Exhibit 4
--------------------------------------------------
--------------------------------------------------
ROCHESTER GAS AND ELECTRIC
CORPORATION
TO
DEUTSCHE BANK TRUST
COMPANY AMERICAS
(FORMERLY BANKERS TRUST COMPANY),
TRUSTEE
-----------------
SUPPLEMENTAL INDENTURE
DATED AS OF JUNE , 2002
SUPPLEMENTAL TO GENERAL MORTGAGE
DATED SEPTEMBER 1, 1918
------------------
FIRST MORTGAGE % BONDS, DUE 2032, SERIES UU
--------------------------------------------------
--------------------------------------------------
SUPPLEMENTAL INDENTURE, dated as of June , 2002 between ROCHESTER GAS
AND ELECTRIC CORPORATION (its name having been duly changed from "Rochester
Railway and Light Company"), a corporation of the State of New York with offices
located at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter sometimes
called the "Company"), party of the first part, and DEUTSCHE BANK TRUST COMPANY
AMERICAS (its name having been duly changed from "Bankers Trust Company"), a
corporation of the State of New York with its principal corporate trust office
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Trustee under the
Indenture dated September 1, 1918 between Rochester Railway and Light Company
and Bankers Trust Company (hereinafter sometimes called the "Trustee"), party of
the second part.
WHEREAS, the Company heretofore executed and delivered its General
Mortgage (hereinafter sometimes referred to as the "Original Indenture"), dated
the 1st day of September, 1918, to the Trustee to secure an issue of General
Mortgage Bonds of the Company issuable in series and limited in aggregate
principal amount as therein specified; and
WHEREAS, the Company heretofore executed and delivered forty-one
indentures amending and supplementing the Original Indenture, said forty-one
indentures being dated March 1, 1921, October 23, 1928, August 1, 1932, as of
May 1, 1940, as of March 1, 1949, as of August 15, 1950, as of June 1, 1952, as
of March 1, 1955, as of July 1, 1957, as of October 15, 1959, as of November 15,
1961, as of September 15, 1964, as of May 1, 1966, as of September 15, 1967, as
of July 1, 1968, as of August 15, 1969, as of September 1, 1970, as of August 1,
1974, as of June 15, 1976, as of September 15, 1977, as of December 1, 1978, as
of August 1, 1979, as of February 15, 1980, as of August 15, 1981, as of May 15,
1982, as of June 15, 1982, as of March 1, 1983, as of June 15, 1984, as of May
15, 1985, as of August 1, 1986, as of May 1, 1987, as of December 15, 1987, as
of December 1, 1988, as of April 1, 1991, as of March 15, 1992, as of May 1,
1992, as of May 15, 1992, as of October 15, 1992, as of September 1, 1993, as of
March 15, 1999, and as of April 1, 2001, respectively (the Original Indenture as
so amended and supplemented being hereinafter referred to as the "Mortgage");
and
WHEREAS, all mortgages formerly constituting prior liens upon
properties and franchises of the Company have been heretofore discharged (except
to the extent, if any, that under the agreement between the Company and the City
of Rochester, dated September 5, 1892, and agreements supplemental hereto, the
City may still have the right to purchase the subways owned by the Company upon
the terms and conditions therein stated), and the lien of the Mortgage now
constitutes a first mortgage lien upon all properties and franchises of the
Company which are subject to the lien thereof; and
WHEREAS, there are now issued and outstanding under the Mortgage bonds
in the aggregate principal amount of $580,500,000 as follows:
DESIGNATION PRINCIPAL AMOUNT
----------- ----------------
Series RR............................... 10,500,000
Series SS............................... 50,000,000
Series TT............................... 200,000,000
Secured Medium-Term
Notes, Series A...................... 170,000,000
Secured Medium-Term
Notes, Series B...................... 150,000,000
and no bonds of any other series are issued or outstanding under the Mortgage;
and
WHEREAS, the Company desires to issue additional bonds under the
Mortgage, of a new series to be designated "First Mortgage % Bonds, due 2032,
Series UU" (hereinafter sometimes called "bonds of Series UU"); and
WHEREAS, all provisions of the Mortgage pertinent to the execution and
delivery of this Supplemental Indenture and to the taking of the action referred
to herein have been complied with and the Company, pursuant to due and
appropriate corporate action, duly had and taken before the execution and
delivery hereof, has duly authorized and directed the execution and delivery to
the Trustee of this Supplemental Indenture; and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture, in the form and terms hereof, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed
have been done, performed and fulfilled and the execution and delivery hereof
have been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that in
consideration of the premises and of the sum of One Dollar to the Company duly
paid by the Trustee at or before the sealing and delivery of these presents and
for other valuable considerations, the receipt whereof is hereby acknowledged,
and in consideration of the purchase and acceptance of the bonds of Series UU by
the holders thereof, and in order to secure the payment of the principal,
interest and premium, if any, on all bonds at any time issued under and secured
by the Original Indenture, as from time to time amended and supplemented,
according to their tenor, purport and effect and to secure the performance and
observance of all the covenants and conditions in such bonds and in the Original
Indenture, as from time to time amended and supplemented, contained, and for the
purpose of better assuring and confirming unto the Trustee
-2-
the property mortgaged or intended to be mortgaged by the Original Indenture, as
from time to time amended and supplemented (other than property disposed of in
accordance with the provisions of the Original Indenture, as from time to time
amended and supplemented), the Company by these presents does expressly confirm
the conveyance and transfer to the Trustee of such property.
ARTICLE I
BONDS OF SERIES UU
SECTION ONE. The bonds of Series UU shall be designated "First Mortgage
% Bonds, due 2032, Series UU." The bonds of Series UU may be executed on
behalf of the Company by its President or any Vice President by his manual or
facsimile signature under its corporate seal, which may be in the form of a
facsimile seal of the Company and may be impressed, affixed, imprinted or
otherwise reproduced on the bonds of Series UU, attested by its Secretary or an
Assistant Secretary by his manual or facsimile signature, and shall be delivered
to the Trustee for authentication by it, and thereupon, as provided in the
Mortgage as hereby supplemented and not otherwise, the Trustee shall
authenticate the bonds of Series UU and shall deliver the same to the Company
upon its written order. The bonds of Series UU shall be fully registered bonds
without coupons and shall be dated as provided in Section 2.07 of the Mortgage.
All bonds of Series UU shall be payable on June , 2032, in such coin or
currency of the United States of America as at the time is legal tender for the
payment of public and private debts, and shall bear interest, payable in like
coin or currency, at the rate of percent ( %) per annum computed on the
basis of a 360-day year of twelve 30-day months, until maturity, according to
the terms of the bonds or on prior redemption or by declaration or otherwise,
and, after the date of such maturity, at the same rate of interest borne prior
to maturity by the principal of the bonds of Series UU from such date of
maturity until they shall be paid or payment thereof shall have been duly
provided for, and (to the extent that payment of such interest is enforceable
under applicable law) interest on any overdue installment of interest at the
same rate of interest borne by the principal of the bonds of Series UU. The
first interest payment on the bonds of Series UU shall be made on September ,
2002, for the period from June , 2002 to September , 2002 with subsequent
interest payments payable quarterly on March , June , September and
December of each year (each an "Interest Payment Date") commencing on
December , 2002. In any case where any Interest Payment Date, redemption date
or maturity of any bond of the bonds of Series UU shall not be a Business Day
(as hereinafter defined), then payment of interest or principal and premium if
any, need not be made on such date, but may be made on the next succeeding
Business Day, with the same force and effect, and in the same amount, as if made
on the corresponding Interest Payment Date or redemption date, or at maturity,
as the case may be, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable for the period
-3-
from and after such Interest Payment Date, redemption date or maturity, as the
case may be, to such Business Day. "Business Day" means any day, other than a
Saturday or a Sunday, or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to remain closed or a
day on which the corporate trust office of the Trustee is closed for business.
The persons in whose names bonds of Series UU are registered at the
close of business on any record date (as hereinafter defined) with respect to
any Interest Payment Date shall be entitled to receive the interest payable on
such Interest Payment Date (except that in case of any redemption of bonds of
Series UU as provided for herein on a date subsequent to the record date and
prior to such Interest Payment Date, interest on such redeemed bonds shall be
payable only to the date fixed for redemption thereof and only against surrender
of such bonds for redemption in accordance with the notice of such redemption)
notwithstanding the cancellation of any bond of Series UU upon any registration
of transfer or exchange subsequent to the record date and prior to such Interest
Payment Date; provided, however, that if, and to the extent, the Company shall
default in the payment of the interest due on any Interest Payment Date, such
defaulted interest shall be paid to the persons in whose names outstanding bonds
of Series UU are registered on the day immediately preceding the date of payment
of such defaulted interest or, at the election of the Company, on a subsequent
record date established by notice given by mail by or on behalf of the Company
to the holders of bonds of Series UU not less than fifteen days preceding such
subsequent record date. The term "record date" shall mean, with respect to any
regular Interest Payment Date, the close of business on the last day of the
calendar month next preceding such Interest Payment Date or, in the case of
defaulted interest, the close of business on any subsequent record date
established as provided above.
Principal of and interest on the bonds of Series UU shall be payable at
the office or agency of the Company in the Borough of Manhattan, The City of New
York.
Bonds of Series UU shall be issuable in minimum denominations of $25.00
and in denominations exceeding such amount in integral multiples of $25.00. The
bonds of Series UU may be exchanged (without payment of any service charge, but
the Company may require the payment of a sum sufficient to cover any tax or
taxes or other governmental charges required to be paid by it) at the option of
the holders thereof, in like aggregate principal amounts for bonds of Series UU
of other authorized denominations.
All bonds of Series UU shall be redeemable at the option of the
Company, on any date on or after June , 2007, as a whole or from time to
time in part, upon notice given by mailing the same to each registered
holder directed to his registered address not less than thirty (30) nor more
than ninety (90) days before the redemption date, at a redemption price equal to
100% of the principal amount
-4-
of the bonds of Series UU to be redeemed, plus accrued interest thereon to the
redemption date.
The bonds of Series UU shall also be redeemable on any date prior to
maturity, on the conditions referred to in this paragraph, on like mailing of
notice of such redemption, at 100% of the principal amount thereof, together
with accrued interest thereon to the date of redemption. Redemption as a whole,
but not in part only, at said redemption price may be effected as provided in
Section 5.08 of the Mortgage. Redemption as a whole or from time to time in part
at said redemption price may also be effected out of cash deposited pursuant to
Sections 4.06 and 4.19 of the Mortgage, the accrued interest in case of any such
redemption to be provided for by the Company pursuant to the provisions of
Section 5.07 of the Mortgage. Any notice of redemption of bonds of Series UU out
of cash deposited pursuant to said Sections 4.06 and 4.19 shall state that the
redemption is to be effected out of cash deposited pursuant to said Section 4.06
or said Section 4.19, as the case may be.
The Company shall redeem bonds of Series UU, in whole but not in part,
prior to maturity, on like mailing of notice of such redemption, upon the
occurrence of an event of default pursuant to the Insurance Agreement dated June
, 2002 (the "Insurance Agreement") between the Company and Ambac Assurance
Corporation ("Ambac"), which event of default will be deemed to have occurred
if, and only if, the Company breached its obligations under Sections 1.02(b) or
3.01 of the Insurance Agreement and such breach continues for more than 60 days
after the receipt by the Company of written notice of such breach from Ambac
("Insurance Event"). Subject to the notice to holders provisions provided in
this paragraph, the Company shall redeem bonds of Series UU pursuant to the
prior sentence within 60 days of such occurrence of the Insurance Event. In the
event of a redemption of the bonds of Series UU on or after June , 2007 that
occurs as a result of an Insurance Event, the redemption price shall be equal to
100% of the principal amount of the bonds of Series UU to be redeemed plus
accrued interest thereon to the redemption date. In the event of a redemption of
the bonds of Series UU before June , 2007 that occurs as a result of an
Insurance Event, the redemption price shall be equal to the accrued interest on
the bonds of Series UU being redeemed to the date of redemption (the "Redemption
Date") plus the greater of: (i) 100% of the principal amount of bonds of Series
UU being redeemed; or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the bonds of Series UU being
redeemed (not including any portion of such payments of interest accrued as of
the Redemption Date) discounted to the Redemption Date on a quarterly basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus twenty-five (25) basis points, as calculated by an
Independent Investment Banker. For purposes of this paragraph the following
terms shall have the following meanings:
-5-
"Adjusted Treasury Rate" means, with respect to any
Calculation Date: (i) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most
recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after maturity date of the bonds of
Series UU, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and
the adjusted Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month);
or (ii) if such release (or any successor release) is not published
during the week preceding the Calculation Date or does not contain such
yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Calculation Date.
"Calculation Date" means the third business day preceding the
applicable Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the bonds of Series UU
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the bonds of
Series UU.
"Comparable Treasury Price" means (i) the average of five
Reference Treasury Dealer Quotations for such Calculation Date, after
excluding the highest and lowest Reference Treasury Dealer Quotations,
or (ii) if the Independent Investment Banker obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Primary Treasury Dealer means a primary U.S. Government
securities dealer in New York City.
"Reference Treasury Dealer" means: (i) each of Xxxxxx Xxxxxxx
& Co. Incorporated, Xxxxxxx Xxxxx Barney Inc. and UBS Warburg LLC, and
their respective successors; provided that, if any of the foregoing
-6-
ceases to be a Primary Treasury Dealer, the Company will substitute
another Primary Treasury Dealer; and (ii) any other Primary Treasury
Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Calculation Date, the average,
as determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time, on the
Calculation Date.
With respect to the bonds of Series UU, if the Company shall deposit
with the Trustee or its successor as trustee in trust for the purpose funds
sufficient to pay the applicable redemption price for bonds of Series UU
(including any portions, constituting $25.00 or a multiple thereof, of fully
registered bonds), and all interest payable on such bonds (or portions) to the
date on which they become due and payable upon redemption, and complies with the
other provisions of the Mortgage in respect thereof, then from the date of
redemption such bonds (or portions) shall no longer be secured by the lien of
the Mortgage or bear interest.
To the extent permitted by law and so long as Ambac is in compliance
with its obligations under its Financial Guaranty Insurance Policy
No. and is not subject to any bankruptcy, insolvency or similar
proceedings, (i) notwithstanding any other provision of the Mortgage, Ambac
shall be entitled to control and direct the enforcement of all rights and
remedies with respect to the bonds of Series UU (including but not limited to
any right to accelerate bonds of Series UU and any right to vote for approval of
any plan of reorganization or liquidation) upon the occurrence and during a
continuation of a default under the Mortgage to the same extent as if it were
the holder of the bonds of Series UU; and (ii) no consent of any holder of bonds
of Series UU to any amendment, supplement or change to, or other modification
of, the Mortgage shall be effective without the prior written consent of Ambac.
The Company shall not be required to make exchanges or registrations of
transfer of bonds of Series UU for a period of ten days next preceding the
mailing of notice of redemption of bonds of Series UU, and the Company shall not
be required to exchange or register the transfer of any bond of Series UU
selected, called or being called for redemption or, in the case of a bond of
Series UU to be redeemed in part, that portion so to be redeemed.
The bonds of Series UU will be issued as definitive bonds which, at the
option of the Company, may be fully engraved or may be printed or lithographed.
-7-
Notwithstanding the foregoing, so long as the any bonds of Series UU
are registered in the name of the Depository Trust Company ("DTC") or its
nominee (in such registered form, a "global security"), ownership of beneficial
interests by participants therein will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by DTC or
its nominee therefor. When any bonds of Series UU are represented by a global
security, owners of beneficial interests therein will not be entitled to have
such bonds registered in their names, will not receive or be entitled to receive
physical delivery of such bonds in registered form and will not be considered
the owners or holders thereof. A global security may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor of or a nominee of
such successor. If DTC is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, bonds will be issued in definitive registered form in exchange for the
global security representing the bonds of Series UU. The Company may at any time
and in its sole discretion determine not to have any bonds of Series UU
represented by one or more global securities and, in such event, will issue
bonds in definitive form in exchange for all of the global securities
representing such bonds of Series UU.
SECTION TWO. The bonds of Series UU shall be substantially in the
following form:
[FORM OF FACE OF BOND OF SERIES UU]
ROCHESTER GAS AND ELECTRIC CORPORATION
$................................... No. ................................
FIRST MORTGAGE % BOND, DUE 2032, SERIES UU
DUE JUNE , 2032
ROCHESTER GAS AND ELECTRIC CORPORATION, a corporation organized and
existing under the laws of the State of New York (hereinafter called the
Company), for value received, hereby promises to pay to
or registered assigns on June ,
2032, at the office or agency of the Company in the Borough of Manhattan,
The City of New York,
Dollars in such coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts, and to
pay at said office or agency, in like coin or currency, interest thereon at the
rate of percent ( %) per annum, the first interest payment to be made on
September , 2002, for the period from June , 2002 to September , 2002 with
subsequent interest payments payable quarterly on March , June , September ,
and
-8-
December of each year (each an "Interest Payment Date") commencing on
September , 2002. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months until this bond shall mature according to its terms or on
prior redemption or by declaration or otherwise, and, after the date of such
maturity, at the same rate of interest borne prior to maturity by the principal
hereof from such date of maturity until this bond shall be paid or payment
hereof shall have been duly provided for, and (to the extent that payment of
such interest is enforceable under applicable law) to pay interest on any
overdue installment of interest at the same rate of interest borne by the
principal hereof. The interest so payable on any Interest Payment Date will,
subject to certain exceptions provided in the Mortgage referred to on the
reverse hereof, be paid to the person in whose name this bond (or the bond or
bonds in exchange or substitution for which this bond was issued) was registered
at the close of business on the day of the calendar month next preceding such
Interest Payment Date.
Where any Interest Payment Date, redemption date or maturity shall not
be a Business Day (as hereinafter defined), then payment of interest or
principal and premium if any, need not be made on such date, but may be made on
the next succeeding Business Day, with the same force and effect, and in the
same amount, as if made on the corresponding Interest Payment Date or redemption
date, or at maturity, as the case may be, and, if such payment is made or duly
provided for on such Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, redemption
date or maturity, as the case may be, to such Business Day. "Business Day" means
any day, other than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or a day on which the corporate trust office of
the Trustee is closed for business.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This bond shall not become valid or obligatory for any purpose until
Bankers Trust Company, or its successor as Trustee under the Mortgage, shall
have signed the certificate of authentication hereon.
IN WITNESS WHEREOF, ROCHESTER GAS AND ELECTRIC CORPORATION has caused
this bond to be signed in its name by its President or one of its Vice
Presidents by his signature or a facsimile thereof and its corporate seal, or a
facsimile thereof, to be affixed hereto and attested by its Secretary or one of
its Assistant Secretaries by his signature or a facsimile thereof.
-9-
Dated: ROCHESTER GAS AND ELECTRIC CORPORATION
By.................................................
Vice President
[CORPORATE SEAL]
Attest:
.............................................
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of the issue of bonds, of the series designated
therein, described in the Mortgage referred to on the reverse hereof.
DEUTSCHE BANK TRUST COMPANY AMERICAS
Trustee,
By ................................................
Authorized Officer
[FORM OF REVERSE OF BOND OF SERIES UU]
This bond is one of an issue of bonds of the Company, issuable in
series, and is one of a series known as its First Mortgage % Bonds, due 2032,
Series UU, all bonds of all series issued and to be issued under and secured by
an Indenture of Mortgage dated September 1, 1918, as amended and/or supplemented
by forty-two Supplemental Indentures, all executed by the Company to Deutsche
Bank Trust Company Americas (formerly Bankers Trust Company), a corporation of
the State of New York, as Trustee, and together herein called the Mortgage, to
which Indenture of Mortgage and all indentures and conveyances supplemental
thereto reference is made for a complete description of the property mortgaged,
the nature and extent of the security, the rights of the holders of the bonds
and of the Company in respect thereof, the rights, duties and immunities of the
Trustee, and the terms and conditions upon which the bonds are, and are to be,
secured.
The Mortgage contains provisions permitting, under certain conditions,
the holders of not less than seventy-five per cent (75%) in aggregate principal
amount of all the bonds (or, if only certain series are affected, of such
series, together with the consent of the holders of at least a majority in
aggregate principal amount of all the bonds) at the time outstanding to waive
any past default under the Mortgage and its consequences except an event of
default (i) in respect of the payment of the principal of or interest on any
bond, (ii) arising from the creation
-10-
(not including in such term existing liens on property acquired after March 1,
1949) of any lien ranking prior to or equal with the lien of the Mortgage on any
of the mortgaged property or (iii) in respect of the waiver of which specific
provision is otherwise made in the Mortgage. The Mortgage also contains a
provision that under certain circumstances if, after the principal of all bonds
then outstanding under the Mortgage shall have been declared due and payable, as
provided in the Mortgage, all defaults under the Mortgage shall have been
remedied, then the holders of a majority in principal amount of the bonds then
secured by and outstanding under the Mortgage, by written notice to the Company
and to the Trustee, may waive and rescind such default and its consequences. The
Mortgage also contains provisions permitting the Company and Trustee, with the
consent of the holders of not less than seventy-five per cent (75%) in aggregate
principal amount of all the bonds (or, if only certain series are affected, of
such series, together with the consent of the holders of at least a majority in
aggregate principal amount of all the bonds) at the time outstanding, to enter
into supplemental indentures adding any provisions to or changing in any manner
or eliminating any of the provisions of the Mortgage or of any supplemental
indenture or modifying in any manner the rights of the holders of the bonds;
provided, however, that no such supplemental indenture shall (a) extend the
fixed maturity of any bonds, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof, or limit the right of
a bondholder to institute suit for the enforcement of payment of principal or
interest, without the consent of the holder of each bond so affected, or (b)
reduce the percentage of bonds, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all
bonds, or (c) permit the creation of any mortgage or pledge or lien in the
nature thereof ranking prior to or equal with the lien of the Mortgage, without
the consent of the holders of all bonds. Any such waiver or consent by the
holder of this bond (unless effectively revoked as provided in the Mortgage)
shall be conclusive and binding upon such holder and upon all future holders of
this bond (and any bond issued in lieu hereof or exchange herefor), irrespective
of whether or not any notation of such waiver or consent is made upon this bond.
The bonds of Series UU are issuable in fully registered form, in
minimum denominations of $25.00 and in denominations exceeding such amount in
integral multiples of $25.00. This bond is transferable in the manner and
subject to the limitations prescribed in the Mortgage by the registered holder
hereof in person, or by his duly authorized attorney, and this bond may be
exchanged for a like aggregate principal amount of bonds of the same series of
other authorized denominations, at the principal corporate trust office of the
Trustee in said Borough of Manhattan, upon surrender and cancellation of this
bond, without payment of any service charge, but the Company may require the
payment of a sum sufficient to cover any related tax or taxes or other
governmental charges required to be paid by it. The Company, the Trustee, any
paying agent and any bond registrar may deem and treat the person in whose name
this bond is
-11-
registered as the absolute owner hereof for the purpose of receiving payment and
for all other purposes and neither the Company nor the Trustee nor any paying
agent nor any bond registrar shall be affected by any notice to the contrary.
Notwithstanding the preceding paragraph, so long as this bond is
registered in the name of the Depository Trust Company ("DTC") or its nominee
(in such registered form, a "global security"), ownership of beneficial
interests by participants herein will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by DTC or
its nominee therefor. When this bond is represented by a global security, owners
of beneficial interests herein will not be entitled to have this bond registered
in their names, will not receive or be entitled to receive physical delivery of
bonds in registered form and will not be considered the owners or holders
hereof. A global security may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC
or any such nominee to a successor of or a nominee of such successor. If DTC is
at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, bonds will be issued
in definitive registered form in exchange for the global security representing
this bond. The Company may at any time and in its sole discretion determine not
to have any bonds of Series UU represented by one or more global securities and,
in such event, will issue bonds in definitive form in exchange for all of the
global securities representing such bonds of Series UU.
The bonds of Series UU may be redeemed at the option of the Company, on
any date on or after June , 2007, as a whole or from time to time in part, upon
mailing of notice as provided in the Mortgage, at 100% of the principal amount
thereof, with accrued interest thereon to the date of redemption.
The bonds of Series UU may also be redeemed on any date prior to
maturity, on certain conditions referred to in the Mortgage, on giving notice of
such redemption as provided in the Mortgage, at 100% of the principal amount
thereof, together with accrued interest thereon to the date of redemption.
The Company must redeem the bonds of Series UU, in whole but not in
part, prior to maturity, at a redemption price as specified in the Mortgage,
upon the occurrence of an event of default pursuant to the Insurance Agreement
dated June , 2002 (the "Insurance Agreement") between the Company and Ambac
Assurance Corporation ("Ambac"), all as provided in the Mortgage.
It is provided in the Mortgage that any notice of redemption of bonds
may state that it is subject to the receipt of the redemption moneys by the
Trustee before the date fixed for redemption and shall be of no effect unless
such moneys are so received before such date.
-12-
To the extent permitted by law and so long as Ambac is in compliance
with its obligations under its Financial Guaranty Insurance Policy No. and is
not subject to any bankruptcy, insolvency or similar proceedings, (i)
notwithstanding any other provision of the Mortgage, Ambac shall be entitled to
control and direct the enforcement of all rights and remedies with respect to
the bonds of Series UU (including but not limited to any right to accelerate
bonds of Series UU and any right to vote for approval of any plan of
reorganization or liquidation) upon the occurrence and during a continuation of
a default under the Mortgage to the same extent as if it were the holder of the
bonds of Series UU; and (ii) no consent of any holder of bonds of Series UU to
any amendment, supplement or change to, or other modification of, the Mortgage
shall be effective without the prior written consent of Ambac.
The Mortgage provides that if the Company shall deposit with the
Trustee or its successor as trustee in trust for the purpose funds sufficient to
pay the applicable redemption price for any series of bonds (including any
portions, constituting $25.00 or a multiple thereof, of fully registered bonds),
and all interest payable on such bonds (or portions) to the date on which they
become due and payable upon redemption, and complies with the other provisions
of the Mortgage in respect thereof, then from the date of redemption such bonds
(or portions) shall no longer be secured by the lien of the Mortgage or bear
interest.
The Mortgage provides that if the Company shall deposit with the
Trustee or its successor as trustee in trust for the purpose funds sufficient to
pay the principal of all of the bonds of any series and premium, if any,
thereon, and all interest payable on such bonds to the date on which they become
due and payable at maturity, and complies with the other provisions of the
Mortgage in respect thereof, then from the date of such deposit such bonds shall
no longer be secured by the lien of the Mortgage.
The Mortgage provides that, upon any partial redemption of a fully
registered bond, upon surrender thereof endorsed for transfer, new bonds of the
same series and of authorized denominations in principal amount equal to the
unredeemed portion of such fully registered bond will be delivered without
charge in exchange therefor.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of an event of default as in
the Mortgage provided.
[END OF REVERSE SIDE OF BOND OF SERIES UU]
-13-
ARTICLE II
Sundry Provisions
SECTION ONE. The Trustee hereby accepts the trust herein declared and
provided, and agrees to perform the same upon the terms and conditions set forth
in the Mortgage, as hereby amended and supplemented.
SECTION TWO. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture, or the due execution hereof by the Company, or for or in respect of
the recitals contained herein, all of which recitals are made by the Company
solely. Nor shall the Trustee, subject to the provisions of Sections 10.01 and
10.02 of the Mortgage, be answerable or accountable for anything whatsoever in
connection with this Supplemental Indenture, except its own misconduct or
negligence.
SECTION THREE. In compliance with Section 13 of the Lien Law of the
State of New York, the Company hereby agrees that it will receive the advances
secured by the Mortgage, as amended and supplemented hereby, and will hold the
right to receive such advances as a trust fund to be applied first for the
purpose of paying the cost of the improvement, if any, as required by said Lien
Law, and that it will apply the same first to the payment of the cost of the
improvement, if any, before using any part of the total of the same for any
other purpose.
SECTION FOUR. This Supplemental Indenture may be executed in several
counterparts, each of which when so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, Rochester Gas Electric Corporation has caused this
Supplemental Indenture to be signed in its name and behalf by its President or
one of its Vice Presidents and its corporate seal to be hereunto affixed, duly
attested by its Secretary or one of its Assistant Secretaries, and Bankers Trust
Company, to evidence its acceptance of the trusts hereby created, has caused
this Supplemental Indenture to be signed in its name and behalf by one of its
Vice Presidents or Assistant Vice Presidents and its corporate seal to be
hereunto affixed, duly attested by one of its Associates, as of the day and year
first above written, this day of June, 2002.
-14-
ROCHESTER GAS AND ELECTRIC CORPORATION
By.................................................
Xxxx Xxxxx, Vice President and Treasurer
[CORPORATE SEAL]
Attest:
.................................................
Xxxxx X. Xxxxxxxxx, Vice President
and Corporate Secretary
STATE OF NEW YORK )
) SS.:
COUNTY OF MONROE )
On the day of June, in the year 2002, before me, the undersigned,
personally appeared XXXX XXXXX, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
------------------------------------------------
Notary Public
-15-
DEUTSCHE BANK TRUST COMPANY AMERICAS
Trustee,
By ................................................
Authorized Officer
[CORPORATE SEAL]
Attest:
.............................................
Associate
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the day of June, in the year 2002, before me, the undersigned,
personally appeared , personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that she executed the
same in her capacity, and that by her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
--------------------------------------------------
Notary Public
