Post-Effective Amendment No. 7 to
SEC File No. 70-7926
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM U-1
DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 ("Act")
GENERAL PUBLIC UTILITIES CORPORATION ("GPU")
100 Interpace Parkway
Parsippany, New Jersey 07054
JERSEY CENTRAL POWER & LIGHT COMPANY ("JCP&L")
300 Madison Avenue
Morristown, New Jersey 07960
METROPOLITAN EDISON COMPANY ("MET-ED")
PENNSYLVANIA ELECTRIC COMPANY ("PENELEC")
2800 Pottsville Pike
Reading, Pennsylvania 19605
(Names of companies filing this statement and
addresses of principal executive offices)
GENERAL PUBLIC UTILITIES CORPORATION
(Name of top registered holding company parent of applicants)
T. G. Howson, Vice President W. Edwin Ogden, Esq.
and Treasurer Ryan, Russell, Ogden &
Seltzer
M. A. Nalewako, Secretary 1100 Berkshire Boulevard
General Public Utilities Corporation P.O. Box 6219
100 Interpace Parkway Reading, Pennsylvania
19610
Parsippany, New Jersey 07054
Robert C. Gerlach, Esq.
S.L. Guibord, Secretary Ballard Spahr Andrews &
Ingersoll
Jersey Central Power & Light Company 1735 Market Street
300 Madison Avenue Philadelphia, Pennsylva-
nia 19103
Morristown, New Jersey 07960
Douglas E. Davidson, Esq.
S.L. Guibord, Secretary Berlack, Israels &
Liberman LLP
Metropolitan Edison Company 120 West 45th Street
Pennsylvania Electric Company New York, New York 10036
2800 Pottsville Pike
Reading, Pennsylvania 19605
(Names and addresses of agents for service)<PAGE>
GPU, JCP&L, Met-Ed and Penelec (the "GPU Companies") hereby
post-effectively amend their Declaration on Form U-1, docketed in
SEC File No. 70-7926, as follows:
1. By setting forth the estimated fees, commissions and
expenses expected to be incurred in connection with the proposed
transactions, as follows:
Legal fees:
Berlack, Israels & Liberman LLP $20,000
Ryan, Russell, Ogden & Seltzer 5,000
Ballard Spahr Andrews & Ingersoll 6,000
King & Spalding 75,000
Miscellaneous 4,000
Total $110,000
2. By filing the following exhibits in Item 6(a) thereof:
B-1(d)- Amended and Restated Credit Agreement,
dated as of July 3, 1996.
D-1(e)- Copy of Order of the PaPUC registering
Met-Ed's Securities Certificate.
D-2(e)- Copy of Order of the PaPUC registering
Penelec's Securities Certificate.
F-1(b)- Opinion of Berlack, Israels & Liberman
LLP.
F-2(b)- Opinion of Ryan, Russell, Ogden & Selt-
zer.
F-3(b)- Opinion of Ballard Spahr Andrews & Inge-
rsoll.
2<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935, THE UNDERSIGNED COMPANIES HAVE DULY
CAUSED THIS STATEMENT TO BE SIGNED ON THEIR BEHALF BY THE UNDER-
SIGNED THEREUNTO DULY AUTHORIZED.
GENERAL PUBLIC UTILITIES CORPORATION
JERSEY CENTRAL POWER & LIGHT COMPANY
METROPOLITAN EDISON COMPANY
PENNSYLVANIA ELECTRIC COMPANY
By:
_____________________________________
T. G. Howson
Vice President and Treasurer
Date: July 16, 1996<PAGE>
EXHIBIT TO BE FILED BY EDGAR
Exhibit:
B-1(d) Amended and Restated Credit Agreement,
dated as of July 3, 1996
D-1(e) Copy of Order of the PaPUC registering
Met-Ed's Securities Certificate.
D-2(e)- Copy of Order of the PaPUC registering
Penelec's Securities Certificate.
F-1(b)- Opinion of Berlack, Israels & Liberman LLP.
F-2(b)- Opinion of Ryan, Russell, Ogden & Seltzer.
F-3(b)- Opinion of Ballard Spahr Andrews & Ingersoll.<PAGE>
Exhibit B-1(d)
U.S. $250,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 3, 1996
Among
GENERAL PUBLIC UTILITIES CORPORATION
JERSEY CENTRAL POWER & LIGHT COMPANY
METROPOLITAN EDISON COMPANY
PENNSYLVANIA ELECTRIC COMPANY,
as Borrowers
and
THE BANKS NAMED HEREIN,
as Banks
and
THE CHASE MANHATTAN BANK, N.A.,
as Administrative Agent
and
CITICORP SECURITIES, INC.,
as Syndication Agent
and
CITICORP SECURITIES, INC.
and
CHASE SECURITIES INC.,
as Arrangers<PAGE>
T A B L E O F C O N T E N T S
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms. . . . . . . . . . . . . . . . . . 2
1.02. Computation of Time Periods. . . . . . . . . . . . . . . 17
1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . 17
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Committed Advances . . . . . . . . . . . . . . . . . 17
2.02. Conversion of Committed Advances . . . . . . . . . . . . 20
2.03. The Competitive Advances . . . . . . . . . . . . . . . . 20
2.04. Advances Generally . . . . . . . . . . . . . . . . . . . 24
2.05. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.06. Reduction of the Commitments . . . . . . . . . . . . . . 26
2.07. Repayment of Advances. . . . . . . . . . . . . . . . . . 26
2.08. Interest on Advances . . . . . . . . . . . . . . . . . . 26
2.09. Interest Rate Determination. . . . . . . . . . . . . . . 27
2.10. Prepayments. . . . . . . . . . . . . . . . . . . . . . . 28
2.11. Yield Protection . . . . . . . . . . . . . . . . . . . . 28
2.12. Payments and Computations. . . . . . . . . . . . . . . . 33
2.13. Sharing of Payments, Etc . . . . . . . . . . . . . . . . 34
ARTICLE III CONDITIONS OF LENDING
3.01. Conditions Precedent to Effectiveness. . . . . . . . . . 35
3.02. Conditions Precedent to Each Borrowing . . . . . . . . . 37
3.03. Conditions Precedent to Certain Borrowings . . . . . . . 38
3.04. Conditions Precedent to Borrowings by ME and PE . . . . 38
3.05. Reliance on Certificates . . . . . . . . . . . . . . . . 39
ARTICLE IV REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers. . . . . 39
ARTICLE V COVENANTS OF THE BORROWERS
5.01. Affirmative Covenants. . . . . . . . . . . . . . . . . . 42
5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . 45
5.03. Reporting Requirements . . . . . . . . . . . . . . . . . 50
ARTICLE VI EVENTS OF DEFAULT
6.01. Events of Default . . . . . . . . . . . . . . . . . . . 52
6.02. Declaration by the Administrative Agent . . . . . . . . 54
ARTICLE VII THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT
7.01. Authorization and Action . . . . . . . . . . . . . . . . 55
7.02. The Syndication Agent and the Administrative Agent . . . 56
7.03. Reliance on the Syndication Agent and the
Administrative Agent, Etc. . . . . . . . . . . . . . . 56
7.04. Chase and its Affiliates . . . . . . . . . . . . . . . 57
7.05. Indemnification . . . . . . . . . . . . . . . . . . . . 57
7.06. Successor Agents. . . . . . . . . . . . . . . . . . . . 58
<PAGE>
Section Page
ARTICLE VIII MISCELLANEOUS
8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . 59
8.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . 59
8.03. No Waiver; Remedies. . . . . . . . . . . . . . . . . . . 60
8.04. Costs, Expenses and Taxes. . . . . . . . . . . . . . . . 61
8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . 62
8.06. Bank Credit Decisions. . . . . . . . . . . . . . . . . . 63
8.07. Binding Effect.. . . . . . . . . . . . . . . . . . . . . 63
8.08. Assignments and Participations . . . . . . . . . . . . . 64
8.09. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . 67
8.10. Governing Law. . . . . . . . . . . . . . . . . . . . . . 67
8.11. Consent to Jurisdiction; Waiver of Immunities. . . . . . 67
8.12. Execution in Counterparts. . . . . . . . . . . . . . . . 68
8.13. Integration. . . . . . . . . . . . . . . . . . . . . . . 68
8.14. Severability . . . . . . . . . . . . . . . . . . . . . . 68
8.15. Headings . . . . . . . . . . . . . . . . . . . . . . . . 68
2<PAGE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule II - Commitments and Closing Date Assignments
Schedule III - Senior Debt Documents
Exhibits
Exhibit A-1 - Form of GPU Committed Advance Note
Exhibit A-2 - Form of JC Committed Advance Note
Exhibit A-3 - Form of ME Committed Advance Note
Exhibit A-4 - Form of PE Committed Advance Note
Exhibit B-1 - Form of GPU Competitive Advance Note
Exhibit B-2 - Form of JC Competitive Advance Note
Exhibit B-3 - Form of ME Competitive Advance Note
Exhibit B-4 - Form of PE Competitive Advance Note
Exhibit C - Form of Notice of Conversion
Exhibit D-1 - Form of Notice of Committed Borrowing
Exhibit D-2 - Form of Request for Competitive Borrowing
Exhibit D-3 - Form of Notice of Competitive Borrowing
Request
Exhibit D-4 - Form of Competitive Advance Offer
Exhibit E - Form of Opinion of Berlack, Israels & Liberman
LLP
Exhibit F - Form of Opinion of King & Spalding
Exhibit G - Form of Assignment and Acceptance
3<PAGE>
THIS AMENDED AND RESTATED CREDIT AGREEMENT (the
"Agreement"), dated as of July 3, 1996, among:
(i) GENERAL PUBLIC UTILITIES CORPORATION, a
Pennsylvania corporation ("GPU"), JERSEY CENTRAL
POWER & LIGHT COMPANY, a New Jersey corporation
("JC"), METROPOLITAN EDISON COMPANY, a
Pennsylvania corporation ("ME"), and PENNSYLVANIA
ELECTRIC COMPANY, a Pennsylvania corporation ("PE"
and together with GPU, JC and ME being,
collectively, the "Borrowers" and each
individually a "Borrower");
(ii) each Bank listed on the signature pages
hereof (together with each Person that is an
assignee thereof in accordance with Section 8.08,
collectively the "Banks");
(iii) THE CHASE MANHATTAN BANK, N.A.
("Chase"), as administrative agent (the
"Administrative Agent") for the Banks; and
(iv) CITICORP SECURITIES, INC. ("Citicorp
Securities"), as syndication agent (the
"Syndication Agent") for the Banks.
PRELIMINARY STATEMENTS
(1) The Borrowers have entered into an Amended
and Restated Credit Agreement, dated as of May 6, 1996 (the
"Existing Credit Agreement"), with Chase and Citibank, N.A.
("Citibank"), as the "Banks" thereunder, Chase, as
"Administrative Agent" thereunder, and Citibank, as "Syndication
Agent" thereunder.
(2) The Borrowers have requested that Chase and
Citibank amend and restate the Existing Credit Agreement, and
that Chase, Citibank and the other Banks provide the credit
facility hereinafter described in the amounts and on the terms
and conditions set forth herein. The Banks have so agreed on the
terms and conditions set forth herein, and the Administrative
Agent and the Syndication Agent have agreed to act as agents in
such capacities as provided herein.
Based upon the foregoing and subject to the terms
and conditions set forth in this Agreement, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in
this Agreement, the following terms shall have the following
4<PAGE>
meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Advance" means a Committed Advance or a
Competitive Advance.
"Affiliate" means, with respect to any
Person, any trade or business (whether or not
incorporated) which is a member of a group of
which such Person is a member and which is under
common control within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated
and rulings issued thereunder.
"Alternate Base Rate" means, for any day, a
rate per annum (rounded upwards, if necessary, to
the next 1/8 of 1%) equal to the greater of:
(a)the Prime Rate in effect on such day;
and
(b)the Federal Funds Rate in effect on
such day plus 1/2 of 1% per annum.
For purposes hereof, the term "Prime Rate" shall
mean the rate of interest per annum publicly
announced from time to time by the Administrative
Agent as its prime rate in effect at its principal
office in New York City; each change in the Prime
Rate shall be effective on the date such change is
announced as effective. If for any reason the
Administrative Agent shall have determined (which
determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal
Funds Rate for any reason, including the inability
or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms
hereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the
first sentence of this definition until the
circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or
the Federal Funds Rate, respectively.
"Applicable Lending Office" means, with
respect to each Bank, such Bank's Domestic Lending
Office in the case of a Base Rate Advance, such
Bank"s CD Lending Office in the case of a CD Rate
Advance, and such Bank"s Eurodollar Lending Office
in the case of a Eurodollar Rate Advance and, in
the case of a Competitive Advance, the office of
5<PAGE>
such Bank specified by such Bank to the
Administrative Agent as its Applicable Lending
Office with respect to such Competitive Advance.
"Applicable Margin" means, on any date prior
to the Rate Approval Date, for a Eurodollar Rate
Advance or a CD Rate Advance, the basis points per
annum set forth, in the columns identified as
Level 1, Level 2, Level 3, Level 4 or Level 5
below, opposite the rate applicable to such
Advance.
Level 1 Level 2 Level 3 Level 4 Level 5
S&P A- or better BBB+ BBB BBB- BB+ or below*
Moody's A3 or better Baa1 Baa2 Baa3 Ba1 or below*
D&P A- or better BBB+ BBB BBB- BB+ or below*
Basis Points Per Annum
Eurodollar
Rate 25.00 30.00 32.50 37.50 50.00
CD Rate 37.50 42.50 45.00 50.00 62.50
* or unrated
On any date on and after the Rate Approval Date,
"Applicable Margin" shall mean, for a Eurodollar
Rate Advance or a CD Rate Advance, the basis
points per annum set forth, in the columns
identified as Level 1, Level 2, Level 3, Level 4,
Level 5 or Level 6 below, opposite the rate
applicable to such Advance.
Level 1 Level 2 Level 3 Level 4 Level 5 Level 6
S&P A- or BBB+ BBB BBB- BB+ BB or below*
better
Moody's A3 or Baa1 Baa2 Baa3 Ba1 Ba or below*
better
D&P A- or BBB+ BBB BBB- BB+ BB or below*
better
Basis Points Per Annum
Eurodollar
Rate 25.00 30.00 32.50 37.50 62.50 125.00
CD Rate 37.50 42.50 45.00 50.00 75.00 137.00
* or unrated
<PAGE>
The Applicable Margin for a Borrower will be based
upon the Level corresponding to such Borrower's
Debt Rating at the time of determination. Any
change in the Applicable Margin shall be effective
as of the Borrowing date following the date on
which the applicable rating agency announces the
applicable change in ratings.
"Arrangers" means Chase Securities Inc. and
Citicorp Securities, and "Arranger" means either
thereof.
"Assignment and Acceptance" means an
assignment and acceptance entered into by an
assigning Bank and an Eligible Assignee, in
substantially the form of Exhibit G hereto, which
assignment and acceptance is accepted by the
Administrative Agent, in accordance with
Section 8.08.
"Base Rate Advance" means a Committed Advance
which bears interest as provided in
Section 2.08(c).
"Borrowing" means a Committed Borrowing or a
Competitive Borrowing.
"Business Day" means a day of the year on
which banks are not required or authorized to
close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate
Advances, on which dealings in U.S. dollar
deposits are carried on in the London interbank
market.
"CD Lending Office" means, with respect to
any Bank, the office of such Bank specified as its
"CD Lending Office" opposite its name on
Schedule I hereto (or, if no such office is
specified, its Domestic Lending Office) or such
other office of such Bank as such Bank may from
time to time specify to the Borrowers and the
Administrative Agent.
"CD Rate" means, for each Interest Period for
each CD Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the
sum of:
(a)the rate per annum obtained by
multiplying (i) the rate of interest
7<PAGE>
determined by the Administrative Agent to be
the average (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if
such average is not such a multiple) of the
consensus bid rate determined by each of the
Reference Banks for the bid rates per annum
at 10:00 A.M. (New York City time) (or as
soon thereafter as practicable) on the first
day of such Interest Period, of New York
certificate of deposit dealers of recognized
standing selected by such Reference Bank for
the purchase at face value of certificates of
deposit of such Reference Bank in the amount
of $1,000,000 and with a maturity equal to
such Interest Period, times (ii) the Domestic
Reserve Adjustment in effect from time to
time during such Interest Period, plus
(a)the FDIC Assessment Rate as in effect
from time to time for such Interest Period.
The CD Rate for the Interest Period for each CD
Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and
received by the Administrative Agent from the
Reference Banks on the first day of such Interest
Period, subject, however, to the provisions of
Sections 2.09 and 2.11(g).
"CD Rate Advance" means a Committed Advance
which bears interest as provided in
Section 2.08(b).
"Change in Control" means the occurrence of
either of the following: (i) any entity, person
(within the meaning of Section 14(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")) or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(other than any Borrower) which theretofore was
beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of less than 20% of GPU's then
outstanding common stock either (x) acquires
shares of common stock of GPU in a transaction or
series of transactions that results in such
entity, person or group directly or indirectly
owning beneficially 20% or more of the outstanding
common stock of GPU, or (y) acquires, by proxy or
otherwise the right to vote for the election of
directors, for any merger, combination or
consolidation of GPU or any of its direct or
indirect subsidiaries, or for any other matter or
question, more than 20% of the then outstanding
voting securities of GPU (except where such
8<PAGE>
acquisition is made by a person or persons
appointed by at least a majority of the board of
directors of GPU to act as proxy for any purpose);
or (i) the election or appointment, within a
twelve-month period, of persons to GPU's board of
directors who were not directors of GPU at the
beginning of such twelve-month period, and whose
election or appointment was not approved by a
majority of those persons who were directors at
the beginning of such period, where such newly
elected or appointed directors constitute 30% or
more of the directors of the board of directors of
GPU.
"Commitment" has the meaning specified in
Section 2.01.
"Committed Advance" means an advance by a
Bank to a Borrower as part of a Committed
Borrowing and refers to a Eurodollar Rate Advance,
a CD Rate Advance or a Base Rate Advance each of
which shall be a "Type" of Committed Advance. The
Type of Committed Advance may change from time to
time as and when such Advance is Converted. For
purposes of this Agreement, all Committed Advances
of a Bank (or portions thereof) of the same Type,
having the same Interest Period and made or
Converted on the same day shall be deemed to be a
single Advance by such Bank until repaid or next
Converted.
"Committed Advance Note" means a promissory
note of any Borrower payable to the order of any
Bank, in substantially the form of Exhibits A-1 to
and including A-4 hereto, evidencing the aggregate
indebtedness of such Borrower to such Bank
resulting from the Committed Advances made by such
Bank to such Borrower.
"Committed Borrowing" means a borrowing
consisting of simultaneous Committed Advances of
the same Type made by each of the Banks pursuant
to Section 2.01. A Committed Borrowing may be
referred to herein as being a "Type" of Committed
Borrowing, corresponding to the Type of Committed
Advances comprising such Borrowing. For purposes
of this Agreement, all Committed Advances of the
same Type, having the same Interest Period and
made or Converted on the same day shall be deemed
a single Committed Borrowing hereunder until
repaid or next Converted.
"Competitive Advance" means an advance by a
Bank to a Borrower as part of a Competitive
9<PAGE>
Borrowing resulting from the auction bidding
procedure described in Section 2.03.
"Competitive Advance Note" means a promissory
note of any Borrower payable to the order of any
Bank, in substantially the form of Exhibits B-1 to
and including B-4 hereto, evidencing the aggregate
indebtedness of such Borrower to such Bank
resulting from the Competitive Advances made by
such Bank to such Borrower.
"Competitive Borrowing" means a borrowing
consisting of simultaneous, if more than one,
Competitive Advances from each of the Banks whose
offer to make one or more Competitive Advances as
part of such borrowing has been accepted by a
Borrower under the procedures described in Section
2.03.
"Competitive Reduction" has the meaning
specified in Section 2.01(a).
"Consolidation" refers to the consolidation
of the accounts of a Borrower and its Subsidiaries
in accordance with generally accepted accounting
principles, including principles of consolidation,
consistently applied, and "consolidated" shall be
construed accordingly.
"Conversion", "Convert" or "Converted" each
refers to a conversion of Committed Advances
pursuant to Section 2.02, including but not
limited to any selection of a longer or shorter
Interest Period to be applicable to such Advances.
"Debt" of any Person means (i) indebtedness
for borrowed money, (i) obligations evidenced by
bonds, debentures, notes or other similar
instruments, (i) obligations to pay the deferred
purchase price of property or services, (i)
obligations as lessee under leases which shall
have been or should be, in accordance with
generally accepted accounting principles, recorded
as capital leases, (i) obligations under direct or
indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i)
through (iv) above, (i) liabilities in respect of
unfunded vested benefits under Plans, and (i)
withdrawal liability incurred under ERISA by such
Person or any of its Affiliates to any
Multiemployer Plan.
10<PAGE>
"Debt Rating", with respect to any Subsidiary
Borrower, means the lower of such Subsidiary
Borrower's two highest Senior Secured Debt
Ratings, and, with respect to GPU, (i) if GPU has
Senior Unsecured Debt Ratings, means the lower of
GPU's two highest Senior Unsecured Debt Ratings,
(i) if GPU does not have Senior Unsecured Debt
Ratings but EI Energy does, the lower of EI
Energy's two highest Senior Unsecured Debt Ratings
and (i) if neither GPU nor EI Energy has Senior
Unsecured Debt Ratings, the Senior Secured Debt
Rating corresponding to the lowest Debt Rating
attributable to a Subsidiary Borrower, in all
cases, at the time of determination.
"Domestic Lending Office" means, with respect
to any Bank, the office of such Bank specified as
its "Domestic Lending Office" opposite its name on
Schedule I hereto or such other office of such
Bank as such Bank may from time to time specify to
the Borrowers and the Administrative Agent.
"Domestic Reserve Adjustment" means, during
an Interest Period for CD Rate Advances comprising
a single Borrowing, a fraction (expressed as a
decimal), the numerator of which is the number one
and the denominator of which is the number one
minus the aggregate of the maximum reserve
percentages (including any marginal, special,
emergency or supplemental reserves) in effect from
time to time during such Interest Period,
expressed as a decimal, established by the Board
of Governors of the Federal Reserve System (or any
successor) and any other banking authority to
which the Administrative Agent is subject, for
nonpersonal time deposits in U.S. dollars of over
$100,000, with maturities approximately equal to
the Interest Period in effect for such Advances.
The Domestic Reserve Adjustment shall be
determined from time to time by the Administrative
Agent, shall be the same for all CD Rate Advances
comprising the same Borrowing and shall be
adjusted automatically on and as of the effective
date of each change in any reserve requirement.
"D&P" means Duff & Phelps, Inc. or any
successor thereto.
"EI Energy" means EI Energy, Inc., a Delaware
corporation and wholly owned subsidiary of GPU.
"EI UK" means EI UK Holdings, Inc., a
Delaware corporation and indirect wholly owned
subsidiary of GPU.
11<PAGE>
"Eligible Assignee" means any of the
following entities: (i) a financial institution
organized under the laws of the United States, or
any State thereof, and having total assets in
excess of $1,000,000,000; and (i) a financial
institution organized under the laws of any other
country which is a member of the Organization for
Economic Cooperation and Development, or a
political subdivision of any such country, and
having total assets in excess of $1,000,000,000,
provided that such financial institution is acting
through a branch or agency located in the United
States.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to
time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means, with respect to any
Person, any trade or business (whether or not
incorporated) which is a "commonly controlled
entity" within the meaning of the regulations
under Section 414 of the Internal Revenue Code of
1986, as amended from time to time.
"ERISA Plan Termination Event" means (i) a
Reportable Event described in Section 4043 of
ERISA and the regulations issued thereunder (other
than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such
regulations) with respect to a Plan or a
Multiemployer Plan, or (i) the withdrawal of a
Borrower or any of its ERISA Affiliates from a
Plan or a Multiemployer Plan during a plan year in
which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA, or (i) the filing
of a notice of intent to terminate a Plan or a
Multiemployer Plan or the treatment of a Plan or a
Multiemployer Plan under Section 4041 of ERISA, or
(i) the institution of proceedings to terminate a
Plan or a Multiemployer Plan by the PBGC, or (i)
any other event or condition which might
constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a
trustee to administer, any Plan or Multiemployer
Plan.
"Eurocurrency Liabilities" has the meaning
assigned to that term in Regulation D of the Board
of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with
respect to any Bank, the office of such Bank
12<PAGE>
specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto (or, if no
such office is specified, its Domestic Lending
Office) or such other office of such Bank as such
Bank may from time to time specify to the
Borrowers and the Administrative Agent.
"Eurodollar Rate" means, for each Interest
Period for each Eurodollar Rate Advance comprising
part of the same Borrowing, an interest rate per
annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are
offered by the principal office of each of the
Reference Banks in London, England to prime banks
in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first
day of such Interest Period in an amount of
$1,000,000 and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest
Period for each Eurodollar Rate Advance comprising
part of the same Borrowing shall be determined by
the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two
Business Days before the first day of such
Interest Period, subject, however, to the
provisions of Sections 2.09 and 2.11(g).
"Eurodollar Rate Advance" means a Committed
Advance which bears interest as provided in
Section 2.08(a).
"Eurodollar Reserve Percentage" of any Bank
for each Interest Period for each Eurodollar Rate
Advance means the reserve percentage applicable
during such Interest Period (or if more than one
such percentage shall be so applicable, the daily
average of such percentages for those days in such
Interest Period during which any such percentage
shall be so applicable) under Regulation D or
other regulations issued from time to time by the
Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum
reserve requirement (including, without
limitation, any emergency, supplemental or other
marginal reserve requirement, without benefit of
or credit for proration, exemptions or offsets)
for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest
Period.
13<PAGE>
"Event of Default" has the meaning specified
in Section 6.01.
"Existing Credit Agreement" has the meaning
assigned to that term in the Preliminary
Statements.
"External Line" means any arrangement (other
than pursuant to this Agreement or the Senior Debt
Documents) with any commercial bank pursuant to
which such commercial bank has agreed (whether or
not such agreement shall constitute a committed
facility or shall otherwise be legally
enforceable) to make unsecured loans or extend
credit on an unsecured basis to one or more
Borrowers up to a specified amount either on a
demand basis or for periods of not in excess of
270 days or any similar financing arrangement
commonly known as a "line of credit".
"FDIC Assessment Rate" means, during an
Interest Period for CD Rate Advances comprising a
single Borrowing, the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%)
most recently estimated by the Administrative
Agent as the then current annual assessment rate
payable by the Administrative Agent to the Federal
Deposit Insurance Corporation (or any successor)
for insurance by such Corporation (or such
successor) of time deposits made in U.S. dollars
at the Administrative Agent's domestic offices.
The FDIC Assessment Rate shall be the same for all
CD Rate Advances comprising the same Borrowing and
shall be adjusted automatically on and as of the
effective date of each change in any such rate.
"Facility Fee" means a fee which shall be
payable on the aggregate amount of the
Commitments, irrespective of usage, quarterly in
arrears, on a 360-day basis, to each of the Banks
pro rata on the amount of their respective
Commitments. As described below, the Facility Fee
at all times prior to the Rate Approval Date will
be determined with reference to the basis points
per annum set forth in the columns identified as
Level 1, Level 2, Level 3, Level 4 or Level 5 and
the Debt Ratings of the Borrowers.
Level 1 Level 2 Level 3 Level 4 Level 5
S&P A- or better BBB+ BBB BBB- BB+ or below*
Moody's A3 or better Baa1 Baa2 Baa3 Ba1 or below*
D&P A- or better BBB+ BBB BBB- BB+ or below*
Basis
Points 12.50 17.50 20.00 25.00 37.50
* or unrated
At all times on and after the Rate Approval Date,
the Facility Fee will be determined with reference
to the basis points per annum set forth in the
columns identified as Level 1, Level 2, Level 3,
Level 4, Level 5 or Level 6 and the Debt Ratings
of the Borrowers.
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<PAGE>
Level 1 Level 2 Level 3 Level 4 Level 5 Level 6
S&P A- or BBB+ BBB BBB- BB+ BB or below*
better
Moody's A3 or Baa1 Baa2 Baa3 Ba1 Ba or below*
better
D&P A- or BBB+ BBB BBB- BB+ BB or below*
better
Basis
Points 12.50 17.50 20.00 25.00 37.50 50.00
* or unrated
For purposes of determining the Level applicable
to a Borrower, the Debt Rating thereof shall
control. The Facility Fee shall be determined
with reference only to the lowest Level
(numerically highest) applicable to any of the
Borrowers pursuant to the preceding sentence. Any
change in the Facility Fee shall be effective as
of the date on which the applicable rating agency
announces the applicable change in ratings.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each
day during such period to the weighted average of
the rates on overnight Federal funds transactions
with members of the Federal Reserve System
arranged by Federal funds brokers, as published on
the succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the
average of the quotations for the day of such
transactions received by the Administrative Agent
from three Federal funds brokers of recognized
standing selected by it.
"Interest Period" means, for each Advance
made as part of the same Borrowing, the period
commencing on the date of such Advance and ending
on the date of maturity of such Advance, as
selected by the respective Borrower of such
Borrowing in the Notice of Committed Borrowing or
Request for Competitive Borrowing relating
thereto; provided, however, that:
(i) the duration of the Interest Periods for
all Advances made as part of the same Borrowing
shall be identical and shall be:
15
<PAGE>
(A) in the case of Eurodollar Rate Advances,
1, 2, 3 or 6 months,
(B) in the case of CD Rate Advances, 30, 60,
90 or 180 days,
(C) in the case of Base Rate Advances, 180
days, and
(D) in the case of Competitive Advances, not
less than 14 nor more than 180 days;
(ii) any Interest Period which commences
before the Termination Date and would
otherwise end after such Termination Date
shall end on such Termination Date;
(iii) Interest Periods for Advances
comprising part of the same Borrowing shall be of
the same duration;
(iv) if, with respect to any Eurodollar
Rate Advance, there is no numerically
corresponding day in the calendar month that is 1,
2, 3 or 6 months, as the case may be, after the
first day of the Interest Period therefor, the
last day of the Interest Period for such
Eurodollar Rate Advance shall occur on the last
Business Day of such calendar month; and
(v) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, in the case of any
Interest Period for a Eurodollar Rate Advance,
that if such extension would cause the last day of
such Interest Period to occur in the next
following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day.
"Lien" has the meaning specified in Section
5.02(a).
"Majority Banks" means at any time Banks
that, in the aggregate, meet the following two
criteria: (i) represent at least 66-2/3% of the
then aggregate unpaid principal amount of the
Advances owing to Banks, and (i) represent at
least 66-2/3% of the Commitments. Determination
of the Majority Banks (and of Banks satisfying
criteria (i) or (ii) above for any other purpose
hereunder) shall be made by the Administrative
16
<PAGE>
Agent and shall be conclusive and binding absent
manifest error.
"ME Approval Date" means the date upon which
the conditions set forth in Section 8.07(b) shall
have been satisfied with respect to ME.
"Moody's" means Moody's Investors Service,
Inc. or any successor thereto.
"Multiemployer Plan" means a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA
maintained for employees of a Borrower or any
ERISA Affiliate of a Borrower.
"Note" means a Committed Advance Note or a
Competitive Advance Note.
"Notice of Borrowing" means a Notice of
Committed Borrowing or a Request for Competitive
Borrowing.
"Notice of Committed Borrowing" has the
meaning specified in Section 2.01(b).
"PaPUC" means the Pennsylvania Public Utility
Commission or any governmental entity which may be
substituted therefor.
"PBGC" means the Pension Benefit Guaranty
Corporation or any successor thereto.
"PE Approval Date" means the date upon which
the conditions set forth in Section 8.07(b) shall
have been satisfied with respect to PE.
"Person" means an individual, partnership,
corporation (including a business trust), limited
liability company, joint stock company, trust,
unincorporated association, joint venture or other
entity, or a government or any political
subdivision or agency thereof.
"Plan" means an employee benefit plan (other
than a Multiemployer Plan) maintained for
employees of a Borrower or any ERISA Affiliate of
a Borrower and covered by Title IV of ERISA.
"Rate Approval Date" means the date upon
which the Borrowers shall be authorized by an
appropriate final order of the SEC under the
Utility Act to pay the higher level of Facility
Fees and Applicable Margins reflected in the
second pricing grid set forth in the definitions
17
<PAGE>
of the terms "Facility Fee" and "Applicable
Margin".
"Reference Banks" means Chase, Citibank and
The Bank of New York.
"Request for Competitive Borrowing" has the
meaning specified in Section 2.03(a).
"SEC" means the Securities and Exchange
Commission or any governmental entity which may be
substituted therefor.
"Senior Debt" means Debt of a Borrower under
a Senior Debt Document, and any extensions,
renewals or refinancings of any such Debt,
provided that, in connection with any such
extension, renewal or refinancing, the principal
amount of such Debt shall not be increased.
"Senior Debt Document" means any of those
agreements and other documents listed on Schedule
III hereto, as such agreements and other documents
may be amended or supplemented from time to time.
"Senior Secured Debt" means Debt of a
Subsidiary Borrower that constitutes the senior
secured non-credit enhanced long-term debt of such
Subsidiary Borrower.
"Senior Secured Debt Ratings" of a Subsidiary
Borrower means the Senior Secured Debt ratings of
such Subsidiary Borrower by S&P, D&P and Moody's.
"Senior Unsecured Debt" means senior
unsecured non-credit enhanced long-term debt of
GPU or EI Energy, as the case may be.
"Senior Unsecured Debt Ratings" means the
Senior Unsecured Debt ratings of GPU or EI Energy,
as the case may be, assigned by S&P, D&P and
Moody's.
"S&P" means Standard & Poor's Ratings Group,
a division of McGraw Hill, or any successor
thereto.
"Significant Subsidiary" means any Subsidiary
of a Borrower that, as of any date of
determination, accounts for more than 5% of the
consolidated assets of such Borrower.
"Subsidiary" means, with respect to any
Person, any corporation or other entity of which
more than 50% of (A) the outstanding capital stock
18
<PAGE>
having ordinary voting power to elect a majority
of the board of directors of such corporation
(irrespective of whether or not at the time
capital stock of any other class or classes of
such corporation shall or might have voting power
upon the occurrence of any contingency) or
(B) other equity interest comparable to that
described in the preceding clause (A), is at the
time directly or indirectly owned by such Person,
by such Person and one or more other Subsidiaries,
or by one or more other Subsidiaries.
"Subsidiary Borrower" means each of JC, ME
and PE.
"Termination Date" means the earlier to occur
of (i) December 31, 1997 or, if the conditions
precedent set forth in Section 3.02(a)(iii) (other
than with respect to clause (B) thereof) have been
satisfied prior thereto, May 6, 2001 and (i) the
date of termination in whole of the Commitments
pursuant to Section 2.06 or 6.02.
"Total Capitalization" means the sum of (i)
consolidated Debt of GPU and its Subsidiaries,
plus (i) the sum of the capital stock (excluding
treasury stock and capital stock subscribed for
and unissued) and surplus (including earned
surplus, capital surplus, translation adjustment
and the balance of the current profit and loss
account not transferred to surplus) accounts of
GPU and its Subsidiaries appearing on a
consolidated balance sheet of GPU and its
Subsidiaries, in each case prepared as of the date
of determination in accordance with generally
accepted accounting principles consistent with
those applied in the preparation of the financial
statements referred to in Section 4.01(e), after
eliminating all intercompany transactions and all
amounts properly attributable to minority
interests, if any, in the stock and surplus of
subsidiaries.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of
notice or lapse of time, or both, would constitute
an Event of Default.
"Utility Act" means the Public Utility
Holding Company Act of 1935, as amended from time
to time.
SECTION 1.2 Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a
19
<PAGE>
later specified date, the word "from" means "from and including"
and the words "to" and "until" each means "to but excluding".
SECTION 1.3 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred
to in Sections 3.01(d) and 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1. The Committed Advances. (a) Each Bank
severally agrees, on the terms and conditions hereinafter set
forth, to make Committed Advances to any Borrower from time to
time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount as to all
Borrowers not to exceed at any time outstanding the amount set
opposite such Bank's name on Schedule II hereof, as such amount
may be reduced pursuant to Section 2.06 or 6.02 (such Bank's
"Commitment"), provided that the aggregate amount of the
Commitments of the Banks shall be deemed used from time to time
to the extent of the aggregate amount of the Competitive Advances
then outstanding and such deemed use of the aggregate amount of
the Commitments shall be applied to the Banks ratably according
to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "Competitive Reduction"). In
no event shall any Borrower be entitled to request or receive any
Advance that would cause the aggregate principal amount of
Advances outstanding hereunder to exceed the aggregate of the
Commitments for all of the Banks. Each Committed Borrowing shall
be in an aggregate amount not less than $10,000,000 or in an
integral multiple of $1,000,000 in excess thereof and shall
consist of Committed Advances of the same Type made on the same
day to any one Borrower by the Banks ratably according to their
respective Commitments. Within the limits of each Bank's
Commitment, any Borrower may from time to time borrow, repay
pursuant to Section 2.07 or prepay pursuant to Section 2.10(b),
and reborrow under this Section 2.01(a).
(b) Except as otherwise provided in subsection (c) below,
each Committed Borrowing shall be made on notice, given (i) in
the case of a Borrowing consisting of Eurodollar Rate Advances,
not later than 10:30 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Committed
Borrowing; (i) in the case of a Borrowing consisting of CD Rate
Advances, not later than 10:30 A.M. (New York City time) on the
second Business Day prior to the day of the proposed Committed
Borrowing; and (i) in the case of a Borrowing consisting of Base
Rate Advances, not later than 10:30 A.M. (New York City time) on
the day of the proposed Committed Borrowing, by any Borrower to
the Administrative Agent, which shall give to each Bank prompt
notice thereof and of each other notice received from any
Borrower hereunder by telex, telecopy, cable or telephone,
20
<PAGE>
confirmed immediately in writing. Each such notice of a
Committed Borrowing (a "Notice of Committed Borrowing") shall be
by telex, telecopy, cable or telephone, confirmed immediately in
a writing signed by a duly authorized officer of such Borrower,
in substantially the form of Exhibit D-1 hereto, specifying
therein the name of the Borrower and the requested (i) date of
such Committed Borrowing, (i) Type of Committed Advances
comprising such Committed Borrowing, (i) aggregate amount of such
Committed Borrowing, and (i) Interest Period for each such
Committed Advance. In the case of a proposed Committed Borrowing
comprised of Eurodollar Rate Advances or CD Rate Advances, the
Administrative Agent shall promptly notify each Bank of the
applicable interest rate under Section 2.08(a) or (b). Each
Bank shall, before 12:00 noon (New York City time) on the date of
such Committed Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at such
account in New York, New York as the Administrative Agent shall
designate, in same day funds, such Bank's ratable portion of such
Committed Borrowing. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such
funds available to the Borrower designated in such Notice of
Committed Borrowing to receive such Advances at the
Administrative Agent's aforesaid address in same day funds.
(c) Subject to the conditions specified below and effective
as of the date hereof, each of Chase and Citibank (each, an
"Assignor") hereby sells and assigns, free and clear of any
adverse claim and without recourse, to each other Bank, and each
such other Bank hereby purchases and assumes, without recourse to
the Assignor, from each Assignor, the percentage interest
specified on Schedule II hereto in and to all of the rights and
obligations of such Assignor under the Existing Credit Agreement
as of the date hereof (after giving effect to any other
assignments thereof made prior to the date hereof, whether or not
such assignments have become effective, but without giving effect
to any other assignments thereof also made on the date hereof),
including, without limitation, such percentage interest in (i)
each such Assignor's "Commitment" under, and as defined in, the
Existing Credit Agreement, which on the date hereof (after giving
effect to any other assignments thereof made prior to the date
hereof, whether or not such assignments have become effective,
but without giving effect to any other assignment thereof also
made on the date hereof) is in the dollar amount specified as
such Assignor's "Assigned Commitment" on Schedule II hereto; (i)
the aggregate outstanding principal amount of "Committed
Advances" under, and as defined in, the Existing Credit
Agreement, owing to such Assignor, which on the date hereof
(after giving effect to any other assignments thereof made prior
to the date hereof whether or not such assignments have become
effective, but without giving effect to any other assignment
thereof also made on the date hereof) is in the dollar amount
specified as the aggregate outstanding principal amount of
"Advances Assigned" owing to such Assignor on Schedule II hereto;
and (i) the "Committed Advance Notes" under, and as defined in,
21
<PAGE>
the Existing Credit Agreement, held by such Assignor. The sale
and assignment under this subsection (c) shall be deemed to be a
Borrowing solely for the purposes of, and shall be subject to the
conditions precedent specified in, Sections 3.01, 3.02 and 3.03.
From and after the date hereof, the Administrative Agent shall
make all payments under the Existing Credit Agreement and the
"Notes" thereunder, in each case as amended hereby, in respect of
the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to
the respective assignee Banks hereunder.
SECTION 2.2. Conversion of Committed Advances. Subject to
compliance with the conditions precedent set forth in Section
3.02, any Borrower may from time to time elect to Convert one or
more Committed Advances of any Type to one or more Committed
Advances of the same or any other Type on the following terms and
subject to the following conditions:
(a) Each such Conversion shall be made as to all Advances
comprising a single Committed Borrowing, on notice given not
later than 10:30 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion by such Borrower
to the Administrative Agent, who shall give to each Bank prompt
notice thereof. Each such notice of Conversion (a "Notice of
Conversion") shall be in substantially the form of Exhibit C
hereto, specifying therein the requested (i) date of such
Conversion, (i) Type of, and Interest Period applicable to, the
Advances proposed to be Converted, (i) Type of Advances to which
such Advances are proposed to be Converted, (i) except in the
case of a Conversion to Base Rate Advances, initial Interest
Period to be applicable to the Advances resulting from such
Conversion and (i) aggregate amount of Advances proposed to be
Converted. No Conversion may be requested by any Borrower
hereunder unless made in compliance with this Section 2.02.
(b) CD Rate Advances and Eurodollar Rate Advances may not
be Converted on a date other than the last day of the Interest
Period applicable to such Advance unless the corresponding
amounts, if any, payable to the Banks pursuant to Section 2.11(d)
are paid contemporaneously with such Conversion.
SECTION 2.3. The Competitive Advances. (a) In order to
request Competitive Advances, a Borrower shall hand deliver,
telex, telecopy or cable to the Administrative Agent a duly
completed notice of a Competitive Borrowing (a "Request for
Competitive Borrowing"), substantially in the form of Exhibit D-2
hereto, to be received by the Administrative Agent not later than
10:00 A.M., New York City time, on the Business Day prior to the
day of the proposed Competitive Borrowing. A Request for
Competitive Borrowing that does not conform substantially to the
format of Exhibit D-2 hereto may be rejected in the
Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify such Borrower of such rejection by
telex, telecopy or cable. Such request shall in each case refer
to this Agreement and specify (i) the name of the Borrower, (i)
22
<PAGE>
the date of such proposed Competitive Borrowing (which shall be a
Business Day), (i) the aggregate principal amount of such
proposed Competitive Borrowing (which shall be in an amount not
less than $5,000,000 or in an integral multiple of $1,000,000 in
excess thereof and, when added to the aggregate amount of all
Committed Advances then outstanding to all Borrowers, shall not
be greater than the aggregate amount of the Commitments of the
Banks as reduced by the aggregate amount of Competitive
Reductions), (i) the maturity date for repayment of each
Competitive Advance to be made as part of such Competitive
Borrowing (which may not be later than the earlier of the
Termination Date and 180 calendar days after the date of the
proposed Competitive Borrowing), and (i) that the rates of
interest to be offered by the Banks shall be fixed rates per
annum. Promptly after its receipt of a Request for Competitive
Borrowing that is not rejected as aforesaid, the Administrative
Agent shall invite by telex, telecopy, cable or telephone,
confirmed immediately in writing, the Banks to offer, on the
terms and conditions of this Agreement, to make Competitive
Advances pursuant to the Request for Competitive Borrowing
substantially in the form of Exhibit D-3 hereto.
(b) Each Bank may, in its sole discretion, offer to make a
Competitive Advance to such Borrower responsive to such Request
for Competitive Borrowing. Each offer to make a Competitive
Advance by a Bank must be received by the Administrative Agent
via telex, telecopy, cable or telephone, confirmed immediately in
writing, in the form of Exhibit D-4 hereto, not later than 9:30
A.M., New York City time, on the date of the proposed Competitive
Borrowing. Offers to make Competitive Advances that do not
conform substantially to the format of Exhibit D-4 hereto may be
rejected by the Administrative Agent after conferring with, and
upon the instruction of, the Borrower giving the Request for
Competitive Borrowing, and the Administrative Agent shall notify
the Bank making such nonconforming bid of such rejection as soon
as practicable. Each offer to make a Competitive Advance shall
refer to this Agreement and specify (i) the identity of the
Borrower, (i) the principal amount (which shall be in a minimum
principal amount of $5,000,000 or in an integral multiple of
$1,000,000 in excess thereof and which may equal the entire
principal amount of the proposed Competitive Borrowing) of the
Competitive Advance that the applicable Bank is willing to make
to the relevant Borrower, (i) the rate of interest at which such
Bank is prepared to make the Competitive Advance and (i) the
Interest Period thereof, which shall be the same Interest Period
as set out in the relevant Request for Competitive Borrowing. If
any Bank shall elect not to make such an offer, such Bank shall
so notify the Administrative Agent via telex, telecopy, cable or
telephone, confirmed immediately in writing, not later than 9:30
A.M., New York City time, on the day of the proposed Competitive
Borrowing; provided, however, that failure by any Bank to give
such notice shall not constitute a breach or default by such Bank
nor cause such Bank to be liable to such Borrower or any other
party or be obligated to make any Competitive Advance as part of
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<PAGE>
such proposed Competitive Borrowing. An offer submitted by a
Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
Borrower giving the Request for Competitive Borrowing by telex,
telecopy, cable or telephone, confirmed immediately in writing,
of all the offers made, the respective rates of interest offered
(arranged in ascending yield order) and the principal amount of
each proposed Competitive Advance in respect of which an offer
was made and the identity of the Bank that made each offer. The
Administrative Agent shall send a copy of all offers to such
Borrower for its records as soon as practicable after completion
of the process set forth in this Section 2.03.
(d) The Borrower giving the Request for Competitive
Borrowing may in its sole and absolute discretion, subject only
to the provisions of this paragraph (d), accept or reject any
offer referred to in paragraph (c) above. Such Borrower shall
notify the Administrative Agent by telex, telecopy, cable or
telephone, confirmed immediately in writing, whether and to what
extent it has decided to accept or reject any of or all the
offers referred to in paragraph (c) above not later than 10:30
A.M., New York City time, on the day of the proposed Competitive
Borrowing; provided, however, that (i) the failure by such
Borrower to give such notice shall be deemed to be a rejection of
all the offers referred to in paragraph (c) above, (i) such
Borrower shall not accept an offer made at a particular rate of
interest if such Borrower has decided to reject an offer made at
a lower rate of interest, (i) the aggregate amount of the offers
accepted by such Borrower shall not exceed the principal amount
specified in the Request for Competitive Borrowing, (i) if such
Borrower shall accept an offer or offers made at a particular
rate of interest but the amount of such offer or offers shall
cause the total amount of offers to be accepted by such Borrower
to exceed the amount specified in the Request for Competitive
Borrowing, then (subject to clause (v) below) such Borrower shall
(notwithstanding the minimum offer acceptance amount required by
clause (vi) below) accept a portion of such offer in an amount
equal to the amount specified in the Request for Competitive
Borrowing less the amount of all other offers accepted with
respect to such Request for Competitive Borrowing, (v) if such
Borrower shall accept offers made at a particular rate of
interest but shall be restricted by other conditions hereof from
borrowing the principal amount of Competitive Advances specified
in the Request for Competitive Borrowing in respect of which
offers at such rate of interest have been made or if such
Borrower shall accept offers made at a particular rate of
interest but the aggregate amount of offers made at such rate
shall exceed the amount specified in the Request for Competitive
Borrowing, then such Borrower shall accept a pro rata portion of
each offer made at such rate of interest aggregating the portion
of Competitive Advances with respect to which offers at such rate
have been received (provided that if the available principal
amount of Competitive Advances to be so allocated is not
sufficient to enable Competitive Advances to be so allocated to
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each such Bank in a minimum principal amount of $5,000,000, such
Borrower shall select the Banks to be allocated such Competitive
Advances in a principal amount of $1,000,000, but may round
allocations up to the next higher multiple of $1,000,000 if
necessary), (vi) except as provided in clauses (iv) and (v)
above, no offers shall be accepted for a Competitive Advance
unless such Competitive Advance is in a minimum principal amount
of $5,000,000 and is part of a Competitive Borrowing in a minimum
principal amount of $5,000,000, and (vii) should such Borrower
reject all of the offers referred to in paragraph (c) above or
cancel such Competitive Borrowing, the Administrative Agent shall
give prompt notice thereof to the Banks and such Competitive
Borrowing shall not be made. A notice given by such Borrower
pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify by
telex, telecopy, cable or telephone, immediately confirmed in
writing, (A) each Bank that has made an offer as described in
paragraph (b) above of the date and aggregate amount of such
Competitive Borrowing and whether or not any offer or an offer
made by such Bank pursuant to paragraph (b) above has been
accepted by the Borrower giving the Request for Competitive
Borrowing (whereupon each successful offeror will become bound,
subject to the other applicable conditions hereof, to make the
Competitive Advance in respect of which its offer has been
accepted), (B) each Bank that is to make a Competitive Advance as
part of such Competitive Borrowing, of the amount of each
Competitive Advance to be made by such Bank as part of such
Competitive Borrowing, and (C) each Bank that is to make a
Competitive Advance as part of such Competitive Borrowing, upon
receipt, that the Administrative Agent has received forms of
documents appearing to fulfill the applicable conditions set
forth in Article III. Each Bank that is to make a Competitive
Advance as part of such Competitive Borrowing shall, before 12:00
noon (New York City time) on the date of such Competitive
Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (i) of the preceding
sentence or any later time when such Bank shall have received
notice from the Administrative Agent pursuant to clause (iii) of
the preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent at its
address referred to in Section 8.02 such Bank's portion of such
Competitive Borrowing, in same day funds. Upon fulfillment of
the applicable conditions set forth in Article III and after
receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the
applicable Borrower at the Administrative Agent's aforesaid
address. Promptly after each Competitive Borrowing the
Administrative Agent will notify each Bank of the amount of the
Competitive Borrowing, the consequent Competitive Reduction and
the dates upon which such Competitive Reduction commenced and
will terminate.
(f) If the Administrative Agent shall elect to submit an
offer to make a Competitive Advance in its capacity as a Bank, it
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shall submit such offer directly to the Borrower giving the
relevant Request for Competitive Borrowing one-quarter hour
earlier than the latest time at which the other Banks are
required to submit their offers to the Administrative Agent
pursuant to paragraph (b) above.
(g) Within the limits and on the conditions set forth in
this Section 2.03, a Borrower may from time to time borrow under
this Section 2.03, repay pursuant to Section 2.07 and reborrow
under this Section 2.03, provided that a Request for Competitive
Borrowing given by a Borrower shall not be made within five
Business Days of the date of any other Request for Competitive
Borrowing given by such Borrower.
(h) The aggregate indebtedness of each Borrower resulting
from Competitive Advances made to such Borrower by each Bank
shall be evidenced by a Competitive Advance Note of such Borrower
payable to the order of such Bank.
SECTION 2.4. Advances Generally. (a) Each Notice of
Committed Borrowing and Notice of Conversion shall be irrevocable
and binding on the Borrower giving it. In the case of any
Borrowing or Conversion (other than one comprised solely of Base
Rate Advances), the Borrower giving such Notice, if any, shall
indemnify each Bank against any loss or expense incurred by such
Bank as a result of any failure of such Borrower to fulfill on or
before the date specified for such Borrowing or Conversion the
applicable conditions set forth in Article III, if any,
including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Advance to be made by
such Bank as part of such Borrowing when such Advance, as a
result of such failure, is not made on such date.
(b) Unless the Administrative Agent shall have received
notice from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Administrative Agent such
Bank's ratable portion of such Borrowing, the Administrative
Agent may (but shall not be obligated to) assume that such Bank
has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with Sections 2.01
and/or 2.03 hereof and the Administrative Agent may, in reliance
upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent such
Bank shall not have so made such portion available to the
Administrative Agent, such Bank and such Borrower severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower
until the date such amount is repaid to the Administrative Agent,
at the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Advance as part of such
Borrowing for purposes of this Agreement.
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(c) The failure of any Bank to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Bank
of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Bank shall be responsible for the
failure of any other Bank to make the Advance to be made by such
other Bank on the date of any Borrowing.
SECTION 2.5. Fees. (a) Facility Fee. The Borrowers agree
to pay to the Administrative Agent for the account of each Bank
the Facility Fee from the date hereof until the Termination Date,
payable on the last day of each March, June, September and
December during the term of such Bank's Commitment, commencing
June 30, 1996, and on the Termination Date.
(b) Administration Fees. The Borrowers shall pay to the
Administrative Agent for its own account such other fees as are
provided for in that certain letter agreement among the Borrowers
and the Administrative Agent, entered into separately herefrom
and dated May 6, 1996.
(c) Fee Allocation Among Borrowers. The Borrowers'
respective obligations in respect of fees pursuant to this
Section 2.05 and costs, expenses and taxes pursuant to Section
8.04 shall be determined by agreement among themselves and
specified in a certificate signed by the principal financial
officer or the treasurer of each Borrower delivered to the
Administrative Agent on or prior to the date and time of the
initial Advance; such certificate shall be conclusively binding
upon each Borrower.
SECTION 2.6. Reduction of the Commitments. The Borrowers
shall have the right, upon at least three Business Days' notice
to the Administrative Agent, signed by a duly authorized officer
of each Borrower, to terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Banks;
provided that (A) that portion of any outstanding Committed
Advance that would exceed the aggregate amount of the reduced
Commitments must be prepaid, together with any amount payable to
the Banks pursuant to Section 2.11, coincident with such
reduction, and (B) no such termination or reduction shall be made
that would reduce the aggregate Commitments of all Banks to an
amount less than the aggregate Competitive Advances then
outstanding and provided, further, that each partial reduction
shall be in an aggregate amount not less than $5,000,000 or in an
integral multiple of $1,000,000 in excess thereof. The
Administrative Agent shall promptly notify each Bank of any such
termination or reduction.
SECTION 2.7. Repayment of Advances. The applicable
Borrowers shall repay the principal amount of each Advance on the
last day of the Interest Period for such Advance.
SECTION 2.8. Interest on Advances. Each Borrower shall pay
interest on the unpaid principal amount of each Advance made by
each Bank to such Borrower from the date of such Advance until
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such principal amount shall be paid in full, on the following
payment dates and at the following rates per annum:
(a) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times
during the Interest Period for such Advance to the sum of
the Eurodollar Rate for such Interest Period plus the
Applicable Margin, payable on the last day of such Interest
Period and, if such Interest Period has a duration of more
than three months, on every third month from the first day
of such Interest Period; provided that any amount of
principal (and, to the fullest extent permitted by law,
interest) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest,
from the date when due until paid in full, payable on
demand, at a rate per annum equal at all times to 2% per
annum plus the higher from time to time of (x) such rate of
interest applicable to such Advance immediately prior to
such amount becoming due or (y) the Alternate Base Rate in
effect from time to time.
(b) CD Rate Advances. If such Advance is a CD Rate
Advance, a rate per annum equal at all times during the
Interest Period for such Advance to the sum of the CD Rate
for such Interest Period plus the Applicable Margin, payable
on the last day of such Interest Period and, if such
Interest Period has a duration of more than 90 days, on
every 90th day from the first day of such Interest Period;
provided that any amount of principal (and, to the fullest
extent permitted by law, interest) which is not paid when
due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date when due until
paid in full, payable on demand, at a rate per annum equal
at all times to 2% per annum plus the higher from time to
time of (x) such rate of interest applicable to such Advance
immediately prior to such amount becoming due or (y) the
Alternate Base Rate in effect from time to time.
(c) Base Rate Advances. If such Advance is a Base
Rate Advance, a rate per annum equal at all times to the
Alternate Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each March, June,
September and December and on the date such Base Rate
Advance shall be paid in full; provided that any amount of
principal (and, to the fullest extent permitted by law,
interest) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest,
from the date when due until paid in full, payable on
demand, at a rate per annum equal at all times to 2% per
annum plus the Alternate Base Rate in effect from time to
time.
(d) Competitive Advances. If such Advance is a
Competitive Advance, a rate per annum equal at all times
during the Interest Period for such Advance to the interest
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rate offered by the Bank making such Advance under Section
2.03(b) and accepted by such Borrower under Section 2.03(d),
payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than 90 days, on
every 90th day from the first day of such Interest Period;
provided, that any amount of principal (and, to the fullest
extent permitted by law, interest) which is not paid when
due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date when due until
paid in full, payable on demand, at a rate per annum equal
at all times to 2% per annum plus the higher from time to
time of (x) such rate of interest applicable to such Advance
immediately prior to such amount becoming due or (y) the
Alternate Base Rate in effect from time to time.
SECTION 2.9. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each CD Rate or
Eurodollar Rate, as applicable. If any one or more of the
Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such
interest rate, subject to Section 2.11(g), the Administrative
Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to
the applicable Borrower and the Banks of the applicable interest
rate determined by the Administrative Agent for purposes of
Section 2.08(a), (b) or (c), and the applicable rate, if any,
furnished by each Reference Bank for the purpose of determining
the applicable interest rate under Section 2.08(a) or (b).
SECTION 2.10. Prepayments. (a) No Borrower shall have the
right to prepay any principal amount of any Committed Advances,
except in accordance with subsection (b) below, or the right to
prepay any principal amount of any Competitive Advance.
(b) Any Borrower may, upon at least (i) one Business Day's
notice, with respect to Base Rate Advances, and (i) three
Business Days' notice, with respect to Eurodollar Rate or CD Rate
Advances, to the Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and if such
notice is given, such Borrower shall, prepay the outstanding
principal amounts of Committed Advances comprising part of the
same Borrowing, in whole or ratably in part, together with
(B) accrued interest to the date of such prepayment on the
principal amount prepaid and (B) in the case of prepayments of
Eurodollar Rate or CD Rate Advances, any amount payable to the
Banks pursuant to Section 2.11(d); provided, however, that each
partial prepayment shall be in an aggregate principal amount not
less than $5,000,000. The Administrative Agent shall promptly
notify each Bank of any such prepayment.
SECTION 2.11. Yield Protection. (a) Change in
Circumstances. Notwithstanding any other provision herein, if,
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after the date hereof, the adoption of or any change in
applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with
the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation
of payments to any Bank of the principal of or interest on any
Eurodollar Rate Advance, CD Rate Advance or Competitive Advance
made by such Bank or any fees or other amounts payable hereunder
(other than changes in respect of taxes imposed on the overall
net income of such Bank or its Applicable Lending Office by the
jurisdiction in which such Bank has its principal office or in
which such Applicable Lending Office is located or by any
political subdivision or taxing authority therein), or
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against commitments or assets of,
deposits with or for the account of, or credit extended by, such
Bank (excluding, in the case of CD Rate Advances, any such
requirement included in the Domestic Reserve Adjustment), or
(i) impose on such Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Rate Advances,
CD Rate Advances or Competitive Advances made by such Bank, and
the result of any of the foregoing shall be to increase the cost
to such Bank of agreeing to make, making or maintaining any
Advance or to reduce the amount of any sum received or receivable
by such Bank hereunder or under the Notes (whether of principal,
interest or otherwise), then the Borrowers will pay to such Bank
upon demand such additional amount or amounts as will compensate
such Bank for such additional costs incurred or reduction
suffered. Prior to any Bank giving notice to the Borrowers under
this subsection (a), such Bank shall use reasonable efforts to
change the jurisdiction of its Applicable Lending Office, if such
change would avoid such additional costs or reduction and would
not, in the sole determination of such Bank, be otherwise
disadvantageous to such Bank.
(b) Capital. If any Bank shall have determined that the
applicability of any law, rule, regulation or guideline adopted
pursuant to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and
Capital Standards", or the adoption after the date hereof of any
law, rule, regulation or guideline regarding capital adequacy, or
any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Bank (or any Applicable Lending Office of such Bank) or any
Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would
have the effect of (i) reducing the rate of return on such
Bank's capital or on the capital of such Bank's holding company,
if any, as a consequence of this Agreement, the Commitment of
such Bank hereunder or the Advances made by such Bank pursuant
hereto to a level below that which such Bank or such Bank's
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holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such
Bank's policies and the policies of such Bank's holding company
with respect to capital adequacy), or of (i) increasing or
otherwise determining the amount of capital required or expected
to be maintained by such Bank or such Bank's holding company
based upon the existence of this Agreement, the Commitment of
such Bank hereunder, the Advances made by such Bank pursuant
hereto and other similar such commitments, agreements or assets,
then from time to time the Borrowers shall pay to such Bank upon
demand such additional amount or amounts as will compensate such
Bank or such Bank's holding company for any such reduction or
allocable capital cost suffered. Prior to any Bank giving notice
to the Borrowers under this subsection (b), such Bank shall use
reasonable efforts to change the jurisdiction of its Applicable
Lending Office, if such change would avoid such reduction or
allocable capital cost and would not, in the sole determination
of such Bank, be otherwise disadvantageous to such Bank.
(c) Eurodollar Reserves. The Borrowers shall pay to each
Bank upon demand, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Bank, from the date of such Advance until such
principal amount is paid in full, at an interest rate per annum
equal at all times to the remainder obtained by subtracting
(A) the Eurodollar Rate for the Interest Period for such Advance
from (B) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Reserve Percentage
of such Bank for such Interest Period. Such additional interest
shall be determined by such Bank and notified to the Borrowers
and the Administrative Agent.
(d) Breakage Indemnity. Each Borrower shall indemnify each
Bank against any loss, cost or reasonable expense which such Bank
may sustain or incur as a consequence of (A) any failure by such
Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article III, (B) any failure
by such Borrower to borrow or Convert any Advance hereunder after
irrevocable Notice of Borrowing or Notice of Conversion has been
given pursuant to Section 2.01 or 2.02, (C) any payment,
prepayment or Conversion of a Eurodollar Rate Advance or CD Rate
Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than
the last day of the Interest Period applicable thereto, (D) any
default in payment or prepayment of the principal amount of any
Advance or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by irrevocable
notice of prepayment or otherwise) or (E) acceleration of the
maturity of any Advances due to the occurrence of any Event of
Default, including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to
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effect or maintain such Advance or any part thereof as a
Eurodollar Rate Advance, CD Rate Advance or Competitive Advance.
Such loss, cost or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by such
Bank, of (1) its cost of obtaining the funds for the Advance
being paid, prepaid, Converted or not borrowed or Converted
(based on the Eurodollar Rate or CD Rate) for the period from the
date of such payment, prepayment, Conversion or failure to borrow
or Convert to the last day of the Interest Period for such
Advance (or, in the case of a failure to borrow or Convert, the
Interest Period for such Advance which would have commenced on
the date of such failure) over (2) the amount of interest (as
reasonably determined by such Bank) that would be realized by
such Bank in reemploying the funds so paid, prepaid, Converted or
not borrowed or Converted for such period or Interest Period, as
the case may be. For purposes of this subsection (d), it shall
be presumed that each Bank shall have funded each such Advance
with a fixed-rate instrument bearing the rates and maturities
designated in the determination of the interest rate for such
Advance.
(e) Notices. A certificate of each Bank setting forth such
Bank's claim for compensation hereunder and the amount necessary
to compensate such Bank or its holding company pursuant to
subsections (a) through (d) of this Section 2.11 shall be
submitted to the Borrowers and the Administrative Agent and shall
be conclusive and binding for all purposes, absent manifest
error. The applicable Borrower shall pay each Bank directly the
amount shown as due on any such certificate within 10 days after
its receipt of the same. The failure of any Bank to provide such
notice or to make demand for payment under this Section 2.11
shall not constitute a waiver of such Bank's rights hereunder;
provided that such Bank shall not be entitled to demand payment
pursuant to subsections (a) through (d) of this Section 2.11, in
respect of any loss, cost, expense, reduction or reserve, if such
demand is made more than 90 days following the later of such
Bank's incurrence or sufferance thereof or such Bank's actual
knowledge of the event giving rise to such Bank's rights pursuant
to such subsections. The protection of this Section 2.11 shall
be available to each Bank regardless of any possible contention
of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall
have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any law or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Rate Advance or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrowers
and the Administrative Agent, such Bank may:
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(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Bank hereunder, whereupon the
right of the Borrowers to select Eurodollar Rate Advances
for any Borrowing or Conversion shall be forthwith suspended
until such Bank shall withdraw such notice as provided below
or shall cease to be a Bank hereunder pursuant to Section
8.08 hereof; and
(ii) require that all outstanding Eurodollar Rate
Advances made by it be Converted to Base Rate Advances, in
which event all such Eurodollar Rate Advances by all Banks
shall be automatically Converted to Base Rate Advances as of
the effective date of such notice as provided below.
Upon receipt of any such notice, the Administrative Agent shall
promptly notify the other Banks. Promptly upon becoming aware
that the circumstances that caused such Bank to deliver such
notice no longer exist, such Bank shall deliver notice thereof to
the Borrowers and the Administrative Agent withdrawing such prior
notice (but the failure to do so shall impose no liability upon
such Bank). Promptly upon receipt of such withdrawing notice
from such Bank (or upon such Bank assigning all of its
Commitments, Advances, participation and other rights and
obligations hereunder in accordance with Section 8.08), the
Administrative Agent shall deliver notice thereof to the
Borrowers and the Banks and such suspension shall terminate.
Prior to any Bank giving notice to the Borrowers under this
subsection (f), such Bank shall use reasonable efforts to change
the jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole
determination of such Bank, be otherwise disadvantageous to such
Bank. Any notice to the Borrowers by any Bank shall be effective
as to each Eurodollar Rate Advance on the last day of the
Interest Period currently applicable to such Eurodollar Rate
Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be
unlawful, such notice shall be effective on the date of receipt
by the Borrowers and the Administrative Agent.
(g) Market Rate Disruptions. If (i) less than two
Reference Banks furnish timely information to the Administrative
Agent for determining the Eurodollar Rate for Eurodollar Rate
Advances, or the CD Rate for CD Rate Advances, in connection with
any proposed Borrowing or Conversion or (i) the Majority Banks
shall notify the Administrative Agent that the Eurodollar Rate or
CD Rate, as the case may be, will not adequately reflect the cost
to such Majority Banks of making, funding or maintaining their
respective Eurodollar Rate Advances or CD Rate Advances,
respectively, the right of the Borrowers to select or receive
such Type of Advances for any Borrowing or Conversion shall be
forthwith suspended until the Administrative Agent shall notify
the Borrowers and the Banks that the circumstances causing such
suspension no longer exist, and until such notification from the
Administrative Agent each requested Borrowing or Conversion into
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such Type of Advance hereunder shall be deemed to be a request
for Base Rate Advances.
SECTION 2.12. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under the Notes in same day
funds not later than 12:00 noon (New York City time) on the day
when due in U.S. dollars (i) if to the Syndication Agent or the
Administrative Agent, then directly to the Syndication Agent or
the Administrative Agent, as the case may be, and (i) if to a
Bank, then to the Administrative Agent, at its address referred
to in Section 8.02. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the
payment of principal or interest or facility fees ratably (other
than amounts payable pursuant to Section 2.03 or 2.11) to the
Banks for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other
amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement.
(b) Each Borrower hereby authorizes each Bank, if and to
the extent payment owed to such Bank is not made when due
hereunder or under the Note held by such Bank, to charge from
time to time against any or all of such Borrower's accounts with
such Bank any amount so due.
(c) All computations of interest based on the Prime Rate
component of the Alternate Base Rate shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, for the actual number of days (including the
first day but excluding the last day) occurring in the period of
determination. All other computations of interest (including
interest on Competitive Advances, interest based on the Federal
Funds Rate component of the Alternate Base Rate, additional
interest under Section 2.11 and interest based on the CD Rate,
the Eurodollar Rate and the Federal Funds Rate) and of the
Facility Fee shall be made by the Administrative Agent (or, in
the case of Section 2.11, the Bank claiming such interest), on
the basis of a year of 360 days, for the actual number of days
(including the first day but excluding the last day) occurring in
the period of determination. Each determination by the
Administrative Agent (or, in the case of Section 2.11, by a Bank)
of an interest rate and fees hereunder shall be conclusive and
binding for all purposes.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the
computation of payment of interest or of the Facility Fee, as the
case may be; provided, however, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances
to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
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(e) Unless the Administrative Agent shall have received
notice from any Borrower prior to the date on which any payment
from such Borrower is due to the Banks hereunder that such
Borrower will not make such payment in full, the Administrative
Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent such Borrower
shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together
with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.13. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise) on account of
principal or interest in respect of Committed Advances owing to
it or on account of any fee, expense, indemnification or other
obligation (other than principal and interest in respect of
Competitive Advances) payable by a Borrower to such Bank
hereunder and the ratio of the amount of such payment (a "non-pro
rata payment") to the total amount of such principal, interest,
fee, expense, indemnification or other obligation then payable to
it shall exceed the ratio of the amount of the payment
substantially coincidentally received by any other Bank for the
account of principal or interest, in respect of such other Bank's
Committed Advances owing to it, or such fee, expense,
indemnification or other obligation to the total amount of such
principal, interest, fee, expense, indemnification or other
obligation then payable to such other Bank by such Borrower (a
Bank being entitled to assume, in the absence of knowledge to the
contrary, that a payment received from the Administrative Agent
pursuant to Section 8.04, or received from any Borrower pursuant
to Section 2.11(e), is not a non-pro rata payment), such Bank
shall forthwith purchase from each such other Bank such
participation or participations in the right of each such other
Bank to receive such principal, interest, fee, expense,
indemnification or other obligation from such Borrower as shall
be necessary to cause such purchasing Bank to share such non-pro
rata payment ratably (relative to the amounts of such principal,
interest, fee, expense, indemnification or other obligation
payable at the date of the obtaining of such non-pro rata payment
to such Bank and each such other Bank, respectively, unless the
relevant Banks shall agree as to another basis for sharing);
provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such
purchase from each Bank shall be rescinded and such Bank shall
repay to the purchasing Bank the purchase price to the extent of
such recovery together with an amount equal to such Bank's
ratable share (according to the proportion of (i) the amount of
such Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other
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amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. Each Borrower agrees that any Bank so
purchasing a participation from another Bank pursuant to this
Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Bank were the direct creditor of such Borrower in the amount of
such participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.1. Conditions Precedent to Effectiveness. This
Agreement shall not become effective, and the Banks shall have no
obligation to make an Advance as part of any Borrowing
(including, without limitation, the Borrowing deemed made
pursuant to Section 2.01(c)) pursuant to this Agreement unless
and until the following conditions precedent shall have been
satisfied: (i) each of Chase and Citibank shall have received,
before 12:00 noon (New York City time) on the date hereof, from
each Bank not a party to the Existing Credit Agreement an amount
equal to the principal amount of "Advances" outstanding on such
date under, and as defined in, the Existing Credit Agreement,
which have been assigned to such Bank pursuant to
Section 2.01(c), (i) the representations and warranties contained
in Section 4.01 shall be correct on and as of the date hereof,
and (i) the Administrative Agent shall have received on or before
the date hereof the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except
for the Notes) in sufficient copies for each Bank:
(a) The Committed Advance Notes of each Borrower,
payable to the order of the Banks, respectively.
(b) Certified copies of the resolutions of the Board
of Directors of each Borrower approving this Agreement and
the Notes of such Borrower, and of all documents evidencing
other necessary corporate action and governmental approvals,
including, without limitation, appropriate orders of the SEC
under the Utility Act and of the PaPUC, with respect to this
Agreement and the Notes.
(c) A certificate of the Secretary or an Assistant
Secretary of each Borrower certifying the names and true
signatures of the officers of each Borrower authorized to
sign this Agreement and the Notes of such Borrower and the
other documents to be delivered by it hereunder.
(d) Copies of (i) audited consolidated financial
statements of each Borrower and unaudited consolidating
financial statements of GPU, in each case dated as of
December 31, 1995, and (i) unaudited consolidated (and, in
the case of GPU, consolidating) financial statements of each
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Borrower, dated as of March 31, 1996, each of which have
previously been delivered to each Bank.
(e) A favorable opinion of Berlack, Israels & Liberman
LLP counsel for the Borrowers, substantially in the form of
Exhibit E hereto and as to such other matters as any Bank
through the Administrative Agent may reasonably request.
(f) A favorable opinion of King & Spalding, special
counsel for the Syndication Agent and the Administrative
Agent, substantially in the form of Exhibit F hereto.
(g) Evidence that the five-year 350,000,000 Amended
and Restated Term Loan Agreement, of even date herewith,
among EI UK, Chase, as Administrative Agent, Citicorp
Securities, as Syndication Agent, and the banks party
thereto shall have been executed and delivered by the
parties thereto.
(h) Such other approvals, opinions and documents as
the Administrative Agent may reasonably request as to the
legality, validity, binding effect or enforceability of this
Agreement or the Notes or the financial condition,
properties, operations or prospects of any Borrower.
SECTION 3.2. Conditions Precedent to Each Borrowing. The
obligation of each Bank to make an Advance as part of a Borrowing
(including the Borrowing deemed made pursuant to Section 2.01(c))
shall be subject to the further conditions precedent that on the
date of such Borrowing:
(a) the following statements shall be true (and each
of the giving of the applicable notice or request by any
Borrower with respect to such Borrowing and the performance
of such Borrowing without prior correction by such Borrower
shall constitute a representation and warranty by such
Borrower that, on the date of such Borrowing, such
statements are true):
(i) The representations and warranties contained
in Section 4.01 (other than those contained in the last
sentence of subsection (e) and in subsection (n)
thereof) are correct on and as of the date of such
Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) No event has occurred and is continuing,
or would result from such Borrowing or from the
application of the proceeds therefrom, which
constitutes an Event of Default or an Unmatured
Default;
(iii) With respect to (A) any Borrowing made
after December 31, 1997 and (B) any Borrowing by GPU
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that, after giving effect thereto, would result in the
aggregate outstanding principal amount of all Advances
made to GPU hereunder to exceed $200,000,000, such
Borrower has duly obtained an appropriate order (a copy
of which has been delivered to the Administrative
Agent) of the SEC under the Utility Act to permit such
Borrowing, which order is in full force and effect, is
sufficient for its purpose and is not subject to any
pending or, to the knowledge of the Borrowers,
threatened appeal or other proceeding seeking
reconsideration or review thereof;
(iv) After giving effect to such Borrowing and
the application of the proceeds therefrom, such
Borrower is in compliance with the applicable
limitations (if any) on the amount of indebtedness that
may be incurred by such Borrower contained in its
charter; and
(b) the Borrowers shall have furnished to the
Administrative Agent such other approvals, opinions or
documents as any Bank, through the Administrative Agent, may
reasonably request as to the legality, validity, binding
effect or enforceability of this Agreement or the Notes.
SECTION 3.3. Conditions Precedent to Certain Borrowings.
The obligation of any Bank to make its Advance as part of (A) a
Competitive Borrowing, (B) a Borrowing (including the initial
Borrowing) that would (after giving effect to all Borrowings on
such date and the application of proceeds thereof) increase the
principal amount outstanding hereunder, or the outstanding
principal amount of the Committed Advances hereunder or (C) the
Borrowing deemed made pursuant to Section 2.01(c), shall be
subject to the conditions precedent set forth in Section 3.02 and
the further condition precedent that on the date of such
Borrowing the following statements shall be true (and each of the
giving of the applicable notice or request by any Borrower with
respect to such Borrowing and the performance of such Borrowing
shall constitute a representation and warranty by such Borrower
that, on the date of such Borrowing, such statement is true):
(i) The representations and warranties contained
in the last sentence of subsection (e) and in
subsection (n) of Section 4.01 are correct on and as of
the date of such Borrowing, before and after giving
effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such
date; and
(ii) the Borrowers shall have furnished to the
Administrative Agent such other approvals, opinions or
documents as any Bank, through the Administrative
Agent, may reasonably request as to the legality,
validity, binding effect or enforceability of this
Agreement or the Notes.
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SECTION 3.4. Conditions Precedent to Borrowings by ME and
PE. The obligation of any Bank to make any Borrowing to ME or PE
shall be subject to the further condition precedent that on the
date of such Borrowing, the ME Approval Date (in the case of ME)
or the PE Approval Date (in the case of PE) shall have occurred.
SECTION 3.5. Reliance on Certificates. The Banks, the
Administrative Agent and the Syndication Agent shall be entitled
to rely conclusively upon the certificates delivered from time to
time by officers of Borrowers as to the names, incumbency,
authority and signatures of the respective persons named therein
until such time as the Administrative Agent may receive a
replacement certificate, in form acceptable thereto, from an
officer of such Borrower identified to the Administrative Agent
as having authority to deliver such certificate, setting forth
the names and true signatures of the officers and other
representatives of such Borrower thereafter authorized to act on
behalf of such Borrower.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the
Borrowers. Each Borrower represents and warrants with respect to
itself as follows:
(a) Such Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation.
(b) The execution, delivery and performance by such
Borrower of this Agreement and the Notes are within such
Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene
(i) the Borrower's charter or by-laws or (i) law or any
material contractual restriction binding on or affecting
such Borrower, and do not result in or require the creation
of any Lien upon or with respect to any of its properties.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by such Borrower of this Agreement
and the Notes of such Borrower except for (A) in the case of
each Borrower, an appropriate order of the SEC under the
Utility Act, and (B) in the case of each of ME and PE, the
order or orders of the PaPUC described in Section 8.07(b);
provided, however, that (i) the Borrowers are required to
obtain an additional order of the SEC under the Utility Act
in order to obtain any Borrowing after December 31, 1997,
(i) GPU is required to obtain an additional order of the SEC
under the Utility Act in order for GPU to obtain Borrowings
hereunder in excess of $200,000,000 in the aggregate at any
one time outstanding and (i) the Borrowers are required to
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obtain an additional order of the SEC under the Utility Act
in order for the Rate Approval Date to occur (and from and
after the obtaining of any such additional order, such order
shall have been duly obtained, in full force and effect,
sufficient for its purpose and not subject to any pending
or, to the knowledge of the Borrowers, threatened appeal or
other proceeding seeking reconsideration).
(d) This Agreement is, and the Notes when delivered
hereunder by each Borrower will be, legal, valid and binding
obligations of such Borrower enforceable against such
Borrower in accordance with their respective terms;
provided, however, that the Borrowers are required to obtain
an additional order of the SEC under the Utility Act in
order to obtain any Borrowing after December 31, 1997, and
GPU is required to obtain an additional order of the SEC
under the Utility Act in order for GPU to obtain Borrowings
hereunder in excess of $200,000,000 in the aggregate at any
one time outstanding.
(e) The audited balance sheets of such Borrower and
its Subsidiaries as at December 31, 1995, and the related
audited statements of income and retained earnings of such
Borrower and its Subsidiaries for the fiscal year then
ended, together with the notes thereto, and the unaudited
balance sheets of such Borrower and its Subsidiaries as at
March 31, 1996, and the related unaudited statements of
income and retained earnings of such Borrower and its
Subsidiaries for the three-month period then ended
(presented, in the case of ME, PE and JC, on a consolidated
basis, and in the case of GPU, on a consolidating basis),
together, in each case, with notes thereto, copies of which
have been furnished to each Bank, fairly present (subject,
in the case of such unaudited financial statements, to year-
end adjustments) the financial condition of such Borrower
and its Subsidiaries as at such dates and the results of the
operations of such Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with
generally accepted accounting principles consistently
applied. Since December 31, 1995, there has been no
material adverse change in such financial condition or
results of operations.
(f) There has not been any failure by such Borrower to
file at or prior to the time required any reports or other
filings with any regulatory authority having jurisdiction
over it which would materially adversely affect its business
or financial condition.
(g) No proceeds of any Advance will be used to acquire
any security in any transaction which is subject to the
reporting requirements of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended.
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(h) Such Borrower is not in default, and no condition
exists which with notice or lapse of time or both would
constitute a default, under any agreement to which such
Borrower is a party evidencing Debt with a principal amount
equal to or in excess of $20,000,000.
(i) Such Borrower is not engaged in the business of
extending credit for the purpose of buying or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
no proceeds of any Advance will be used to buy or carry any
margin stock or to extend credit to others for the purpose
of buying or carrying any margin stock.
(j) GPU owns beneficially and of record, free and
clear of all Liens, 100% of the common stock of each
Subsidiary Borrower.
(k) Following application of the proceeds of each
Advance, not more than 25 percent of the value of the assets
(either of a Borrower or of all Borrowers or of a Borrower
and its Subsidiaries on a consolidated basis or of all
Borrowers and their Subsidiaries on a consolidated basis)
subject to the provisions of Section 5.02(a) or (d) will be
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System).
(l) Schedule B (Actuarial Information) to the 1994
annual report (Form 5500 Series) with respect to each Plan,
copies of which have been filed with the Internal Revenue
Service and furnished to the Administrative Agent is
complete and accurate and fairly presents the funding status
of such Plan, and since the date of such Schedule B there
has been no material adverse change in such funding status.
(m) Neither any Borrower nor any of such Borrower's
ERISA Affiliates has incurred or reasonably expects to incur
any material withdrawal liability under ERISA to any
Multiemployer Plan.
(n) Except as disclosed in such Borrower's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995 or such Borrower's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1996, copies of which
have been delivered to the Administrative Agent and the
Syndication Agent, there is no pending or, to such
Borrower's knowledge, threatened action or proceeding
affecting such Borrower or any of its Subsidiaries before
any court, governmental agency or arbitrator, which, in the
case of GPU, could reasonably be expected to materially
adversely affect the financial condition or operations of
GPU or of GPU and its Subsidiaries, taken as a whole, or, in
the case of a Subsidiary Borrower, could reasonably be
expected to materially adversely affect the financial
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condition or operations of such Borrower or such Borrower
and its Subsidiaries, taken as a whole.
(o) No ERISA Plan Termination Event has occurred or is
reasonably expected to occur with respect to any Plan which
reasonably could be expected to materially adversely affect
the business, operations, affairs, assets or condition,
financial or otherwise, or prospects of any Borrower on a
consolidated basis, or the ability of any Borrower to
perform its obligations hereunder.
(p) Such Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.1. Affirmative Covenants. Each Borrower (except
as expressly provided below in those covenants that apply solely
to GPU) covenants that it will, so long as any Note or any other
amount owing hereunder shall remain unpaid or any Bank shall have
any Commitment hereunder, unless the Majority Banks shall
otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge all
taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims which, if
unpaid, might become a Lien upon any properties of such
Borrower, provided it shall not be required to pay any such
tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings.
(b) Performance and Compliance with Other Agreements.
Perform and comply with each of the material provisions of
each material indenture, credit agreement, contract or other
agreement by which such Borrower is bound, non-performance
or non-compliance with which would have a material adverse
effect upon its business or credit or materially and
adversely affect its ability to perform its obligations
hereunder except material contracts or other agreements
being contested in good faith.
(c) Preservation of Corporate Existence, Conduct of
Business, Etc. Preserve and maintain its corporate
existence in the jurisdiction of its incorporation, and
qualify and remain qualified as a foreign corporation in
good standing in each jurisdiction in which such
qualification is necessary or desirable in view of its
business and operations or the ownership of its properties,
except where the failure to be so qualified would not
materially adversely affect its financial condition,
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operations, properties or business, and preserve its
material rights, franchises and privileges to conduct its
business substantially as conducted on May 6, 1996.
(d) Compliance with Laws, Etc. Comply with the
requirements of all applicable laws, rules, regulations and
orders of any governmental authority, non-compliance with
which would have a material adverse effect upon its business
or credit or materially and adversely affect its ability to
perform its obligations hereunder except laws, rules,
regulations and orders being contested in good faith.
(e) Maintenance of Insurance. Maintain insurance in
effect at all times in such amounts as are available to such
Borrower and covering such risks as is usually carried by
companies of a similar size, engaged in similar businesses
and owning similar properties (including, without
limitation, the operation and ownership of nuclear
generating facilities) in the same general geographical area
in which such Borrower operates, either with responsible and
reputable insurance companies or associations, or, in whole
or in part, by establishing reserves of one or more
insurance funds, either alone or with other corporations or
associations.
(f) Inspection Rights. At any reasonable time and
from time to time, permit the Administrative Agent or any
Bank or any agents or representatives thereof to examine and
make copies of and abstracts from the records and books of
account of, and visit the properties of, such Borrower and
to discuss the affairs, finances and accounts of such
Borrower with any of its officers or directors.
(g) Ownership of Subsidiary Borrowers. With respect
to GPU, maintain at all times beneficial ownership, free and
clear of all Liens (except for those described in Section
5.02(a)(iii)), of 100% of all outstanding shares of common
stock of each Subsidiary Borrower and of EI Energy.
(h) Debt to Total Capitalization. With respect to
GPU, maintain at all times a ratio of consolidated Debt of
GPU to Total Capitalization of not more than 0.65 to 1.0.
(i) ME and PE. At all times until the ME Approval
Date and the PE Approval Date, GPU will cause ME and PE, as
the case may be, to perform and comply with the covenants
and provisions of this Agreement that will be applicable to
them on and after the ME Approval Date and the PE Approval
Date, as appropriate, as though ME and PE, as appropriate,
were already bound hereby.
(j) Further Regulatory Approvals. Within 60 days of
May 6, 1996, GPU shall, and shall cause its Subsidiaries to,
make all filings and applications and take all such other
actions as may be necessary or desirable in order to obtain
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the governmental approvals necessary for the Rate Approval
Date, the ME Approval Date and the PE Approval Date to
occur.
SECTION 5.2. Negative Covenants. Each Borrower (except as
expressly provided below in those covenants that apply solely to
GPU) covenants that it will not, so long as any Note or any other
amount owing hereunder shall remain unpaid or any Bank shall have
any Commitment hereunder, without the prior written consent of
the Majority Banks:
(a) Liens, Etc. Create, incur, assume or suffer to
exist any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance, or any other type
of preferential arrangement, upon or with respect to any of
its properties or rights, whether now owned or hereafter
acquired (any of the foregoing being referred to herein as a
"Lien"), or assign any right to receive income, services or
property, except that the foregoing restrictions shall not
apply to Liens:
(i) existing on the date hereof;
(ii) created to secure any Senior Debt;
provided, however, that no Lien created to secure any
Senior Debt shall extend to or cover property of any
type which is excluded therefrom on the date hereof;
(iii) for taxes, assessments or governmental
charges or levies on property of such Borrower if the
same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in
good faith and by appropriate proceedings;
(iv) imposed by law, such as carriers',
warehousemen's and mechanics' Liens and other similar
Liens arising in the ordinary course of business;
(v) arising out of pledges or deposits
(A) under workmen's compensation laws, unemployment
insurance, or other social security, or similar
legislation, or (B) to secure the performance of bids,
tenders, contracts (other than contracts for the
payment of money), leases, surety or similar bonds or
other similar obligations, in each case under this
clause (B) made in the ordinary course of business in
an amount not to exceed $12,000,000 in the aggregate
for all Borrowers at any one time outstanding;
(vi) arising out of purchase money mortgages
or other Liens on property acquired by such Borrower in
the ordinary course of business to secure the purchase
price of such property or to secure Debt incurred
solely for the purpose of financing the acquisition of
any such property to be subject to such Liens, or Liens
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existing on any such property at the time of
acquisition, or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount,
provided that no such Lien shall extend to or cover any
property other than the property being acquired, and no
such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the
Lien being extended, renewed or replaced;
(vii) affecting the fuel used in the power
generating operations of any Borrower;
(viii) constituting attachment, judgment and
other similar Liens arising in connection with court
proceedings, provided that the execution or other
enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in
good faith by proper proceedings or the payment of
which is covered in full (subject to customary
deductible amounts) by insurance maintained with
responsible and reputable insurance companies or
associations and such applicable insurance company or
association has acknowledged its liability therefor in
writing;
(ix) constituting easements, restrictions and
other similar encumbrances arising in the ordinary
course of business, which in the aggregate do not
materially adversely affect such Borrower's use of its
properties; or
(x) in addition to the foregoing, securing
amounts not to exceed in the aggregate $75,000,000 for
each Borrower at any one time outstanding.
(b) Debt. Create, incur, assume or suffer to exist
any Debt, except:
(i) Debt of such Borrower hereunder or under
the Notes;
(ii) Debt directly secured by Liens permitted
by Section 5.02(a)(iii)-(vii);
(iii) Senior Debt;
(iv) Debt of such Borrower under External
Lines, commercial paper and other forms of unsecured
short-term indebtedness, such commercial paper and such
other unsecured short-term indebtedness having a stated
maturity not in excess of 270 days from the date of
issuance; provided, however, that the aggregate
principal amount of all Debt under External Lines of
such Borrower, such unsecured commercial paper of such
Borrower and such other unsecured short-term
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indebtedness of such Borrower, together with the unpaid
principal amount of Advances to such Borrower, shall
not exceed at any time the limits for unsecured
indebtedness set forth under its certificate of
incorporation as in effect on the date hereof;
(v) Debt which is expressly and effectively
subordinated to the Debt hereunder and under the Notes
and, without limiting the generality of the foregoing,
which provides that, unless and until the Debt
hereunder and under the Notes shall have been paid in
full, no payments of any kind, whether for principal,
interest, premium, fees, expenses or otherwise, shall
be made in the event of an Event of Default described
in Section 6.01(e) or (f) below;
(vi) Debt arising from the purchase in the
ordinary course of its business as conducted on the
date hereof of fuel, supplies, equipment, services,
electric energy and capacity with respect to which no
assertion that such Debt is delinquent in payment has
been made and outstanding for more than 60 days, unless
such Borrower is contesting such assertion in good
faith and by appropriate proceedings;
(vii) Debt with respect to unfunded vested
benefits under Plans or withdrawal liability incurred
under ERISA by a Borrower or any of its ERISA
Affiliates to any Multiemployer Plan;
(viii) Debt with respect to capital lease
obligations;
(ix) Debt with respect to obligations arising
under arrangements for the lease of nuclear fuel and
materials;
(x) any other unsecured Debt not to exceed,
in the case of GPU (on an unconsolidated basis), the
aggregate amount of $1,400,000,000 at any one time
outstanding and, in the case of each of JC, PE and ME,
the aggregate amount of $200,000,000 at any one time
outstanding; and/or
(xi) all Debt permitted pursuant to Section
5.02(c).
(c) Assumptions, Guaranties, Etc. of Debt of Other
Persons. Assume, guarantee, endorse or otherwise become
directly or contingently liable (including, without
limitation, liable by way of agreement, contingent or
otherwise, to purchase, to provide funds for payment, to
supply funds to or otherwise invest in the debtor or
otherwise to assure the creditor against loss) in connection
with any obligation or Debt of any other Person, except:
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(i) guaranties by endorsement of negotiable
instruments for deposit or collection or similar
transactions in the ordinary course of business;
(ii) obligations to pay insurance premiums;
(iii) guaranties existing on the date hereof to
the extent permitted pursuant to Section 5.02(b)(x);
(iv) guaranties by ME, JC and PE of
obligations of any Subsidiary of such Borrower to the
extent permitted pursuant to Section 5.02(b)(x);
(v) indemnifications of any Borrower or GPU
Service Corporation or GPU Nuclear Corporation for the
benefit of suppliers and contractors of property or
services to any Borrower (other than GPU) with respect
to nuclear material and facilities;
(vi) guaranties or indemnifications by any
Borrower issued in the ordinary course of business of
such Borrower (and not covering the payment or
performance of any Person's indebtedness for borrowed
money) such as self-insurance guaranties and those
issued in favor of surety companies issuing indemnity
bonds, third party vendors or customers to promote
conservation of energy or cogeneration, stock transfer
agents, lessors or vendors of equipment, supplies or
services; and
(vii) guaranties by GPU of obligations of any
Subsidiary of GPU (only for so long as such Person is a
Subsidiary of GPU) to the extent permitted pursuant to
Section 5.02(b)(x).
(d) Mergers, Etc. Merge or consolidate with any
Person, unless:
(i) the surviving or resulting entity is a
Borrower hereunder;
(ii) immediately after giving effect thereto
no Event of Default or Unmatured Default shall have
occurred and be continuing; and
(iii) the senior unsecured debt of the
surviving or resulting Borrower shall be rated at least
investment grade by S&P and/or Moody's.
(e) Sale of Assets, Etc. From the date hereof until
the Termination Date, GPU will not, and will not permit or
cause any other Borrower to, sell, transfer, lease, assign
or otherwise convey or dispose of more than 10% of its
assets (whether now owned or hereafter acquired), in any
single or series of transactions, whether or not related,
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except for (i) dispositions of current assets in the
ordinary course of business as presently conducted, (i)
dispositions of assets not exceeding 5% of such Borrower's
assets in connection with sale-leaseback transactions
relating to such assets and (i) conveyances of assets from
one Borrower to another.
(f) Constituent Documents, Etc. GPU will not, and
will not permit or cause any other Borrower to, (i) change
in any material respect, the nature of its business,
charter, certificate of incorporation or other similar
document, accounting policies or accounting practices
(except as required or permitted by the Financial Accounting
Standards Board or generally accepted accounting principles)
(it being agreed that such portion of any change to a
charter, certificate of incorporation or other similar
document that provides for the issuance of equity shall not
be claimed material) or (i) cease to engage in the business
of the same general type as conducted by such Borrower on
May 6, 1996.
SECTION 5.3. Reporting Requirements. Each Borrower
covenants that it will, so long as any Note or any other amount
owing hereunder shall remain unpaid or any Bank shall have any
Commitment hereunder, unless the Majority Banks shall otherwise
consent in writing, furnish to each Bank:
(a) as soon as possible and in any event within three
days after the occurrence of each Event of Default and each
Unmatured Default continuing on the date of such statement,
the statement of the chief financial officer or Vice
President and Treasurer of such Borrower setting forth
details of such Event of Default or Unmatured Default and
the action which such Borrower proposes to take with respect
thereto;
(b) as soon as available and in any event within sixty
days after the end of each of the first three quarters of
each fiscal year of such Borrower, a balance sheet of such
Borrower as of the end of such quarter and statements of
income and retained earnings and of source and application
of funds of such Borrower (in the case of GPU, on a
consolidated and consolidating basis) for the 3-month and
12-month periods ending with the end of such quarter,
setting forth in each case in comparative form the
corresponding figures as of the end of and for the 3-month
and the 12-month periods ending on the corresponding date of
the preceding fiscal year, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the
chief financial officer or Vice President and Treasurer of
such Borrower as having been prepared in accordance with
generally accepted accounting principles consistently
applied, together with a certificate of said officer stating
that said officer has no knowledge that an Event of Default
or an Unmatured Default has occurred and is continuing or,
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if an Event of Default or an Unmatured Default has occurred
and is continuing, a statement as to the nature thereof and
the action which such Borrower proposes to take with respect
thereto;
(c) as soon as available and in any event within
ninety days after the end of each fiscal year of each
Borrower, a copy of the annual audit report for such year
for such Borrower including therein a balance sheet as of
the end of such fiscal year and statements of income and
retained earnings and of source and application of funds of
such Borrower (in the case of GPU, on a consolidated and
consolidating basis) for such fiscal year, in each case
certified (except for the consolidating financial
statements) by Coopers & Lybrand, L.L.P. or other
independent public accountants of recognized standing
acceptable to the Syndication Agent and the Administrative
Agent as having been prepared in accordance with generally
accepted accounting principles consistently applied together
with a certificate of (i) such accounting firm to the
Syndication Agent and the Administrative Agent stating that
in the course of its audit of the business of such Borrower,
which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that an Event of
Default or an Unmatured Default relating to financial or
accounting matters has occurred and is continuing, or if, in
the opinion of such accounting firm, such an Event of
Default or an Unmatured Default has occurred and is
continuing, a statement as to the nature thereof and (i) the
chief financial officer or Vice President and Treasurer of
such Borrower corresponding to the certificate referred to
in the last clause of Section 5.03(b);
(d) within thirty days after the filing thereof,
copies of all Annual Reports on Form 10-K (or successor
form), Quarterly Reports on Form 10-Q (or successor form),
and reports on Form 8-K (or successor form) of the Borrowers
filed with the SEC;
(e) as soon as possible and in any event within three
days of the occurrence of a material adverse change in the
financial position, operations or prospects of such
Borrower, the statement of the chief financial officer or
Vice President and Treasurer of such Borrower setting forth
the details of such change, the anticipated effects thereof
and the action which such Borrower proposes to take with
respect thereto;
(f) as soon as possible and in any event (B) within
thirty days after a Borrower knows or has reason to know, or
a Borrower has knowledge that any of its ERISA Affiliates
knows or has reason to know, that any ERISA Plan Termination
Event described in clause (i) of the definition of ERISA
Plan Termination Event with respect to any Plan has occurred
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and (B) within ten days after a Borrower knows or has reason
to know, or a Borrower has knowledge that any of its ERISA
Affiliates knows or has reason to know, that any other ERISA
Plan Termination Event with respect to any Plan has
occurred, a statement of the chief financial officer or Vice
President and Treasurer of such Borrower describing such
ERISA Plan Termination Event and the action, if any, which
such Borrower or such ERISA Affiliate proposes to take with
respect thereto;
(g) promptly and in any event within five Business
Days after receipt thereof by a Borrower from the PBGC, or
within five Business Days after a Borrower has knowledge of
the receipt thereof by any of its ERISA Affiliates, copies
of each notice received by such Borrower or such ERISA
Affiliate of the PBGC's intention to terminate any Plan or
to have a trustee appointed to administer any such Plan;
(h) as soon as possible and in any event within three
days after any Borrower acquires knowledge of the filing of
any appeal of, or petition seeking modification or setting
aside of, any order of the SEC under the Utility Act
obtained by the Borrowers in connection with this Agreement,
notice of such appeal or petition together with a copy
thereof, if available; and
(i) such other information respecting the business,
properties or the condition or operations, financial or
otherwise, of such Borrower as any Bank may through the
Administrative Agent from time to time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default. As to a Borrower, any of
the following events shall constitute an Event of Default ("Event
of Default") if it occurs and is continuing:
(a) Such Borrower shall fail to make any payment of
principal of any Advance when due or of interest thereon or
fees within five days after such interest or fees shall have
become due; or
(b) Any representation or warranty or written
statement made by such Borrower (or any of its officers)
herein or in connection with this Agreement or in any
schedule, certificate or other document delivered pursuant
to or in connection with this Agreement shall prove to have
been incorrect in any material respect when made; or
(c) Such Borrower shall fail to perform or observe the
covenants set forth in Section 5.01(g) or Section 5.02(d) or
(e), or such Borrower shall fail to perform or observe any
other term, covenant or agreement contained herein on its
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part to be performed or observed and any such failure shall
remain unremedied for thirty days after written notice
thereof shall have been given by the Administrative Agent or
any Bank to such Borrower (and, if such notice was given by
a Bank, to the Administrative Agent); or
(d) Such Borrower shall (i) fail to pay any Debt
which is outstanding in a principal amount of at least
$20,000,000 in the aggregate (but excluding Debt evidenced
by the Notes) of such Borrower, or premium or interest
thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to
such Debt, or (i) fail to perform or observe any term,
covenant or agreement on its part to be observed under any
agreement or instrument relating to any such Debt, when
required to be performed or observed, and such failure shall
continue after the applicable grace period, if any,
specified in the agreement or instrument, if the effect of
such failure to perform or observe is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled
required prepayment or pursuant to any notice of optional
redemption with respect thereto), prior to the stated
maturity thereof; or
(e) Such Borrower or any Significant Subsidiary of a
Borrower shall generally not pay its debts as such debts
become due or shall admit in writing its inability to pay
its debts generally or shall make a general assignment for
the benefit of creditors or shall institute any proceeding
or voluntary case seeking to adjudicate it a bankrupt or
insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property or such Borrower or Significant Subsidiary shall
take any corporate action to authorize any of the actions
described in this subsection (e); or
(f) Any proceeding shall be instituted against such
Borrower or any Significant Subsidiary of a Borrower seeking
to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for
any substantial part of its property and such proceeding
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shall remain undismissed or unstayed for a period of 60
days; or
(g) A final judgment or order for the payment of money
in excess of $20,000,000 shall be rendered against such
Borrower and such judgment or order shall continue
unsatisfied and in effect for a period of thirty consecutive
days (excluding therefrom any period during which
enforcement of such judgment or order shall be stayed,
whether by pendency of appeal, posting of adequate security
or otherwise); or
(h) Any ERISA Plan Termination Event shall have
occurred with respect to a Plan which could reasonably be
expected to result in a material liability to such Borrower,
and, 30 days after notice thereof shall have been given to
such Borrower by the Administrative Agent or any Bank, such
ERISA Plan Termination Event shall still exist; or
(i) A Change in Control shall have occurred.
SECTION 6.2. Declaration by the Administrative Agent. If
any Event of Default described in subsection (a), (b), (c), (d),
(g), (h) or (i) of Section 6.01 or in subsection (e) and (f) of
Section 6.01 with respect to any Significant Subsidiary of a
Borrower shall occur and be continuing with respect to a
Borrower, then, and in any such event, the Administrative Agent
(A) shall at the request, or may with the consent, of the Banks
having at least 66-2/3% of the Commitments, by notice to such
Borrower and any one or more of the other Borrowers, declare the
obligation of each Bank to make Advances to such Borrower to be
terminated, whereupon the same shall immediately terminate;
and/or (B) shall at the request, or may with the consent, of the
Banks owed at least 66-2/3% of the then aggregate unpaid
principal amount of the Advances owing to Banks, by notice to
such Borrower, declare the Advances made to such Borrower, all
interest thereon and all other amounts payable by such Borrower
under this Agreement and the Notes to be forthwith due and
payable, whereupon such Advances, all such interest and all such
amounts shall become and be immediately due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Borrower; and if any
Event of Default described in subsection (e) or (f) of Section
6.01 shall occur and be continuing with respect to a Borrower,
then (B) the obligation of each Bank to make Advances to the
Borrowers shall automatically immediately terminate and (B) the
Advances made to such Borrower, all interest thereon and all
other amounts payable by such Borrower under this Agreement and
the Notes shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by each Borrower.
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ARTICLE VII
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT
SECTION 7.1. Authorization and Action. Each Bank hereby
appoints and authorizes the Syndication Agent and the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated
to the Syndication Agent and the Administrative Agent,
respectively, by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that the Administrative
Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary
to this Agreement or applicable law.
SECTION 7.2. The Syndication Agent and the Administrative
Agent. Under no circumstances whatsoever shall (a) Citicorp
Securities, by reason of its being a Syndication Agent, be
responsible for or liable because of any action taken or omitted
to be taken by the Administrative Agent, its directors, officers,
employees or agents, whether or not resulting from the gross
negligence or wilful misconduct of the Administrative Agent and
(a) the Administrative Agent, by reason of its being
Administrative Agent, be responsible for or liable because of any
action taken or omitted to be taken by Citicorp Securities, as
Syndication Agent, its directors, officers, employees or agents,
whether or not resulting from the gross negligence or wilful
misconduct of Citicorp Securities as Syndication Agent. In the
event that either Citicorp Securities, as Syndication Agent, or
the Administrative Agent is held liable for the actions or
omission of the other, the Administrative Agent or Citicorp
Securities (in its capacity as Syndication Agent), as the case
may be, agrees to indemnify the other from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the other as a result of such action or
omission by it.
SECTION 7.3. Reliance on the Syndication Agent and the
Administrative Agent, Etc. Neither the Syndication Agent, the
Administrative Agent, nor any of their respective directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for their own gross negligence or
wilful misconduct. Without limitation of the generality of the
foregoing, the Syndication Agent and the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until
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the Administrative Agent receives and accepts an Assignment and
Acceptance providing for the assignment thereof, in accordance
with Section 8.07, or receives other written notice of the
assignment or transfer thereof signed by such payee and in form
satisfactory to the Administrative Agent; (i) may consult with
legal counsel (including counsel for the Borrowers), independent
public accountants (including the Borrowers' independent public
accountants) and other experts selected by either the Syndication
Agent or the Administrative Agent and shall not be liable for any
action taken or omitted to be taken in good faith by either of
them in accordance with the advice of such counsel, accountants
or experts; (i) make no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements,
warranties or representations made in or in connection with this
Agreement; (i) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of any
Borrower or to inspect the property (including the books and
records) of any Borrower; (i) shall not be responsible to any
Bank for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (i) shall
incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telegram, telecopy, cable or telex)
believed by the recipient to be genuine and signed or sent by the
proper party or parties.
SECTION 7.4. Chase and its Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it,
Chase shall have the same rights and powers under this Agreement
as any other Bank and may exercise the same as though it were not
the Administrative Agent; and the term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include Chase in its
individual capacity. Chase and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of,
and generally engage in any kind of business with, any Borrower,
any of its Subsidiaries and any Person who may do business with
or own securities of any Borrower or any such Subsidiary, all as
if Chase were not the Administrative Agent without any duty to
account therefor to the Banks.
SECTION 7.5. Indemnification. The Banks agree to indemnify
each Arranger, the Syndication Agent and the Administrative Agent
(to the extent not reimbursed by any Borrower), ratably, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against either Arranger, the
Syndication Agent or the Administrative Agent in any way relating
to or arising out of this Agreement or any action taken or
omitted by either Arranger, the Syndication Agent or the
Administrative Agent under this Agreement, provided that no Bank
shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
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expenses or disbursements resulting from the gross negligence or
wilful misconduct of the indemnitee. Without limitation of the
foregoing, each Bank agrees to reimburse either Arranger, the
Syndication Agent and the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by either Arranger, the
Syndication Agent or the Administrative Agent in connection with
the preparation, execution, administration or enforcement
(whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities
under, this Agreement, to the extent that either Arranger, the
Syndication Agent and the Administrative Agent are not reimbursed
for such expenses by any Borrower. For purposes of this Section
7.05, ratable allocations among the Banks shall be made (i) in
respect of any demand by either Arranger, the Syndication Agent
or the Administrative Agent prior to a declaration made pursuant
to Section 6.02, according to the respective amounts of their
Commitments and (i) thereafter according to the respective
principal amounts of the Advances then outstanding to them. The
Arrangers may rely on this Section 7.05 as third-party
beneficiaries hereto.
SECTION 7.6. Successor Agents. The Syndication Agent or
the Administrative Agent may resign at any time by giving written
notice thereof to the Banks and each Borrower and may be removed
at any time as the Syndication Agent or the Administrative Agent
(as the case may be) under this Agreement with or without cause
by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor
Syndication Agent or Administrative Agent (as the case may be),
which shall be a commercial bank organized under the laws of the
United States of America or of any State thereof and having a
combined capital and surplus of at least $1,000,000,000, and to
which the Borrowers shall have consented in writing, such consent
not to be unreasonably denied. If no successor Syndication Agent
or Administrative Agent shall have been so appointed by the
Majority Banks, and shall have accepted such appointment, within
thirty days after the giving of notice of resignation or the
Majority Banks' removal of the retiring Syndication Agent or
Administrative Agent, then the retiring Syndication Agent or
Administrative Agent (as the case may be) may, on behalf of the
Banks, appoint a successor Syndication Agent or Administrative
Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and
having a combined capital and surplus of at least $1,000,000,000
and to which the Borrowers shall have consented in writing, such
consent not to be unreasonably denied. Upon the acceptance of
any appointment as Syndication Agent or Administrative Agent
hereunder by a successor Syndication Agent or Administrative
Agent, such successor Syndication Agent or Administrative Agent
shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Syndication Agent
or Administrative Agent, and the retiring Syndication Agent or
Administrative Agent shall be discharged from its duties and
obligations as Syndication Agent or Administrative Agent,
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respectively, under this Agreement. After any retiring
Syndication Agent's or Administrative Agent's resignation or
removal hereunder as Syndication Agent or Administrative Agent,
the provisions of this Article VII shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
the Syndication Agent or the Administrative Agent under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments, Etc. Except as otherwise provided
in this Agreement, no amendment or waiver of any provision of
this Agreement or the Committed Advance Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (a) waive any of the conditions
specified in Section 3.01, 3.02 or 3.03 (if and to the extent
that the Committed Borrowing which is the subject of such waiver
would involve an increase in the aggregate outstanding amount of
Committed Advances over the aggregate amount of Committed
Advances outstanding immediately prior to such Committed
Borrowing), (a) increase the Commitments of any Bank or subject
any Bank to any additional obligations, (a) reduce the principal
of, or interest on, any Committed Advance Note or any fees or
other amounts payable hereunder, (a) postpone any date fixed for
any payment of principal of, or interest on, any Committed
Advance Note or any fees or other amounts payable hereunder,
(a) change the percentage of the Commitments or of the aggregate
unpaid principal amount of any Note, or the number of Banks,
which shall be required for the Banks or any of them to take any
action hereunder, (a) extend the Termination Date or (a) amend
this Section 8.01; provided, further, that no amendment, waiver
or consent shall, unless in writing and signed by a Bank which
has made a Competitive Advance, and then only as to such
Competitive Advance, do any of the following: (x) reduce the
principal of, or interest on, any Competitive Advance Note or
(y) postpone any date fixed for any payment of principal of, or
interest on, any Competitive Advance Note; and provided, further,
that no amendment, waiver or consent shall, unless in writing and
signed by the Syndication Agent or the Administrative Agent, as
the case may be, in addition to the Banks required above to take
such action, affect the rights or duties of the Syndication Agent
or the Administrative Agent, as the case may be, under this
Agreement or any Note.
SECTION 8.2. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telegraphic, telecopy, telex or cable communication)
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and mailed, telegraphed, telecopied, telexed, cabled or
delivered, if to:
(i) GPU, at its address at 100 Interpace Parkway,
Parsippany, New Jersey 07054, Attention: Vice President and
Treasurer;
(ii) JC, at its address at 300 Madison Avenue,
Morristown, New Jersey 07960, Attention: Vice President and
Treasurer;
(iii) ME, at its address at 2800 Pottsville Pike,
Muhlenberg Township, Berks County, Pennsylvania 19605 (P.O.
Box 16001, Reading, Pennsylvania 19640), Attention: Vice
President and Treasurer;
(iv) PE, at its address at 2800 Pottsville Pike,
Muhlenberg Township, Berks County, Pennsylvania 19605 (P.O.
Box 16001, Reading, Pennsylvania 19640), Attention: Vice
President and Treasurer;
(v) any Bank, at its Domestic Lending Office;
(vi) Citicorp Securities, as Syndication Agent, at
its address at 1 Court Square, Long Island City, New York,
Attention: Bank Loan Services 11120; and
(vii) the Administrative Agent, c/o Chemical Bank
at its address at 140 East 45th Street, New York, New York
10017, Attention: Agent Bank Services;
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
telegraphed, telecopied, telexed or cabled, be effective when
deposited in the mails, delivered to the telegraph company, sent
by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and
communications to the Syndication Agent or the Administrative
Agent pursuant to Article II or VII and Section 8.08 shall not be
effective until received by the Syndication Agent or the
Administrative Agent, as the case may be.
SECTION 8.3. No Waiver; Remedies. No failure on the part
of any Bank or the Syndication Agent or the Administrative Agent
to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 8.4. Costs, Expenses and Taxes. (a) The Borrowers
agree to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery,
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modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Syndication Agent with respect thereto and with
respect to advising the Syndication Agent and the Administrative
Agent as to their respective rights and responsibilities under
this Agreement, and all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the Notes.
The Borrowers also agree to indemnify the Syndication Agent, the
Administrative Agent and each Bank from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or
asserted against the Syndication Agent, the Administrative Agent
or any Bank in any way relating to or arising out of this
Agreement or the Notes or any action taken or omitted by the
Syndication Agent, the Administrative Agent or any Bank
hereunder, except for such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful
misconduct of the Person seeking such indemnity.
(b) (i) Any and all payments made by any Borrower
hereunder and under the Notes shall be made free and clear of and
without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
of the Administrative Agent and the Syndication Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which the Administrative Agent or
the Syndication Agent, as the case may be, is organized and by
any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction of such Bank's Lending Office and any
political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under the Notes to the
Administrative Agent, the Syndication Agent or any Bank (each, a
"Beneficiary") , (A) the sum payable shall be increased as may
be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this subsection (b)) such Beneficiary receives an amount equal to
the sum it would have received had no such deductions been made,
(B) such Borrower shall make such deductions and (C) such
Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(ii) In addition, each Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies which arise from any
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payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or
the Notes (hereinafter referred to as "Other Taxes").
(iii) The applicable Borrower will indemnify each
Beneficiary for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this subsection (b))
paid by such Beneficiary on account of such Borrower and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such
Beneficiary makes written demand therefor.
(iv) Within 30 days after the date of any payment of
Taxes, the applicable Borrower will furnish to the Administrative
Agent, at its address referred to in Section 8.02 hereof, the
original or a certified copy of a receipt evidencing payment
thereof.
(v) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers contained in this Section 8.04(b)
shall survive the termination or expiration of the Commitments
and the payment in full of the Advances and all interest thereon.
SECTION 8.5. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default as to a
Borrower and (i) the making of the request or the granting of the
consent specified by Section 6.02 to authorize the Administrative
Agent to declare the Advances of such Borrower due and payable
pursuant to the provisions of Section 6.02, each Bank is hereby
authorized at any time and from time to time, without notice to
such Borrower (any such notice being expressly waived by each
Borrower) to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by such Bank to or for the credit or the account
of such Borrower against any and all of the obligations of such
Borrower now or hereafter existing under this Agreement and any
Note of such Borrower held by such Bank, irrespective of whether
or not such Bank shall have made any demand under this Agreement
or such Note and although such obligations may be contingent and
unmatured. Each Bank agrees promptly to notify such Borrower
after any such set-off and application made by such Bank,
provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each
Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
which such Bank may have.
SECTION 8.6. Bank Credit Decisions. Each Bank acknowledges
that it has, independently and without reliance upon the
Administrative Agent, the Syndication Agent or any other Bank and
59
<PAGE>
based on the financial information referred to in
Sections 4.01(e) and 5.03 and such other documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without
reliance upon the Administrative Agent, the Syndication Agent or
any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions intaking ornot taking actionunder thisAgreement.
SECTION 8.7. Binding Effect. (a) This Agreement shall
become effective when it shall have been executed by the
Borrowers and the Syndication Agent and the Administrative Agent
and when the Administrative Agent shall have been notified by
each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrowers, the
Syndication Agent, the Administrative Agent and each Bank and
their respective successors and permitted assigns, except that no
Borrower shall have the right to assign its rights or obligations
hereunder or any interest herein without the prior written
consent of the Banks.
(b) Notwithstanding anything to the contrary set forth
herein or in any document entered into pursuant hereto, neither
ME nor PE shall have any rights or obligations as a "Borrower"
hereunder or under any document entered into pursuant hereto
until the following condition shall have been satisfied: ME or
PE, as the case may be, shall have delivered to the
Administrative Agent, in sufficient copies for each of the Banks,
a final, non-appealable order of the PaPUC authorizing ME or PE,
as the case may be, to perform the obligations to be performed by
it hereunder and the Notes to which it is, or will be, a party,
together with an opinion of counsel, in form and substance
acceptable to the Administrative Agent and the Syndication Agent
as to such order, the enforceability of the obligations of ME or
PE, as the case may be, hereunder and such other matters as any
Bank may reasonably request through the Administrative Agent or
the Syndication Agent. It is expressly understood and agreed
that, in entering into this Agreement, the Administrative Agent,
the Syndication Agent and the Banks may nevertheless rely on the
representations and warranties made by ME and PE herein.
SECTION 8.8 Assignments and Participations. (a) Each Bank
may assign to one or more Banks or other entities all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment, the Committed Advances owing to it and the Committed
Advance Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a constant, and not a
varying, percentage of the assigning Bank's rights and
obligations under this Agreement, (i) the amount of the
Commitment of the assigning Bank being assigned pursuant to each
such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 and shall be an integral multiple of
60
<PAGE>
$1,000,000, (i) each such assignment shall be to an Eligible
Assignee, and (i) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance, an Assignment and Acceptance, together with any
Committed Advance Note or Notes subject to such assignment and
(other than in connection with an assignment by a Bank to one of
its Affiliates) a processing and recordation fee of $3,000. Upon
such execution, delivery and acceptance, from and after the
effective date specified in each Assignment and Acceptance,
(A) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (B) the Bank assignor
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto). The
Administrative Agent shall provide to the Syndication Agent, from
time to time and when requested by the Syndication Agent, a
current listing of the Banks and their respective interests as
they appear on the records maintained by the Administrative
Agent.
(b) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or any other instrument or
document furnished pursuant hereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (i) such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto; (i) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (i) such assignee will, independently and without
reliance upon the Syndication Agent, the Administrative Agent,
such assigning Bank or any other Bank and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement; (i) such assignee confirms that it
is an Eligible Assignee; (i) such assignee appoints and
authorizes the Syndication Agent and the Administrative Agent to
61
<PAGE>
take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Syndication
Agent and the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; and
(i) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it. Such copies shall be
available for inspection by the Borrowers, the Syndication Agent
or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee, together with the
Committed Advance Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit G
hereto, (i) accept such Assignment and Acceptance, and (i) give
prompt notice thereof to the Borrowers and to the Syndication
Agent. Within five Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and
deliver to the Administrative Agent in exchange for the
surrendered Committed Advance Note or Notes, a new Committed
Advance Note or Notes to the order of such assignee in an amount
equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Bank has retained a
Commitment hereunder, a new Committed Advance Note or Notes to
the order of the assigning Bank in an amount equal to the
Commitment retained by it hereunder, as appropriate. Such new
Committed Advance Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Committed Advance Note or Notes, shall be dated the
date hereof and shall otherwise be in substantially the form of
Exhibit A hereto. Such new Competitive Advance Note or Notes
shall be dated the Effective Date of such Assignment and
Acceptance and shall otherwise be in substantially the form of
Exhibit B hereto.
(e) No assignments of all or a portion of a Commitment
under paragraph (a) of this Section 8.08 may be effected by a
Bank to any Person that is not an Affiliate of such Bank unless,
prior to such assignment, each Borrower shall have consented in
writing to such Person receiving such assignment under this
Section 8.08 (such consent not to be unreasonably withheld).
(f) Each Bank may sell participations to one or more banks
or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such
Bank's obligations under this Agreement (including, without
limitation, its Commitment to the Borrowers hereunder) shall
62
<PAGE>
remain unchanged, (i) such Bank shall remain solely responsible
to the other parties hereto for the performance of such
obligations, (i) such Bank shall remain the holder of any such
Note for all purposes of this Agreement, (i) the Borrowers, the
Syndication Agent, the Administrative Agent and the other Banks
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement and (i) the grantee of any such participation, other
than an Affiliate of such Bank, shall not be entitled to direct
such Bank to take or omit to take any action hereunder, except
action which would have the effect of (B) extending the time for
payment of interest on, or the final maturity of the principal
amount of, the Notes, (B) reducing the principal amount of or the
rate of interest payable on the Notes or (B) reducing or
extending the time for payment of the Facility Fee.
(g) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.08, disclose to the assignee or participant or
proposed assignee or participant, any information relating to any
Borrower furnished to such Bank by or on behalf of such Borrower;
provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant, if not an
Eligible Assignee, shall agree to preserve the confidentiality of
any confidential information relating to such Borrower received
by it from such Bank.
(h) Anything in this Section 8.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any
portion of the Advances owing to it to any Federal Reserve Bank
(and its transferees) as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Bank from
its obligations hereunder. Notwithstanding any such assignment,
the Borrowers shall continue to deal exclusively with the
Administrative Agent, the Syndication Agent and the assigning
Bank with respect to all matters arising under this Agreement.
SECTION 8.9. Waiver of Jury Trial. The Borrowers, the
Syndication Agent, the Administrative Agent and the Banks
irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement, the Notes or any instrument or document delivered
hereunder or thereunder, except that the foregoing shall not
preclude any party hereto from submitting to a jury for
determination in any such action, proceeding or counterclaim any
dispute involving (a) the accuracy or completeness of any
representation or warranty made in Article IV hereof, (a) the
performance of any covenant or agreement contained in Article V
hereof, or (a) questions of materiality, or the reasonableness
of, or good faith basis for, any action taken, or determination
made, by any other party hereto (other than in respect of any
calculation of principal, interest, fees, or increased costs
payable by any Borrower hereunder).
63
<PAGE>
SECTION 8.10. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws
of the State of New York.
SECTION 8.11. Consent to Jurisdiction; Waiver of
Immunities. (a) Each Borrower hereby irrevocably submits to the
jurisdiction of any New York state or Federal court sitting in
New York City, and any appellate court from any thereof in any
action or proceeding arising out of or relating to this
Agreement, and each Borrower hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and
determined in any such court. Each Borrower hereby irrevocably
waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such
action or proceeding. Each Borrower agrees that a final, non-
appealable judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(b) Nothing in this Section shall affect the right of any
Bank to serve legal process in any manner permitted by law or
affect the right of any Bank to bring any action or proceeding
against any Borrower or its property in the courts of any other
jurisdictions.
SECTION 8.12. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 8.13. Integration. This Agreement, the letter
described in Section 2.05(b) and the Notes set forth the entire
understanding of the parties hereto with respect to all matters
contemplated hereby and thereby and supersede all previous
agreements and understandings among them concerning such matters.
No statements or agreements, oral or written, made prior to or at
the signing hereof, shall vary, waive or modify the written terms
hereof. Nothing in this Agreement, such letter and the Notes,
expressed or implied, is intended to confer upon any party other
than the parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement, such letter or
the Notes.
SECTION 8.14. Severability. In the event any one or more
of the provisions contained in this Agreement or the Notes should
be held invalid, illegal, or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal, or unenforceable
provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal, or
unenforceable provisions.
SECTION 8.15. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
GENERAL PUBLIC UTILITIES CORPORATION
By
Title:
JERSEY CENTRAL POWER & LIGHT COMPANY
By
Title:
METROPOLITAN EDISON COMPANY
By
Title:
PENNSYLVANIA ELECTRIC COMPANY
By
Title:
S-1<PAGE>
THE CHASE MANHATTAN BANK,
N.A., as Administrative Agent
By
Title:
CITICORP SECURITIES, INC.,
as Syndication Agent
By
Title:
The Banks
CITIBANK, N.A.
By
Title:
THE CHASE MANHATTAN BANK, N.A.
By
Title:
S-2<PAGE>
ABN-AMRO BANK N.V.
NEW YORK BRANCH
By: ABN AMRO North America Inc.,
as agent
By
Title:
By
Title:
S-3<PAGE>
THE BANK OF NOVA SCOTIA
By
Title:
S-4<PAGE>
BANQUE PARIBAS
By
Title:
By
Title:
S-5<PAGE>
CREDIT LYONNAIS, NEW YORK
BRANCH
By
Title:
S-6<PAGE>
THE DAI-ICHI KANGYO BANK,
LIMITED
New York Branch
By
Title:
S-7<PAGE>
THE FIRST NATIONAL BANK
OF CHICAGO
By
Title:
S-8<PAGE>
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By
Title:
S-9<PAGE>
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By
Title:
S-10<PAGE>
NATIONSBANK, N.A.
By
Title:
S-11<PAGE>
THE ROYAL BANK OF SCOTLAND PLC
By
Title:
S-12<PAGE>
SOCIETE GENERALE
By
Title:
S-13<PAGE>
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
Title:
S-14<PAGE>
UNION BANK OF CALIFORNIA, N.A.
By
Title:
S-15<PAGE>
THE SANWA BANK, LIMITED
NEW YORK BRANCH
By
Title:
S-16<PAGE>
CIBC, INC.
By
Title:
S-17<PAGE>
CORESTATES BANK, N.A.
By
Title:
S-18<PAGE>
MELLON BANK, N.A.
By
Title:
S-19<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
Title:
S-20<PAGE>
THE BANK OF NEW YORK
By
Title:
S-21<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By
Title:
S-22<PAGE>
UNION BANK OF SWITZERLAND
By
Title:
By
Title:
S-23<PAGE>
<TABLE>
SCHEDULE I
LIST OF LENDING OFFICES
<CAPTION>
<S> <C> <C> <C>
Eurodollar
Name of Bank Domestic Lending Office CD Lending Office Lending Office
The Chase Manhattan
Bank, N.A. 140 East 45th Street Same as Domestic Same as Domestic
New York, New York 10017 Lending Office Lending Office
Attention: Agent Bank
Services
Citibank, N.A. One Court Square Same as Domestic Same as Domestic
Long Island, New York Lending Office Lending Office
11120
Attention: Bank Loan
Services
[OTHER BANKS]
</TABLE>
<PAGE>
<TABLE>
SCHEDULE II
COMMITMENTS AND CLOSING DATE ASSIGNMENTS
<CAPTION>
<S> <C> <C> <C> <C>
Chase Assigned
Commitment Chase Advances
Percentage Citibank Assigned Assigned Citibank
Bank Commitment Interest Commitment Advances Assigned
</TABLE>
<PAGE>
SCHEDULE III
SENIOR DEBT DOCUMENTS
1. JC
First Mortgage Bonds
Indenture, dated as of March 1, 1946, to United States Trust
Company of New York, as Successor Trustee, as supplemented
Debentures
Subordinated Debenture Indenture, dated as of May 1, 1995 to
United States Trust Company of New York, as Trustee
2. ME
First Mortgage Bonds
Indenture, dated November 1, 1944 to United States Trust
Company of New York, as Successor Trustee, as supplemented
Debentures
Subordinated Debenture Indenture, dated as of August 1,
1994, to United States Trust Company of New York, as Trustee
3. PE
First Mortgage Bonds
Mortgage and Deed of Trust dated as of January 1, 1942 to
United States Trust Company of New York, as Successor
Trustee, as supplemented
Debentures
Subordinated Debenture Indenture, dated as of July 1, 1994
to United States Trust Company of New York, as Trustee<PAGE>
EXHIBIT A-1
FORM OF GPU COMMITTED ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, GENERAL PUBLIC
UTILITIES CORPORATION, a Pennsylvania corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
(the "Bank") for the account of its Applicable Lending Office (as
defined in the Credit Agreement referred to below) the principal
amount of each Committed Advance (as defined below) made by the
Bank to the Borrower pursuant to the Credit Agreement (as defined
below) on the last day of the Interest Period (as defined in the
Credit Agreement) for such Committed Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Committed Advance from the date of such
Committed Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified
in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Committed Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Committed Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Committed Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Committed Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such
Committed Advance being evidenced by this Promissory Note, and<PAGE>
(ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
GENERAL PUBLIC UTILITIES
CORPORATION
By
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT A-2
FORM OF JC COMMITTED ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, JERSEY CENTRAL POWER &
LIGHT COMPANY, a New Jersey corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of ___________________ (the "Bank")
for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the principal amount of
each Committed Advance (as defined below) made by the Bank to the
Borrower pursuant to the Credit Agreement (as defined below) on
the last day of the Interest Period (as defined in the Credit
Agreement) for such Committed Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Committed Advance from the date of such
Committed Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified
in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Committed Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Committed Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Committed Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Committed Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such
Committed Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for<PAGE>
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
JERSEY CENTRAL POWER & LIGHT
COMPANY
By
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT A-3
FORM OF ME COMMITTED ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, METROPOLITAN EDISON
COMPANY, a Pennsylvania corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of
(the "Bank") for the account of
its Applicable Lending Office (as defined in the Credit Agreement
referred to below) the principal amount of each Committed Advance
(as defined below) made by the Bank to the Borrower pursuant to
the Credit Agreement (as defined below) on the last day of the
Interest Period (as defined in the Credit Agreement) for such
Committed Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Committed Advance from the date of such
Committed Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified
in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Committed Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Committed Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Committed Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Committed Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such
Committed Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof<PAGE>
upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
METROPOLITAN EDISON COMPANY
By
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT A-4
FORM OF PE COMMITTED ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, PENNSYLVANIA ELECTRIC
COMPANY, a Pennsylvania corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of
(the "Bank") for the account of its
Applicable Lending Office (as defined in the Credit Agreement
referred to below) the principal amount of each Committed Advance
(as defined below) made by the Bank to the Borrower pursuant to
the Credit Agreement (as defined below) on the last day of the
Interest Period (as defined in the Credit Agreement) for such
Committed Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Committed Advance from the date of such
Committed Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified
in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Committed Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Committed Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Committed Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Committed Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such
Committed Advance being evidenced by this Promissory Note, and<PAGE>
(ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
PENNSYLVANIA ELECTRIC
COMPANY
By
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT B-1
FORM OF GPU COMPETITIVE ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, GENERAL PUBLIC
UTILITIES CORPORATION, a Pennsylvania corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
(the "Bank")
for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the principal amount of
each Competitive Advance (as defined below) made by the Bank to
the Borrower pursuant to the Credit Agreement (as defined below)
on the last day of the Interest Period (as defined in the Credit
Agreement) for such Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Competitive Advance from the date of
such Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Competitive Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Competitive Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Competitive Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks, and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Competitive Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Advance
being evidenced by this Promissory Note, and (ii) contains<PAGE>
provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
GENERAL PUBLIC UTILITIES
CORPORATION
By: ____________________________
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT B-2
FORM OF JC COMPETITIVE ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, JERSEY CENTRAL POWER &
LIGHT COMPANY, a New Jersey corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of
(the "Bank") for the account of its
Applicable Lending Office (as defined in the Credit Agreement
referred to below) the principal amount of each Competitive
Advance (as defined below) made by the Bank to the Borrower
pursuant to the Credit Agreement (as defined below) on the last
day of the Interest Period (as defined in the Credit Agreement)
for such Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Competitive Advance from the date of
such Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Competitive Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Competitive Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Competitive Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks, and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Competitive Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Advance
being evidenced by this Promissory Note, and (ii) contains<PAGE>
provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
JERSEY CENTRAL POWER & LIGHT
COMPANY
By: ________________________________
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT B-3
FORM OF ME COMPETITIVE ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, METROPOLITAN EDISON
COMPANY, a Pennsylvania corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of
(the "Bank") for the account of its
Applicable Lending Office (as defined in the Credit Agreement
referred to below) the principal amount of each Competitive
Advance (as defined below) made by the Bank to the Borrower
pursuant to the Credit Agreement (as defined below) on the last
day of the Interest Period (as defined in the Credit Agreement)
for such Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Competitive Advance from the date of
such Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Competitive Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Competitive Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Competitive Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks, and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Competitive Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Advance
being evidenced by this Promissory Note, and (ii) contains<PAGE>
provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
METROPOLITAN EDISON COMPANY
By: _________________________________
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT B-4
FORM OF PE COMPETITIVE ADVANCE NOTE
U.S. $ Dated: , 19
FOR VALUE RECEIVED, the undersigned, PENNSYLVANIA ELECTRIC
COMPANY, a Pennsylvania corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of
(the "Bank") for the account of its
Applicable Lending Office (as defined in the Credit Agreement
referred to below) the principal amount of each Competitive
Advance (as defined below) made by the Bank to the Borrower
pursuant to the Credit Agreement (as defined below) on the last
day of the Interest Period (as defined in the Credit Agreement)
for such Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each Competitive Advance from the date of
such Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Chase Manhattan Bank, N.A.,
as Administrative Agent, for the account of the Bank at such
account in New York, New York as the Administrative Agent shall
specify, in same day funds. Each Competitive Advance made by the
Bank to the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the
Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided,
that the failure to so record any Competitive Advance or any
payment on account thereof shall not affect the payment
obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Competitive Advance Notes
referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement, dated as of July 3, 1996 (as the
same may be amended, modified or supplemented, the "Credit
Agreement"), among the Borrower, the other Borrowers party
thereto, the Bank and certain other banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for the Bank
and such other banks, and Citicorp Securities, Inc., as
Syndication Agent for the Bank, and such other banks. The Credit
Agreement, among other things, (i) provides for the making of
advances (the "Competitive Advances") by the Bank to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Advance
being evidenced by this Promissory Note, and (ii) contains<PAGE>
provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United
States.
PENNSYLVANIA ELECTRIC
COMPANY
By: __________________________
Title:<PAGE>
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of of Interest Paid or Principal Notation
Date Advance Advance Rate Prepaid Balance Made By<PAGE>
EXHIBIT C
FORM OF NOTICE OF CONVERSION
______________ __, ____
The Chase Manhattan Bank, N.A.,
as Administrative Agent for the Banks
parties to the Credit Agreement referred
to below
c/o Chemical Bank
140 East 45th Street
New York, New York 10017
Attention: Agent Bank Services
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Amended
and Restated Credit Agreement, dated as of July 3, 1996, (as
amended, modified or supplemented from time to time, the "Credit
Agreement"), among General Public Utilities Corporation, Jersey
Central Power & Light Company, Metropolitan Edison Company and
Pennsylvania Electric Company, certain Banks parties thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for said
Banks, and Citicorp Securities, Inc., as Syndication Agent for
said Banks, and hereby gives you notice, pursuant to Section 2.02
of the Credit Agreement, that the undersigned hereby requests a
Conversion under the Credit Agreement, and in that connection
sets forth below the information relating to such Conversion (the
"Proposed Conversion") as required by Section 2.02(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Conversion is
________, __________.
(ii) The Type of Advances comprising the Proposed
Conversion is [CD Rate Advances] [Base Rate Advances]
[Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed
Conversion is $_____________.
(iv) The Type of Advances to which such Advances are
proposed to be Converted is [CD Rate Advances] [Base Rate
Advances] [Eurodollar Rate Advances].
(v) The Interest Period for each Advance made as part
of the Proposed Conversion is [ days] [
month(s)].(1)
________________________
* Delete for Base Rate Advances<PAGE>
2
The undersigned hereby acknowledges that the delivery of
this Notice of Conversion shall constitute a representation and
warranty by the Borrower that, on the date of the Proposed
Conversion, the statements contained in Section 3.02(a) of the
Credit Agreement are true.
Capitalized terms used herein and not otherwise defined have
the meanings assigned thereto in the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
Title:<PAGE>
EXHIBIT D-1
FORM OF NOTICE OF COMMITTED BORROWING
_________________ ___, 19___
The Chase Manhattan Bank, N.A.,
as Administrative Agent for the Banks
parties to the Credit Agreement referred
to below
c/o Chemical Bank
140 East 45th Street
New York, New York 10017
Attention: Agent Bank Services
Ladies and Gentlemen:
The undersigned, [Name of Borrower] (the "Company"), refers
to the Amended and Restated Credit Agreement, dated as of July 3,
1996 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among General Public Utilities Corporation,
Jersey Central Power & Light Company, Metropolitan Edison Company
and Pennsylvania Electric Company, certain Banks party thereto,
The Chase Manhattan Bank, N.A., as Administrative Agent for said
Banks, and Citicorp Securities, Inc., as Syndication Agent for
said Banks. The Company hereby gives you irrevocable notice
pursuant to Section 2.01 of the Credit Agreement, and requests a
Committed Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Borrowing
(the "Proposed Committed Borrowing") is made:
(A) Date of Proposed Committed __________________
Borrowing (which is a Business Day)
(B) Principal amount of Proposed __________________
Committed Borrowing*
(C) Type of Committed Advances** __________________
(D) Interest Period and the __________________
last date thereof***
(E) Name of Borrower __________________
_________________________
* Not less than $10,000,000 or greater than the aggregate
of the Commitments, less the Competitive Reduction, and
in integral multiples of $1,000,000.
** Eurodollar Rate, CD Rate or Base Rate.
*** Which shall end not later than the Termination Date.<PAGE>
2
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Committed Borrowing:
((i) the representations and warranties contained in
Section 4.01 of the Credit Agreement ****[(excluding those
contained in the last sentence of subsection (e) and in
subsection (n) thereof)] are correct, before and after giving
effect to the Proposed Committed Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date;
and
((ii) no event has occurred and is continuing, or would
result from such Proposed Committed Borrowing or from the
application of the proceeds therefrom, which constitutes an Event
of Default or an Unmatured Default.
Capitalized terms used herein and not otherwise defined have
the meanings assigned thereto in the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By________________________
Title:
_______________________
**** To be included in Notices of Committed Borrowing
pursuant to Section 3.02.<PAGE>
EXHIBIT D-2
FORM OF REQUEST FOR COMPETITIVE BORROWING
____________ ___, 19___
The Chase Manhattan Bank, N.A.,
as Administrative Agent for the Banks
parties to the Credit Agreement referred
to below
c/o Chemical Bank
140 East 45th Street
New York, New York 10017
Attention: Agent Bank Services
Ladies and Gentlemen:
The undersigned, [Name of Borrower] (the "Company"), refers
to the Amended and Restated Credit Agreement, dated as of July 3,
1996 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), among General Public Utilities Corporation,
Jersey Central Power & Light Company, Metropolitan Edison Company
and Pennsylvania Electric Company, certain Banks parties thereto,
The Chase Manhattan Bank, N.A., as Administrative Agent for said
Banks, and Citicorp Securities, Inc., as Syndication Agent for
said Banks. The Company hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive
Borrowing (the "Proposed Competitive Borrowing") is requested to
be made:
(i) Date of Proposed Competitive ____________________
Borrowing (which is a Business
Day)
(ii) Principal amount of Proposed ____________________
Competitive Borrowing*
(iii) Fixed interest rate ____________________
(iv) Interest Period and any earlier ____________________
payment dates**
(v) Name of Borrower ____________________
_______________________
* Not less than $5,000,000 or greater than the aggregate
of the Commitments, less the Competitive Reduction, and
in integral multiples of $1,000,000.
** Which shall end not later than Termination Date.<PAGE>
2
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Competitive Borrowing:
(1) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and
after giving effect to the Proposed Competitive
Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(2) no event has occurred and is continuing, or would
result from the Proposed Competitive Borrowing or from
the application of the proceeds therefrom, which
constitutes an Event of Default or an Unmatured
Default; and
(3) the aggregate amount of the Proposed Competitive
Borrowing and all other Borrowings to be made on the
same day under the Credit Agreement is within the
aggregate amount of the unused Commitments of the
Banks.
The undersigned hereby confirms that the Proposed
Competitive Borrowing is to be made available to it in accordance
with Section 2.03 of the Credit Agreement.
Capitalized terms not otherwise defined have the meanings
assigned thereto in the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
Title:<PAGE>
EXHIBIT D-3
FORM OF NOTICE OF COMPETITIVE BORROWING REQUEST
____________ ___, 19___
[Name of Bank]
[Address]
Attention: __________________________
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of July 3, 1996 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), among
General Public Utilities Corporation, Jersey Central Power &
Light Company, Metropolitan Edison Company and Pennsylvania
Electric Company, certain Banks party thereto, The Chase
Manhattan Bank, N.A., as Administrative Agent for said Banks, and
Citicorp Securities, Inc., as Syndication Agent for said Banks.
[Name of Borrower] made a Request for Competitive Borrowing on
______________ ___, ____ pursuant to Section 2.03 of the Credit
Agreement, and in that connection you are invited to submit a
Competitive Advance offer on or before [Date/Time].* Your offer
for a Competitive Advance must comply with Section 2.03(b) of the
Credit Agreement and the terms set forth below on which the
Request for Competitive Borrowing was made:
(i) Date of Proposed Competitive ____________________
Borrowing (which is a Business
Day)
(i) Principal amount of Proposed ____________________
Competitive Borrowing
(i) Fixed interest rate ____________________
(i) Interest Period and any earlier ____________________
payment dates
(i) Name of Borrower ____________________
_______________________
* Each offer to make a Competitive Advance must be
received by the Administrative Agent via telex,
telecopy, cable or telephone, confirmed immediately in
writing, not later than 9:30 A.M., New York City time,
on the date of the proposed Competitive Borrowing.<PAGE>
2
Very truly yours,
THE CHASE MANHATTAN BANK, N.A,
as Administrative Agent
By
Title:<PAGE>
EXHIBIT D-4
FORM OF COMPETITIVE ADVANCE OFFER
____________ ___, 19___
The Chase Manhattan Bank, N.A.,
as Administrative Agent for the Banks
parties to the Credit Agreement referred
to below
c/o Chemical Bank
140 East 45th Street
New York, New York 10017
Attention: Agent Bank Services
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Amended and
Restated Credit Agreement dated as of July 3, 1996 (as amended,
modified or supplemented from time to time, the "Credit
Agreement"), among General Public Utilities Corporation, Jersey
Central Power & Light Company, Metropolitan Edison Company and
Pennsylvania Electric Company, certain Banks party thereto, The
Chase Manhattan Bank, N.A., as Administrative Agent for said
Banks, and Citicorp Securities, Inc., as Syndication Agent for
said Banks. The undersigned hereby offers to make a Competitive
Advance pursuant to Section 2.03 of the Credit Agreement, in
response to the Request for Competitive Borrowing given by [Name
of the Borrower] on ______________, _____, and in that connection
sets forth below the terms on which such Competitive Advance
would be made:
(i) Principal amount* ____________________
(i) Fixed interest rate ____________________
(i) Interest Period and ____________________
any earlier payment dates
(i) Name of Borrower ____________________
The undersigned hereby confirms that it is prepared to
extend credit to the Borrower named in paragraph (iv), above,
upon acceptance by such Borrower of this offer in accordance with
Section 2.03 of the Credit Agreement.
______________________
* Not less than $5,000,000 or greater than the amount of
the Proposed Competitive Borrowing, and in integral
multiples of $1,000,000. The Borrower may accept
multiple bids.<PAGE>
2
Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Credit Agreement.
Very truly yours,
[NAME OF BANK]
By
Title:<PAGE>
EXHIBIT E
FORM OF OPINION OF BERLACK, ISRAELS & LIBERMAN LLP
[Date of Effectiveness of
the Credit Agreement]
To each of the Banks parties to the
Amended and Restated Credit Agreement referred to below,
to Citicorp Securities, Inc., as Syndication
Agent, and to The Chase Manhattan Bank,
N.A., as Administrative Agent
General Public Utilities Corporation,
Jersey Central Power & Light Company,
Metropolitan Edison Company and
Pennsylvania Electric Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)
of the Amended and Restated Credit Agreement, dated as of July 3,
1996 (the "Credit Agreement"), among General Public Utilities
Corporation, Jersey Central Power & Light Company, Metropolitan
Edison Company and Pennsylvania Electric Company, the Banks party
thereto, Citicorp Securities, Inc., as Syndication Agent, and The
Chase Manhattan Bank, N.A., as Administrative Agent. The Credit
Agreement amends and restates an Amended and Restated Credit
Agreement, dated as of May 6, 1996 (the "May 6, 1996 Agreement"),
to reflect, among other things, the syndication of the
commitments thereunder. Terms defined in the Credit Agreement
are used herein as therein defined, unless otherwise defined
herein.
We have acted as counsel for the Borrowers in connection
with the preparation, execution and delivery of the Credit
Agreement.
In that connection we have examined:
(1) the Credit Agreement;
(2) the documents furnished by the Borrowers pursuant
to Article III of the Credit Agreement;
(3) the Articles or the Certificate of Incorporation
of each Borrower and all amendments thereto (such Borrower's
"Charter");
(4) the by-laws of each Borrower and all amendments
thereto (such Borrower's "By-laws");<PAGE>
2
(5) certificates of the Secretary of the Commonwealth
of Pennsylvania attesting to the continued corporate
existence of each Borrower (other than JC) in that
Commonwealth; and
(6) a certificate of the Secretary of the State of New
Jersey attesting to the continued corporate existence and
good standing of JC in that State.
In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records of
the Borrowers, certificates of public officials and of officers
of the Borrowers, and agreements, instruments and other
documents, as we have deemed necessary as a basis for the
opinions expressed below. As to various questions of fact
material to such opinions, we have, when relevant facts were not
independently established by us, relied upon the representations
of the Borrowers in the Credit Agreement, and upon certificates
of the Borrowers or their respective officers or of public
officials.
We have assumed (i) the due execution and delivery, pursuant
to due authorization, of the Credit Agreement by the Banks, the
Syndication Agent and the Administrative Agent (as applicable),
(ii) the authenticity of all such documents submitted to us as
originals, (iii) the genuineness of all signatures (other than
those of the Borrowers) and (iv) the conformity to the originals
of all such documents submitted to us as copies.
We are members of the Bar of the States of New York and New
Jersey and do not purport to be expert in the laws of any other
jurisdiction, other than the Federal laws of the United States of
America. Our opinions expressed herein are limited to the laws
of the States of New York and New Jersey and the Federal laws of
the United States of America. We have relied, as to all matters
covered hereby which are governed by the laws of the Commonwealth
of Pennsylvania insofar as they apply to ME, on the attached
opinion of Ryan, Russell, Ogden & Seltzer, and as to all other
matters covered hereby which are governed by the laws of the
Commonwealth of Pennsylvania, on the attached opinion of Ballard
Spahr Andrews & Ingersoll, upon which opinions we believe you and
we are justified in relying.
Based upon the foregoing and upon such investigation as we
have deemed necessary, we are of the opinion that:
1. JC is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
New Jersey and each other Borrower is a corporation duly
incorporated and validly existing under the laws of the
Commonwealth of Pennsylvania.
2. The execution, delivery and performance by each
Borrower of the Credit Agreement and the Notes of such
Borrower are within such Borrower's corporate powers, have<PAGE>
3
been duly authorized by all necessary corporate action, do
not contravene (i) such Borrower's Charter or By-laws or
(ii) any law, rule or regulation applicable to such Borrower
(including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) or (iii) to our
knowledge any material contractual restriction binding on
such Borrower, and do not result in or require the creation
of any Lien upon or with respect to any of its properties.
The Credit Agreement and the Committed Advance Notes of each
Borrower have been duly executed and delivered on behalf of
such Borrower. When completed in the forms thereof attached
as Exhibits B-1, B-2, B-3 and B-4 to the Credit Agreement,
and executed by the President or other duly authorized
officer of the applicable Borrower and delivered on behalf
of such Borrower, each Competitive Advance Note will have
been duly executed and delivered on behalf of such Borrower.
3. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by each Borrower of the Credit
Agreement and the Notes of such Borrower except for (i) in
the case of each Borrower, appropriate orders of the SEC
under the Utility Act all of which orders have been duly
obtained, are in full force and effect and are sufficient
for their purpose, and (ii) in the case of borrowings by
each of ME and PE under the Credit Agreement, the filing of
a Securities Certificate relating to the May 6, 1996
Agreement with the PaPUC and the issuance by the PaPUC of
orders registering such Securities Certificates (the "PaPUC
Orders"), which PaPUC Orders were issued on June 20, 1996
are still appealable. In addition, we note that ME and PE
will file with the PaPUC supplemental information relating
to the syndication of the commitments of the banks under the
May 6, 1996 Agreement effected by the Credit Agreement.
4. The Credit Agreement and the Committed Advance
Notes of each Borrower are the legal, valid and binding
obligations of such Borrower, enforceable against such
Borrower in accordance with their respective terms; and,
when completed in the forms thereof attached as Exhibits
B-1, B-2, B-3 and B-4 to the Credit Agreement, and executed
by the President or other duly authorized officer of the
applicable Borrower and delivered on behalf of such
Borrower, each Competitive Advance Note will be a legal,
valid and binding obligation of such Borrower, enforceable
against such Borrower in accordance with its terms. We
note, however, that the Credit Agreement provides that
neither ME nor PE shall have any rights or obligations as a
"Borrower" thereunder or under any document entered into
pursuant thereto until the PaPUC Orders become final, non-
appealable orders.
The opinions set forth in paragraph 4, above, are subject to
the following qualifications:<PAGE>
4
(a) The enforceability of each Borrower's obligations
under the Credit Agreement and the Notes of such Borrower is
subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally.
(b) The enforceability of each Borrower's obligations
under the Credit Agreement and the Notes of such Borrower
may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding
in equity or at law).
The opinions set forth above are subject to the
qualification that a further order of the SEC under the Utility
Act will be required (i) for the Borrowers to obtain any
Borrowing after December 31, 1997, (ii) for GPU to obtain
Borrowings exceeding $200,000,000 in the aggregate and (iii) for
the Borrowers to pay the higher level of Facility Fees and
Applicable Margins reflected in the second pricing grid set forth
in the definitions of the terms "Facility Fee" and "Applicable
Margin" in the Credit Agreement.
In addition, the opinions set forth in the third sentence of
paragraphs 2, 3 and 4, above, assume that at the time of the
execution and delivery of each Competitive Advance Note, (i) the
authorizations therefor (including, without limitation, of the
SEC and the PaPUC) will not have been modified in any manner
affecting the validity, legally binding character or
enforceability of such Note, or rescinded; (ii) there shall not
have occurred any change in law, rule or regulation affecting the
validity, legally binding character or enforceability of such
Note; and (iii) neither the execution nor delivery of such Note,
nor any of the terms thereof, nor such Borrower's compliance
therewith will violate any applicable law, rule or regulation,
any agreement or instrument then binding upon such Borrower or
any restriction imposed by any court or governmental body having
jurisdiction over such Borrower, which law, rule, regulation,
agreement, instrument or restriction is not in effect on the date
hereof.
_________________________
Except as provided in Section 4.01(n) of the Credit
Agreement, to the best of our knowledge after due inquiry, there
are no actions, suits or arbitration proceedings pending or
threatened against or maintained by any Borrower before any
court, governmental agency or arbitrator (a) which would have a
material adverse effect on the financial condition or results of
operations of such Borrower or such Borrower and its Subsidiaries
taken as a whole, or (b) that call into question the validity,
legally binding character or enforceability of the Credit
Agreement or the Notes.
This opinion is solely for your benefit and may not be
relied upon by any other person without our express consent,
except that the firm of King & Spalding is authorized to rely on
this opinion in rendering their opinion, dated the date hereof,
to you.
Very truly yours,<PAGE>
EXHIBIT F
FORM OF KING & SPALDING OPINION
[Date of Effectiveness
of the Credit Agreement]
To the Banks parties to the Credit
Agreement referred to below, to
Citicorp Securities, Inc., as Syndication
Agent, and to The Chase Manhattan Bank,
N.A., as Administrative Agent
General Public Utilities Corporation,
Jersey Central Power & Light Company,
Metropolitan Edison Company and
Pennsylvania Electric Company
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank, N.A. and Citicorp Securities, Inc., individually
and as the Administrative Agent and the Syndication Agent,
respectively, in connection with the preparation, execution and
delivery of the Amended and Restated Credit Agreement, dated as
of July 3, 1996 (the "Credit Agreement"), among General Public
Utilities Corporation, Jersey Central Power & Light Company,
Metropolitan Edison Company and Pennsylvania Electric Company and
each of you. Unless otherwise indicated, terms defined in the
Credit Agreement are used herein as therein defined.
In that connection, we have examined the following
documents:
(1) counterparts of the Credit Agreement, executed
by the Borrowers, the Administrative Agent, the
Syndication Agent and the Banks;
(2) the Committed Advance Notes executed by the
Borrowers; and
(3) the other documents furnished by the Borrowers
pursuant to Section 3.01 of the Credit Agreement,
including the opinion of Berlack, Israels & Liberman
LLP, counsel for the Borrowers (the "Berlack Opinion").
In our examination of the documents referred to above,
we have assumed the authenticity of all such documents submitted
to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that each of the Banks, the<PAGE>
ii
Administrative Agent and the Syndication Agent has duly executed
and delivered, with all necessary power and authority (corporate
and otherwise), the Credit Agreement.
To the extent that our opinions expressed below involve
conclusions as to matters governed by law other than the law of
the State of New York, we have relied upon the Berlack Opinion
and have assumed without independent investigation the
correctness of the matters set forth therein, our opinions
expressed below being subject to the assumptions, qualifications
and limitations set forth in the Berlack Opinion. As to matters
of fact, we have relied solely upon the documents we have
examined.
Based upon the foregoing, and subject to the
qualifications set forth below, we are of the opinion that:
(i) The Credit Agreement and each
of the Committed Advance Notes are, and the
Competitive Advance Notes, when completed in
the form thereof attached as Exhibits B-1, B-
2, B-3 and B-4 to the Credit Agreement and
duly executed and delivered for value by a
duly authorized officer of the applicable
Borrower in accordance with the terms of the
Credit Agreement, will be, the legal, valid
and binding obligations of such Borrower
enforceable against such Borrower in
accordance with their respective terms.
(ii) While we have not independently considered the
matters covered by the Berlack Opinion to the extent
necessary to enable us to express the conclusions stated
therein, the Berlack Opinion and the other documents
referred to in item (3) above are substantially
responsive to the corresponding requirements set forth
in Section 3.01 of the Credit Agreement pursuant to
which the same have been delivered.
Our opinions are subject to the following
qualifications:
(a) Our opinion in paragraph (i) above is subject
to the effect of any applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or
similar law affecting creditors' rights generally.
(a) Our opinion in paragraph (i) above is subject
to the effect of general principles of equity, including
(without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at
law).
(a) We note further that, in addition to the
application of equitable principles described above,<PAGE>
iii
courts have imposed an obligation on contracting parties
to act reasonably and in good faith in the exercise of
their contractual rights and remedies, and may also
apply public policy considerations in limiting the right
of parties seeking to obtain indemnification under
circumstances where the conduct of such parties in the
circumstances in question is determined to have
constituted negligence.
(a) We express no opinion herein as to (i)
Section 8.05 of the Credit Agreement, (i) the
enforceability of provisions purporting to grant to a
party conclusive rights of determination, (i) the
availability of specific performance or other equitable
remedies, (i) the enforceability of rights to indemnity
under Federal or state securities laws and (i) the
enforceability of waivers by parties of their respective
rights and remedies under law.
(a) Our opinions expressed above are limited to
the law of the State of New York and the Federal law of
the United States, and we do not express any opinion
herein concerning any other law. Without limiting the
generality of the foregoing, we express no opinion as to
the effect of the law of any jurisdiction other than the
State of New York wherein any Bank may be located or
wherein enforcement of the Credit Agreement or the Notes
may be sought that limits the rates of interest legally
chargeable or collectible.
The foregoing opinion is solely for your benefit and may
not be relied upon by any other Person other than any Person that
may become a Bank under the Credit Agreement after the date
hereof.
Very truly yours,<PAGE>
EXHIBIT G
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ,
Reference is hereby made to the Amended and Restated
Credit Agreement, dated as of July 3, 1996 (as amended, modified
or supplemented from time to time, the "Credit Agreement"), among
GENERAL PUBLIC UTILITIES CORPORATION, a Pennsylvania corporation,
JERSEY CENTRAL POWER & LIGHT COMPANY, a New Jersey corporation,
METROPOLITAN EDISON COMPANY, a Pennsylvania corporation, and
PENNSYLVANIA ELECTRIC COMPANY, a Pennsylvania corporation
(collectively, the "Borrowers"), the Banks (as defined in the
Credit Agreement), The Chase Manhattan Bank, N.A., as
Administrative Agent for the Banks (the "Administrative Agent")
and Citicorp Securities, Inc., as Syndication Agent for the Banks
(the "Syndication Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement are used herein as therein
defined.
(the "Assignor") and
_____________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse, and the Assignee hereby purchases and
assumes from the Assignor, without recourse to the Assignor, the
percentage interest specified on Schedule 1 hereto in and to all
[(other than any Competitive Advances owing to the Assignor or
any Competitive Advance Notes held by it)] of the Assignor's
rights and obligations under the Credit Agreement as of the date
hereof (after giving effect to any other assignments thereof made
prior to the date hereof, whether or not such assignments have
become effective, but without giving effect to any other
assignments thereof also made on the date hereof), including,
without limitation, such percentage interest in (i) the
Assignor's Commitment, which on the date hereof (after giving
effect to any other assignments thereof made prior to the date
hereof, whether or not such assignments have become effective,
but without giving effect to any other assignment thereof also
made on the date hereof) is in the dollar amount specified as the
Assignor's Commitment on Schedule 1 hereto; (ii) the aggregate
outstanding principal amount of Committed Advances owing to the
Assignor, which on the date hereof (after giving effect to any
other assignments thereof made prior to the date hereof whether
or not such assignments have become effective, but without giving
effect to any other assignment thereof also made on the date
hereof) is in the dollar amount specified as the aggregate
outstanding principal amount of Committed Advances owing to the
Assignor on Schedule 1 hereto; and (iii) the Committed Advance
Notes held by the Assignor.<PAGE>
2. The Assignor: (i) other than as provided in this
Assignment and Acceptance, makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or any other instrument or document furnished
pursuant to the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement or any other instrument or document
furnished pursuant to the Credit Agreement; (ii) makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its
obligations under the Credit Agreement or any other instrument or
document furnished pursuant to the Credit Agreement; and (iii)
attaches the Committed Advance Notes referred to in paragraph 1
above and requests that the Administrative Agent exchange such
Committed Advance Notes for new Committed Advance Notes payable
to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Committed Advance
Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto and the
Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified
on Schedule 1 hereto.
3. The Assignee: (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 of the Credit
Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) will,
independently and without reliance upon the Syndication Agent,
the Administrative Agent, the Assignor or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes each of the Syndication Agent, and the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are
delegated to the Syndication Agent, and the Administrative Agent
by the terms of the Credit Agreement, together with such powers
as are reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be
performed by it as a Bank.
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered
to the Administrative Agent for acceptance by the Administrative
Agent. The effective date of this Assignment and Acceptance
shall be the date of acceptance thereof by the Administrative
Agent, unless otherwise specified on Schedule 1 hereto (the
"Effective Date").
5. Upon consent of the Borrowers, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement<PAGE>
3
and, to the extent that rights and obligations thereunder have
been assigned to it pursuant to this Assignment and Acceptance,
have the rights and obligations of a Bank under the Credit
Agreement and (ii) the Assignor shall, to the extent that rights
and obligations under the Credit Agreement have been assigned by
it pursuant to this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit
Agreement.
6. From and after the Effective Date, the
Administrative Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance may be executed in
any number of counterparts which, when taken together, shall be
deemed to constitute one and the same instrument.
8. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1 hereto.<PAGE>
Schedule 1
to
Assignment and Acceptance
Dated __________ ___, ____
Section 1.
Percentage Interest: ____________________%
Assignor's Commitment: $____________________
Aggregate Outstanding Principal
Amount of Committed Advances
owing to the Assignor: $____________________
Section 2.
Committed Advance Note payable
to the order of the Assignee
Dated: ____________ ___,_____
Principal Amount: $_____________________
Committed Advance Note payable
to the order of the Assignor
Dated: _____________ ___,____
Principal Amount: $_____________________
Section 3.
Effective Date*: Dated: _____________ ___,____
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By________________________ By________________________
Title: Title:
________________
* This date should be no earlier than the date of
acceptance of the Administrative Agent.<PAGE>
2
Accepted this _______ day
of ____________, ______
THE CHASE MANHATTAN BANK, N.A.,
as Administrative Agent
By
Title:
The undersigned hereby consent to
the above assignment:
GENERAL PUBLIC UTILITIES
CORPORATION
By
Title:
JERSEY CENTRAL POWER & LIGHT
COMPANY
By
Title:
METROPOLITAN EDISON COMPANY
By
Title:
PENNSYLVANIA ELECTRIC COMPANY
By
Title:<PAGE>
Exhibit D-1(e)
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held June 20, 1996
Commissioners Present:
John M. Quain, Chairman
Lisa Crutchfield, Vice Chairman
John Hanger
David W. Rolka
Robert K. Bloom
Securities Certificate of Metropolitan S-00960566
Electric Company for the issuance of
notes, not to exceed $250 million in
aggregate principal amount, pursuant to a
restated revolving credit agreement.
OPINION AND ORDER
BY THE COMMISSION:
On May 23, 1996, Metropolitan Edison Company (Met-Ed) filed
for registration pursuant to Chapter 19 of the Pennsylvania
Public Utility Code, 66 Pa. C.S. Sections 1901, et seq., a
Securities Certificate for the issuance of notes, not to exceed
$250 million in aggregate principal amount, pursuant to an
Amended and Restated Credit Agreement (Restated Agreement).
Met-Ed is a wholly-owned subsidiary of General Public
Utilities Corporation (GPU). GPU also wholly owns Pennsylvania
Electric Company (Penelec) and Jersey Central Power & Light
Company (JCP&L). GPU, Penelec, Met-Ed and JCP&L are herein
referred to collectively as the "GPU Companies," and Penelec,
Met-Ed and JCP&L as "GPU subsidiaries."<PAGE>
2
On March 19, 1992, the GPU Companies entered into a
Revolving Credit Agreement (Credit Agreement) with a group of
commercial banks, for which Chemical Bank and Citibank, N.A.
(Citibank) acted as Co-Agents. On November 1, 1994, the GPU
Companies entered into a First Amendment to the Credit Agreement
(Prior Credit Agreement), which among other things, extended the
termination date to November 1, 1999 and increased the aggregate
amount of notes to be issued by the GPU Companies to $250
million. The Prior Credit Agreement had no individual sublimits
for any of the GPU subsidiaries, but limited GPU borrowings to
$200 million.
On May 6, 1996, the GPU Companies terminated the commitments
of all of the banks under the Prior Credit Agreement, except the
commitments of the Citibank and The Chase Manhattan Bank, N.A.
(Chase), successor to Chemical Bank, and entered into the
Restated Agreement with Citibank, Chase, and other commercial
banks. The principal changes from the Prior Credit Agreement
include: (i) the extension of the termination date to May 6,
2001; (ii) the increase in the amount that GPU can borrow to $250
million; and (iii) the modification of certain covenants.
Met-Ed is proposing to issue notes from time to time through
May 6, 2001, up to an aggregate amount of $250 million, to
evidence borrowings pursuant to the Restated Agreement.
Permitted interest rate options available will be based on the
Prime Rate or Federal Funds Rate, CD Rate, or Eurodollar Rate.
The interest rate may also be determined through a competitive
bidding process.
Borrowings made by Met-Ed under the Restated Agreement are
independent of borrowings by the other GPU Companies. The
aggregate amount to be issued by the GPU Companies is $250
million. Borrowings by each GPU Company are payable solely by
that GPU Company. An event of default by one GPU Company will
not constitute an event of default with respect to any other GPU
Company.<PAGE>
3
The proceeds from any borrowings by Met-Ed, will be used by
Met-Ed for general corporate purposes, including providing funds
for temporary working capital and repaying short-term borrowings.
After examination of the instant Securities Certificate, we
have determined that the proposed issuance by Met-Ed appears to
be necessary or proper for the present and probable future
capital needs of the company, and as a result the Securities
Certificate should be registered; THEREFORE,
IT IS ORDERED:
That the Securities Certificate filed by Metropolitan Edison
Company for the issuance of notes, not to exceed $250 million in
aggregate principal amount, pursuant to an Amended and Restated
Credit Agreement is hereby registered.
BY THE COMMISSION,
/s/ John G. Alford
John G. Alford
Secretary
(SEAL)
ORDER ADOPTED: June 20, 1996
ORDER ENTERED: June 20, 1996<PAGE>
Exhibit D-2(e)
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held June 20, 1996
Commissioners Present:
John M. Quain, Chairman
Lisa Crutchfield, Vice Chairman
John Hanger
David W. Rolka
Robert K. Bloom
Securities Certificate of Pennsylvania S-00960567
Electric Company for the issuance of
notes, not to exceed $250 million in
aggregate principal amount, pursuant to a
restated revolving credit agreement.
OPINION AND ORDER
BY THE COMMISSION:
On May 23, 1996, Pennsylvania Electric Company (Penelec)
filed for registration pursuant to Chapter 19 of the Pennsylvania
Public Utility Code, 66 Pa. C.S. Sections 1901, et seq., a
Securities Certificate for the issuance of notes, not to exceed
$250 million in aggregate principal amount, pursuant to an
Amended and Restated Credit Agreement (Restated Agreement).
Penelec is a wholly-owned subsidiary of General Public
Utilities Corporation (GPU). GPU also wholly owns Metropolitan
Edison Company (Met-Ed) and Jersey Central Power & Light Company
(JCP&L). GPU, Penelec, Met-Ed and JCP&L are herein referred to
collectively as the "GPU Companies," and Penelec, Met-Ed and
JCP&L as "GPU subsidiaries."<PAGE>
2
On March 19, 1992, the GPU Companies entered into a
Revolving Credit Agreement (Credit Agreement) with a group of
commercial banks, for which Chemical Bank and Citibank, N.A.
(Citibank) acted as Co-Agents. On November 1, 1994, the GPU
Companies entered into a First Amendment to the Credit Agreement
(Prior Credit Agreement), which among other things, extended the
termination date to November 1, 1999 and increased the aggregate
amount of notes to be issued by the GPU Companies to $250
million. The Prior Credit Agreement had no individual sublimits
for any of the GPU subsidiaries, but limited GPU borrowings to
$200 million.
On May 6, 1996, the GPU Companies terminated the commitments
of all of the banks under the Prior Credit Agreement, except the
commitments of the Citibank and The Chase Manhattan Bank, N.A.
(Chase), successor to Chemical Bank, and entered into the
Restated Agreement with Citibank, Chase, and other commercial
banks. The principal changes from the Prior Credit Agreement
include: (i) the extension of the termination date to May 6,
2001; (ii) the increase in the amount that GPU can borrow to $250
million; and (iii) the modification of certain covenants.
Penelec is proposing to issue notes from time to time
through May 6, 2001, up to an aggregate amount of $250 million,
to evidence borrowings pursuant to the Restated Agreement.
Permitted interest rate options available will be based on the
Prime Rate or Federal Funds Rate, CD Rate, or Eurodollar Rate.
The interest rate may also be determined through a competitive
bidding process.
Borrowings made by Penelec under the Restated Agreement are
independent of borrowings by the other GPU Companies. The
aggregate amount to be issued by the GPU Companies is $250
million. Borrowings by each GPU Company are payable solely by
that GPU Company. An event of default by one GPU Company will<PAGE>
3
not constitute an event of default with respect to any other GPU
Company.
The proceeds from any borrowings by Penelec, will be used by
Penelec for general corporate purposes, including providing funds
for temporary working capital and repaying short-term borrowings.
After examination of the instant Securities Certificate, we
have determined that the proposed issuance by Penelec appears to
be necessary or proper for the present and probable future
capital needs of the company, and as a result the Securities
Certificate should be registered; THEREFORE,
IT IS ORDERED:
That the Securities Certificate filed by Pennsylvania
Electric Company for the issuance of notes, not to exceed $250
million in aggregate principal amount, pursuant to an Amended and
Restated Credit Agreement is hereby registered.
BY THE COMMISSION,
/s/ John G. Alford
John G. Alford
Secretary
(SEAL)
ORDER ADOPTED: June 20, 1996
ORDER ENTERED: June 20, 1996<PAGE>
Exhibit F-1(b)
(LETTERHEAD OF BERLACK, ISRAELS & LIBERMAN LLP)
July 16, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: General Public Utilities Corporation
Jersey Central Power & Light Company
Metropolitan Edison Company
Pennsylvania Electric Company
Declaration on Form U-1
SEC File No. 70-7926
Dear Sirs:
We have examined Post-Effective Amendment No. 5, dated
May 29, 1996, to the Declaration on Form U-1, dated December 24,
1991, as amended, under the Public Utility Holding Company Act of
1935 (the "Act"), of General Public Utilities Corporation
("GPU"), Jersey Central Power & Light Company ("JCP&L"),
Metropolitan Edison Company ("Met-Ed") and Pennsylvania Electric
Company ("Penelec") (collectively referred to herein as the "GPU
Companies"), which has been docketed in SEC File No. 70-7926, as
amended by Post-Effective Amendment No. 6 thereto, dated June 4,
1996, and as to be amended by Post-Effective Amendment No. 7
thereto, dated this date, of which this opinion is to be a part.
(The Declaration, as so amended and as thus to be amended, is
hereinafter referred to as the "Declaration".)
The Declaration now contemplates borrowings by the GPU
Companies from a syndicate of commercial banks (the "Banks")
pursuant to an amendment and restatement of their revolving
credit agreement (the "Restated Credit Agreement") up to a
maximum aggregate amount of $250,000,000. Such borrowings would
be evidenced by unsecured promissory notes (the "Notes") issued
by the GPU Companies from time to time through May 6, 2001,
maturing not more than six months from their date of issue. The
Notes will bear interest at either (a) the Alternate Base Rate in
effect from time to time, (b) the CD Rate in effect from time to
time, plus an amount ranging from .375% to 1.37%, (c) the
Eurodollar Rate in effect from time to time, plus an amount
ranging from .25% to 1.25%, as such rates are defined in the
Restated Credit Agreement, or (d) rates obtained as a result of
competitive bidding by the Banks.<PAGE>
The Declaration further contemplates the issuance, sale
and/or renewal, through December 31, 1997, (i) by the GPU
Companies of unsecured promissory notes to various commercial
banks pursuant to loan participation arrangements and lines of
credit, (ii) by JCP&L, Met-Ed and Penelec of their unsecured
promissory notes as commercial paper, and (iii) by the GPU
Companies of their unsecured promissory notes evidencing short-
term borrowings from lenders including banks, insurance companies
or other institutions. The total principal amount of borrowings
outstanding at any one time under the Notes together with all
other borrowings contemplated by the Declaration would not,
however, exceed the amounts permitted by the respective charters
of JCP&L, Met-Ed and Penelec and, in the case of GPU,
$250,000,000.
We have been counsel to GPU, a Pennsylvania
corporation, for many years. In such capacity, and as special
counsel to GPU's subsidiaries, JCP&L, Met-Ed and Penelec, we have
participated in various proceedings relating to the GPU Companies
and we are familiar with the terms of the outstanding securities
of the General Public Utilities holding company system.
In addition to the matters set forth in our previous
opinion dated October 13, 1994 and filed as Exhibit F-1(a) to the
Declaration, we have examined a copy of the Commission's Order,
dated October 26, 1994, permitting the Declaration, as then
amended, to become effective. We have also examined (a) the
Securities Certificate filed by Met-Ed with the Pennsylvania
Public Utility Commission ("PaPUC") with respect to the Restated
Credit Agreement and the order of the PaPUC registering such
Securities Certificate and (b) the Securities Certificate filed
by Penelec with the PaPUC with respect to the Restated Credit
Agreement and the order of the PaPUC registering such Securities
Certificate.
In addition, we have examined such corporate records,
documents and certificates as we have deemed necessary as a basis
for this opinion.
As to matters of Pennsylvania law insofar as it applies
to the transactions contemplated by Met-Ed, we have relied upon
the opinion of Ryan, Russell, Ogden & Seltzer, which is being
filed as Exhibit F-2(b) to the Declaration. As to all other
matters of Pennsylvania law, we have relied upon the opinion of
Ballard Spahr Andrews & Ingersoll, which is being filed as
Exhibit F-3(b) to the Declaration.
Based upon the foregoing, we are of the opinion that,
subject to the conditions specified in the following paragraph:
(a) all State laws applicable to the proposed
transactions as contemplated in the Declaration will
have been complied with;
2<PAGE>
(b) GPU, JCP&L, Met-Ed and Penelec are each
validly organized and duly existing;
(c) the Notes will each be valid and binding
obligations of the respective issuers thereof in
accordance with their respective terms, subject to the
effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
(including, without limitation, the Atomic Energy Act
of 1954, as amended, and the regulations thereunder)
affecting creditors' rights generally; and
(d) the issuance of the Notes will not violate
the legal rights of the holders of any securities
issued by any of the GPU Companies or any company which
is an "associate company" thereof, as defined in the
Act.
The foregoing opinions assume the following conditions
shall have been satisfied:
(1) the Commission shall have entered an
appropriate order forthwith permitting the Declaration,
as amended, to become effective; and
(2) the appropriate officers of each of the GPU
Companies shall, on their respective behalves, have
issued and sold to the extent contemplated by the
Declaration, the Notes against the receipt of cash or
renewal thereof equal to the principal amount thereof,
each of which (i) is issued, sold or renewed in
accordance with the terms and under the conditions set
forth in the Declaration, (ii) is issued and sold under
circumstances which are permitted under Section 12(f)
of the Act and paragraph (b)(2) of Rule 70 under the
Act, and (iii) together with all other notes and drafts
representing unsecured borrowings at the time
outstanding does not exceed, in the case of JCP&L, Met-
Ed and Penelec, such amounts as may be imposed by their
respective charters.
We hereby consent to the filing of this opinion as an
exhibit to the Declaration and in any proceedings before the
Commission that may be held in connection therewith.
Very truly yours,
BERLACK, ISRAELS & LIBERMAN LLP
3<PAGE>
Exhibit F-2(b)
(LETTERHEAD OF RYAN, RUSSELL, OGDEN & SELTZER)
July 16, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Metropolitan Edison Company
Declaration on Form U-1
SEC File No. 70-7926
Dear Madams and Sirs:
On behalf of Metropolitan Edison Company ("Met-Ed"), we
have examined the above Declaration on Form U-1, dated December
24, 1991, as amended, under the Public Utility Holding Company
Act of 1935 (the "Act"), of General Public Utilities Corporation
("GPU"), Jersey Central Power & Light Company ("JCP&L"), Met-Ed
and Pennsylvania Electric Company ("Penelec") (collectively
referred to herein as the "GPU Companies"), which has been
docketed in SEC File No. 70-7926, as amended through Post-
Effective Amendment No. 6 thereto, dated June 4, 1996, and as to
be amended by Post-Effective Amendment No. 7 thereto, dated this
date, of which this opinion is to be a part. (The Declaration, as
so amended and as thus to be amended, is hereinafter referred to
as the "Declaration".)
The Declaration now contemplates borrowings by the GPU
Companies from a syndicate of commercial banks (the "Banks")
pursuant to an amendment and restatement of their revolving
credit agreement (the "Restated Credit Agreement") up to a
maximum aggregate amount of $250,000,000. Such borrowings would
be evidenced by unsecured promissory notes (the "Met-Ed Notes")
issued by the GPU Companies from time to time through May 6,
2001, maturing not more than six months from their date of issue.
The Notes will bear interest at either (a) the Alternate Base
Rate in effect from time to time, (b) the CD Rate in effect from
time to time, plus an amount ranging from .375% to 1.37%, (c) the
Eurodollar Rate in effect from time to time, plus an amount
ranging from .25% to 1.25%, as such rates are defined in the
Restated Credit Agreement, or (d) rates obtained as a result of
competitive bidding by the Banks.
The Declaration further contemplates the issuance, sale
and/or renewal, through December 31,1997, (i) by the GPU
Companies of unsecured promissory notes to various commercial<PAGE>
2
banks pursuant to loan participation arrangements and lines of
credit, (ii) by JCP&L, Met-Ed and Penelec of their unsecured
promissory notes as commercial paper, and (iii) by the GPU
Companies of their unsecured promissory notes evidencing short-
term borrowings from lenders including banks, insurance companies
or other institutions. The total principal amount of borrowings
outstanding at any one time under the Notes together with all
other borrowings contemplated by the Declaration would not,
however, exceed the amounts permitted by the respective charters
of JCP&L, Met-Ed and Penelec and, in the case of GPU,
$250,000,000.
We have been counsel to Met-Ed, a Pennsylvania
corporation, for many years. In such capacity, we have
participated in various proceedings relating to Met-Ed and we are
familiar with the terms of the outstanding Met-Ed securities.
In addition to the matters set forth in our previous
opinion dated October 13, 1994 and filed as Exhibit F-2(a) to the
Declaration, we have examined a copy of the Commission's Order,
dated October 26, 1994, permitting the Declaration, as then
amended, to become effective. We have also prepared the
Securities Certificate filed by Met-Ed with the Pennsylvania
Public Utility Commission ("PaPUC") with respect to the Restated
Credit Agreement and reviewed the order of the PaPUC registering
such Securities Certificate and such other records, minutes,
documents and certificates as we have deemed necessary as a basis
for this opinion.
Based upon the foregoing, we are of the opinion that,
subject to the conditions specified in the following paragraph:
(a) all State laws applicable to the proposed
transactions on the part of Met-Ed as contemplated in the
Declaration will have been complied with;
(b) Met-Ed is validly organized and duly existing;
(c) the Met-Ed Notes will each be valid and binding
obligations of Met-Ed in accordance with their respective
terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
(including, without limitation, the Atomic Energy Act of
1954, as amended, and the regulations thereunder) affecting
creditors' rights generally; and
(d) the issuance of the Met-Ed Notes will not violate
the legal rights of the holders of any securities issued by
Met-Ed.
The foregoing opinions assume that the following
conditions shall have been satisfied:<PAGE>
3
(1) the Commission shall have entered an appropriate
order forthwith permitting the Declaration, as amended, to
become effective; and
(2) the appropriate officers of Met-Ed shall have
issued and sold, to the extent contemplated by the
Declaration, the Met-Ed Notes against the receipt of cash or
renewal thereof equal to the principal amount thereof, each
of which (i) is issued, sold or renewed in accordance with
the terms and under the conditions set forth in the
Declaration,(ii) is issued and sold under circumstances
which are permitted under Section 12(f) of the Act and
paragraph (b)(2) of Rule 70 under the Act, and (iii)
together with all other notes and drafts representing
unsecured borrowings of Met-Ed at the time outstanding does
not exceed such amount as may be imposed by its charter.
We hereby consent to the filing of this opinion as an
exhibit to the Declaration and in any proceedings before the
Commission that may be held in connection therewith.
Very truly yours,
Ryan, Russell, Ogden & Seltzer<PAGE>
Exhibit F-3(b)
(LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL)
July 16, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: General Public Utilities Corporation
Jersey Central Power & Light Company
Metropolitan Edison Company
Pennsylvania Electric Company
Declaration on Form U-1
SEC File No. 70-7926
Dear Sirs:
We have examined Post-Effective Amendment No. 5, dated
May 29, 1996, to the Declaration on Form U-1, dated December 24,
1991, as amended, under the Public Utility Holding Company Act of
1935 (the "Act"), of General Public Utilities Corporation
("GPU"), Jersey Central Power & Light Company ("JCP&L"),
Metropolitan Edison Company ("Met-Ed") and Pennsylvania Electric
Company ("Penelec")(collectively referred to herein as the "GPU
Companies"), which has been docketed in SEC File No. 70-7926, as
amended by Post-Effective Amendment No. 6 thereto, dated June 4,
1996, and as to be amended by Post-Effective Amendment No. 7
thereto, dated this date, of which this opinion is to be a part.
(The Declaration, as so amended and as thus to be amended, is
hereinafter referred to as the "Declaration".)
The Declaration now contemplates borrowings by the GPU
Companies from a syndicate of commercial banks (the "Banks")
pursuant to an Amended and Restated Credit Agreement dated as of
July 3, 1996 (the "Restated Credit Agreement") up to a maximum
aggregate amount of $250,000,000. Such borrowings would be
evidenced by unsecured promissory notes (the "Notes") issued by
the GPU Companies from time to time through May 6, 2001, maturing
not more than six months from their date of issue. The Notes
will bear interest at either (a) the Alternate Base Rate in
effect from time to time, (b) the CD Rate in effect from time to
time, plus an amount ranging from .375% to 1.37%, (c) the
Eurodollar Rate in effect from time to time, plus an amount
ranging from .25% to 1.25%, as such rates are defined in the<PAGE>
Restated Credit Agreement, or (d) rates obtained as a result of
competitive bidding by the Banks.
The Restated Credit Agreement amended and restated the
GPU Companies' Amended and Restated Credit Agreement dated as of
May 6, 1996 to, among other things, effect the syndication to the
Banks of the commitments thereunder.
The Declaration further contemplates the issuance, sale
and/or renewal, through December 31, 1997, (i) by the GPU
Companies of unsecured promissory notes to various commercial
banks pursuant to loan participation arrangements and lines of
credit, (ii) by JCP&L, Met-Ed and Penelec of their unsecured
promissory notes as commercial paper, and (iii) by the GPU
Companies of their unsecured promissory notes evidencing short-
term borrowings from lenders including banks, insurance companies
or other institutions. The total principal amount of borrowings
outstanding at any one time under the Notes together with all
other borrowings contemplated by the Declaration would not,
however, exceed the amounts permitted by the respective charters
of JCP&L, Met-Ed and Penelec and, in the case of GPU,
$250,000,000.
We have been counsel to Penelec, a Pennsylvania
corporation, for many years and are familiar with the terms of
its outstanding securities. We have also acted as Pennsylvania
counsel in connection with the transactions contemplated by the
Declaration (a) to GPU, a Pennsylvania corporation, and (b) to
JCP&L, a New Jersey corporation which is qualified to do business
in Pennsylvania as a foreign corporation and owns certain
interests in utility facilities in Pennsylvania.
In addition to the matters set forth in our previous
opinion dated October 13, 1994 and filed as Exhibit F-1(a) to the
Declaration, we have examined a copy of the Commission's Order,
dated October 26, 1994, permitting the Declaration, as then
amended, to become effective. We have also examined the
Securities Certificate filed by Penelec with the Pennsylvania
Public Utility Commission ("PaPUC") with respect to the Amended
and Restated Credit Agreement dated as of May 6, 1996 and the
order of the PaPUC registering such Securities Certificate. In
addition, we have examined such corporate records, documents and
certificates as we have deemed necessary as a basis for this
opinion.
Based upon the foregoing, we are of the opinion that,
subject to the conditions specified in the following paragraph:
(a) all Pennsylvania laws applicable to the
proposed transactions by GPU, JCP&L and Penelec as
contemplated in the Declaration will have been complied
with;
(b) GPU and Penelec are each validly organized
and duly existing;
2<PAGE>
(c) the Notes to be issued by GPU and Penelec
will each be valid and binding obligations of the
respective issuers thereof in accordance with their
respective terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws (including, without
limitation, the Atomic Energy Act of 1954, as amended,
and the regulations thereunder) affecting creditors'
rights generally; and
(d) the issuance of the Notes will not violate
the legal rights of the holders of any securities
issued by Penelec or any of its subsidiaries.
The foregoing opinions assume the following conditions
shall have been satisfied:
(1) the Commission shall have entered an
appropriate order forthwith permitting the Declaration,
as amended, to become effective; and
(2) the appropriate officers of GPU and Penelec
shall, on their respective behalves, have issued and
sold to the extent contemplated by the Declaration, the
Notes against the receipt of cash or renewal thereof
equal to the principal amount thereof, each of which
(i) is issued, sold or renewed in accordance with the
terms and under the conditions set forth in the
Declaration, (ii) is issued and sold under the
circumstances which are permitted under Section 12(f)
of the Act and paragraph (b)(2) of Rule 70 under the
Act, and (iii) together with all other notes and drafts
representing unsecured borrowings at the time
outstanding does not exceed, in the case of Penelec,
the amount imposed by its charter.
We hereby consent to the filing of this opinion as an
exhibit to the Declaration and in any proceedings before the
Commission that may be held in connection therewith.
Very truly yours,
BALLARD SPAHR ANDREWS & INGERSOLL
3<PAGE>
