EXHIBIT 1.3
NIAGARA MOHAWK POWER CORPORATION
TO
THE BANK OF NEW YORK
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 12, 2000
TO
INDENTURE
Dated as of May 12, 2000
8-7/8% SENIOR NOTES DUE 2007
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions
Capital Lease Obligation
Credit Facility
First Mortgage Bonds
Guarantee
Hedging Obligations
Indebtedness
Initial Issuance Date
Lien
Make Whole Premium
Treasury Rate
Medium Term Notes
Non-Recourse Debt
Notes
Note
Other Indebtedness
Permitted Refinancing Indebtedness
PSC
Restricted Subsidiary
Securitization Transaction
Senior Indebtedness
Senior Discount Notes
Senior Notes
Series A Senior Notes
Series B Senior Notes
Series C Senior Notes
Series D Senior Notes
Series E Senior Notes
Series F Senior Notes
Series G Senior Notes
Subordinated Indebtedness
Subsidiary
TIPES Transaction
Unrestricted Subsidiary
Weighted Average Life to Maturity
ARTICLE TWO
Security Forms
Section 201. Form of Notes
ARTICLE THREE
The Series of Notes
Section 301. Title and Terms
ARTICLE FOUR
Modifications and Additions to the Indenture
Section 401. Additional Covenant
Section 402. Modification to Defeasance and Covenant Defeasance; Covenant
Defeasance
Section 403. Modification of Supplemental Indentures; Supplemental
Indentures Without Consent of the Holders
ARTICLE FIVE
MISCELLANEOUS
Section 501. Miscellaneous
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the First Supplemental Indenture.
FIRST SUPPLEMENTAL INDENTURE, dated as of May 12, 2000, made by and between
NIAGARA MOHAWK POWER CORPORATION, a corporation duly organized and existing
under the laws of the State of New York, having its principal place of business
(residence) at No. 300 Erie Boulevard West, Syracuse, New York (hereinafter
sometimes referred to as the "Company"), and The Bank of New York a New York
Banking corporation, having its corporate trust principal executive office at
101 Barclay Street, New York, New York (hereinafter sometimes referred to as the
"Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of May 12, 2000 (the "Indenture"), providing for the
issuance from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein and therein called the "Securities"), to be
issued in one or more series as in the Indenture provided.
Section 201 of the Indenture permits the form of the Securities of any series to
be established pursuant to an indenture supplemental to the Indenture.
Section 301 of the Indenture permits the terms of the Securities of any series
to be established in an indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides that, without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental to the Indenture for the purpose of curing any ambiguity,
correcting or supplementing any provision in the Indenture which may be
inconsistent with any other provision therein, or making any other provisions
with respect to matters or questions arising under the Indenture, provided that
such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
The Company, pursuant to the foregoing authority, proposes in and by this
Supplemental Indenture to establish the terms and form of the Securities of a
new series and to amend and supplement the Indenture in certain respects with
respect to the Securities of such series.
All things necessary to make this Supplemental Indenture a valid agreement of
the Company, and a valid amendment of and supplement to the Indenture, have been
done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities of the series to be created hereby, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions
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(a) For all purposes of this Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have the meanings
specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture and, where so specified, to the Articles and
Sections of the Indenture as supplemented by this Supplemental Indenture;
and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder" and
"herewith" refer to this Supplemental Indenture.
(b) For all purposes of the Indenture and this Supplemental Indenture, with
respect to the Securities of the series created hereby, except as otherwise
expressly provided or unless the context otherwise requires (Section
references contained in the following definitions are to Sections of the
Indenture as supplemented by this Supplemental Indenture unless otherwise
specified):
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet of such
Person in accordance with generally acceptable accounting principles.
"Credit Facility" means the Company's $804.4 million credit facility
dated as of March 20, 1996 with a group of banks and Citibank as agent,
as such agreement is amended, modified, restated, extended, renewed,
replaced or refinanced from time to time.
"First Mortgage Bonds" means the securities and other indebtedness
issued from time to time pursuant to the Company's Mortgage Trust
Indenture dated as of October 1, 1937 and the supplemental indentures
thereto.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instrument for collection in the ordinary course of business), direct
or indirect, in any manner (including, without limitation, letters
of credit, reimbursement agreements and support, "keep well" or similar
agreement in respect thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under any interest rate, currency or commodity swap
agreement, interest rate, currency or commodity future agreement,
interest rate cap or collar agreement, interest rate, currency or
commodity hedge agreement, and any put, call or other agreement designed
to protect such Person against fluctuations in interest rates, currency
exchange rates or commodity prices.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof)
or banker's acceptances or representing Capital ease Obligations
of such Person or the balance deferred and unpaid of the purchase price of
any property or representing any Hedging Obligations of such Person, except
any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with generally acceptable
accounting principles (provided, that any debt instrument issued by the
Company or a Restricted Subsidiary in a TIPES Transaction shall be deemed
Indebtedness of the Company regardless of its characterization on any such
balance sheet), as well as an Indebtedness of others secured by a Lien on
any asset of such Person (whether or not such indebtedness is assumed by
such Person) and, to the extent not otherwise included, any Guarantees by
such Person of any indebtedness of any other Person.
"Initial Issuance Date" means June 30, 1998.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
encumbrance, charge, or adverse claim affecting title or resulting in a
charge against real or personal property, or a security interest of any
kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option,
other agreement to sell or give a security interest in and any filing of
or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes of any jurisdiction).
"Make Whole Premium" means with respect to any prepayment of such Note
in circumstances requiring the payment of a Make Whole Premium, an amount
equal to the excess of (a) the aggregate present value as of the date of
such prepayment of the expected future cash flows of such Notes (for the
avoidance of doubt, such amounts shall include all principal and interest
payable with respect to such Note)(exclusive of interest accrued to the
date of prepayment) that, but for such prepayment, would have been
payable if such prepayment had not been made, all determined by
discounting such amounts at a rate which is equal to the Treasury Rate
plus 0.30% over (b) the aggregate principal amount of the Note to be
prepaid. For purposes of any determination of the Make Whole Premium:
"Treasury Rate" means at any time with respect to the Notes being prepaid
(a) the yield reported on page C4 of the Bloomberg Financial
Markets Service (or, if not available, any other nationally recognized
trading screen reporting online intra day trading in United States
government securities) at 11:00 A.M. (New York, New York time) for those
actively traded United States government securities having a maturity
rounded to the nearest month) corresponding to the remaining Weighted
Average Life to Maturity of the Notes being prepaid or (b) in the event
that no nationally recognized trading screen reporting online intra day
trading in United States government securities is available, Treasury Rate
shall mean the weekly average of the yield to maturity on the United States
Treasury obligations with a constant maturity (as compiled by and published
in the most recent published issue of the United States Federal Reserve
Statistical Release designated H.15(519) or its successor publication) most
nearly equal to (by rounding to the nearest month) the Weighted Average
Life to Maturity of the Notes being prepaid.
"Medium Term Notes" means the unsecured variable rate notes issued
pursuant to an indenture between the Company and IBJ Schroder Bank &
Trust Company, as trustee.
"Non-Recourse Debt" means Indebtedness (a) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provide
credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), (b) is directly or
indirectly liable (as a guarantor or otherwise), or (c) constitute the
lender; and (ii) no default with respect to which would permit (upon
notice, lapse of time or both) any Holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and (iii) as to which the lenders
have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"Note" or "Notes" means the Company's 8-7/8% Senior Notes due 2007, issued
pursuant to an indenture, dated as of May 12, 2000 between the Company
and The Bank of New York, as supplemented by this Supplemental Indenture,
dated as of May 12, 2000.
"Other Indebtedness" shall mean Senior Indebtedness incurred after the
Initial Issuance Date, except (a) Permitted Refinancing Indebtedness with
respect to First Mortgage Bonds issued and outstanding at the closing on
the Initial Issuance Date; (b) Permitted Refinancing Indebtedness with
respect to the Credit Facility; and (c) Indebtedness under the
Securitization Transaction and the Receivables Financing and any
Permitted Refinancing Indebtedness with respect thereto.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for,
or the net proceeds of which are used to renew, extend, refinance, replace
(including the replacement at any time following their stated maturity of
First Mortgage Bonds or Senior Notes that are repaid at maturity, or the
replacement at any time following its stated maturity of the Credit
Facility or the Receivables Financing), defease or refund, in whole or
in part, other Indebtedness of the Company or any of its Restricted
Subsidiaries; provided, however, that (i) the principal amount of
such Permitted Refinancing Indebtedness does not exceed the principal
amount of the Indebtedness so renewed, extended, refinanced,
replaced, defeased or refunded (plus the amount of accrued interest and
premiums (including premium paid on open market purchases), if any, thereon
and the reasonable expenses incurred in connection therewith); (ii)
Permitted Refinancing Indebtedness that it is incurred prior to the
maturity of the Indebtedness that is renewing, extending, refinancing,
replacing, defeasing or refunding must be on terms at least as favorable
to the holders of Notes as those contained in the documentation governing
the Indebtedness being renewed, extended, refinanced, replaced, defeased or
refunded and: (a) if such Indebtedness has a final maturity date earlier
than the final maturity date of the series of Senior Notes with the latest
final maturity date, then such Permitted Refinancing Indebtedness must have
a final maturity date the same as or later than the final maturity date of,
and a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being renewed,
extended, refinanced, replaced, defeased or refunded, and (b) if such
Indebtedness has a final maturity date later than the final maturity date
of the series of Senior Notes with the latest final maturity date, then
such Permitted Refinancing Indebtedness must have a final maturity date the
same as or later than the final maturity date of, and a Weighted Average
Life to Maturity equal to or greater than the maturity of, the series of
Senior Notes with the latest final maturity date; (iii) if the Indebtedness
being renewed, extended, refinanced, replaced, defeased or refunded is
subordinated in right of payment of the Senior Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Senior
Notes on terms at least as favorable to the holders of Senior Notes as
those contained in the documentation governing the Indebtedness being
refinanced, replaced, defeased or refunded; and (iv) such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary (or, in the
case of the Receivables Financing, the special purpose entity) that is the
obligor on the Indebtedness being renewed, extended, refinanced, replaced,
defeased or refunded.
"PSC" means the New York State Public Service Commission, or any successor
agency or other governmental entity performing the same function.
"Restricted Subsidiary" of a Person means any Subsidiary of such a Person
that is not an Unrestricted Subsidiary.
"Securitization Transaction" means a transaction in which the Company,
pursuant to authorization of the PSC, or other appropriate governmental
authorizations, transfers rights or other property to a Person formed as
a special purpose entity in conjunction with a financing based on the
Company's right to collect a non-by passable wires or similar fees.
"Senior Indebtedness" means any senior Indebtedness of the Company,
including the First Mortgage Bonds, the Credit Facility, the Senior Notes
and the Medium-Term Notes.
"Senior Discount Notes" means the Company's 8.500% Senior Discount Notes
due 2010, which were issued pursuant to the Indenture from the Company to
IBJ Schroder Bank & Trust Company, dated June 30, 1998 (the "Senior Notes
Indenture").
"Senior Notes" means the Company's Senior Discount Notes, the Series A
through G Senior Note issued under the Senior Notes Indenture and any
other series of Senior Notes issued under the Senior Notes Indenture or
any supplemental indenture thereto.
"Series A Senior Notes" means the Company's 6.500% Series A Senior Notes
due 1999, which were issued pursuant to the Senior Notes Indenture.
"Series B Senior Notes" means the Company's 7.00% Series B Senior Notes
due 2000, which were issued pursuant to the Senior Notes Indenture.
"Series C Senior Notes" means the Company's 7.125% Series C Senior Notes
due 2001, which were issued pursuant to the Senior Notes Indenture.
"Series D Senior Notes" means the Company's 7.250% Series D Senior Notes
due 2002, which were issued pursuant to the Senior Notes Indenture.
"Series E Senior Notes" means the Company's 7.375% Series E Senior Notes
due 2003, which were issued pursuant to the Senior Notes Indenture.
"Series F Senior Notes" means the Company's 7.625% Series F Senior Notes
due 2005, which were issued pursuant to the Senior Notes Indenture.
"Series G Senior Notes" means the Company's 7.750% Series G Senior Notes
due 2001, which were issued pursuant to the Senior Notes Indenture.
"Subordinated Indebtedness" means Indebtedness of the Company (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
Guaranteed by the Company or its Restricted Subsidiaries) which is
subordinate to the Notes in right of payment or rights upon liquidation
of the Company, whether pursuant to the terms of the instrument creating or
evidencing such Indebtedness or otherwise.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of
that Person (or a combination thereof) and (ii) any partnership (a) the
sole general partner or the managing general partner of which is such
Person or a Subsidiary of such Person or (b) the only general partners
of which are such Person or of one or more Subsidiaries of such Person
(or any combination thereof).
"TIPES Transaction" means a financing transaction or transactions in which
the Company establishes a trust or other pass-through entity whose common
equity interests are owned by the Company or a Subsidiary and whose assets
consist of debt securities of the Company or any Restricted Subsidiary for
the purpose of issuing issue preferred interests in such trust or other
entity to investors.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that any such Subsidiary: (a) has no
Indebtedness other than Non-Recourse Debt; (b) is not party to any
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) is a Person with respect
to which neither the Company nor any of its Restricted Subsidiaries has any
direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition
or to cause such Person to achieve any specified levels of operating
results; and (d) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries. Any such designation by the Board of Directors
will be evidenced to the Trustee by filing with the Trustee a certified
copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions. If, at any time, any Unrestricted Subsidiary would
fail to meet the foregoing requirements as an Unrestricted Subsidiary, it
shall thereafter cease to be an Unrestricted Subsidiary and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date. The Board of
Directors may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation shall be deemed to
be an incurrence of Indebtedness by a Restricted Subsidiary of the Company
of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if no Default or Event of Default would
be in existence following such designation.
"Weighted Average Life to Maturity" means, with respect to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.
ARTICLE TWO
Security Forms
Section 201. Form of Notes.
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The Notes shall be in the form attached as Exhibit A to this Supplemental
Indenture.
ARTICLE THREE
The Series of Notes
Section 301. Title and Terms.
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There shall be a series of Securities designated as the "8-7/8% Senior Notes
due 2007" of the Company. Their Stated Maturity shall be May 15, 2007, and
they shall bear interest at the rate of 8-7/8 per annum from May 12, 2000.
Interest on the Securities will be payable semi-annually on May 15 and November
15 of each year, commencing November 15, 2000, until the principal thereof is
made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will be paid to the Person in
whose name the Notes (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which shall
be the May 1 or November 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Supplemental Indenture is limited to $200,000,000, except
for Securities authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306,
906 or 1107 of the Indenture as supplemented by this Supplemental Indenture and
except for any Notes which, pursuant to Section 303 of the Indenture, are deemed
never to have been authenticated and delivered under the Indenture.
The Place of Payment for the principal of (and premium, if any) and interest on
the Notes shall be the office or agency of the Company in the City of New York,
State of New York, maintained for such purpose, which shall be the Corporate
Trust Office of the Trustee and at any other office or agency maintained by the
Company for such purpose; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Notes shall be redeemable by the Company at any time, in whole or in part,
upon not less than 30 nor more than 60 days' notice, in cash at a redemption
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest through the redemption date plus the Make Whole Premium.
Two Officers of the Company shall sign the Notes for the Company by manual or
facsimile signature. Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
ARTICLE FOUR
Modifications and Additions to the Indenture
Section 401. Additional Covenant.
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With respect to the Notes and solely for the benefit of the Notes, the
following Section 1009 shall be added to the Indenture:
"Section 1009. Limitation on Liens
The Company will not, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, secure with a Lien on the property or assets of
the Company or such Restricted Subsidiary, Other Indebtedness or Subordinated
Indebtedness without making, or causing such Restricted Subsidiary to make,
effective provision for securing the Notes (i) in the case of a Lien Securing
Other Indebtedness, on an equal and ratable basis with the Lien securing such
Other Indebtedness and (ii) in the case of a Lien securing Subordinated
Indebtedness, on a basis such that the Lien securing the Notes is senior in
priority to the Lien securing such Subordinated Indebtedness, in each case
until such time as such Other Indebtedness or Subordinated Indebtedness is
no longer secured by a Lien."
Section 402. Modification to Defeasance and Covenant
Defeasance; Covenant Defeasance
---------------------------------------
With respect to the Notes, Section 1303 of the Indenture shall be
substituted for the following:
"Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 and 1009, and any covenants provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the
occurrence of any event specified in Sections 501(4) (with respect to any of
Section 801(3), Sections 1006 and 1009, and any such covenants provided pursuant
to Section 301(18), 901(2) or 901(7)), and 501(7) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby."
Section 403. Modification of Supplemental Indentures;
Supplemental Indentures Without Consent
of the Holders
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With respect to the Notes, Section 901(6) of the Indenture shall be
substituted for the following:
"(6) to secure the Notes on an equal and ratable or senior basis with Other
Indebtedness or Subordinated Indebtedness, respectively, as required by Section
1009 hereof;"
ARTICLE FIVE
Miscellaneous
Section 501. Miscellaneous.
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(a) The Trustee accepts the trusts created by the Indenture, as supplemented
by this Supplemental Indenture, and agrees to perform the same upon the
terms and conditions of the Indenture, as supplemented by this Supplemental
Indenture.
(b) The recitals contained herein shall be taken as statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall have the respective
meanings assigned to them in the Indenture.
(d) Each of the Company and the Trustee makes and reaffirms as of the date
of execution of this Supplemental Indenture all of its respective
representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this Supplemental Indenture by the
Company or the Trustee shall bind its respective successors and assigns,
whether so expressed or not.
(f) In case any provisions in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(g) Nothing in this Supplemental Indenture, express or implied, shall give
to any Person, other than the parties hereto and their successors under the
Indenture and the Holders of the series of Securities created hereby, any
benefit or any legal or equitable right, remedy or claim under the
Indenture.
(h) If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act of 1939, as may be amended from time to time,
that is required under such Act to be a part of and govern this
Supplemental Indenture, the latter provision shall control. If any
provision hereof modifies or excludes any provision of such Act that may be
so modified or excluded, the latter provision shall be deemed to apply to
this Supplemental Indenture as so modified or excluded, as the case may be.
(i) This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflict
of law thereof.
(j) All amendments to the Indenture made hereby shall have effect only with
respect to the series of Securities created hereby.
(k) All provisions of this Supplemental Indenture shall be deemed to be
incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by this Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
NIAGARA MOHAWK POWER CORPORATION
By: /s/Arthur W. Roos
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Name: Arthur W. Roos
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
As Trustee
By: /s/Thomas C. Knight
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Name: Thomas C. Knight
Title: Assistant Vice President