EXHIBIT 4.1
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ROCHESTER GAS AND ELECTRIC
CORPORATION
TO
BANKERS TRUST COMPANY,
Trustee
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SUPPLEMENTAL INDENTURE
Dated as of April 1, 2001
SUPPLEMENTAL TO GENERAL MORTGAGE
Dated September 1, 1918
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First Mortgage 6.95% Bonds, Due 2011, Series TT
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SUPPLEMENTAL INDENTURE, dated as of April 1, 2001 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 89 East Avenue, Rochester, New York 14649 (hereinafter sometimes called the
"Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation of
the State of New York with its principal corporate trust office located at Four
Albany Street, New York, New York 10006, 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 indentures
amending and supplementing the Original Indenture, said forty 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, and as of March 15,
1999, 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
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Series PP........................... 100,000,000
Series QQ........................... 100,000,000
Series RR........................... 10,500,000
Series SS........................... 50,000,000
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 6.95% Bonds, due 2011, Series
TT" (hereinafter sometimes called "bonds of Series TT"); and
WHEREAS, as is provided or permitted by the Mortgage, for the purpose of
better assuring and confirming unto the Trustee certain additional property
which has been acquired by the Company and is intended to be subject to the lien
of the Mortgage, the Company desires by this Supplemental Indenture expressly to
subject such property to the lien of the Mortgage as hereinafter more
particularly set forth; 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
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acknowledged, and in consideration of the purchase and acceptance of the bonds
of Series TT 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 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
and does grant, bargain, sell, convey and transfer, unto the Trustee, party of
the second part, its successors and assigns, forever, all and singular, the
following property:
CLAUSE FIRST
All the property described or referred to in the deeds set forth in
Schedule A hereto annexed and made a part hereof as fully as if set forth herein
at length.
CLAUSE SECOND
Any and all the rents, issues and profits, tolls and other income of said
property.
TO HAVE AND TO HOLD the properties, franchises, premises, rights,
appurtenances and privileges hereby conveyed or assigned, or intended to be
conveyed or assigned, unto the Trustee, its successors and assigns forever;
SUBJECT, HOWEVER, to excepted encumbrances as defined in Section 1.02 of
the Mortgage;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of all present and future holders of the bonds and coupons issued and
to be issued under and secured by the Original Indenture, as from time to time
amended and supplemented;
AND UPON THE TRUST, USES AND PURPOSES and subject to the terms, covenants,
agreements and conditions set forth in the Mortgage as amended and supplemented
by this Supplemental Indenture.
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ARTICLE I
BONDS OF SERIES TT
SECTION ONE. The bonds of Series TT shall be designated "First Mortgage
6.95% Bonds, due 2011, Series TT." The bonds of Series TT 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 TT, 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 TT and shall deliver the same to the Company
upon its written order. The bonds of Series TT shall be fully registered bonds
without coupons and shall be dated as provided in Section 2.07 of the Mortgage.
All bonds of Series TT shall be payable on April 1, 2011, 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 6.95 percent (6.95%) per annum, computed on the
basis of a 360-day year of twelve 30-day months, semi-annually on April 1 and
October 1 of each year, 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 TT 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 TT. The persons in whose names bonds of Series
TT 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 TT 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 TT 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 TT 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 TT not less than
fifteen days preceding such subsequent record date. The term "record date"
shall mean, with respect to any regular semi-annual interest payment date,
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the close of business on the 15th 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 TT shall be payable at the
office or agency of the Company in the Borough of Manhattan, The City of New
York.
The bonds of Series TT shall be redeemable at the option of the Company on
any date prior to maturity, 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 the accrued interest on the
bonds of Series TT being redeemed to the date of redemption (the "Redemption
Date") plus the greater of: (i) 100% of the principal amount of bonds of Series
TT being redeemed; or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the bonds of Series TT being
redeemed (not including any portion of such payments of interest accrued as of
the Redemption Date) discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus thirty (30) basis points, as calculated by an Independent
Investment Banker. For purposes of this paragraph the following terms shall
have the following meanings:
"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 TT, 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.
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"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 TT 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 TT.
"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 Morgan Stanley &
Co. Incorporated, BNY Capital Markets, Inc., Chase Securities Inc. and
Mellon Financial Markets, LLC, and their respective successors; provided
that, if any of the foregoing 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.
The bonds of Series TT 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 to the date of redemption (sometimes hereinafter referred
to as the special redemption price). Redemption as a whole, but not in part
only, at said special 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 special 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 TT out of cash deposited pursuant to said Sections 4.06 and 4.19 shall
state that the redemption is
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to be effected out of cash deposited pursuant to said Section 4.06 or said
Section 4.19, as the case may be.
Bonds of Series TT shall be issuable in minimum denominations of $100,000
and in denominations exceeding such amount in integral multiples of $1,000. The
bonds of Series TT 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 TT
of other authorized denominations.
The Company shall not be required to make exchanges or registrations of
transfer of bonds of Series TT for a period of ten days next preceding the
mailing of notice of redemption of bonds of Series TT, and the Company shall not
be required to exchange or register the transfer of any bond of Series TT
selected, called or being called for redemption or, in the case of a bond of
Series TT to be redeemed in part, that portion so to be redeemed.
The bonds of Series TT will be issued as definitive bonds which, at the
option of the Company, may be fully engraved or may be printed or lithographed.
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SECTION TWO. The bonds of Series TT shall be substantially in the
following form:
[FORM OF FACE OF BOND OF SERIES TT]
ROCHESTER GAS AND ELECTRIC CORPORATION
$................................ No. .............................
FIRST MORTGAGE 6.95% BOND, DUE 2011, SERIES TT
DUE APRIL 1, 2011
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 April 1, 2011, 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, semi-
annually on April 1 and October 1 of each year, at the rate of 6.95 percent
(6.95%) per annum, computed on the basis of a 360-day year of twelve 30-day
months, from the April 1 or October 1, as the case may be, next preceding the
date hereof to which interest has been paid, unless the date hereof is a date to
which interest has been paid, in which case from the date hereof, or unless the
date hereof is prior to October 1, 2001 in which case from April 6, 2001, 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 April 1 and October 1 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
15th day of the calendar month next preceding such April 1 and October 1.
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.
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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.
Dated: April 6, 2001 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.
BANKERS TRUST COMPANY,
Trustee,
By ...................................
Authorized Officer
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[FORM OF REVERSE OF BOND OF SERIES TT]
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 6.95% Bonds, due 2011, Series
TT, 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-one Supplemental Indentures, all executed by the Company to 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 (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
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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 TT are issuable in fully registered form, in minimum
denominations of $100,000 and in denominations exceeding such amount in integral
multiples of $1,000. 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
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.
The bonds of Series TT are redeemable at the option of the Company on any
date prior to maturity, 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 the accrued interest on the
bonds of Series TT being redeemed to the date of redemption (the "Redemption
Date") plus the greater of: (i) 100% of the principal amount of bonds of Series
TT being redeemed; or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the bonds of Series TT being
redeemed (not including any portion of such payments of interest accrued as of
the Redemption Date) discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus thirty (30) basis points, as calculated by an Independent
Investment Banker. For purposes of this paragraph the following terms shall
have the following meanings:
"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
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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 TT, 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 TT 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 TT.
"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 Morgan Stanley &
Co. Incorporated, BNY Capital Markets, Inc., Chase Securities Inc. and
Mellon Financial Markets, LLC, and their respective successors; provided
that, if any of the foregoing 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
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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.
The bonds of Series TT 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 to the date of redemption.
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.
The Mortgage provides that if the Company shall deposit with Bankers Trust
Company 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 $1,000 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 Bankers Trust
Company 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 TT]
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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 4th day of April, 2001.
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ROCHESTER GAS AND ELECTRIC CORPORATION
By ..............................................
Mark Keogh, Vice President and Treasurer
[CORPORATE SEAL]
Attest:
.......................................
David C. Heiligman, Vice President
and Corporate Secretary
STATE OF NEW YORK )
) SS.:
COUNTY OF MONROE )
On the 4th day of April, in the year 2001, before me, the undersigned,
personally appeared MARK KEOGH, 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
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BANKERS TRUST COMPANY,
Trustee,
By ...................................
Carol Ng, Vice President
[CORPORATE SEAL]
Attest:
.....................................
Daniel Chipko, Associate
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 4th day of April, in the year 2001, before me, the undersigned,
personally appeared CAROL NG, 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
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SCHEDULE A
TO SUPPLEMENTAL INDENTURE
Dated as of April 1, 2001
Between Rochester Gas and Electric Corporation and
Bankers Trust Company, Trustee
Deed Recorded in the Wayne County Clerk's Office
on March 3, 2000 in Liber 976 of Deeds, at Page 472
ALL THAT TRACT OR PARCEL OF LAND being part of Town Lot 12, Township 14, Range
3, Town of Ontario, Wayne County, State of New York, and more particularly
described as follows:
COMMENCING at a point at the northeast corner of lands reputedly owned by Steven
C. Chapman (formerly owned by American Roadways); thence N 84-30-00 W, 422.77
feet to the northwest corner of said property as shown on a map entitled "Final
Plan American Roadways", by R. Ronald Kreiling, P.E., L.S., Dwg. No. 80-530
dated November 14, 1980, filed in Wayne County Clerk's Office, No. 12565; thence
S 08-40-00 W, 433.62 feet to a point being the northeast corner of lands here
being conveyed and being the true point of beginning; thence,
1. S 08-40-00 W, 150.00 feet to a point on the north right-of-way line (100'
wide) of Ontario Midland Railroad; thence
2. N 84-30-00 W, 122.97 feet along the north R.O.W. line to the point of
curvature; thence
3. Westerly along a curve to the right delta angle 00-37-57, radius 11509.20
feet, arc length 127.08 feet to a point being the southwest corner of lands
here being conveyed; thence
4. N 08-40-00 E, 150.70 feet to a point; thence
5. S 84-30-00 E, 250.00 feet to the point and place of beginning; comprising
an area of 0.860 acres to R.O.W. line.
All as shown on a map entitled "Final Plan R. G. & E. Subdivision Beh Industrial
Park", by Kreiling Associates, P.E., L.S., P.C., Dwg. No. 99-3810-1, filed in
the Wayne County Clerk's Office, #24397.
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