through December 31, 2000, use all or a portion of the Net Proceeds from
any sale or sales of Fossil and Hydro Generating Assets to redeem up to
$500,000,000 aggregate principal amount of the Notes in Series B through F at
a cash redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of redemption, in
the manner and subject to the limitations set forth in the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
2
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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 Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes. Without the consent of any Holder of a
Senior Note, the Indenture or the Senior Notes may be amended or
supplemented, and the Company and the Trustee may enter into Supplemental
Indentures which shall thereafter form a part of the Indenture, to cure any
ambiguity, defect or inconsistency, to secure the Senior Notes under
circumstances set forth in the Indenture, to establish and create new series
of Senior Notes, to provide that the Company shall not issue any additional
series of Senior Notes, to add additional covenants and agreements of the
Company to the Indenture, to provide for alterative methods or forms for
evidencing and
3
recording ownership of Senior Notes, to provide for the assumption of the
Company's obligations to Holders of the Senior Notes in case of a merger,
amalgamation, consolidation or sale of all or substantially all of the
Company's assets, to make any change that would provide any additional rights
or benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes
involves non-payment of principal or interest or; (v) default under certain
other agreements relating to Indebtedness of the Company which default
involves non-payment of principal or interest, or results in the acceleration
of such Indebtedness prior to its stated maturity; (vi) certain final
judgments for the payment of money that remain undischarged for a period of
60 days; and (vii) certain events of bankruptcy or insolvency with respect to
the Company or any of its Significant Subsidiaries. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25 % in
principal amount of the then outstanding Senior Notes may declare all the
Senior Notes to be due and payable. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Notes will become due and payable without
further action or notice. Holders may not enforce the Indenture or the
Senior Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Senior Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Senior Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding by notice to
the Trustee may on behalf of the Holders of all of the Senior Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of principal
of, or interest on, the Senior Notes, except a payment default resulting from
an acceleration that has been rescinded. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and the Company is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or
Event of Default.
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.
4
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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
14. AUTHENTICATION. This Senior 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 an 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 Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
5
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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 Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date:
Your Signature:
(Sign exactly as your name appears on this Senior Note)
Tax Identification
No.:________________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
EXHIBIT F
FORM OF __% SERIES F SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$400,000,000
__ % Series F Senior Note due 2005
No. $400,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________ Dollars
($ ) on October 1, 2005.
Interest Payment Dates: April 1 and October 1, commencing October 1, 1998
Record Dates: March 15 and September 15
Dated: ___________ __, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:_____________________________
Authorized Signature
(Back of Senior Note)
___% Series F Senior Note due 2005
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 ___%
Series F Senior Note due 2005 (the "Senior Note") at the rate and in the
manner specified below.
The Company shall pay interest on the principal amount of this
Senior 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 October 1,
1998, 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 of the original issuance of this
Senior Note. 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 this Senior 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 Senior 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 Senior
Notes to the Persons who are registered Holders of Senior Notes at the close
of business on the March 15 and September 15 next preceding the Interest
Payment Date, even if such Senior Notes are cancelled after such record date
and on or before such Interest Payment Date. The Senior 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 payment of public and
private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to
$400 million in aggregate.
5. OPTIONAL AND SPECIAL OPTIONAL REDEMPTION.
The Senior 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.
Notwithstanding the foregoing, the Company may, at its option, by
delivering a notice of redemption at any time during the period from April 1,
1999 through December 31, 2000, use all or a portion of the Net Proceeds from
any sale or sales of Fossil and Hydro Generating Assets to redeem up to
$500,000,000 aggregate principal amount of the Notes in Series B through F at
a cash redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of redemption, in
the manner and subject to the limitations set forth in the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
2
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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 Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes. Without the consent of any Holder of a
Senior Note, the Indenture or the Senior Notes may be amended or
supplemented, and the Company and the Trustee may enter into Supplemental
Indentures which shall thereafter form a part of the Indenture, to cure any
ambiguity, defect or inconsistency, to secure the Senior Notes under
circumstances set forth in the Indenture, to establish and create new series
of Senior Notes, to provide that the Company shall not issue any additional
series of Senior Notes, to add additional covenants and agreements of the
Company to the Indenture, to provide for alternative methods or forms for
evidencing and
3
recording ownership of Senior Notes, to provide for the assumption of the
Company's obligations to Holders of the Senior Notes in case of a merger,
amalgamation, consolidation or sale of all or substantially all of the
Company's assets, to make any change that would provide any additional rights
or benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes;
(v) default under certain other agreements relating to Indebtedness of the
Company which default involves non-payment of principal or interest, or
results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25 % in principal amount of the then outstanding
Senior Notes may declare all the Senior Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Senior Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Senior Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders
of a majority in aggregate principal amount of the Senior Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
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.
4
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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
14. AUTHENTICATION. This Senior 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 an 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 Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
5
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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 Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date:
Your Signature:
(Sign exactly as your name appears on this Senior Note)
Tax Identification
No.:________________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the
city where the principal office of the registrar is located or by a member of
a national securities exchange.
EXHIBIT G
FORM OF ___% SERIES G SENIOR NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$600,000,000
__ % Series G Senior Note due 2008
No. $600,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________ Dollars
($ ) on October 1, 2008.
Interest Payment Dates: April 1 and October 1, commencing October 1, 1998
Record Dates: March 15 and September 15
Dated: ___________ __, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:_____________________________
Authorized Signature
(Back of Senior Note)
___% Series G Senior Note due 2008
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 ___%
Series G Senior Note due 2008 (the "Senior Note") at the rate and in the manner
specified below.
The Company shall pay interest on the principal amount of this Senior
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 October 1, 1998, 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 of the original issuance of this Senior
Note. 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 this Senior 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
Senior 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 Senior Notes
to the Persons who are registered Holders of Senior Notes at the close of
business on the March 15 and September 15 next preceding the Interest Payment
Date, even if such Senior Notes are cancelled after such record date and on or
before such Interest Payment Date. The Senior 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 payment of public and private debts 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.
1
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The
Senior Notes are senior unsecured obligations of the Company limited to $600
million in aggregate.
5. OPTIONAL REDEMPTION.
The Senior 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.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect
to the Senior Notes.
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon the date of purchase. Within 30 days following any Change
of Control Triggering Event, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase.
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
2
8. 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 Senior Notes are to be redeemed at his registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Senior Notes held by a Holder
are to be redeemed. On and after the redemption date interest ceases to
accrue on Senior Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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.
10. PERSONS DEEMED LEGAL OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior Note and for all other purposes whatsoever, whether or not this Senior
Note is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Senior Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Senior
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or interest on, the Senior Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes. Without the consent of any Holder of a
Senior Note, the Indenture or the Senior Notes may be amended or
supplemented, and the Company and the Trustee may enter into Supplemental
Indentures which shall thereafter form a part of the Indenture, to cure any
ambiguity, defect or inconsistency, to secure the Senior Notes under
circumstances set forth in the Indenture, to establish and create new series
of Senior Notes, to provide that the Company shall not issue any additional
series of Senior Notes, to add additional covenants and agreements of the
Company to the Indenture, to provide for alterative methods or forms for
evidencing and recording ownership of Senior Notes, to provide for the
assumption of the Company's obligations to Holders of the Senior Notes in
case of a merger, amalgamation, consolidation or sale of all or substantially
all of the Company's assets, to make any change that would provide any
additional
3
rights or benefits to the Holders of the Senior Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or
to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes; (v)
default under certain other agreements relating to Indebtedness of the
Company which default involves non-payment of principal or interest, or
results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25 % in principal amount of the then outstanding
Senior Notes may declare all the Senior Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Senior Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Senior Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders
of a majority in aggregate principal amount of the Senior Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
13. 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.
14. 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 Senior Notes or the
Indenture or for any claim based on, in respect of, or by
4
reason of, such obligations or their creation. Each Holder by accepting a
Senior Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Senior Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an 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).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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: Chief Financial Officer
5
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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 Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
where the principal office of the registrar is located or by a member of a
national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on this Senior Note)
Tax Identification No.:________________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
where the principal office of the registrar is located or by a member of a
national securities exchange.
EXHIBIT H
FORM OF ____% SENIOR DISCOUNT NOTE
AND TRUSTEE CERTIFICATION OF
AUTHENTICATION
$500,000,000
__ % Senior Discount Note due 2010
No. $500,000,000
NIAGARA MOHAWK POWER CORPORATION
promises to pay to
or their registered assigns, the principal sum of ______________________ Dollars
($ ) on July 1, 2010.
Interest Payment Dates: January 1 and July 1, commencing January 1, 2004.
Record Dates: December 15 and June 15
Dated: ____________ ___, 1998
NIAGARA MOHAWK POWER CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the Senior Notes referred
to in the within-mentioned Indenture:
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:______________________________
Authorized Signature
(Back of Senior Note)
___% Senior Discount Note due 2010
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 ___%
Senior Discount Note due 2010 (the "Senior Note") at the rate and in the manner
specified below.
This Senior Discount Note was issued at a substantial discount from
its principal amount at maturity. Until July 1, 2003, no interest will accrue
on this Senior Discount Note, but the Accreted Value will increase (representing
amortization of original issue discount) between the date of initial issuance
and July 1, 2003, on a semi-annual bond equivalent basis using a 360-day year
comprised of twelve 30-day months, such that the Accreted Value shall be equal
to the full principal amount at maturity of this Senior Discount Note on July 1,
2003. Thereafter, interest on this Senior Discount Note will accrue at a rate
of ___% per annum and will be payable in cash semi-annually in arrears on
January 1 and July 1 of each year, commencing January 1, 2004, 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 July 1, 2003. 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 this Senior 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 Senior 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 Senior Notes
to the Persons who are registered Holders of Senior Notes at the close of
business on the December 15 and June 15 next preceding the Interest Payment
Date, even if such Senior Notes are cancelled after such record date and on or
before such Interest Payment Date. The Senior 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 payment of public
1
and private debts 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.
4. INDENTURE. The Company issued the Senior Notes under an Indenture
dated as of June 30, 1998 (the "Indenture") between the Company and the Trustee.
The terms of the Senior 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 Sections 77aaa-77bbbb). The Senior 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 Senior Notes. The Senior Notes
are senior unsecured obligations of the Company limited to $500 million
principal amount at maturity in aggregate.
5. OPTIONAL REDEMPTION.
Prior to July 1, 2003, the Company may redeem all or any portion of
the Senior Notes, at any time upon not less than 30 nor more than 60 days'
notice, in cash at a redemption price equal to 100% of the Accreted Value
thereof plus the Make-Whole Premium. On or after July 1, 2003, the Company may
redeem all or any portion of the Senior Notes, at any time upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon, if any, to the applicable redemption date, if redeemed during
the twelve-month period beginning on July 1 of the years indicated below:
YEAR PERCENTAGE
2003 . . . . . . . . . . . . . . . . %
2004 . . . . . . . . . . . . . . . . %
2005 . . . . . . . . . . . . . . . . %
2006 and thereafter. . . . . . . . . 100.00%
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company is not required to
make mandatory repurchase, redemption or sinking fund payments with respect to
the Senior Notes.
2
7. CHANGE OF CONTROL OFFER AND ASSET SALE OFFER.
(a) If there is a Change of Control Triggering Event, each Holder of
Senior Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 in principal amount or an integral multiple
thereof) of each Holder's Senior Notes pursuant to the offer described in the
Indenture (a "Change of Control Offer") at an offer price in cash equal to
(i) 101% of the aggregate principal amount thereof (if such repurchase
occurs on or after July 1, 2003) plus accrued and unpaid interest thereon, if
any, to the date of purchase or (ii) 101% of the Accreted Value thereof (if
such repurchase occurs prior to July 1, 2003). Within 30 days following any
Change of Control Triggering Event, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) Under certain circumstances, the Company, following a Sale of
Assets, may commence an offer to all Holders of Senior Notes (as "Asset Sale
Offer") to purchase Senior Notes with the cash portion of the Net Proceeds of
such Sale of Assets at an offer price in cash in an amount equal to (a) 100%
of the principal amount thereof (if such repurchase occurs on or after July
1, 2003) plus accrued and unpaid interest thereon, if any, to the date of
purchase or (b) 100% of the Accreted Value thereof (if such repurchase occurs
prior to July 1, 2003).
(c) In the event of either 7(a) or 7(b), Holders may elect to have all
or a portion of their Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. 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 Senior Notes are to be redeemed at his registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Senior Notes held by a Holder
are to be redeemed. On and after the redemption date interest ceases to
accrue on Senior Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and
Senior 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.
10. PERSONS DEEMED LEGAL OWNERS. Prior to due presentment to the
Trustee for registration of the transfer of this Senior Note, the Trustee,
any Agent and the Company may deem and treat the person in whose name this
Senior 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
Senior
3
Note and for all other purposes whatsoever, whether or not this Senior Note
is overdue, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary. The registered Holder of a Senior Note
may be treated as its legal owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount at maturity
of the then outstanding Senior Notes (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Senior Notes), and, subject to Sections 6.04 and 6.07 of the Indenture,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of the Indenture or the Senior
Notes may be waived with the consent of the Holders of a majority in
principal amount at maturity of the then outstanding Senior Notes. Without
the consent of any Holder of a Senior Note, the Indenture or the Senior Notes
may be amended or supplemented, and the Company and the Trustee may enter
into Supplemental Indentures which shall thereafter form a part of the
Indenture, to cure any ambiguity, defect or inconsistency, to secure the
Senior Notes under circumstances set forth in the Indenture, to establish and
create new series of Senior Notes, to provide that the Company shall not
issue any additional series of Senior Notes, to add additional covenants and
agreements of the Company to the Indenture, to provide for alterative methods
or forms for evidencing and recording ownership of Senior Notes, to provide
for the assumption of the Company's obligations to Holders of the Senior
Notes in case of a merger, amalgamation, consolidation or sale of all or
substantially all of the Company's assets, to make any change that would
provide any additional rights or benefits to the Holders of the Senior Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
60 days in the payment when due of interest on the Senior Notes; (ii) default
in payment when due of the principal of, or premium, if any, on the Senior
Notes; (iii) failure by the Company to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture; (iv) failure by either the
Company for 60 days after written notice by the Trustee or the Holders of at
least 25 % or more in aggregate principal amount of the Senior Notes to
comply with its other agreements in the Indenture or the Senior Notes; (v)
default under certain other agreements relating to Indebtedness of the
Company which default involves non-payment of principal or interest, or
results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25 % in principal amount at maturity of the then
outstanding Senior Notes may declare all the Senior Notes to be due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of
4
bankruptcy or insolvency, all outstanding Senior Notes will become due and
payable without further action or notice. Holders may not enforce the
Indenture or the Senior Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount at maturity
of the then outstanding Senior Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of the Senior
Notes notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount at maturity of the Senior Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of principal of, or interest on, the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
13. 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.
14. 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 Senior 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 Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an 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).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Senior 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 Senior Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
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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: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 Senior 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 Senior Note)
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
where the principal office of the registrar is located or by a member of a
national securities exchange.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date: Your Signature:
(Sign exactly as your name appears on this Senior Note)
Tax Identification No.:________________________
Signature Guarantee.*
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
where the principal office of the registrar is located or by a member of a
national securities exchange.