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Exhibit 1.1
ROCHESTER GAS AND ELECTRIC CORPORATION
First Mortgage Bonds
UNDERWRITING AGREEMENT
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To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule I or II hereto
Dear Sirs:
1. Introductory. Rochester Gas and Electric Corporation, a New York
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corporation ("Company"), proposes to issue and sell the First Mortgage Bonds
identified in Schedule I hereto ("Bonds"), to be issued under and secured by the
General Mortgage dated September 1, 1918, between the Company and Bankers Trust
Company, as Trustee ("Trustee"), as heretofore amended and supplemented by
supplemental indentures and as to be further amended and supplemented by an
additional supplemental indenture providing for the creation of the Bonds (such
General Mortgage as so amended and supplemented and as to be so amended and
supplemented being hereinafter called the "Indenture"), and hereby agrees with
the several underwriters named in Schedule I or II hereto ("Underwriters"), who
are being represented by the representatives of the Underwriters named in
Schedule I hereto ("Representatives"), as follows:
2. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333- ), including a
prospectus, relating to the Bonds has been filed with the Securities and
Exchange Commission ("Commission") and has become effective. Such
registration statement, as it may have been amended prior to the date
hereof, is hereinafter referred to as the "Registration Statement," and the
prospectus included in such Registration Statement, as supplemented to
reflect the terms of the Bonds and the offering thereof by a prospectus
supplement to be filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as
amended ("Act"), including all material incorporated by reference therein,
but excluding any prospectus supplement relating to an offering of
securities other than the Bonds, is hereinafter referred to as the
"Prospectus".
(b) On its effective date, the Registration Statement conformed in all
respects to the applicable requirements of the Act, the Trust Indenture Act
of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date hereof the Prospectus conforms in all respects
to the applicable requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and the Prospectus does not include any untrue
statement of a material fact
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or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by any
Underwriter specifically for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of New York, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is not required to be qualified
to transact business in any jurisdiction other than the state of New York.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) The Bonds, when delivered pursuant to this Agreement, will have
been duly authorized, executed, authenticated, issued and delivered and the
bonds when delivered will constitute valid and legally binding obligations
of the Company entitled to the benefits and security provided by the
Indenture.
(f) The Indenture has been duly authorized, executed, and delivered by
the Company, has been duly qualified under the Trust Indenture Act, and
constitutes a valid and binding instrument enforceable against the Company
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting enforcement of creditors' rights or
the security provided by the Indenture and to general equity principles,
and except as limited by the Atomic Energy Act of 1954 and regulations
thereunder relating to the Company's interest in atomic energy facilities.
(g) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and
the Bonds will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company that is material to the Company,
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture and the Bonds, except such as have
already been obtained or as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Bonds.
(h) There are no legal or governmental proceedings pending or
threatened to which the Company is a party or to which any of the
properties of the Company is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
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(i) Each preliminary prospectus used in connection with the offering
of the Bonds filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(j) The Company is not and, after giving effect to the offering and
sale of the Bonds and the application of the proceeds thereof as described
in the Prospectus, will not be required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
3. Purchase, Sale and Delivery of Bonds. On the basis of the
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representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I hereto, the
respective principal amounts of Bonds set forth opposite the names of the
Underwriters in Schedule I or II hereto. The Company will deliver the Bonds to
the Representatives for the accounts of the Underwriters against payment of the
purchase price by Federal or other funds immediately available to the Company,
at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York
10004, at the time and date set forth in Schedule I hereto, or at such other
time and date as the Representatives and the Company determine, such time and
date being herein referred to as the "Closing Date". The Bonds so to be
delivered will be in definitive fully registered form, in such denominations and
registered in such names as the Representatives request and will be made
available for checking and packaging at the office of Bankers Trust Company, One
Bankers Trust Plaza, New York, New York, at least twenty-four hours prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Bonds for sale to the public as set forth in
the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with
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the several Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the second business
day following the execution and delivery of this Agreement.
(b) Prior to the termination of the offering of the Bonds, the Company
will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will not effect
such amendment or supplementation without the consent of the
Representatives. The Company will also advise the Representatives promptly
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
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(c) If at any time when a prospectus relating to the Bonds is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend or supplement the Prospectus to comply with the Act, the Company
promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(d) For a period of at least eighteen months after the date of this
Agreement, the Company will file with the Commission, within the times
required by the Rules and Regulations, annual reports on Form 10-K and
quarterly reports on Form 10-Q containing all information required by the
Rules and Regulations or will otherwise make generally available to its
security holders as promptly as practicable an earnings statement which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement (one of which will be signed and will include all
exhibits), any preliminary prospectus used in connection with the offering
of the Bonds, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Representatives request.
(f) The Company will arrange for the qualification of the Bonds for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect as long as required for the
distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives, and upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934, as amended, or mailed to
securityholders generally and (ii) from time to time, such other
information concerning the Company as the Representatives may reasonably
request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including all expenses incurred in
connection with qualification of the Bonds for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
the Representatives designate and the printing of memoranda relating
thereto, any fees charged by investment rating agencies for rating the
Bonds, the cost of printing or other reproduction of this Agreement and any
related documents and all expenses incurred in distributing to the
Underwriters any preliminary prospectuses used in connection with the
offering of the Bonds.
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(i) During the period from the date of this Agreement to and including
the earlier of (i) the termination of trading restrictions on the Bonds, as
notified to the Company by the Representatives, or (ii) the third business
day after the Closing Date, the Company will not offer, sell, contract to
sell or otherwise dispose of any of its debt securities (other than the
Bonds), except pursuant to prior or concurrent contractual commitments
which have been disclosed to the Representatives prior to the execution
hereof and except for borrowings under the Company's revolving credit
agreements and lines of credit, the private placement of securities and
issuances of commercial paper, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
6. Conditions to the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Bonds will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to each of the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company
or the Representatives, shall be contemplated by the Commission.
(b) Subsequent to the date hereof, there shall not have occurred (i)
any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Company which, in
the judgment of a majority in interest of the Underwriters including the
Representatives, materially impairs the investment quality of the Bonds;
(ii) any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters, including
the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Bonds.
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(c) The Representatives shall have received an opinion, dated the
Closing Date, of Nixon Peabody LLP, counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York,
with authorized and outstanding capital stock as set forth in the
Prospectus, and with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus.
(ii) The Bonds have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits and
security provided by the Indenture.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a valid and binding instrument
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting enforcement of creditors' rights or the security provided by
the Indenture and to general equity principles, and except as limited
by the Atomic Energy Act of 1954 and regulations thereunder relating
to the Company's interest in atomic energy facilities; the Indenture
creates the lien it purports to create upon the interest of the
Company in the property, real and personal, intended to be subjected
to the lien of the Indenture; and the Indenture has been duly recorded
or filed for recordation as a mortgage of real estate and recorded or
filed as a security interest in personal property and fixtures in each
place in which any of the properties or assets of the Company subject
to the lien of the Indenture are situated and in which such recording
or filing is required to protect and preserve the lien of the
Indenture (except the supplemental indenture providing for the
creation of the Bonds has been recorded in the Office of the Clerk of
the County of Monroe, New York, only, and arrangements have been made
for its prompt recording in the Offices of the Clerks of the other
counties in the State of New York in which such recording is
required); and all taxes and recording fees required to be paid as of
the date hereof with respect to the execution, recording or filing of
the Indenture and the issuance of the Bonds have been paid.
(iv) The Company has good and indefeasible title in fee simple
to substantially all of its bondable real property (except that no
opinion need be given with respect to leasehold interests, easements,
riparian rights, flowage rights, and property of a similar character)
and good and valid title to all other property and assets owned by the
Company (including such leasehold interests) and intended to be
subject to the lien of the Indenture (except such as have been
disposed of in accordance with the provisions of the Indenture) and in
both cases free and clear of all liens, charges and encumbrances,
except the lien of the Indenture and liens or charges of the character
of "excepted encumbrances" as defined in Section 1.02 of the Indenture
and except the lien one or more mortgages identified in such opinion,
which lien is subject and subordinate in all
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respects to the lien of the Indenture; and the descriptions of all
such properties and assets contained in the Indenture are adequate for
the purposes of the Indenture.
(v) The franchises, permits and licenses of the Company
included in the properties subject to the lien of the Indenture are
valid and are adequate to give the Company the nonexclusive right to
carry on its business in the locations and substantially in the manner
in which it is now being conducted.
(vi) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the Registration Statement, as of its effective date, the
Prospectus, as of the date of this Agreement, and any amendment or
supplement thereto, as of its respective date, complied as to form in
all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; although such counsel has
not independently verified the accuracy or completeness of information
contained in the Registration Statement or Prospectus or any amendment
or supplement thereto, such counsel has no reason to believe that
either the Registration Statement, as of its effective date, or the
Prospectus, as of the date of this Agreement, or any such amendment or
supplement, as of such respective dates, contained any untrue
statement of material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; the descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) All regulatory consents, authorizations, approvals and
filings required by Federal law or the laws of the State of New York
for the authorization, issuance, sale and delivery of the Bonds by the
Company to the Underwriters have been obtained or made; provided,
however, that no opinion need be given concerning the qualification of
the Bonds for sale under the Blue Sky law of the State of New York.
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In rendering the foregoing opinion, Nixon Peabody LLP may rely, as to
matters of fact, upon certificates and written statements of officers and
employees of, and accountants for, the Company and of officers of the
Trustee.
(d) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Bonds, the Registration Statement, the Prospectus, and other related
matters as such Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission, and that, subsequent to the date of the
most recent financial statements in the Prospectus, there has been no
material adverse change in the financial position or results of operations
of the Company except as set forth or contemplated in the Prospectus.
(f) On or prior to the date of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
PricewaterhouseCoopers LLP, confirming that they are independent public
accountants within the meaning of the Act and the Rules and Regulations,
and stating in effect that (i) in their opinion, the financial statements
and schedules audited by them and incorporated by reference in the
prospectus relating to the Bonds contained in the Registration Statement,
as amended as of the date of such letter, comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published Rules and Regulations; (ii) they have made a review of
any unaudited financial statements incorporated by reference in such
prospectus in accordance with standards established by the American
Institute of Certified Public Accountants; (iii) on the basis of the review
referred to in (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of the Company
responsible for financial and accounting matters and other specified
procedures (not constituting an audit in accordance with generally accepted
auditing standards), nothing came to their attention that caused them to
believe that (A) the unaudited financial statements incorporated by
reference in such prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
applicable published Rules and Regulations thereunder or require any
material modifications in order for them to be in conformity with generally
accepted accounting principles, (B) if unaudited financial information for
a twelve-month period is included in such prospectus, such financial
information is not derived from unaudited financial statements that are
stated on a basis substantially consistent with that of the audited
financial statements included in such prospectus, or (C) at the date of the
latest
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available balance sheet read by such accountants, there was any change in
the capital stock, short-term indebtedness or long-term debt of the
Company, any decrease in the amount of current assets over current
liabilities or any decrease in shareholders' equity or total
capitalization, as compared with amounts shown on the latest balance sheet
included in such prospectus, except in all cases set forth in this clause
(C) for changes, increases or decreases which such prospectus discloses
have occurred or may occur, or which are described in such letter; and (iv)
they have compared certain dollar amounts, percentages and other financial
information derived from the general accounting records of the Company
contained or incorporated by reference in such prospectus and specified by
the Representatives (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Company subject to the internal controls of the
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures specified
in such letter, and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
(g) The Representatives shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers LLP, which reconfirms the matters
set forth in their letter delivered pursuant to subsection (f) of this
Section and states in effect that (i) in their opinion, any financial
statements or schedules audited by them and included in the Prospectus and
not covered by their letter delivered pursuant to subsection (f) of this
Section comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published Rules and
Regulations; (ii) they have made a review of any unaudited financial
statements included in the Prospectus and not covered by their letter
delivered pursuant to subsection (f) of this Section in accordance with
standards established by the American Institute of Certified Public
Accountants; (iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that (A) the unaudited
financial statements, if any, included in the Prospectus and not covered by
their letter delivered pursuant to subsection (f) of this Section do not
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations or
require any material modifications in order for them to be in conformity
with generally accepted accounting principles, (B) if unaudited financial
information for a twelve-month period is included in the Prospectus, such
financial information is not derived from unaudited financial statements
that are stated on a basis substantially consistent with that of the
audited financial statements included in the Prospectus, (C) the unaudited
capsule information, if any, included in the Prospectus does not agree with
the amounts set forth in the unaudited consolidated financial data from
which it was derived, or (D) at the date of the latest available balance
sheet read by such accountants, there was any change in the capital stock,
short-term indebtedness or long-term debt of the Company, any decrease in
the amount of current assets over current liabilities or any decrease in
shareholders' equity or total capitalization, as compared with amounts
shown on the latest balance sheet included in the Prospectus, except in all
cases
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set forth in this clause (D) for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and (iv) they have compared certain dollar amounts,
percentages and other financial information derived from the general
accounting records of the Company contained or incorporated by reference in
the Prospectus and specified by the Representatives (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the Company
subject to the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter, and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such letter.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request.
7. Indemnification. (a) The Company will indemnify and hold
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harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any preliminary prospectus used in connection with the
offering of the Bonds, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or neces
sary to make the statements therein not misleading; and will reimburse each
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any preliminary prospectus or any preliminary prospectus supplement
used in connection with the offering of the Bonds, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission
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or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying parties and the
indemnified party and the representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Bonds or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue
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<PAGE>
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Bonds underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
8. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
default in their obligations to purchase Bonds hereunder and the aggregate
principal amount of Bonds which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the aggregate principal
amount of all the Bonds, the Representatives may make arrangements satisfactory
to the Company for the purchase of such Bonds by other persons, including any of
the Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the principal amount of Bonds that
such defaulting Underwriter or Underwriters agreed but failed to purchase. If
any Underwriter or Underwriters so default and the aggregate principal amount of
Bonds with respect to which such default or defaults occur is more than the
above principal amount of Bonds and arrangements satisfactory to the
Representatives and the Company for the purchase of such Bonds by other persons
are not made within thirty-six hours after such default, this Agreement will
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
9. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or the Company or any of its officers or
directors or any controlling person, and will survive delivery of and payment
for the Bonds. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Bonds by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect. If the purchase of
the Bonds by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(b),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Bonds.
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<PAGE>
10. Notices. All communications hereunder will be in writing, and,
-------
if sent to the Underwriters, will be mailed, delivered or sent by recognized
overnight courier to the Representatives at their addresses set forth in
Schedule I hereto, or, if sent to the Company, will be mailed, delivered or sent
by recognized overnight courier to it both at 89 East Avenue, Rochester, New
York 14649, Attention: Treasurer and Nixon Peabody LLP, Clinton Square, Post
Office Box 31051, Rochester, New York, 14603-1051, Attention: Roger W. Byrd,
Esq.; provided, however, that any notice to an Underwriter pursuant to Section 7
will be mailed, delivered or sent by recognized overnight courier to such
Underwriter at its address as provided to the Company by the Representatives.
11. Successors. This Underwriting Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
------------------------------
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives will be binding upon all the
Underwriters. In the event that no Underwriters are named in Schedule II
hereto, the term "Underwriters" shall be deemed for all purposes of this
Agreement to be the Underwriter or Underwriters named as Representatives in
Schedule I hereto, the principal amount of the Bonds to be purchased by any such
Underwriter shall be the amount set forth opposite its name in Schedule I hereto
and all references to the "Representatives" shall be deemed to be the
Underwriter or Underwriters named in such Schedule I.
13. Governing Law; Counterparts. This Agreement shall be governed by
----------------------------
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such executed counterparts shall together
constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ROCHESTER GAS AND ELECTRIC
CORPORATION
By_____________________________
Name:
Title:
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<PAGE>
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date set forth in Schedule I hereto.
[NAMES OF UNDERWRITERS]
Acting on behalf of themselves and as the
Representatives of the several Underwriters,
if any, named in Schedule I or II hereto.
By_______________________________
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<PAGE>
SCHEDULE I
Names and addresses of Representatives of the Underwriters (and principal amount
of Bonds to be purchased by each if no Schedule II is attached):
Underwriter Principal
-----------
Amount
---------------
---------------
Total . . . . . . . . . . . . . . . . . . . . . . . .
===============
Title of Bonds: First Mortgage _______% Bonds, due ______, Series ____
Aggregate principal amount: $___________
Supplemental Indenture dated as of: ________________, 20__
Interest payment dates: _________________
Maturity date: _______________, 20__
Purchase price: ____________
Initial public offering price: ___________
Dealers' concession: ____________
Reallowance: ___________
Redemption provisions:
Date of Underwriting Agreement: ________________, 20___
Time and date of delivery and payment ("Closing Date"):
Time: _______a.m., New York time
Date: ___________________, 20___
<PAGE>
SCHEDULE II
Principal
Underwriter Amount
----------- --------
---------------
Total . . . . . . . . . . . . . . . . . . . . . . .
===============
