Execution Copy
NEW YORK STATE ENERGY RESEARCH
AND DEVELOPMENT AUTHORITY
AND
NIAGARA MOHAWK POWER CORPORATION
FIRST SUPPLEMENTAL PARTICIPATION AGREEMENT
Dated as of December 1, 2003
to
PARTICIPATION AGREEMENT
Dated as of October 1, 1991
relating to
$45,600,000 Pollution Control Refunding Revenue Bonds
(Niagara Mohawk Power Corporation Project), 1991 Series A
_____________________________________________________________________________________________________________________
THIS FIRST SUPPLEMENTAL PARTICIPATION AGREEMENT, made and dated as of December 1, 2003 (the "First
Supplemental Participation Agreement") to the PARTICIPATION AGREEMENT made and dated as of October 1, 1991, by
and between NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and
politic, constituting a public benefit corporation, and NIAGARA MOHAWK POWER CORPORATION, a corporation duly
organized and existing and qualified to do business as a public utility under the laws of the State of New York
(the "Corporation"),
WITNESSETH THAT:
WHEREAS, pursuant to special act of the Legislature of the State of New York (Title 9 of Article 8 of
the Public Authorities Law of New York, as from time to time amended and supplemented, herein called the "Act"),
the Authority has been established as a body corporate and politic, constituting a public benefit corporation; and
WHEREAS, pursuant to the Act, the Authority is empowered to contract with any power company to
participate in the incorporation of features in power plants and the construction of associated facilities to the
extent required by the public interest in development, health, recreation, safety, conservation of natural
resources and aesthetics; and
WHEREAS, the Legislature of the State of New York has determined that, because interest costs incurred
by public utilities are reflected in the rates paid by the customers of such utilities and because governmental
action has mandated the installation of pollution control facilities, it is in the public interest to enable
utilities to obtain the lowest possible interest rate on bonds sold to provide pollution control facilities; and
WHEREAS, pursuant to the Act, the Authority has also been empowered to extend credit and make loans from
bond and note proceeds to any person for the construction, acquisition and installation of, or for the
reimbursement to any person for costs in connection with, any special energy project (as defined in the Act),
including, but not limited to, any land, works, system, building or other improvement, and all real and personal
properties of any nature or any interest in any of them which are suitable for or related to the furnishing,
generation or production of energy; and
WHEREAS, the Authority is also authorized under the Act to borrow money and issue its negotiable bonds
and notes to provide sufficient monies for achieving its corporate purposes, including the refunding of
outstanding obligations of the Authority; and
WHEREAS, the Authority is also authorized under the Act to enter into any contracts and to execute all
instruments necessary or convenient for the exercise of its corporate powers and the fulfillment of its corporate
purposes, including the refunding of outstanding bonds and notes of the Authority; and
WHEREAS, the Authority and the Corporation have entered into an Original Participation Agreement, dated
as of October 1, 1991 (herein referred to as the "Original Participation Agreement"), providing for the financing
or refinancing of certain costs related to the acquisition, construction, and installation of certain pollution
control, sewage and other facilities identified and described in Exhibit A to the Original Participation
Agreement, and, as part of such participation, that the Authority issue bonds pursuant to the Act to provide
funds for such financing or refinancing; and
WHEREAS, on October 29, 1991, the Authority issued $45,600,000 aggregate principal amount of its
Pollution Control Refunding Revenue Bonds (Niagara Mohawk Power Corporation Project), 1991 Series A (the
"Bonds"), under and pursuant to Resolution No. 766 of the Authority, adopted September 30, 1991, and an Indenture
of Trust dated as of October 1, 1991 (the "Original Indenture"), between the Authority and The Bank of New York
as trustee (the "Trustee"), as amended and supplemented by a First Supplemental Indenture of Trust dated November
14, 2003 (the "First Supplemental Indenture" and, together with the Original Indenture, the "1991 Series A
Indenture"), to provide funds for the financing or refinancing described in the preceding whereas clause; and
WHEREAS, the Corporation directed that the Bonds be called for redemption on December 16, 2003 (the
"Redemption Date"), pursuant to Section 8.01 of the 1991 Series A Indenture, and notice advising of such
redemption and of the Corporation's right to purchase in lieu of redemption any Bonds on the Redemption Date, was
delivered pursuant to Section 8.03 of the 1991 Series A Indenture; and
WHEREAS, on the Redemption Date, the Corporation purchased the Bonds called for redemption in lieu of
redemption pursuant to Section 8.07 of the 1991 Series A Indenture; and
WHEREAS, Section 6.04 of the Original Participation Agreement and Section 4.02 of the 1991 Series A
Indenture provide that the Authority and the Trustee may, in accordance with the terms thereof, modify, amend or
supplement the Original Participation Agreement; and
WHEREAS, the Corporation has requested that upon acquiring the Bonds, the 1991 Series A Indenture be
amended and restated and that the Original Participation Agreement be amended to (i) permit the Bonds to bear
interest at various variable interest rates, including, without limitation, at daily, weekly, monthly,
semi-annual, term, commercial paper and auction rates, (ii) provide for new provisions made necessary or
desirable by the issuance of a municipal bond insurance policy, and (iii) otherwise conform certain terms of the
1991 Series A Indenture relating to the Bonds while they bear interest at variable interest rates and certain
other terms of the 1991 Series A Indenture with the current market standard for multi-modal bonds; and
WHEREAS, on December 17, 2003, the Corporation, as registered owner of all the Bonds, consented to the
amendments to the 1991 Series A Indenture and the Agreement, and
waived any and all rights to any notification or filing procedures or requirements under the 1991 Series A
Indenture in addition to the consent provided thereby; and
WHEREAS, simultaneously with the execution and delivery of this First Supplemental Participation
Agreement, the Authority and the Trustee have executed and delivered an Amended and Restated Indenture of Trust,
dated as of December 1, 2003 (the "Amended and Restated Indenture"), which amends and restates the 1991 Series A
Indenture; and
WHEREAS, simultaneously with the execution and delivery of this First Supplemental Participation
Agreement, an Opinion of Bond Counsel described in Section 4.01.3(C) of the Amended and Restated Indenture has
been delivered to the Trustee; and
WHEREAS, simultaneously with the execution and delivery of the Amended and Restated Indenture, without
any further notice, the Bonds will bear interest at an Auction Period Rate; and
WHEREAS, all acts, conditions and things necessary or required by the Constitution and statutes of the
State of New York, or otherwise, to exist, happen, and be performed as prerequisites to the passage of this First
Supplemental Participation Agreement, do exist, have happened, and have been performed; and
NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants and agreements
hereinafter set forth, the Authority agrees with the Corporation, with the written consent of the Trustee and the
Financial Guaranty Insurance Company, as follows:
ARTICLE I
AUTHORIZATION; DEFINITIONS
Section 1.01. Supplemental Agreement. This First Supplemental Participation Agreement is amendatory and
supplemental to the Original Participation Agreement, and is entered into in accordance with Section 6.04 of the
Original Participation Agreement and Article IV of the 1991 Series A Indenture; and except as modified, amended
and supplemented by this First Supplemental Participation Agreement, the provisions of the Original
Participation Agreement are in all respects ratified and confirmed and shall remain in full force and effect.
Section 1.02. Definitions. Capitalized terms used herein and not otherwise defined herein or in the
Original Participation Agreement shall have the meaning given to such terms in the Amended and Restated
Indenture.
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations of the Authority. The Authority represents and warrants as follows:
(a) The Authority is a body corporate and politic, constituting a public benefit
corporation, established and existing under the laws of the State of New York;
(b) The Authority has full power and authority to execute and deliver this First Supplemental
Participation Agreement and the Amended and Restated Indenture and to consummate the transactions
contemplated hereby and thereby and perform its obligations hereunder and thereunder;
(c) The Authority is not in default under any of the provisions of the laws of the State of New
York which would affect its existence or its powers referred to in the preceding paragraph (b); and
(d) The Authority has duly authorized the execution and delivery of this First Supplemental
Participation Agreement, the Supplemental Tax Regulatory Agreement and the Amended and Restated
Indenture.
Section 2.02. Representations of the Corporation. The Corporation represents and warrants as follows:
(a) The Corporation is a corporation duly incorporated and in good standing under the laws of
the State of New York, is duly qualified and authorized to engage in business as a public utility in
the State of New York, has power to enter into, execute and deliver this First Supplemental
Participation Agreement, the Supplemental Tax Regulatory Agreement, and the Corporation Obligation and
by proper corporate action has duly authorized the execution and delivery of this First Supplemental
Participation Agreement, the Supplemental Tax Regulatory Agreement and the Corporation Obligation;
(b) The execution, delivery and performance of this First Supplemental Participation Agreement,
the Supplemental Tax Regulatory Agreement and the Corporation Obligation and the consummation of the
transactions herein contemplated will not conflict with or constitute a breach of or a default under the
Corporation's Certificate of Consolidation or By-Laws or any judgment, decree, order, statute, rule or
regulation applicable to the Corporation or any indenture, mortgage, loan agreement or other contract or
instrument to which the Corporation is a party or by which it is bound;
(c) The execution and delivery of this First Supplemental Participation Agreement and the
issuance of the Corporation Obligation by the Corporation in the manner and for the purposes herein set
forth have been duly authorized by order of the Public Service Commission of the State of New York; and
(d) All necessary authorizations for or approvals of the execution and delivery of this First
Supplemental Participation Agreement, the Supplemental Tax Regulatory Agreement and the Corporation
Obligation have been obtained by the Corporation.
The Corporation additionally represents and warrants that the representations and warranties of the
Corporation set forth in the Supplemental Tax Regulatory Agreement are true and correct in all material respects
as of the date hereof and as of the Effective Date.
ARTICLE III
AMENDMENTS TO THE ORIGINAL PARTICIPATION AGREEMENT
Section 3.01. Amendment to Section 1.01 of the Original Participation Agreement. Section 1.01 of the
Original Participation Agreement is hereby amended and restated to read as follows:
Section 1.01. Definitions. Capitalized terms used in this Participation
Agreement and not otherwise defined herein shall have the meanings set forth in Section
1.01 of the Amended and Restated Indenture. Capitalized terms used in this
Participation Agreement and not otherwise defined herein or in Section 1.01 of the
Amended and Restated Indenture shall have the meanings set forth in Section 1.01 of the
Original Indenture.
Section 3.02. Replacement of certain terms in the Original Participation Agreement. The Original
Participation Agreement is hereby amended to replace throughout the Original Participation Agreement any
reference to a term set forth under the Old Term column below with a corresponding term set forth under the New
Term column below.
Old Term New Term
Paying Agent Registrar and Paying Agent
Indenture Amended and Restated
Indenture
Section 3.03. Amendment to Section 3.01 of the Original Participation Agreement. Section 3.01 of the
Original Participation Agreement is hereby amended and restated to read as follows:
Section 3.01. Construction of the Project. The Corporation hereby represents
that it has caused the Project to be completed and acknowledges that it shall not be
entitled to any reimbursement for the cost of construction of the Project from the
Authority, the Trustee or the Holders of the Bonds, nor shall it be entitled to any
diminution or postponement of the payments required to be paid by the Corporation
pursuant to this Participation Agreement or the Corporation Obligation.
Section 3.04. Amendment to Section 3.03 of the Original Participation Agreement. Section 3.03 of the
Original Participation Agreement is hereby amended and restated to read as follows:
Section 3.03. Application of proceeds of the Bonds. The Corporation has
applied the proceeds of sale of the Bonds in accordance with the Original Indenture
and the Original Participation Agreement.
Section 3.05. Amendments to Sections 3.04, 3.05 and 3.06 of the Original Participation Agreement.
Sections 3.04, 3.05 and 3.06 of the Original Participation Agreement are hereby deleted.
Section 3.06. Amendment to Section 3.07 of the Original Participation Agreement. Section 3.07 of the
Original Participation Agreement is hereby amended and restated to read as follows:
Section 3.07. Sale of the Project . Pursuant to an Asset Sales Agreement
relating to Xxxxxxx Steam Station ("Xxxxxxx") and Dunkirk Steam Station ("Dunkirk"),
dated as of December 23, 1998, between the Corporation, and NRG Energy, Inc. (the
"Xxxxxxx/Dunkirk Purchaser"), the Corporation has sold Xxxxxxx and Dunkirk of which
certain portions of the Project are a part to the Xxxxxxx/Dunkirk Purchaser.
Pursuant to an Asset Sales Agreement relating to Oswego Steam Station
("Oswego"), dated as of April 1, 1999, by and among the Corporation, Rochester Gas and
Electric Corporation, Oswego Harbor Power LLC, and NRG Energy, Inc. (the "Oswego
Purchaser"), the Corporation has sold its interest in Oswego of which certain portions
of the Project are a part to the Oswego Purchaser.
Pursuant to an Asset Purchase and Sale Agreement relating to Roseton Generating
Station ("Roseton"), dated August 7, 2000, by and among the Corporation, Central Xxxxxx
Gas and Electric Corporation, Consolidated Edison Company of New York, Inc. and Dynegy
Power Corp. (the "Roseton Purchaser"), the Corporation has sold its interest in Roseton
of which certain portions of the Project are a part to the Roseton Purchaser.
Section 3.07. Amendment to Section 3.09 of the Original Participation Agreement. Section 3.09 of the
Original Participation Agreement is hereby amended and restated to read as follows:
Section 3.09. Investment of moneys in funds under the Amended and Restated
Indenture. Any moneys held as part of any fund created under the Amended and Restated
Indenture shall, at the direction of an Authorized Corporation Representative, be
invested or reinvested by the Trustee as provided in Section 9.04 of the Amended and
Restated Indenture.
Section 3.08. Amendment to Section 4.01 of the Original Participation Agreement. Section 4.01 of the
Original Participation Agreement is hereby amended and restated to read as follows:
Section 4.01. Execution and delivery of Corporation Obligation to Trustee. In
order to evidence the obligation of the Corporation to the Authority to repay the
advance of the proceeds of the Bonds, the Authority hereby directs the Corporation, and
the Corporation hereby agrees, to deliver or cause to be delivered the First Mortgage
Bonds to the Trustee on the Effective Date. The First Mortgage Bonds shall be the
amended and restated first mortgage bonds of the Corporation issued under the
Corporation Indenture and relating to the Bonds in substantially the form included in
the Supplemental Corporation Indenture attached hereto as Exhibit B, with only such
changes, omissions and insertions thereto as shall have been approved by the Authority.
Section 3.09. Amendment to Section 4.04 of the Original Participation Agreement. Section 4.04 of the
Original Participation Agreement is hereby amended to add the following paragraph between the first and second
paragraph in such section:
In addition, the Corporation shall wire to the State of New York on the
Effective Date a bond issuance charge fee applicable to the Bonds pursuant to Section
2976 of the Public Authorities Law of the State of New York in the amount specified by
such section on the Effective Date. The Corporation shall also pay to the Authority on
the Effective Date an additional Administration Fee in the amount of $114,000.00.
Section 3.10. Addition of Section 4.12 to Article IV of the Original Participation Agreement. The
Original Participation Agreement is hereby amended to add the following Section 4.12 to Article IV of the
Original Participation Agreement:
Section 4.12. Payment to Registrar and Paying Agent. The Corporation shall
pay, or cause to be paid, to the Registrar and Paying Agent for deposit in the Bond
Purchase Fund and credit to the Company Account therein an amount sufficient to provide
for the payment of the Purchase Price of any Bond tendered for purchase pursuant to the
Amended and Restated Indenture and the Bond Purchase Trust Agreement to the extent that
sufficient moneys are not available for the payment of such Purchase Price from the
other sources described therein.
Section 3.11. Addition of Section 4.13 to Article IV of the Original Participation Agreement. The
Original Participation Agreement is hereby amended to add the following Section 4.13 to Article N of the Original
Participation Agreement:
Section 4.13. Agreements of the Corporation relating to Support Facilities.
The Corporation agrees not to request that the interest rate mode applicable to the
Bonds be adjusted to an Adjustable Rate or a Fixed Rate unless on the effective date of
the applicable Change in the Interest Rate Mode the Bonds shall be rated at least "A"
by S and P or "A" by Xxxxx'x or an equivalent rating by any nationally recognized rating
agency. Such rating of the Bonds may, but is not required to, be achieved by obtaining
a Support Facility which meets the requirements of Article VI of the Amended and
Restated Indenture.
The Corporation further agrees that it will maintain a Liquidity Facility
issued by a financial institution rated not less than "A" by at least one nationally
recognized rating agency in effect with respect to the Bonds at all times, except with
respect to Bonds bearing an Auction Period Rate, a Term Rate for a Calculation Period
of greater than 13 months or a Fixed Rate. Notwithstanding the foregoing, so long as
the conditions set forth in Section 6.05 of the Amended and Restated Indenture are met
by the Bond Insurer and with respect to the Policy, and unless otherwise agreed by the
Bond Insurer, the Corporation shall maintain a Liquidity Facility issued by a financial
institution rated not less than "A" by at least one nationally recognized rating agency
in effect with respect to the Bonds at all times, except with respect to Bonds bearing
an Auction Period Rate or a Fixed Rate.
Section 3.12. Addition of Section 4.14 to Article IV of the Original Participation Agreement. The
Original Participation Agreement is hereby amended to add the following Section 4.14 at the end of Article IV of
the Original Participation Agreement:
Section 4.14. Corporation liable to owners of Bonds in the case of certain
events of taxability. The Corporation confirms and agrees that if as result of action by
the Corporation, the owner of the Project as of the date hereof, or any successor owner
of the Project, the interest on the Bonds is determined to be included for federal
income tax purposes in the gross income of any owner of a Bond (other than a
"substantial user" of the Project or a "related person" within the meaning of section
147(a)(1) of the Code), as evidenced by a published or private ruling of the Internal
Revenue Service or a final, nonappealable judicial decision by a court of competent
jurisdiction, then the Corporation, in addition to its obligation to redeem the Bonds
pursuant to Section 5.06 of the Amended and Restated Indenture, shall be liable to the
affected owners of the Bonds for any taxes, penalties and interest assessed against such
owners by the Internal Revenue Service and attributable to the Bonds.
The Authority and the Trustee agree not to object to the intervention in or
participation by the Corporation at its own expense in any proceedings by or before the
Internal Revenue Service or any court relating to whether interest on the Bonds is
includable for federal income tax purposes in the gross income of any owner of a Bond
(other than a "substantial user" of the Project or a "related person" within the
meaning of Section 147(a)(1) of the Code).
Section 3.13. Addition of Section 5.u8 to Article V of the Original Participation Agreement. The
Original Participation Agreement is hereby amended to add the following Section 5.08 at the end of Article V of
the Original Participation Agreement:
Section 5.08. Recording and Filing. The Corporation hereby covenants that it
will cause all financing statements related to the Amended and Restated Indenture and
all supplements thereto and this Participation Agreement and all supplements thereto,
as well as such other security agreements, financing statements and all supplements
thereto and other instruments as may be required from time to time to be kept, to be
recorded and filed in such manner and in such places as may from time to time be
required by law in order to preserve and protect fully the security of Holders and the
rights of the Trustee hereunder, and to take or cause to be taken any and all other
action necessary to perfect the security interest created by the Amended and Restated
Indenture and shall, within ten (10) days after such filing, cause there to be
furnished to the Trustee an opinion of counsel as to the adequacy and details of such
filing and specifying any re-filing to be effected in the future.
Section 3.14. Addition and insertion of Article VI to the Original Participation Agreement. The Original
Participation Agreement is hereby amended to add and insert the following Article VI, Sections 6.01, 6.02, 6.03
and 6.04 after Article V of the Original Participation Agreement:
ARTICLE VI
DEFAULTS BY CORPORATION; REMEDIES
Section 6.01. Events of Default; Acceleration. In case one or more of the
following events of default shall have occurred and be continuing;
(a) failure by the Corporation to pay when due any amount required to be paid
under this Participation Agreement or the Corporation Obligation, which failure causes
a default in the payment when due of the principal of, or premium, if any, or interest
on, any of the Bonds; or
(b) failure by the Corporation to pay when due any amount required to be paid
under Section 4.11 of this Participation Agreement, which failure causes an Event of
Default to occur pursuant to paragraph (a) of Section 12.01 of the Amended and Restated
Indenture; or
(c) failure on the part of the Corporation duly to observe or perform any other
of the covenants or agreements on the part of the Corporation contained in the
Participation Agreement (other than failure to pay amounts required to be paid under
Sections 4.04, 4.05 and 4.08), the Tax Regulatory Agreement or in the Corporation
Obligation for a period of ninety (90) days after the date on which written notice of
such failure, requiring the Corporation to remedy the same, shall have been given to the
Corporation by the Authority or the Trustee; or
(d) the occurrence of an Event of Bankruptcy of the Corporation or failure by
the Corporation generally to pay its debts in the Corporation Indenture;
then, and in any such event, the Trustee (as assignee of the Authority), may with the
consent of the Bond Insurer (assuming the Bond Insurer is not in default under the
Policy), and/or the direction of the Bond Insurer (assuming the Bond Insurer is not in
default under the Policy) or upon the written request or direction of the owners of not
less than twenty-five percent (25%) in aggregate principal amount of the Bonds then
outstanding with the consent of the Bond Insurer shall, by notice in writing to the
Corporation and provided that the default has not theretofore been cured, declare the
Corporation Obligation to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything contained in
this Participation Agreement or in the Corporation Obligation to the contrary
notwithstanding. Any amounts collected by the Trustee pursuant to action taken here
shall be applied in accordance with the Indenture. In addition, if at any time the
principal of the Bonds shall have been declared to be due and payable by acceleration
pursuant to the terms of the Indenture, the Corporation Obligation shall thereupon
become and be immediately due and payable, subject to such declaration with respect to
the Bonds being annulled pursuant to Section 12.03 of the Amended and Restated Indenture.
The right or obligation of the Trustee to make any such declaration as
aforesaid, however, is subject to the condition that if, at any time after declaration,
but before all the Bonds shall have matured by their terms, the principal of, premium,
if any, and interest on, the Corporation Obligation which shall have become due and
payable otherwise than by such declaration, and all other sums payable under this
Participation Agreement, except the principal of, and interest on, the Corporation
Obligation which shall have become due and payable by such declaration, shall have been
paid or provision satisfactory to the Trustee shall have been made for such payment,
and the reasonable expenses of the Trustee and of the owners of the Bonds shall have
been paid, including reasonable attorneys' fees paid or incurred, and all defaults
hereunder and under the Bonds or under the Indenture, except as to the payment of
principal and interest due and payable solely by reason of such declaration, shall be
made good or be secured to the satisfaction of the Trustee or provision deemed by the
Trustee to be adequate shall be made therefore, then and in every such case, the Bond
Insurer (unless the Bond Insurer is then in default under the Policy), or the owners of
a majority in aggregate principal amount of the Bonds then outstanding, with the
consent of the Bond Insurer, by written notice to the Authority and to the Trustee, may
rescind such declaration and annul such default in its entirety, or, if the Trustee
shall have acted in the absence of a written request of the owners of at least
twenty-five percent (25%) in aggregate principal amount of the outstanding Bonds, and
if there shall not have been theretofore delivered to the Trustee written direction to
the contrary by the owners of a majority in aggregate principal amount of the
outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded
and any such default and its consequences shall ipso facto be deemed to be annulled,
but no such rescission and annulment shall extend to or affect any subsequent default
or impair or exhaust any right or power consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Participation Agreement or the Corporation Obligation and such proceedings shall have
been discontinued or abandoned for any reason or shall have been determined adversely
to the Trustee, then and in every such case the Corporation, the Authority and the
Trustee shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Corporation, the Authority and the Trustee
shall continue as though no such proceedings had been taken.
Section 6.02. Events of Default relating to fees or indemnification. In case
the Corporation shall have failed to pay amounts required to be paid under Sections
4.04, 4.05 and 4.08, which event shall have continued for a period of ninety (90) days
after the date on which written notice of such failure, requiring the Corporation to
remedy the same, shall have been given to the Corporation by the Authority or the
Trustee, the Authority or the Trustee may take whatever action at law or in equity as
may appear necessary or desirable to enforce performance or observance of any
obligations or agreements of the Corporation under said Sections 4.04, 4.05 and 4.08.
Section 6.03. Judicial proceedings by Trustee. Upon the occurrence and
continuance of an event of default under this Article, the Trustee may, and upon the
written request of the owners of at least twenty-five percent (25%) in aggregate
principal amount of the Bonds then outstanding shall, institute any actions or
proceedings at law or in equity for the collection of any amounts then due and unpaid
on the Corporation Obligation, and may prosecute any such action or proceeding to
judgment or final decree, and may collect in the manner provided by law the moneys
adjudged or decreed to be payable.
Section 6.04. Rights of the Credit Facility Issuer; Other rights of the
Trustee to enforce this Participation Agreement. Notwithstanding anything herein to the
contrary, any judicial proceedings of the Trustee under Section 6.03 may be instituted
only with the written consent of the Credit Facility Issuer and shall be instituted by
the Trustee at the written direction of the Credit Facility Issuer.
Nothing in this Participation Agreement shall limit any other rights of the
Trustee to enforce this Participation Agreement.
Section 3.15. Amendment to Article VI of the Original Participation Agreement. Article VI of the
Original Participation Agreement is hereby redesignated as Article VII, and all Sections therein and
cross-references to such Sections therein are redesignated accordingly (e.g., Section 6.01 is hereby redesignated
as Section 7.01, etc.). Sections 6.02, and 6.04, in addition to
being redesignated as Sections 7.02 and 7.04, respectively, are further amended and restated to read as follows:
Section 7.02. Notices. All notices, certificates, requests or other
communications between the Authority, the Corporation and the Trustee required to be
given under this Participation Agreement or under the Amended and Restated Indenture
shall be sufficiently given and shall be deemed given when delivered by hand or first
class mail, postage prepaid, addressed as follows: if to the Authority, at 00 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: President; if to the Corporation, at 000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Treasurer, with a copy to
Niagara Mohawk Power Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Assistant Treasurer; and if to the Trustee or the Registrar and Paying
Agent, at The Bank of New York, 000 Xxxxxxx Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration. A duplicate copy of each notice,
certificate, request or other communication given hereunder to the Authority, the
Company or the Trustee shall also be given to the others. The Corporation, the
Authority and the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates, requests or other
communications shall be sent.
Section 7.04. Amendment of Participation Agreement. This Participation
Agreement may not be amended except by an instrument in writing signed by the parties
hereto and, if such amendment occurs after the issuance of the Bonds, upon compliance
with the provisions of Article XIV of the Amended and Restated Indenture.
Section 3.16. Addition of Exhibit B to the Original Participation Agreement. The Original Participation
Agreement is hereby amended to add Exhibit B, as attached to this First Supplemental Participation Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Law and Place of Enforcement of this First Supplemental Participation Agreement. This
First Supplemental Participation Agreement shall be construed and interpreted in accordance with the laws of the
State of New York and all suits and actions arising out of this First Supplemental Participation Agreement shall
be instituted in a court of competent jurisdiction in the State of New York.
Section 4.02. Effective Date; Counterparts. This First Supplemental Participation Agreement may be
simultaneously executed in counterparts. Each such counterpart so executed shall be deemed to be an original, and
all together shall constitute but one and the same instrument. This First Supplemental Participation Agreement
shall become effective on the Effective Date. Notwithstanding the Effective Date, for convenience and purposes of
reference this First Supplemental Participation Agreement shall be dated as of December 1, 2003 and may be cited
and referred to as the "First Supplemental Participation Agreement dated as of December 1, 2003."
None of the rights, covenants, interests, duties or obligations accruing to or required of any
Bondholder, the Authority, the Corporation, the Trustee, or any Support Facility Issuer prior to the Effective
Date shall be affected by the execution and delivery of this First Supplemental Participation Agreement.
[Signature Page of this Supplemental Agreement Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Agreement to be duly
executed as of the day and year first written above.
NEW YORK STATE ENERGY RESEARCH
AND DEVELOPMENT AUTHORITY
By___________________________________
Acting President
(SEAL)
Attest:
_______________________________
Assistant Secretary
NIAGARA MOHAWK POWER CORPORATION
By_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Assistant Treasurer
(SEAL)
Attest:
_______________________________
Assistant Secretary
[Signature Page of Supplemental Agreement relating to
Pollution Control Refunding Reveneu Bonds
(Niagara Mohawk Power Corporation Project), 1991 Series A]
__________________________________________________________________________________________
EXHIBIT B
Corporation Supplemental Indenture
[See Item Number 31 of this Record of Proceedings]
