Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
GENERAL PUBLIC UTILITIES CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 13-5516989
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Interpace Parkway
Parsippany, New Jersey 07054-1149
(201) 263-6500
(Address, including zip code, and telephone number, including
area code, of principal executive office)
T. G. HOWSON
Vice President and Treasurer
General Public Utilities Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054-1149
(201) 263-6500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Please send copies of all communications to:
DOUGLAS E. DAVIDSON, ESQ. STEPHEN K. WAITE, ESQ.
Berlack, Israels & Liberman LLP Winthrop, Stimson, Putnam &
120 West 45th Street Roberts
New York, New York 10036-4003 One Battery Park Plaza
(212) 704-0100 New York, New York 10004-1490
(212) 858-1000
____________________
Approximate date of commencement of proposed sale to the
public: to be determined by market conditions after the
effective date of this Registration Statement.
____________________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box: / /<PAGE>
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, please check the following box: /X/
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Maximum Maximum
Class of Amount Offering Aggregate Amount Of
Securities To To Be Price Per Offering
Registration
Be Registered Registered Unit (1) Price (1) Fee
Debentures $300,000,000 100% $300,000,000
$103,448.28
aggregate
principal
amount
(1) Used only for the purpose of calculating the amount of the
registration fee.
The Registrant hereby amends this Registration Statement on
such date as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall hereafter become
effective in accordance with Section 8(a) of the Securities Act
of 1933 or on such date as the Commission, acting pursuant to
said Section 8(a), may determine.<PAGE>
SUBJECT TO COMPLETION, DATED JULY 10, 1996
PROSPECTUS
$300,000,000
GENERAL PUBLIC UTILITIES CORPORATION
DEBENTURES
____________________
General Public Utilities Corporation (the "Company") may
offer, from time to time in one or more series, up to
$300,000,000 aggregate principal amount of its unsecured
Debentures (the "Debentures").
The principal amount, interest rate, interest payment dates,
purchase price, maturity date, redemption terms and sinking fund
provisions, if any, and any other specific provisions of each
series of Debentures will be set forth in a prospectus supplement
(a "Prospectus Supplement") to be filed with respect to each
series of Debentures.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMIS-
SION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
____________________
The Company may sell the Debentures through underwriters,
dealers or agents, or directly to one or a limited number of
purchasers. The terms upon which each series of Debentures are
offered, together with the names of any underwriters, dealers or
agents relating to each series of Debentures, and any applicable
commissions or discounts, will also be set forth in a Prospectus
Supplement. The net proceeds to the Company will also be set
forth in a Prospectus Supplement.
The date of this Prospectus is ___________, 1996.<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY
OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE
MARKET PRICE OF THE SECURITIES OFFERED HEREBY AT A LEVEL ABOVE
THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
_______________
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "1934 Act") and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Such
reports and other information can be inspected and copied at the
public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at its regional
offices at 500 West Madison Street, Chicago, Illinois 60661 and
Seven World Trade Center, New York, New York 10048. Copies of
such material can also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. Such material can also be
inspected at the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, where the Company's Common Stock is
listed. The Commission maintains a Web site (http:\\www.sec.gov)
that contains reports and other information filed electronically
by the Company with the Commission.
________________
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED HEREIN. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER IN ANY JURISDICTION IN
WHICH SUCH OFFER MAY NOT LAWFULLY BE MADE.
____________________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with
the Commission pursuant to the 1934 Act are incorporated herein
by reference:
The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996; and
The Company's Current Reports on Form 8-K dated April 5, May
8 and June 10, 1996.
2<PAGE>
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
termination of the offering of the Debentures shall be deemed to
be incorporated by reference herein and to be a part hereof from
the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
____________________
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO
EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF
SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO
ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED BY REFERENCE IN THIS
PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS NOT
SPECIFICALLY INCORPORATED BY REFERENCE THEREIN. REQUESTS FOR
SUCH COPIES SHOULD BE DIRECTED TO: INVESTOR RELATIONS, GENERAL
PUBLIC UTILITIES CORPORATION, 100 INTERPACE PARKWAY, PARSIPPANY,
NEW JERSEY 07054-1149, (201) 263-6600.
3<PAGE>
CERTAIN CONSOLIDATED FINANCIAL INFORMATION(1)
(Dollars In Thousands)
Twelve
Years Ended December 31, Months Ended
March
31, 1996
1993 1994 1995 (unaudited)
Income Summary:
Operating
Revenues $3,596,090 $3,649,516 $3,804,656 $3,913,618
Net Income 295,673 163,688 440,135 472,891
March 31, 1996
(unaudited)
December 31, 1995 Actual As Adjusted(2)
Amount % Amount % Amount %
Capital
Structure:
Long-Term
Debt
(includ-
ing un-
amortized
net dis-
count)(3) $2,689,144 43.1 2,638,084 41.9 2,938,084 44.7
Preferred
Stock
(includ-
ing
premium) 242,116 3.9 242,116 3.9 242,116 3.7
Subsidiary-
Obligated
Mandatorily
Redeemable
Preferred
Securities 330,000 5.3 330,000 5.2 330,000 5.0
Common
Equity(4) 2,974,634 47.7 3,079,107 49.0 3,065,929 46.6
Total $6,235,894 100.0% $6,289,307 100.0% $6,576,129 100.0%
____________________
(1) This information should be read in conjunction with the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 and Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996.
(2) Reflects the sale of the Debentures offered hereby and the sale in April
and May 1996 of 1,750 shares and 41,686 shares, respectively, of Common
Stock pursuant to the Company's Dividend Reinvestment and Stock Purchase
Plan.
(3) Includes obligations due within one year.
(4) The Company has 350,000,000 shares of Common Stock authorized, of which
120,474,290 shares were outstanding at March 31, 1996.
4
<PAGE>
CONSOLIDATED RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS OF SUBSIDIARIES(1)
The Company's Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividends of Subsidiaries for
each of the periods indicated was as follows:
Twelve
Months Ended
March 31, 1996
Years Ended December 31, (unaudited)
1991 1992 1993 1994 1995 Actual As Adjusted(2)
2.13 2.42 2.67 1.83 3.29 3.46 3.22
____________________
(1) The Consolidated Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends of Subsidiaries represents, on
a pre-tax basis, the number of times earnings cover fixed
charges and preferred stock dividends of the Company's
subsidiaries. Earnings consist of Income Before Cumulative
Effect of Accounting Change, to which has been added fixed
charges, preferred stock dividends of subsidiaries and taxes
based on income. Combined fixed charges and preferred stock
dividends of subsidiaries consist of interest on funded
indebtedness, other interest, dividends on subsidiary-
obligated mandatorily redeemable preferred securities,
preferred stock dividends (increased to reflect the pre-tax
earnings required to cover such dividend requirements) and
the interest portion of all rentals charged to income.
(2) Reflects the sale of the Debentures offered hereby at an
assumed interest rate of 7.45% per annum.
5
<PAGE>
THE COMPANY
The Company, a Pennsylvania corporation, is a holding
company registered under the Public Utility Holding Company Act
of 1935 (the "1935 Act"). The Company does not operate any
utility properties directly, but owns all of the outstanding
common stock of three electric utilities serving customers in New
Jersey -- Jersey Central Power & Light Company ("JCP&L") -- and
Pennsylvania -- Metropolitan Edison Company ("Met-Ed") and
Pennsylvania Electric Company ("Penelec"). The business of these
subsidiaries (the "Utility Subsidiaries") consists predominantly
of the generation, transmission, distribution and sale of
electricity. The Company also owns all of the common stock of
Energy Initiatives, Inc., EI Power, Inc. and EI Energy, Inc.
(collectively, the "EI Group"), which develop, own and operate
generation, transmission and distribution facilities in the
United States and in foreign countries. GPU Service Corporation,
a service company; GPU Nuclear Corporation, which operates and
maintains the nuclear units of the Utility Subsidiaries; and GPU
Generation Corporation, which operates and maintains the fossil-
fueled and hydroelectric units of the Utility Subsidiaries, are
also wholly-owned subsidiaries of the Company. The income of the
Company consists almost exclusively of earnings on the common
stock of the Utility Subsidiaries.
As a registered holding company, the Company is subject to
regulation by the Commission under the 1935 Act. Each Utility
Subsidiary's retail rates, conditions of service and issuance of
securities, as well as other matters relating to each Utility
Subsidiary, are subject to regulation in the state in which such
Utility Subsidiary operates -- in New Jersey by the New Jersey
Board of Public Utilities and in Pennsylvania by the Pennsylvania
Public Utility Commission. The Nuclear Regulatory Commission
regulates the construction, ownership and operation of nuclear
generating stations. The Utility Subsidiaries are also subject
to wholesale and transmission rate and other regulation by the
Federal Energy Regulatory Commission under the Federal Power Act.
The EI Group is generally exempt from most regulation under the
1935 Act and from federal and state rate regulation. Certain of
the EI Group's foreign projects are, however, subject to limited
rate and other regulation.
The electric generating and transmission facilities of the
Utility Subsidiaries are physically interconnected and are
operated as a single integrated and coordinated system serving a
population of approximately five million in New Jersey and
Pennsylvania. For the year 1995, the Utility Subsidiaries'
revenues were about equally divided between Pennsylvania
customers and New Jersey customers. During 1995, residential
sales accounted for about 42% of operating revenues from
customers and 36% of kilowatt-hour (KWH) sales to customers;
commercial sales accounted for about 35% of operating revenues
from customers and 32% of KWH sales to customers; industrial
sales accounted for about 21% of operating revenues from
customers and 29% of KWH sales to customers; and sales to rural
6
<PAGE>
electric cooperatives, municipalities (primarily for street and
highway lighting) and others accounted for about 2% of operating
revenues from customers and 3% of KWH sales to customers. The
Utility Subsidiaries also make interchange and spot market sales
of electricity to other utilities.
The area served by the Utility Subsidiaries extends from the
Atlantic Ocean to Lake Erie, is generally comprised of small
communities, rural and suburban areas and includes a wide
diversity of industrial enterprises, as well as substantial
farming areas. The Utility Subsidiaries' transmission facilities
are physically interconnected with neighboring nonaffiliated
utilities in Pennsylvania, New Jersey, Maryland, New York and
Ohio. The Utility Subsidiaries are members of the Pennsylvania-
New Jersey-Maryland Interconnection Association (PJM) and the
Mid-Atlantic Area Council, an organization providing coordinated
review of the planning by utilities in the PJM area. The
interconnection facilities are used for substantial capacity and
energy interchange and purchased power transactions as well as
emergency assistance.
Through March 31, 1996, the Company had invested an
aggregate of $209 million in the EI Group and had also guaranteed
$231 million of EI Group obligations. In May 1996, the Company
guaranteed an additional $530 million of EI Group obligations in
connection with the acquisition of a 50% interest in Midlands
Electricity plc ("Midlands"), a regional electric company
headquartered in Birmingham, England.
The EI Group currently has ownership interests in eleven
operating combined-cycle cogeneration plants located in the
United States totaling 932 MW of capacity and five operating
generating facilities located in Canada and South America
totaling 480 MW of capacity. The EI Group also has 50% ownership
interests in a distribution business in Australia serving more
than 230,000 customers in and around Melbourne and in Midlands,
which serves approximately 2.2 million customers in England. The
EI Group is continuing to pursue investment opportunities and has
a number of projects at various stages of development, including
a 300 MW gasfired project in Houston County, Georgia for which
construction financing has been completed, and a 180 MW gas-fired
project in Wisconsin.
The Company's address is 100 Interpace Parkway, Parsippany,
New Jersey 07054-1149 and its telephone number is (201) 263-6500.
USE OF PROCEEDS
The net proceeds of the sale of the Debentures will be used
by the Company to (a) finance or refinance acquisitions and
investments by the EI Group and (b) make cash capital
contributions to its subsidiaries, which in turn will apply such
funds (i) to repay outstanding indebtedness, (ii) to redeem
outstanding senior securities or reacquire such securities in
7
<PAGE>
open market transactions, (iii) for construction purposes, (iv)
for other corporate purposes or (v) to reimburse their treasuries
for funds previously expended therefrom for such purposes. A
portion of the net proceeds may also be used to reimburse the
Company's treasury for funds previously expended therefrom for
such purposes, to repay outstanding indebtedness of the Company,
and for other Company corporate purposes.
DESCRIPTION OF THE DEBENTURES
General
The Debentures will be issued under and pursuant to the
Indenture dated as of _____________, 1996 between the Company and
United States Trust Company of New York, as Trustee (the
"Trustee"), and any indentures supplemental thereto or board
resolutions or officer's certificates creating any series of
Debentures (collectively, the "Indenture"). The following
statements are summaries of terms relating to the Debentures and
the Indenture that make use of defined terms contained in the
Indenture and are qualified in their entirety by reference to the
Indenture. A copy of the Indenture has been filed with the
Commission as an Exhibit to the Registration Statement of which
this Prospectus forms a part and is incorporated herein by
reference.
The Debentures will be unsecured obligations of the Company
and will rank equally with the Company's other unsecured
obligations. The Company is a holding company and does not
directly own any operating properties. Common Stock dividends
from the Company's subsidiaries, which constitute substantially
all of the Company's revenues, are, in effect, subject to a prior
claim for payment of the subsidiaries' respective indebtedness,
liabilities and other expenses, including dividend payment and
redemption obligations with respect to their preferred stock.
There can be no assurance as to the timing and amount of common
stock dividend payments received by the Company from its
subsidiaries. Accordingly, holders of the Debentures should look
only to the Company's assets for payments on the Debentures.
Unless otherwise provided in a Prospectus Supplement with
respect to a particular series of Debentures, the Debentures will
be issuable only in registered form, without coupons, in
denominations of $_______ and any larger amount that is an
integral multiple of $______. The interest rate, interest
payment date, purchase price, maturity date, redemption terms,
sinking fund provisions, if any, and any other specific
provisions of each series of Debentures will be set forth in a
Prospectus Supplement.
Optional Redemption
Unless otherwise provided in a Prospectus Supplement with
respect to a particular series of Debentures, the Company will
8
<PAGE>
have the right to redeem the Debentures of any series at such
price or prices, together with all accrued and unpaid interest on
the Debentures being redeemed to the redemption date
(collectively, the "Debenture Redemption Price"), in whole or in
part and at such time or times as shall be specified in the
applicable Prospectus Supplement. See "-- Ownership of Utility
Subsidiaries" below for a description of certain provisions of
the Indenture which may require redemption of some or all of the
Debentures in certain circumstances.
Redemption Procedures
If the Company gives a notice of redemption in respect of a
series of Debentures (which notice will be given not less than 30
nor more than 90 days prior to the redemption date unless
otherwise specified in a Prospectus Supplement), then, on or
before the redemption date, the Company will irrevocably deposit
with the Trustee funds sufficient to pay the applicable Debenture
Redemption Price. If notice of redemption shall have been given
and funds deposited as required, then on the redemption date, all
rights of holders of such Debentures so called for redemption
will cease, except the right of the holders of such Debentures to
receive the Debenture Redemption Price, but without interest.
Notwithstanding the foregoing, however, any such notice may state
that it is subject to the receipt by the Trustee of redemption
funds on or before such date fixed for redemption, which notice
shall be of no effect unless such funds are so received on or
before such date. In the event that any date fixed for
redemption of Debentures is not a Business Day, then payment of
the Debenture Redemption Price payable on such date will be made
on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), with
the same force and effect as if made on such date. If less than
all the Debentures of any series are to be redeemed, the Trustee
shall select the Debentures of such series to be redeemed in such
manner as the Trustee considers fair and appropriate.
Subject to applicable law, the Company may at any time and
from time to time purchase outstanding Debentures by tender, in
the open market or by private agreement.
Interest
Each Debenture will bear interest at a rate per annum as
shall be specified in a Prospectus Supplement, payable in arrears
on such dates as shall be specified in a Prospectus Supplement
(each an "Interest Payment Date"), to the person in whose name
such Debenture is registered, subject to certain exceptions, at
the close of business on the Record Date next preceding such
Interest Payment Date. The Record Date with respect to any
series of Debentures will be set forth in the applicable
Prospectus Supplement.
The amount of interest payable for any period will be
computed on the basis of twelve 30-day months and a 360-day year
9
<PAGE>
and, for any period shorter than a full month, on the basis of
the actual number of days elapsed. In the event that any date on
which interest is payable on the Debentures is not a Business
Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
Payment; Exchange; Registration and Transfer
Payment of principal of any Debenture will be made only
against surrender to the Trustee or the Paying Agent appointed by
the Company, if not the Trustee, of such Debenture. Principal
of, and premium, if any, and interest on, the Debentures will be
payable, subject to any applicable laws and regulations, at the
office of the Trustee or such Paying Agent as the Company may
designate from time to time, except that at the option of the
Company payment of any interest may be made by check mailed to
the address of the person entitled thereto as such address shall
appear in the security Register with respect to such Debentures.
The Corporate Trust Office of the Trustee in The City of New
York shall initially be designated as the Company's sole Paying
Agent for payments with respect to Debentures of each series.
The Company may at any time designate other or additional Paying
Agents or rescind the designation of any Paying Agent or approve
a change in the office through which any Paying Agent acts.
Subject to applicable law, if money for the payment of principal
or interest remains unclaimed for three years, the Trustee or
Paying Agent will pay the money back to the Company at its
request. In such event, persons entitled to such money must look
to the Company for payment.
Subject to the limitations applicable to global Debentures
referred to herein under "--Book-Entry-Only Issuance - The
Depository Trust Company" below, the Debentures of any series
will be exchangeable for other Debentures of the same series, of
any authorized denomination and of like tenor and aggregate
principal amount.
Debentures may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at
the office of the Registrar appointed by the Company without
service charge and upon payment of any taxes and other
governmental charges as described in the Indenture. The Company
has initially appointed the Trustee as Registrar with respect to
the Debentures. The Company shall not be required to make, and
the Registrar need not register, the transfer or exchange of (i)
any Debenture during a period beginning at the opening of
business five days before the mailing of a notice of redemption
of Debentures, and ending at the close of business on the day of
such mailing, or (ii) any Debenture selected, called or being
called for redemption, in whole or in part, except in the case of
any Debenture to be redeemed in part, the portion thereof not to
be redeemed.
10
<PAGE>
Ownership of Utility Subsidiaries
The Indenture provides that the Company shall continue to
directly or indirectly own and hold the legal title to and
beneficial interest in at least 70% of the outstanding shares of
voting common stock of each of the Utility Subsidiaries and any
affiliate thereof to which any material assets of any such
Utility Subsidiary shall have been transferred; provided that the
foregoing shall not prohibit a merger or consolidation of two or
more of the Utility Subsidiaries so long as the Company continues
to directly or indirectly own and hold the legal title to and
beneficial interest in at least 70% of the outstanding shares of
common stock of the survivor. Notwithstanding the foregoing, the
Company may sell, transfer or dispose of more than 30% of the
outstanding shares of common stock of one or more of the Utility
Subsidiaries provided that it promptly applies the net cash
proceeds of any such sale, transfer or disposition in excess of
30% ratably to redeem outstanding Debentures of each series at a
special redemption price as shall be specified in the applicable
Prospectus Supplement, together with all accrued and unpaid
interest on the Debentures being redeemed to the redemption date.
Limitation on Issuance of Secured Indebtedness
The Indenture provides that the Company shall not create,
assume or suffer to exist any Lien (as defined below) on any
property or assets now owned or hereafter acquired by the Company
without equally and ratably securing the obligations of the
Company to the holders of any and all outstanding Debentures,
except: (i) Liens arising out of deposits with, or the giving of
security to or as required by, any governmental agency or any
body created or approved by law or governmental regulation, which
are required as a condition to the transaction of any business or
the obtaining or exercise of any privilege or license or to
enable the Company to participate in any arrangements established
by law to cover any insurance risks or in connection with
worker's unemployment insurance, old age pensions, social
security or similar matters; (ii) Liens for taxes, assessments
and governmental charges or levies not yet due and payable or
that the Company can thereafter pay without penalty or that the
Company has not paid because it is contesting the same in good
faith by appropriate proceedings diligently pursued (so long as
during the period of such contest the Company shall not suffer
any loss of any privilege of doing business or any other right,
power, privilege, permit or franchise, in each case which is
necessary or material to the operation of its business); (iii)
Liens existing at the time of acquisition of the property
affected thereby or Liens incurred to secure payment of all or a
part of the purchase price of such property or to secure debt
incurred prior to, at the time of or within 60 days after the
acquisition of such property for the purpose of financing all or
part of the purchase price thereof, provided such Liens are
limited to such property and improvements thereon; (iv) Liens
placed prior to, at the time of or within 60 days of completion
of construction or improvement of property to secure debt
11
<PAGE>
incurred to provide payment of all or a portion of the cost of
construction or improvement of such property, provided such Liens
are limited to the property or portion thereof upon which the
construction or improvements being financed occurred; (v) any
other Liens imposed by mandatory provisions of law or incurred in
the ordinary course of business, including attachment, judgment
and other similar Liens arising in connection with court
proceedings, in respect of obligations which are not due and
payable or which are being contested in good faith by appropriate
proceedings and for which the Company's reserves are deemed by it
to be adequate to discharge the liabilities in respect thereof,
provided that no such Liens shall secure borrowings, or
materially detract from the value or interfere with the use of
the properties subject thereto or affected thereby which could
reasonably be expected to materially impair the business or
operations of the Company; (vi) Liens affecting the fuel used in
any power generating operations of the Company; (vii) easements,
restrictions and other similar encumbrances arising in the
ordinary course of business, which in the aggregate do not
materially adversely affect the Company's use of its properties;
(viii) in addition to the foregoing, Liens securing amounts not
to exceed in the aggregate $25,000,000 at any one time
outstanding; or (ix) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in
part, of any Lien referred to in the foregoing clauses (i) to
(viii) inclusive of any debt secured thereby, provided that (y)
the principal amount of debt secured thereby shall not exceed the
principal amount of debt so secured at the time of such
extension, renewal or replacement and (z) such extension, renewal
or replacement Lien shall be limited to all or part of
substantially the same property which secured the Lien extended,
renewed or replaced.
As used herein, the term "Lien" with respect to any property
or assets means (y) any mortgage, lien, pledge, charge, security
interest or other encumbrance of any kind in respect of such
property or assets or (z) the interest of a vendor or lessor
arising out of the acquisition or agreement to acquire such
property or assets under any conditional sale agreement, lease
purchase agreement, sale and leaseback agreement, or other
similar title retention agreement.
Certain Covenants Concerning Dividends, etc.
The Company will not declare or pay any dividends or make
any distributions on its capital stock (other than dividends or
distributions payable solely in common shares of the Company),
or, directly or indirectly, purchase, redeem or otherwise acquire
or retire for value any capital stock of the Company or any
options, warrants or other rights to acquire capital stock of the
Company, or permit any subsidiary of the Company to purchase,
redeem or otherwise acquire or retire for value any capital stock
of the Company or any options, warrants or other rights to
acquire capital stock of the Company, unless at the time of any
such declaration, payment, purchase, redemption, acquisition or
12
<PAGE>
retirement and after giving effect thereto no Event of Default
(or event which, with the giving of notice or the passage of time
or both, would become an Event of Default) relating to the
failure to make payment of principal or premium on the Debentures
when due or interest within 15 days after the same becomes due
and payable shall have occurred and be continuing.
Book-Entry-Only Issuance-The Depository Trust Company
As more fully set forth in the applicable Prospectus
Supplement, The Depository Trust Company ("DTC") may act as
securities depository for some or all of the series of
Debentures. Any such series of Debentures will be issued only as
fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). One or more fully-registered global Debentures
(each a "Global Debenture") will be issued, representing in the
aggregate the total number of Debentures of such series, and will
be deposited with DTC.
While DTC is the registered holder of a Global Debenture,
DTC or its nominee will be considered the sole owner and holder
of Debentures represented by such Global Debenture for all
purposes under the Indenture.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other
organizations ("Direct Participants"). DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange,
Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain
a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the
Commission.
Purchases of beneficial interests in a Global Debenture
under the DTC system must be made by or through Direct
Participants, which will receive a credit for the principal
amount of Debentures represented by such Global Debenture on
DTC's records. The ownership interest of each actual purchaser
of each Debenture ("Beneficial Owner") is in turn to be recorded
13
<PAGE>
on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their
purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as
periodic statements of
their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners purchased Debentures. Transfers of
ownership interests in beneficial interests in a Global Debenture
are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their ownership
interests in a Global Debenture or any Debenture represented
thereby, except in the event that use of the book-entry system
for the Debentures is discontinued.
DTC has no knowledge of the actual Beneficial Owners of
beneficial interests in any Global Debentures; DTC's records
reflect only the identity of the Direct Participants to whose
accounts such Global Debentures are credited, which may or may
not be the Beneficial Owners. Direct and Indirect Participants
will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. If less than
all of a series of Debentures represented by a Global Debenture
are being redeemed, DTC's practice is to determine by lot the
amount of the interest of each Direct Participant in such series
to be redeemed.
Although voting with respect to the Debentures represented
by a Global Debenture is limited, in those cases where a vote is
required, neither DTC nor Cede & Co. will consent or vote with
respect to Debentures. Under its usual procedure, DTC would mail
an Omnibus Proxy to the Company as soon as possible after the
record date. The Omnibus Proxy assigns Cede & Co.'s consenting
or voting rights to those Direct Participants to whose accounts
the Debentures are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Interest payments on a Global Debenture will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payments on such payment date. Payments
by Participants to Beneficial Owners will be governed by standing
instructions and customer practices and will be the
responsibility of such Participants and not of DTC or the
Company, subject to any statutory or regulatory requirements as
14
<PAGE>
may be in effect from time to time. Payment of interest to DTC
is the responsibility of the Company, disbursement of such
payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company does not take any
responsibility for the accuracy thereof.
DTC may discontinue providing its services as securities
depository with respect to the Debentures of any series at any
time by giving reasonable notice to the Company. Under such
circumstances, in the event that a successor securities
depository is not obtained, certificates for such Debentures are
required to be printed and delivered. Additionally, the Company
may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor depository) for any series
of Debentures. In that event, certificates for such Debentures
will be printed and delivered.
Amendment of the Indenture
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in principal amount of the Debentures which are affected
by the amendment or waiver, to amend the Indenture or the
Debentures or to waive compliance by the Company with any
provision of the Indenture or the Debentures; provided that no
such amendment or waiver may, without the consent of the holder
of each outstanding Debenture affected thereby, (a) reduce the
principal amount of the Debentures, (b) reduce the principal
amount of Debentures the holders of which must consent to
amendment of the Indenture or a waiver, (c) change the stated
maturity date of the principal of, or the interest or the rate of
interest on, the Debentures, (d) change adversely to the holders
thereof the redemption or sinking fund provisions applicable to
the Debentures, (e) impair the right to institute suit for the
enforcement of any payment with respect to the Debentures, (f)
change the currency in which payments with respect to the
Debentures are to be made, or (g) waive a default in the payment
of the principal of, or interest on, any Debenture. The
Indenture or the Debentures may be amended, without the consent
of the holders of the Debentures, to cure any ambiguity, defect
or inconsistency or to make other changes that do not adversely
affect the rights of such holders.
Events of Default
The following are Events of Default under the Indenture:
(i) default for 15 days in payment of any interest on Debentures;
(ii) default in payment of principal of or premium, if any, on
Debentures when due; (iii) default for 30 days after notice in
the performance of any other covenant in the Indenture; or (iv)
15
<PAGE>
certain events of bankruptcy, insolvency or reorganization of the
Company. Reference is made to the Prospectus Supplement
pertaining to a particular series of Debentures for any
additional Events of Default which may be applicable to such
series. If an Event of Default shall occur and be continuing,
the Trustee or the holders of not less than 25% in principal
amount of the Debentures then outstanding may declare the
principal of, and all accrued and unpaid interest on, the
Debentures to be due and payable; provided, however, that if an
Event of Default pertaining to one or more but less than all
series of Debentures shall occur and be continuing, only the
holders of 25% in principal amount of the Debentures of such
series outstanding, considered as one class, may make such
declaration of acceleration; and provided, further, that, upon
certain events of bankruptcy, insolvency or reorganization of the
Company, such amounts shall immediately become due and payable
without any declaration or other action by the Trustee or such
holders. An Event of Default with respect to any series of
Debentures may not necessarily constitute an Event of Default
with respect to the Debentures of any other series issued under
the Indenture. The Company is required to furnish to the Trustee
annually a statement as to the performance by the Company of its
obligations under the Indenture and as to any default in such
performance. Under certain circumstances, any declaration of
acceleration with respect to the Debentures may be rescinded and
past defaults (except, unless theretofore cured, a default in the
payment of principal of, or interest on, the Debentures) may be
waived by the holders of a majority in principal amount of the
Debentures then outstanding; provided, however, that if a
declaration of acceleration or a past default pertains to one or
more but less than all series of Debentures, then such
declaration may be rescinded and such default may be waived by
the holders of a majority in principal amount of the Debentures
of such series outstanding, considered as one class. The
Indenture provides that the Trustee may withhold notice to the
holders of the Debentures of any continuing default (except in
the payment of the principal of, or interest on, the Debentures)
if the Trustee considers it in the interests of holders of
Debentures to do so.
Subject to the provisions of the Indenture relating to the
duties of the Trustee in case an Event of Default shall occur and
be continuing, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the
request or direction of any holder, unless such holder shall have
offered to the Trustee reasonable security or indemnity. Subject
to such provisions relating to the indemnification of the
Trustee, the holders of a majority in principal amount of the
outstanding Debentures of any series will have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debentures
of that series.
16
<PAGE>
No holder of a Debenture of any series will have any right
to institute any proceeding with respect to the Indenture, or for
the appointment of a receiver or a trustee, or for any other
remedy thereunder, unless (i) such holder has previously given
written notice to the Trustee of a continuing Event of Default
with respect to the Debentures of such series, (ii) the holders
of not less than a majority in aggregate principal amount of the
outstanding Debentures of such series have made written request
to the Trustee, and such holder or holders have offered
reasonable indemnity to the Trustee, to institute such proceeding
as trustee and (iii) the Trustee has failed to institute such
proceeding, and has not received from the holders of a majority
in aggregate principal amount of the outstanding Debentures of
that series a direction inconsistent with such request, within 60
days after such notice, request and offer. However, such
limitations do not apply to a suit instituted by a holder of a
Debenture for the enforcement of payment of the principal of or
any premium or interest on such Debenture on or after the
applicable due date specified in such Debenture.
Consolidation, Merger, Sale or Conveyance
The Indenture provides that the Company may not consolidate
with or merge with or into any other Person or sell, convey,
transfer or lease all or substantially all of its properties and
assets to any Person, unless (i) the successor Person shall be
organized and existing under the laws of the United States or any
state thereof or the District of Columbia; (ii) the successor
Person shall expressly assume, by a supplemental indenture, all
of the Company's obligations under the Debentures and the
Indenture; (iii) immediately after giving effect to the
transaction, no Event of Default shall have occurred and be
continuing; and (iv) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, conveyance,
transfer or lease and such supplemental indenture comply with the
Indenture. In case of any such consolidation, merger, sale,
conveyance, transfer or lease, such successor Person will succeed
to and be substituted for the Company as obligor on the
Debentures, with the same effect as if it had been named in the
Indenture as the issuer in place of the Company.
The Indenture does not contain any other covenant which
restricts the Company's ability to consolidate or merge with, or
sell, convey, transfer or lease all or substantially all of its
assets to, any Person, firm or corporation or otherwise engage in
restructuring transactions, except as described above under "--
Ownership of Utility Subsidiaries".
Title
The Company, the Trustee and any agent of the Company or the
Trustee may treat the registered owner of any Debenture as the
absolute owner thereof (whether or not such Debenture shall be
17
<PAGE>
overdue and notwithstanding any notice to the contrary) for the
purpose of making payment and for all other purposes.
Defeasance and Discharge
Under the terms of the Indenture, the Company will be
discharged from any and all obligations in respect of the
Debentures of any series (except in each case for certain
obligations to register the transfer or exchange of Debentures,
replace stolen, lost or mutilated Debentures, maintain paying
agencies and hold monies for payment in trust) if the Company
deposits with the Trustee, in trust, (i) cash and/or (ii) U. S.
Government Obligations (as defined in the Indenture) sufficient
to pay all the principal of, premium, if any, and interest on,
the Debentures of such series on the dates such payments are due;
provided that no Event of Default has occurred and is continuing.
In connection with such a defeasance and discharge, the Company,
among other things, will deliver to the Trustee an Opinion of
Counsel to the effect that the deposit and related defeasance
would not cause the holders of the Debentures of such series to
recognize income, gain or loss for federal income tax purposes,
or a copy of a ruling or other formal statement or action to such
effect received from or published by the Internal Revenue
Service.
Replacement of Debentures
Any mutilated Debenture will be replaced by the Company at
the expense of the holder upon its surrender to the Trustee.
Debentures that are destroyed, lost or stolen will be replaced by
the Company at the expense of the holder upon delivery to the
Trustee of evidence of the destruction, loss or theft thereof
satisfactory to the Company and the Trustee. In the case of a
destroyed, lost or stolen Debenture, an indemnity satisfactory to
the Trustee and the Company may be required at the expense of the
holder of such Debenture before a replacement Debenture will be
issued.
Governing Law
The Indenture and the Debentures will be governed by and
construed in accordance with the laws of the State of New York.
Information Concerning the Trustee
Subject to the provisions of the Indenture relating to its
duties, the Trustee will be under no obligation to exercise any
of its rights or powers under the Indenture at the request, order
or direction of any of the holders thereunder, unless such
holders shall have offered to the Trustee reasonable indemnity.
Subject to such provision for indemnification, the holders of a
majority in principal amount of the Debentures then outstanding
thereunder will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
18
<PAGE>
the Trustee thereunder, or exercising any trust or power
conferred on the Trustee.
The Trustee may resign at any time by giving written notice
thereof to the Company or may be removed at any time by the
holders of a majority in principal amount of Debentures then
outstanding delivered to the Trustee and the Company. No
resignation or removal of the Trustee and no appointment of a
successor trustee will become effective until the acceptance of
appointment by a successor trustee in accordance with the
requirements of the Indenture. So long as no Event of Default or
event which, after notice or lapse of time, or both, would become
an Event of Default has occurred and is continuing and except
with respect to a Trustee appointed by the holders of a majority
in principal amount of the outstanding Debentures, if the Company
has delivered to the Trustee a resolution of its Board of
Directors appointing a successor trustee and such successor has
accepted such appointment in accordance with the terms of the
Indenture, the Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with the Indenture.
The Indenture contains limitations on the right of the
Trustee, as a creditor of the Company, to obtain payment of
claims in certain cases, or to realize on certain property
received in respect of any such claim as security or otherwise.
In addition, the Trustee may be deemed to have a conflicting
interest and may be required to resign as Trustee if at the time
of default under the Indenture it is a creditor of the Company.
United States Trust Company of New York, the Trustee under
the Indenture, has from time to time engaged in transactions
with, or performed services for, the Company and its affiliates
in the ordinary course of business. Among other things, United
States Trust Company of New York serves as trustee under various
indentures of the Utility Subsidiaries.
PLAN OF DISTRIBUTION
The Company may sell the Debentures through underwriters,
dealers or agents, or directly to one or a limited number of
purchasers.
The Company may solicit offers from time to time to purchase
Debentures to be reoffered to the public through underwriting
syndicates led by one or more managing underwriters or through
one or more underwriters acting alone. Unless otherwise set
forth in a Prospectus Supplement, the underwriters will be
obligated to purchase all Debentures offered, subject to certain
conditions precedent. The Company may sell Debentures to one or
more underwriters for public offering and sale by them or through
dealers. The managing underwriter or underwriters with respect
to the offer and sale of any series of Debentures and the members
of the underwriting syndicate, if any, will be named in a
Prospectus Supplement. A Prospectus Supplement will also
19
<PAGE>
describe the commissions to be paid to the underwriters, all
other items constituting underwriting compensation and the
commissions to be allowed or paid to dealers, if any.
Debentures may also be sold directly by the Company or
through agents designated by the Company from time to time. The
name of any agent involved in the offer or sale of Debentures, as
well as any commissions payable by the Company to such agent,
will be set forth in a Prospectus Supplement. Unless otherwise
indicated in such Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the
distribution of Debentures may be entitled to indemnification by
the Company against certain liabilities, including liabilities
under the Securities Act of 1933, or to contribution from the
Company with respect to payments which the underwriters, dealers
or agents may be required to make in respect thereof.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, the Company and/or any of its
affiliates in the ordinary course of business.
EXPERTS
The consolidated financial statements and financial
statement schedules included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1995 are incorporated
herein by reference in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority
of said firm as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by
Berlack, Israels & Liberman LLP, New York, New York and for the
Underwriters by Winthrop, Stimson, Putnam & Roberts, New York,
New York. Berlack, Israels & Liberman LLP and Winthrop, Stimson,
Putnam & Roberts may rely on Ballard Spahr Andrews & Ingersoll,
Philadelphia, Pennsylvania with respect to matters of
Pennsylvania law. Members and attorneys of Berlack, Israels &
Liberman LLP own an aggregate of 13,247 shares of the Company's
Common Stock. In addition, one such member holds 986 such shares
as custodian for his children.
20
<PAGE>
No dealer, salesperson or any other person has been authorized to
give any information or to make any representations, other than
those contained in this Prospectus, in connection with the offer
contained herein, and, if given or made, such other information
or representations must not be relied upon as having been
authorized by the Company or by any underwriter, dealer or agent
for the Debentures. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of
the Company since the date as of which information is given in
this Prospectus. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy by anyone in any
jurisdiction in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is
unlawful to make such offer or solicitation.
__________________
TABLE OF CONTENTS
Page
Available Information.............................. 2
Incorporation of Certain Documents by Reference.... 2
Certain Consolidated Financial Information......... 4
Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividends
of Subsidiaries.................................. 5
The Company........................................ 6
Use of Proceeds.................................... 7
Description of the Debentures...................... 8
Plan of Distribution............................... 19
Experts............................................ 20
Legal Matters...................................... 20<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Filing fees:
Securities and Exchange Commission....... $105,448.28
Printing and engraving............................ 15,000.00*
Legal fees:
Berlack, Israels & Liberman LLP . . . . . 75,000.00*
Ballard Spahr Andrews & Ingersoll . . . . 7,500.00*
Winthrop, Stimson, Putnam & Roberts . . . 65,000.00*
Blue Sky fees and expenses . . . . . . . . . . . 5,000.00*
Accounting fees:
Coopers & Lybrand L.L.P. . . . . . . . . 7,500.00*
Indenture Trustee fees and expenses . . . . . . 17,500.00*
Rating agencies fees and expenses . . . . . . . 165,000.00*
Miscellaneous . . . . . . . . . . . . . . . . . . 12,051.72*
Total . . . . . . . . . . . . . . . . . . $475,000.00*
_________________
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 37 of the By-Laws of the Company provides, in part,
as follows:
"(a) A director shall not be personally liable for
monetary damages as such for any action taken, or any
failure to take any action, on or after January 27,
1987 unless the director has breached or failed to
perform the duties of his office under Section 1721 of
the Business Corporation Law as the same may be amended
from time to time, and the breach or failure to perform
constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a)
shall not apply to the responsibility or liability of a
director pursuant to any criminal statute, or the
liability of a director for the payment of taxes
pursuant to local, state or Federal law.
"(b) The Corporation shall indemnify any person
who was or is a party or is threatened to be made a
party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal,
administrative or investigative, whether formal or
informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he
was a director, officer or employee of the Corporation
(and may indemnify any person who was an agent of the
Corporation), or a person serving at the request of the
Corporation as a director, officer, partner, fiduciary
II-1<PAGE>
or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law,
including without limitation indemnification against
expenses (including attorneys' fees and disbursements),
damages, punitive damages, judgments, penalties, fines
and amounts paid in settlement actually and reasonably
incurred by such person in connection with such
proceeding unless the act or failure to act giving rise
to the claim for indemnification is finally determined
by a court to have constituted willful misconduct or
recklessness.
"(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually
and reasonably incurred in defending a civil or
criminal action, suit or proceeding on behalf of any
person entitled to indemnification under subsection (b)
in advance of the final disposition of such proceeding
upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by
the Corporation, and may pay such expenses in advance
on behalf of any agent on receipt of a similar
undertaking. The financial ability of such person to
make such repayment shall not be a prerequisite to the
making of an advance.
"(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an
officer, director, employee or agent to serve as
fiduciary with respect to an employee benefit plan
where the performance by such person of duties to the
Corporation also imposes duties on, or otherwise
involves services by, such person as a fiduciary with
respect to the plan; (ii) excise taxes assessed with
respect to any transaction with an employee benefit
plan shall be deemed `fines'; and (iii) action taken or
omitted by such person with respect to an employee
benefit plan in the performance of duties for a purpose
reasonably believed to be in the interest of the
participants and beneficiaries of the plan shall be
deemed to be for a purpose which is not opposed to the
best interests of the Corporation.
"(e) To further effect, satisfy or secure the
indemnification obligations provided herein or
otherwise, the Corporation may maintain insurance,
obtain a letter of credit, act as self-insurer, create
a reserve, trust, escrow, cash collateral or other fund
or account, enter into indemnification agreements,
pledge or grant a security interest in any assets or
properties of the Corporation, or use any other
mechanism or arrangement whatsoever in such amounts, at
II-2<PAGE>
such costs, and upon such other terms and conditions as
the Board of Directors shall deem appropriate.
"(f) All rights of indemnification under this
Section shall be deemed a contract between the
Corporation and the person entitled to indemnification
under this Section pursuant to which the Corporation
and each such person intend to be legally bound. Any
repeal, amendment or modification hereof shall be
prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding
whether commenced prior to or after such change to the
extent such proceeding pertains to actions or failures
to act occurring prior to such change.
"(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other
rights to which those seeking indemnification or
advancement of expenses may be entitled under any
statute, agreement, vote of shareholders, or
disinterested directors or otherwise, both as to action
in an official capacity and as to action in any other
capacity while holding such office. The
indemnification and advancement of expenses provided
by, or granted pursuant to, this Section shall continue
as to a person who has ceased to be an officer,
director, employee or agent in respect of matters
arising prior to such time, and shall inure to the
benefit of the heirs, executors and administrators of
such person."
Subject to certain exceptions, the directors and officers of
the Company are insured under policies of insurance, within the
limits and subject to the limitations of the policies, against
claims made against them, including claims arising under the
Securities Act of 1933, for action taken by them on behalf of the
Company. The premiums for such insurance are paid for by the
Company.
Sections 1741-1750 of the Pennsylvania Business Corporation
Law of 1988 provides authority for corporations to indemnify
under certain circumstances their officers, directors and other
agents against expenses and liabilities incurred in connection
with proceedings, arising out of such persons' actions taken on
behalf of the Company.
The foregoing rights of indemnification are not exclusive of
any other rights to which any director or officer (or his or her
legal representatives) may be entitled under any By-Law of the
Company heretofore in effect, and apply to any liability of any
director or officer (or his or her legal representatives) arising
under any of the provisions of the Securities Act of 1933 only to
the extent that such rights of indemnification may be determined
to be valid by a court of competent jurisdiction.
II-3<PAGE>
Item 16. Exhibits.
1-A -Form of Underwriting, Purchase or Selling Agency
Agreement - to be filed by amendment or as an
exhibit to a Form 8-K filed subsequent to the
effective date of this Registration Statement.
1-B -Form of Distribution Agreement.
1-C -Form of Purchase Agreement for competitive bid
offering - included in Exhibit 26.
3-A -Articles of Incorporation of the Company, as
amended - Incorporated by reference to Exhibit 3-
A, 1989 Annual Report on Form 10-K, SEC File
No. 1-6047.
3-A(i) -Articles of Amendment to Articles of
Incorporation of the Company - Incorporated by
reference to Exhibit A-4 to Certificate Pursuant
to Rule 24, SEC File No. 70-8569.
3-B -By-Laws of the Company, as amended - Incorporated
by reference to Exhibit 3-A, 1990 Annual Report on
Form 10-K, SEC File No. 1-6047.
4-A -Form of Debenture Indenture.
4-B -Form of Debenture - Incorporated by reference to
form of Debenture contained in Exhibit 4-A.
5-A -Opinion of Berlack, Israels & Liberman LLP.
5-B -Opinion of Ballard Spahr Andrews & Ingersoll.
12-A -Statement Showing Computation of Consolidated
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends of Subsidiaries.
23-A -Consent of Berlack, Israels & Liberman LLP -
included in its opinion filed as Exhibit 5-A.
23-B -Consent of Ballard Spahr Andrews & Ingersoll -
included in its opinion filed as Exhibit 5-B.
23-C -Consent of Coopers & Lybrand L.L.P.
24-A -Power of Attorney - Included in signature page.
24-B -Certified copy of resolution of the Company's
Board of Directors authorizing attorney-in-fact to
sign the registration statement.
25 -Statement of Eligibility of Trustee under the
Trust Indenture Act of 1939.
II-4<PAGE>
26 -Invitation for Competitive Bids, including forms
of invitation letter, Terms and Conditions and
Proposal (with form of Purchase Agreement
attached).
____________________
The Exhibits listed above which have heretofore been filed
with the Securities and Exchange Commission and which are
designated in prior filings as noted above are hereby
incorporated by reference and made a part hereof with the same
effect as if filed herewith.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement (i) to include any prospectus required by
section 10(a)(3) of the Securities Act of 1933; (ii) to reflect
in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement; and (iii) to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any
material change to such information in the registration
statement; provided, however, that clauses (i) and (ii) above do
not apply if the information required to be included in a post-
effective amendment by those clauses is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement; and
provided, further, that with respect to clause (ii) above, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-5<PAGE>
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by any such persons in
the successful defense of any action, suit or proceeding) is
asserted by any such person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
II-6<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the Township of Parsippany-Troy Hills, State of New Jersey on the
10th day of July, 1996.
GENERAL PUBLIC UTILITIES CORPORATION
By: /s/ J. R. Leva
J. R. Leva, President
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that General Public Utilities
Corporation and each of its undersigned officers and directors
hereby constitutes and appoints each of I. H. Jolles, J. G.
Graham and T. G. Howson its/his/her true and lawful attorney-in-
fact and agent with full power of substitution and resubstitution
for it/him/her and in its/his/her name, place and stead, in any
and all capacities, to sign all or any amendments (including
post-effective amendments) of and supplements to this
registration statement on Form S-3 and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each
such attorney-in-fact and agent full power and authority to do
and perform each and every act and thing requisite and necessary
to be done in and about the premises, to all intents and purposes
and as fully as said Corporation itself and each said officer or
director might or could do in person, hereby ratifying and
confirming all that each such attorney-in-fact and agent, or his
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ J.R. Leva Chairman (Principal July 10, 1996
(J.R. Leva) Executive Officer),
President and Director
/s/ J.G. Graham Senior Vice President July 10, 1996
(J.G. Graham) (Principal Financial
Officer)
/s/ F.A. Donofrio Vice President and July 10, 1996
(F.A. Donofrio) Comptroller (Principal
Accounting Officer)<PAGE>
/s/ T.H. Black Director July 10, 1996
(T.H. Black)
/s/ H.F. Henderson Director July 10, 1996
(H.F. Henderson, Jr.)
/s/ J.M. Pietruski Director July 10, 1996
(J.M. Pietruski)
/s/ C.A. Rein Director July 10, 1996
(C.A. Rein)
/s/ P.R. Roedel Director July 10, 1996
(P.R. Roedel)
/s/ C.A.H. Trost Director July 10, 1996
(C.A.H. Trost)
/s/ P.K. Woolf Director July 10, 1996
(P.K. Woolf)<PAGE>
EXHIBITS AND FINANCIAL STATEMENT TO BE FILED BY EDGAR
Exhibits
1-B Form of Distribution Agreement.
4-A Form of Debenture Indenture.
5-A Opinion of Berlack, Israels & Liberman LLP.
5-B Opinion of Ballard Spahr Andrews & Ingersoll.
12-A Statement Showing Computation of Consolidated
Ration of Earnings to Combined Fixed Charges
and preferred Stock Dividends of
Subsidiaries.
23-C Consent of Coopers & Lybrand L.L.P
24-B Certified copy of resolution of the Company's
Board of Directors authorizing attorney-in-
fact to sign the registration statement.
25 Statement of Eligibility of Trustee under the
Trust Indenture Act of 1939.
26 Invitation for Competitive Bids, including
forms of invitation letter, Terms and
Conditions and Proposal (with form of
Purchase Agreement attached). <PAGE>
EXHIBIT 1-B
GENERAL PUBLIC UTILITIES CORPORATION
Debentures
DISTRIBUTION AGREEMENT
_____________, 1996
GOLDMAN, SACHS & CO.
85 Broad Street
New York, NY 10004
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, NY 10036
Dear Sirs:
The undersigned, General Public Utilities Corporation,
a Pennsylvania corporation (the "Company"), has authorized by
appropriate corporate action and proposes to issue and sell in
the manner contemplated by this Distribution Agreement (this
"Agreement") Debentures (as defined in Section 2(b) hereof) in an
aggregate principal amount not to exceed $___________. The
Company hereby confirms its agreement with you (individually, an
"Agent" and collectively the "Agents") as follows:
1. Appointment of Agents. Subject to the terms and
conditions stated in this Agreement, the Company hereby appoints
each Agent as the agent of the Company for the purpose of
offering and soliciting offers to purchase the Debentures (any
offer to purchase Debentures solicited by an Agent being
hereinafter referred to as a "Solicited Offer"). In the event
the Company shall sell Debentures to any purchaser of Debentures
during the period between the date on which the Company accepted
a Solicited Offer from such purchaser under the terms and
conditions of this Agreement, and the Settlement Date (as defined
in Section 4(b) hereof) and such purchaser subsequently fails to
accept delivery or pay for the Debentures, the Company shall be
obligated to pay the Agent a commission for such Debentures as
set forth in Exhibit B hereto. The Agents are not authorized to
appoint sub-agents or to engage the services of any other broker<PAGE>
or dealer in connection with the offer or sale of the Debentures,
except as contemplated by Section 5(c) hereof.
2. Description of Debentures; Registration Statement.
a. The Company proposes to issue the Debentures under
its Indenture between the Company and United States Trust
Company of New York, as Trustee (the "Trustee"), dated as of
_______ 1, 199_ (hereinafter referred to as the
"Indenture"). The Debentures shall have the series
designation, denominations, issue price, maturities,
interest rates, redemption provisions, if any, and other
terms as set forth in the Prospectus (as defined in Section
2(b) hereof). The Debentures will be issued, and the terms
thereof established, from time to time by the Company in
accordance with the Indenture and the Procedures (as defined
in Section 4(a) hereof).
b. On July __, 1996, the Company filed with the
Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (Registration No. 33-
_____) relating to $300,000,000 aggregate principal amount
of the Company's Debentures (the "Debentures"), and the
offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the
"Securities Act"), including a preliminary prospectus, and
has filed such amendments thereto, if any, and such amended
preliminary prospectus as may have been required to the date
hereof. Such registration statement, as so amended, has
been declared effective by the Commission. Such
registration statement as so amended at the date of this
Agreement, and the prospectus relating to the Debentures
constituting a part of such registration statement as
amended or supplemented to reflect the terms of the offering
of the Debentures pursuant to a post-effective amendment or
a prospectus supplement or prospectus filed by the Company
pursuant to Rule 424(b) under the Securities Act (including,
in each case, all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities
Act (the "Incorporated Documents")), are hereinafter called
the "Registration Statement" and the "Prospectus",
respectively, except that if the Company files any documents
pursuant to Sections 13, 14 or 15 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") after the date
of this Agreement and prior to any Settlement Date (as
defined in Section 4(b) hereof), which documents are deemed
to be incorporated by reference in the Prospectus, the term
"Prospectus" shall refer to the Prospectus as supplemented
by the documents so filed from and after the date said
documents are filed with or electronically transmitted for
filing to the Commission.
3. Representations and Warranties of the Company.
The Company represents and warrants to each Agent as of the date
of this Agreement, as of the date of each acceptance by the
2<PAGE>
Company of an offer for the purchase of Debentures, as of the
date of each delivery of Debentures, and as of the times referred
to in Section 8(b) hereof (each a "Representation Date"), as
follows:
a. The Registration Statement, the Prospectus and the
Indenture comply in all material respects with the
applicable provisions of the Securities Act or the Trust
Indenture Act of 1939, as amended (the "1939 Act"), as the
case may be, and the rules and regulations of the Commission
thereunder (respectively, the "Securities Act Regulations"
and the "1939 Act Regulations"). Neither the Registration
Statement nor the Prospectus contains any untrue statement
of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they are made, not misleading; provided, that the
representations and warranties in this Section 3(a) shall
not apply to statements in or omissions from the
Registration Statement and Prospectus made in reliance upon
and in conformity with information furnished in writing to
the Company by an Agent expressly for use in the
Registration Statement or Prospectus, or to any statements
in or omissions from the Statement of Eligibility and
Qualifications of the Trustee under the Indenture, but
nothing contained herein is intended as a waiver of
compliance with the Securities Act or the Securities Act
Regulations or any rule or regulation of the Commission
thereunder.
b. The Incorporated Documents, when filed with the
Commission, complied and will comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder
(the "Exchange Act Regulations"), and, when read together
with other information in the Prospectus, do not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they are made, not misleading.
c. The Indenture has been duly authorized and
qualified under the 1939 Act;
d. The Debentures have been duly authorized and will,
when issued and paid for as contemplated in this Agreement
and duly authenticated by the Trustee under the Indenture,
be legal, valid and binding obligations of the Company
enforceable in accordance with their terms (except as
limited by bankruptcy, insolvency or other laws, affecting
the enforcement of creditors' rights and by general
principles of equity).
e. The accountants who certified the financial
statements included or incorporated by reference in the
Prospectus are independent certified accountants with
3<PAGE>
respect to the Company within the meaning of the Securities
Act and the Securities Act Regulations (hereinafter, the
"Independent Accountants").
f. The Company is duly incorporated and validly
existing as a corporation in good standing under the laws of
the Commonwealth of Pennsylvania with corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus; and the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or
business affairs of the Company and its subsidiaries
considered as one enterprise.
g. No consent, approval, authorization, order or
decree of any court or governmental agency or body is
required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the 1939 Act, the 1939 Act
Regulations, the Securities Act, the Securities Act
Regulations, the Public Utility Holding Company Act of 1935
and the regulations thereunder or state securities or Blue
Sky laws.
h. Since the respective dates as of which information
is given in the Registration Statement and Prospectus,
except as otherwise stated therein or contemplated thereby,
there has been no material adverse change, nor any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings
or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business.
i. Each of Jersey Central Power & Light Company,
Metropolitan Edison Company, Pennsylvania Electric Company
and Energy Initiatives, Inc. (the "Significant
Subsidiaries") is duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a
material adverse effect on the financial or business
condition or the earnings or business of the Company and its
subsidiaries considered as one enterprise; all of the issued
4<PAGE>
and outstanding capital stock of each of the Significant
Subsidiaries has been duly authorized and validly issued, is
fully paid and non-assessable and, other than the preferred
stock of the Significant Subsidiaries, is owned by the
Company directly, free and clear of any security interest,
mortgage, pledge, lien or claim. There are no other
subsidiaries of the Company which would be considered a
"significant subsidiary" under Rule 405 of Regulation C
under the Securities Act.
j. The consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as at the dates
indicated and the results of their operations for the
periods specified; except as otherwise stated in the
Registration Statement, such financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting
schedules included or incorporated by reference in the
Registration Statement present fairly the information
required to be stated therein.
k. Neither the Company nor any of the Significant
Subsidiaries is in violation of its Articles of
Incorporation or Certificate of Incorporation, as the case
may be, or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of the Significant Subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of the
Significant Subsidiaries is subject; and the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of the Significant Subsidiaries pursuant to,
any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any
of the Significant Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or
assets of the Company or any of the Significant Subsidiaries
is subject, nor will such action result in any violation of
the provisions of the Articles of Incorporation or by-laws
of the Company or any applicable law, administrative or
court decree or, to the best knowledge of the Company, any
administrative regulation.
l. There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company,
5<PAGE>
threatened, against the Company or any of the Significant
Subsidiaries, that is required to be disclosed in the
Registration Statement, or which, if adversely decided,
would result in any material adverse change in the financial
or business condition or in the earnings or business of the
Company and its subsidiaries considered as one enterprise,
or which, if adversely decided, would materially and
adversely affect the properties or assets thereof or would
materially and adversely affect the consummation of this
Agreement other than such actions, suits or proceedings
which are disclosed in or contemplated by the Registration
Statement; and there are no contracts or documents of the
Company or any of its subsidiaries which are required to be
filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so
filed.
m. The Company and the Significant Subsidiaries
possess such certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory
agencies or bodies except such as to which the failure to
possess the same would not materially and adversely affect
the financial or business condition or the earnings or
business of the Company and its Significant Subsidiaries
considered as one enterprise and neither the Company nor any
of the Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of
any such certificate, authority or permit that, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the
financial or business condition or the earnings or business
of the Company and its subsidiaries considered as one
enterprise.
n. The Company is not and, after giving effect to
each offering and sale of the Debentures, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act").
o. Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes.
p. Immediately after any sale of Debentures by the
Company hereunder or under any Purchase Agreement (as
defined in Section 5(c) hereof), the aggregate amount of
Debentures which shall have been issued and sold by the
Company hereunder or under any Purchase Agreement and of
any debt securities of the Company (other than such
Debentures) that shall have been issued and sold pursuant to
the Registration Statement will not exceed the amount of
6<PAGE>
debt securities registered under the Registration Statement.
4. Administrative Procedures; Settlement.
a. Administrative procedures relating to the offer
and sale of the Debentures, the issuance and delivery of
certificates representing the Debentures and payment for the
Debentures are set forth in Exhibit A (as they may be
amended from time to time, the "Procedures"), the terms of
which are incorporated herein by reference. Each Agent and
the Company agree to perform the respective duties and
obligations to be performed by each of them as provided in
the Procedures. The Procedures may be amended only by a
written agreement between the Company and the Agents. The
Agents agree that the principal amount of Debentures to be
offered and sold from time to time, and the prices,
denominations, interest rates, maturities, redemption
provisions, if any, and other terms on which the Debentures
are to be offered and sold will comply with limitations
established by the Company with the Agents in accordance
with the Procedures.
b. Delivery of Debentures in fully registered form
shall be made in accordance with the Procedures. The date
of the delivery to the Agents of Debentures sold against
delivery to the Company of funds in payment therefor is
herein called the "Settlement Date."
5. Obligations of the Agents.
a. On the basis of the representations and warranties
contained herein, but subject to the terms and conditions
herein set forth, each Agent agrees, as agent of the
Company, to use its reasonable best efforts when requested
by the Company to solicit offers to purchase the Debentures
upon the terms and conditions set forth in the Prospectus
and the Procedures. In soliciting others (including
customers of the Agents) to purchase Debentures from the
Company, each Agent will be acting as sales agent for the
Company and not as principal. Each Agent will use its
reasonable best efforts to solicit such purchases, provided,
that such Agent may in its sole discretion suspend its
efforts from time to time. Upon acceptance by the Company
of a Solicited Offer, the Agent responsible for such offer
will make reasonable efforts to obtain performance by the
prospective purchaser of Debentures, but the Agent will have
no liability to the Company if such purchase is not
consummated for any reason.
b. Promptly on the Settlement Date, the Company will
pay each Agent a commission in the form of a discount equal
to the applicable percentage of the principal amount of
Debentures sold by the Company as a result of Solicited
Offers for which such Agent is responsible as set forth in
7<PAGE>
Exhibit B hereto. No portion of such commission may be
reallowed to dealers or purchasers in connection with the
offer and sale of any Debentures. No commission shall be
payable with respect to purchases by any Agent as principal,
except in accordance with Section 5(c) hereof.
c. From time to time any Agent may agree with the
Company to purchase Debentures from the Company as
principal, and, if requested by such Agent, such purchase
shall be made in accordance with the terms of a separate
agreement to be entered into between such Agent and the
Company (which may be an oral agreement confirmed in writing
or which may take the form of an exchange of any standard
form of written communication between such Agent and the
Company). Each such separate agreement is herein referred
to as a "Purchase Agreement." Each written Purchase
Agreement shall be substantially in the form of, and each
oral Purchase Agreement confirmed in writing or Purchase
Agreement consisting of an exchange of other standard forms
of written communication (unless otherwise agreed to by such
Agent and the Company) shall be deemed to include the terms
contained in, Exhibit C attached hereto. A Purchase
Agreement, to the extent set forth therein, may incorporate
by reference specified provisions of this Agreement. Under
no circumstances shall an Agent be obligated to purchase any
Debentures for its own account except to the extent the
Agent has made a firm commitment with the Company in
connection with an offering which has been expressly
authorized by the Company and agreed to by such Agent
pursuant to a Purchase Agreement. Each Agent's commitment to
purchase Debentures pursuant to a Purchase Agreement shall
be deemed to have been made on the basis of the
representations and warranties of the Company contained
herein. Unless otherwise specified in the applicable
Pricing Supplement, any Debenture sold to an Agent as
principal will be purchased by such Agent at a price equal
to 100% of the principal amount thereof less a percentage
equal to the commission applicable to an agency sale of a
Debenture of identical maturity, and may be resold by such
Agent to investors or other purchasers. In connection with
the resale of Debentures purchased by an Agent as principal,
such Agent may utilize a selling or dealer group and may
reallow a portion of the discount or commission payable to
such Agent to other dealers or purchasers.
d. Each Agent agrees that in carrying out the
transactions contemplated by this Agreement, it will observe
and comply with the Procedures. Each Agent agrees not to
cause any advertisement of the Debentures to be published in
any newspaper or periodical or posted in any public place,
and not to issue any circular relating to the Debentures
other than the Prospectus, except in any such case with the
express written consent of the Company.
8<PAGE>
6. Conditions to Obligations of Agents and
Purchasers. The obligations of the Agents to act and continue to
act as Agents hereunder, the obligation of any purchaser of
Debentures sold in connection with a Solicited Offer, and the
obligation of any Agent to purchase Debentures pursuant to a
Purchase Agreement shall be subject to the following conditions:
a. Any prospectus or prospectus supplement required
to be filed pursuant to Rule 424(b) under the Securities Act
to reflect the terms of an offer to purchase Debentures
shall have been timely filed in accordance with the
Securities Act.
b. There shall be in full force and effect orders of
the Commission which are acceptable to the Agents and which
permit the issuance and sale of the Debentures substantially
in accordance with the terms and conditions herein set
forth. The Agents hereby acknowledge that such orders in
effect as of the date of this Agreement are acceptable and
agree that subsequent orders (or amendments to existing
orders) shall be deemed acceptable unless the Agents shall
have given notice to the Company to the contrary not later
than 24 hours after receiving a copy thereof from the
Company.
c. No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or to
the knowledge of the Company threatened by, the Commission,
and the Agents shall have received a certificate to such
effect, dated the date of this Agreement and signed by an
officer of the Company.
d. The Company shall have performed all agreements
contained herein to be performed by it on or prior to such
date.
e. The representations and warranties of the Company
herein contained shall be true and correct, and the Agents
shall have received a certificate to such effect, dated the
date hereof and signed by an officer of the Company.
f. On the date of this Agreement, the Agents shall be
furnished with an opinion of Berlack, Israels & Liberman LLP
(herein sometimes referred to as "Counsel for the Company"),
dated the date of this Agreement, to the effect that:
(i) the Company is duly incorporated and validly
existing under the laws of the Commonwealth of Pennsylvania
and has corporate authority to conduct its business as
described in the Prospectus, to own, lease and operate its
properties and to issue the Debentures and the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in the State of New Jersey;
9<PAGE>
(ii) Each Significant Subsidiary of the Company is
duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus and, to the best of their
knowledge, except with respect to Energy Initiatives, Inc.
as to which such counsel need express no opinion, each such
Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
except where the failure to be so qualified would not have a
material adverse effect on the financial or business
condition or the earnings or business of such Significant
Subsidiaries; all of the issued and outstanding common stock
of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the
best of their knowledge, is owned by the Company directly,
free and clear of any security interest, mortgage, pledge,
lien or claim;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid
instrument legally binding upon the Company (except as
limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws, affecting creditors'
rights generally);
(iv) when the Debentures have been duly executed
by the Company, authenticated by the Trustee and delivered
by the Company, and payment therefor has been received by
the Company pursuant to this Agreement, they will be valid
and binding obligations of the Company in accordance with
their terms and entitled to the benefits provided by the
Indenture, subject to the limitation set forth in paragraph
(iii) of this Section 6(f);
(v) with respect to matters required to be
included in the Registration Statement, the statements made
in the Registration Statement under the heading "Description
of the Debentures" fairly present the information called for
insofar as such statements constitute summaries of certain
documents referred to therein;
(vi) all approvals, consents, and orders of the
Commission legally required for the execution and delivery
of the Indenture and the issuance and sale of the Debentures
have been obtained; and no approval or consent of any other
commission or other governmental authority is legally
required for such execution, delivery, issuance and sale
(except that the sale of the Debentures in certain states
may be subject to the provisions of the securities laws of
such states as to which no opinion need be expressed); and
such approvals, consents and orders are adequate to permit
the execution and delivery of the Indenture and the issuance
10<PAGE>
and sale of the Debentures in accordance with this
Agreement;
(vii) the Indenture is qualified under the 1939
Act;
(viii) this Agreement (or a Purchase Agreement, as
the case may be) has been duly authorized, executed and
delivered by the Company;
(ix) at the time the Registration Statement became
effective, and as of the date hereof, the Registration
Statement and Prospectus (except the financial statements
and other financial information included or incorporated by
reference therein, as to which counsel need express no
opinion) complied as to form in all material respects with
the requirements of the Securities Act and the rules and
regulations of the Commission regarding registration
statements on Form S-3 and related prospectuses, and the
documents or portions thereof filed with the Commission
pursuant to the Exchange Act and incorporated by reference
therein, comply as to form with the Exchange Act and the
Exchange Act Regulations; and
(x) to the best of such counsel's knowledge, (A)
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and (B) the
execution and delivery of this Agreement (or a Purchase
Agreement, as the case may be) and the Indenture and the
consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel and to which the Company is
a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, or any law,
administrative regulation or administrative or court order
or decree known to such counsel to be applicable to the
Company of any court or governmental agency, authority or
body or any arbitrator having jurisdiction over the Company;
nor will such action result in any violation of the
provisions of the articles of incorporation or by-laws of
the Company.
In addition, such counsel shall state that to the best
of such counsel's knowledge, without independent check or
verification except as indicated, nothing has come to the
attention of such counsel that would lead them to believe
that either (A) the Registration Statement, as of its
effective date, or, if an amendment to the Registration
Statement or an annual report on Form 10-K ("Form 10-K") has
been filed by the Company with the Commission subsequent to
11<PAGE>
the effectiveness of the Registration Statement, then at the
time of the most recent such filing, contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading, or (B) the
Prospectus, at the time it was electronically transmitted
for filing to the Commission or at the date of such opinion,
contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion, Berlack, Israels & Liberman LLP
may rely (i) as to matters of Pennsylvania law and legal
conclusions based thereon regarding Metropolitan Edison
Company, upon the opinion of Ryan, Russell, Ogden & Seltzer,
Reading, Pennsylvania, (ii) as to all other matters of
Pennsylvania law and legal conclusions based thereon, upon
the opinion of Ballard Spahr Andrews & Ingersoll,
Philadelphia, Pennsylvania, and (iii) as to matters of fact,
to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
g. On or prior to the first Settlement Date, the
Agents shall be furnished with an opinion, dated such date,
of Winthrop, Stimson, Putnam & Roberts (herein sometimes
referred to as "Counsel for the Agents"), stating in
substance the matters set forth in subparagraphs (iii),
(iv), (v), (vii), (viii) and (ix) and further stating that,
based on certain examinations, investigations and
participation in certain conferences as described in such
opinion, nothing has come to the attention of such counsel
that would lead them to believe that either (A) the
Registration Statement, as of its effective date, or, if an
amendment to the Registration Statement or an annual report
on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent
filing, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (B) the Prospectus, at the time it was
electronically transmitted for filing to the Commission or
at the date of this Agreement, contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving such opinion, Counsel for the Agents may rely
(i) as to all matters of New Jersey law and legal
conclusions based thereon, upon the opinion of Berlack,
Israels & Liberman LLP, (ii) as to matters of Pennsylvania
law and legal conclusions based thereon regarding
Metropolitan Edison Company, upon the opinion of Ryan,
12<PAGE>
Russell, Ogden & Seltzer, Reading, Pennsylvania, (iii) as to
all other matters of Pennsylvania law and legal conclusions
based thereon, upon the opinion of Ballard Spahr Andrews &
Ingersoll, Philadelphia, Pennsylvania, and (iv) as to
matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
public officials.
h. On the date of this Agreement, the Agents shall be
furnished with a letter, dated the date of this Agreement
and addressed to the Board of Directors of the Company and
the Agents from the Independent Accountants, to the effect
set forth in Exhibit D hereto.
i. On the date of this Agreement, the Agents shall
have received a certificate signed by a senior financial
officer of the Company, to the effect that except as
reflected in, or contemplated by, the Registration Statement
and Prospectus, since the most recent dates as of which
information is given therein, there has not been any
material adverse change, or any development involving a
prospective material adverse change, in the business,
properties or financial condition of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and since such
dates there has not been any material transaction entered
into by the Company other than transactions disclosed in or
contemplated by the Registration Statement and Prospectus
and transactions in the ordinary course of business, and the
Company has no material contingent obligation which is not
disclosed in the Registration Statement and Prospectus.
j. On and as of each Settlement Date, the Agents
shall have received a certificate of an officer of the
Company to the effect that (A) the resolutions of the
Company's Board of Directors at [a] regular meeting[s] held
on April 4, 1996 [and ____________, 1996], and of the
[Terms] Committee of the Board of Directors of the Company
at a meeting held on [____________, 1996] are still in full
force and effect and have not been altered, amended or
rescinded or certifying any amendments or alterations
thereto or any resolutions superseding such prior
resolutions and (B) the order issued by the Commission under
the 1935 Act is in full force and effect and sufficient to
authorize the issuance and sale of the Debentures on such
Settlement Date.
k. The Company shall have furnished to each Agent
such further information, documents, certificates and
opinions of counsel as the Agents may reasonably request.
In case any of the conditions specified above in this
Section 6 shall not have been fulfilled, or if all legal
proceedings to be taken in connection with the issuance and
sale of the Debentures shall not have been reasonably
satisfactory in form and substance to Counsel for the
13<PAGE>
Agents, the Agents and/or the purchasers of Debentures shall
have no further obligation to proceed with any offering,
solicitation, sale or purchase with respect to the
Debentures.
7. Covenants of the Company. The Company agrees as
follows:
a. The Company will file with the Commission a
prospectus or prospectus supplement pursuant to Rule 424(b)
under the Securities Act, with such changes therein as may
be approved by Counsel for the Agents, as soon as
practicable after the Company has accepted an offer to
purchase Debentures.
b. The Company will notify the Agents immediately of
(i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing
of any supplement to the Prospectus, or any document to be
filed pursuant to the Exchange Act which will be
incorporated by reference in the Prospectus, (iii) the
receipt of any comments from the Commission with respect to
the Registration Statement or the Prospectus, (iv) any
request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, and (vi) any
order of the Commission (or any amendment of any such order)
affecting the offer and sale of the Debentures as
contemplated by this Agreement. The Company will make every
reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting
thereof at the earliest practicable moment. The Company
will give the Agents notice of its intention to file any
additional registration statement with respect to the
registration of additional Debentures, any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (other than (i) a supplement or amendment
relating solely to the sale of the Debentures, (ii) a
supplement or amendment relating solely to a change in the
interest rates or maturities of the Debentures or a change
in the principal amount of Debentures remaining to be sold
or similar changes, and (iii) Forms 8-K that are filed
solely for the purpose of filing Exhibits pursuant to Item
601 of Regulation S-K) whether by the filing of documents
pursuant to the Exchange Act, the Securities Act or
otherwise, and will furnish the Agent with copies of any
such amendment or supplement or other documents proposed to
be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be.
14<PAGE>
c. The Company will, on or prior to the date hereof,
deliver to each Agent and also, on request, to Counsel for
the Agents:
(i) a copy of the Registration Statement as
originally filed and of each amendment thereto, each signed
by or on behalf of the proper officers of the Company and a
majority of its Board of Directors, including a signed copy
of each consent, opinion and certificate included therein or
filed as an exhibit thereto, and also including the exhibits
to, and the documents incorporated by reference in, such
Registration Statement and amendments thereto (other than
such exhibits as are incorporated in the Registration
Statement by reference, unless specifically requested), and,
so long as this Agreement remains in effect, as soon as
possible after each supplement or amendment to the
Prospectus has been filed with the Commission, as many
copies of the Prospectus, then current, and any documents
incorporated by reference therein, as the Agents may
reasonably request for the purposes contemplated by the
Securities Act.
(ii) such other documents (including copies of the
Registration Statement and of any amendments thereto, in
each case including documents incorporated therein by
reference but excluding exhibits) appropriately signed or
certified if so requested, relating to the issuance and
validity of the Debentures as any Agent or Counsel for the
Agents may reasonably request.
d. After acceptance of an offer to purchase
Debentures and prior to the termination of this Agreement,
the Company will file promptly all documents required to be
filed with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act, which documents shall be
satisfactory to Counsel for the Agents, and will deliver to
the Agents, without charge, promptly after the filing
thereof as many copies of each such report and amendment
(excluding exhibits) as the Agents may reasonably request.
f. Promptly after the effective date of any post-
effective amendment filed after acceptance by the Company of
an offer to purchase any Debentures or after the date of any
prospectus supplement or prospectus reflecting the terms of
such offer filed or electronically transmitted for filing to
the Commission, the Company will furnish to each Agent, in
accordance with each Agent's instructions, without charge,
as many copies of the Prospectus (without the documents
incorporated therein by reference) as each Agent may
reasonably request for the purposes contemplated by the
Securities Act.
f. If any event relating to or affecting the Company,
or of which the Company shall be advised by an Agent, shall
occur, which in the reasonable opinion of the Company or of
15<PAGE>
Counsel for the Agents should be set forth in a supplement
to or an amendment of the Prospectus so that the Prospectus,
as amended and supplemented, does not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made
when such Prospectus is delivered to a purchaser, not
misleading, the Company will, upon the occurrence of each
such event, forthwith at its own expense notify the Agents
promptly to suspend offers for sale and solicitations of
purchase of the Debentures, and promptly after the receipt
of such notice the Agents will suspend offers for sale and
solicitations of purchase of the Debentures and cease using
the Prospectus. If the Company shall decide to so amend or
supplement the Registration Statement or Prospectus, the
Company will promptly (i) prepare and furnish to each Agent
a reasonable number of copies of a supplement or amendment
to the Prospectus, reasonably satisfactory to Counsel for
the Agents, or (ii) file with the Commission documents to be
incorporated by reference in the Prospectus, reasonably
satisfactory to Counsel for the Agents in either case so
that statements in the Prospectus as so supplemented,
amended or modified will not contain as of the date of such
supplement, amendment or modification, any untrue statement
of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
the Prospectus is delivered to a purchaser, not misleading,
and will advise the Agents when they may resume offers for
sale, and solicitations of purchases, of the Debentures;
provided, that should such events relate solely to the
activities of the Agents, then the Agents shall assume the
expense of preparing such amendment or supplement.
If (i) during a period when an Agent owns Debentures
purchased from the Company by such Agent as principal or
such Agent is otherwise required to deliver a Prospectus in
respect of transactions in the Debentures, and (ii) any
event relating to or affecting the Company shall occur
which, in the reasonable opinion of the Company or of
Counsel for the Agents should be set forth in a supplement
to or an amendment of the Prospectus so that the Prospectus,
as amended and supplemented, does not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made
when such Prospectus is delivered to a purchaser, not
misleading, the Company shall promptly, at its expense,
prepare and file with the Commission a supplement to or
amendment of the Prospectus so that the Prospectus will not
contain as of the date of such supplement or amendment any
untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
are made when the Prospectus is delivered, not misleading.
16<PAGE>
g. The Company will make generally available to its
security holders as soon as practicable following each
calendar quarter, commencing with the next quarter beginning
after the date of this Agreement and ending with the fifth
calendar quarter after the end of the calendar quarter in
which the last sale of Debentures effected pursuant hereto
occurs, an earning statement (in form complying with the
provisions of Section 11(a) of the Securities Act and Rule
158 thereunder and which need not be certified by
independent public accountants unless required by the
Securities Act) covering a twelve-month period ending at the
close of the next preceding calendar quarter, which earning
statement shall be in the same detail as the statement of
income incorporated by reference in the Registration
Statement.
h. The Company will deliver to the Agents, so long as
this Agreement shall remain in effect, as promptly as
possible copies of any published reports of the Company to
its security holders, including any annual report and
quarterly reports of the Company, and any other financial
reports made generally available to its security holders.
i. The Company shall, whether or not any sale of
Debentures is consummated, pay all expenses incident to the
performance of its obligations under this Agreement,
including (A) the reasonable out-of-pocket expenses,
including fees and expenses of Counsel for the Agents, in
connection with this Agreement and the implementation of the
program for the offer and sale of the Debentures as
contemplated hereby and, unless otherwise stated in a
Purchase Agreement, in connection with the purchase by the
Agents or any Agent pursuant to Section 5(c) hereof
(exclusive of fees and expenses referred to in Sections
7(i)(B) and 7(j) below), and (B) all reasonable expenses,
fees and all taxes in connection with (i) except as provided
in Section 7(f) above, the preparation, filing, printing and
delivery of copies of any supplemental indenture,
Registration Statement and amendments thereto and the
Prospectus and amendments and supplements thereto (including
in each case all documents incorporated by reference
therein), this Agreement and all other documents relating to
this offering, (ii) the preparation, printing, issuance and
delivery of the Debentures, (iii) the qualification of the
Debentures under blue sky laws as aforesaid (subject to the
limit on such fees specified in subsection (j) of this
Section 7), (iv) the furnishing of the opinions of Counsel
for the Company and certificates of the Company, (v) the
services rendered by its accountants in connection with this
Agreement and the transactions contemplated hereby and (vi)
the continuing advice and services of Counsel for the Agents
after the date hereof in connection with the transactions
contemplated hereby. The Agents agree to notify the Company
upon execution of this Agreement and semi-annually
17<PAGE>
thereafter, in writing in reasonable detail of the amount of
such fees and expenses.
j. The Company will use its best efforts to qualify
at its expense the Debentures for offer and sale under the
securities laws in such states as the Agents may from time
to time designate, and will pay all fees and expenses
including fees and disbursements of counsel not to exceed
$7,500 incurred in connection with the preparation of
surveys relating thereto and to legality for investment;
provided, that the Company shall not be required to qualify
as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
k. If the Company shall default in its obligations to
deliver Debentures to a purchaser whose Solicited Offer it
has accepted, the Company shall (i) hold the Agents harmless
against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to each
Agent any commission to which it would be entitled in
connection with such sale.
l. Upon receipt by the Company of any order of the
Commission (or of any amendment of any such order) affecting
the offer and sale of the Debentures as contemplated by this
Agreement, the Company shall immediately deliver a copy of
such order or amendment to each Agent.
m. During the period, if any, specified in any
Purchase Agreement, the Company will not issue or announce
the proposed issuance of any Debentures or of securities
with terms substantially similar to the Debentures;
provided, however, that the foregoing shall not extend to
borrowings by the Company from banks in the ordinary course
of business.
n. The Company shall offer to any person who has
agreed to purchase Debentures as a result of an offer to
purchase solicited by an Agent the right to refuse to
purchase and pay for such Debentures if, on the related
Settlement Date, (i) there has been, since the date on which
such person agreed to purchase the Debentures (the "Trade
Date"), or since the respective dates as of which
information is given in the Registration Statement, any
material adverse change, or any development involving a
prospective material adverse change, in the condition,
financial or otherwise, or in the earnings or business
affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary
course of business, the effect of which shall be as to make
it, in the reasonable judgment of such person, impracticable
or inadvisable to purchase the Debentures, or (ii) there
shall have occurred any outbreak of hostilities, or
escalation thereof, or any change in financial markets or
other calamity or crisis the effect of which shall be such
18<PAGE>
as to make it, in the reasonable judgment of such person,
impracticable or inadvisable to purchase the Debentures, or
(iii) trading in any securities of the Company has been
suspended by the Commission, or trading of any securities of
the Company has been suspended on any exchange or in any
over-the-counter market, or trading generally on the New
York Stock Exchange has been suspended, or there shall have
been established any general limitation on prices for such
trading or any general restrictions on the distribution of
securities by such Exchange or by order of the Commission or
any other governmental authority, or (iv) a banking
moratorium shall have been declared by either Federal or New
York authorities, or (v) the rating assigned by any
nationally recognized securities rating agency to any debt
securities of the Company as of the Trade Date shall have
been lowered since that date or if any such rating agency
shall have publicly announced that it has placed any debt
securities of the Company on what is commonly termed a
"watch list" for possible downgrading.
8. Further Representations, Warranties and Covenants
by the Company. The Company further represents, warrants and
agrees with the Agents as follows:
a. Each authorization by the Company to the Agents to
offer for sale, or solicit purchases of, the Debentures as
provided in the Procedures shall be deemed to be an
affirmation that the representations and warranties of the
Company contained in this Agreement are true and correct at
the time of such authorization and an undertaking that such
representations and warranties will be true and correct on
the Settlement Date, in each case as though made at and as
of each such time (except that such representations and
warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
each such time).
b. Each time that the Registration Statement or the
Prospectus shall be amended or supplemented, or a document
shall be filed under the Exchange Act which is incorporated
by reference in the Registration Statement or Prospectus
(except (i) supplements or amendments relating solely to the
sale of the Debentures, and (ii) Forms 8-K that are filed
solely for the purpose of filing exhibits pursuant to Item
601 of Regulation S-K), the Company shall furnish or cause
to be furnished forthwith to the Agents a certificate in
form and substance satisfactory to the Agents in their
reasonable judgment to the effect that the statements
contained in the certificates referred to in Sections 6(c)
and 6(i) hereof which were last furnished to the Agents are
true and correct at the time of such amendment or supplement
or filing as though made at and as of such time (except that
such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such time), or, in lieu of such a
19<PAGE>
certificate, a certificate, in form and substance
satisfactory to the Agents in their reasonable judgment, of
the same general tenor as the certificate referred to in
said Section 6(i) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate. Any certificate
signed by any officer of the Company and delivered to any
Agent or to Counsel for the Agents in connection with an
offering of Debentures shall be deemed a representation and
warranty by the Company to such Agent as to the matters
covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
c. Each time that the Registration Statement or the
Prospectus shall be amended or supplemented, or a document
shall be filed under the Exchange Act which is incorporated
by reference in the Registration Statement or Prospectus
(except (i) supplements or amendments relating solely to the
sale of the Debentures, (ii) supplements or amendments
relating solely to a change in the interest rates or
maturities of the Debentures or a change in the principal
amount of Debentures remaining to be sold or similar
changes, (iii) Forms 8-K that are filed solely for the
purpose of filing exhibits pursuant to Item 601 of
Regulation S-K and (iv) any Current Report on Form 8-K
unless the Agent shall otherwise specify), the Company shall
furnish or cause to be furnished forthwith to the Agents a
written opinion of Counsel for the Company, dated the date
of delivery thereof and in form and substance reasonably
satisfactory to Counsel for the Agents, of the same tenor as
paragraphs (iv) and (ix) of Section 6(f) and the paragraph
next succeeding paragraph (x) of Section 6(f), but modified
to relate to the Registration Statement and the Prospectus
as amended and supplemented to the date of such opinion or,
in lieu of such opinion, Counsel for the Company may furnish
to the Agents a letter to the effect that the Agents may
rely on such last opinion to the same extent as though it
were dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed
to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such
letter authorizing reliance).
d. Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to set forth
financial information included in or derived from the
Company's financial statements, or any document containing
financial information so included or derived shall be filed
under the Exchange Act and incorporated by reference in the
Prospectus, the Company shall cause the Independent
Accountants to furnish to the Agents a letter, dated the
date of filing such amendment or supplement or document with
the Commission, in form and substance satisfactory to the
Agents in their reasonable judgment, of the same general
tenor as the letter referred to in Section 6(h) hereof but
20<PAGE>
with appropriate modifications to relate to the Registration
Statement and the Prospectus as amended and supplemented to
the date of such letter and as may be necessary to reflect
changes in the financial information included or
incorporated by reference in the Registration Statement and
the Prospectus as then amended or supplemented since the
date of the last previous such letter furnished to the
Agents; provided, however, that no letter need be furnished
with respect to year-end audited financial statements of the
Company if copies of such year-end audited financial
statements are delivered to the Agents, unless in the
reasonable judgement of any of you, such letter should cover
information or changes in one or more specified financial
statement line items or under "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
contained in such year-end audited financial statements and
such information or any such change requested is not
otherwise included in or derivable from the information
contained in the financial statements or financial statement
schedules audited by the Independent Accountants and
referred to in the Report of Independent Accountants
contained in such year-end audited financial statements.
e. Notwithstanding the foregoing, if, at any time and
from time to time during the term of this Agreement, the
Company delivers to the Agents notification of its decision
to suspend the solicitation of offers to purchase Debentures
hereunder, and, during the period, if any, specified in any
Purchase Agreement, the Agent shall not then hold any
Debentures as principal purchased pursuant to a Purchase
Agreement, then during the period of any such suspension the
Company shall be relieved of its obligation to provide to
the Agents the certificate, opinion and letter required
pursuant to Sections 8(b), 8(c) and 8(d). However, if and
when any such suspension is lifted, the Company shall be
required to deliver to the Agents, prior to the resumption
of such solicitations hereunder, a certificate, opinion and
letter in form and substance reasonably satisfactory to the
Agents in their reasonable judgment, of the same general
tenor as the certificates, opinion and letter referred to in
Sections 6(c) and 6(i); Section 6(f); and Section 6(h),
respectively, but modified to relate to the Registration
Statement and the Prospectus Supplement as amended and
supplemented during the period of such suspension.
9. Indemnification.
a. The Company will indemnify and hold harmless each
Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the
21<PAGE>
Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Debentures, or any
amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will
reimburse such Agent for any legal or other expenses
reasonably incurred by it in connection with investigating
or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to
the Debentures, or any such amendment or supplement, in
reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use
therein.
b. Each Agent will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other
prospectus relating to the Debentures, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Debentures, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to
the Company by such Agent expressly for use therein; and
will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
c. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall
22<PAGE>
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, which consent shall not be unreasonably withheld, be
counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or
potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does
not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any
indemnified party.
10. Contribution. If the indemnification provided for
in Section 9 hereof is for any reason held to be unenforceable by
an indemnified party under subsection (a) or (b) of such Section
9 hereof in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each Agent on the
other from the offering of the Debentures to which such loss,
claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (c) of such Section 9 hereof, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of
the Company on the one hand and each Agent on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
23<PAGE>
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and each Agent on the other shall be deemed to be in
the same proportion as the total net proceeds from the sale of
Debentures (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent
in respect thereof. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the
one hand or by any Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by per
capita allocation (even if all Agents were treated as one entity
for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to
above in this Section 10. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this Section 10 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 10, an
Agent shall not be required to contribute any amount in excess of
the amount by which the total public offering price at which the
Debentures purchased by or through it were sold exceeds the
amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this Section 10 to
contribute are several in proportion to the respective purchases
made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not
joint.
The obligations of the Company under Section 9 hereof and
this Section 10 shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Agent
within the meaning of the Act; and the obligations of each Agent
under Section 9 hereof and this Section 10 shall be in addition
to any liability which such Agent may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls
the Company within the meaning of the Act.
11. Termination. This Agreement may be terminated, at
any time by any party hereto upon the giving of 24 hours written
24<PAGE>
notice of such termination to the other parties hereto effective
at the close of business on the date such notice is received. In
the event of any such termination, no party shall have any
liability to any other party hereto; provided that, Sections
5(b), 7(i), 9, 10, 12 and 13 hereof shall survive the termination
of this Agreement; and provided further that, if at the time of
any such termination the Agents shall have previously confirmed
sales of Debentures for which delivery and payment has not yet
been made, the Company shall continue to comply with Sections 4,
7 and 8 hereof until delivery of and payment for all Debentures
so sold.
12. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement or any Purchase Agreement, or
contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
any Agent or any controlling person of any Agent, or by or on
behalf of the Company, and shall survive each delivery of and
payment for any of the Debentures.
13. Miscellaneous. The validity and interpretation of
this Agreement shall be governed by the laws of the State of New
York. Any suit, action or proceeding brought by the Company or
any Agent in connection with, or arising under, this Agreement
shall be brought only in the state or federal court of
appropriate jurisdiction located either in the Borough of
Manhattan, the City of New York or in any state or federal court
of appropriate jurisdiction located in the Town of Morristown,
County of Morris, New Jersey or the District of New Jersey. This
Agreement shall inure to the benefit of the Company, the Agents
and, with respect to the provisions of Section 9 hereof, each
director, officer and controlling person referred to in said
Section 9, and their respective successors. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Agreement. The
term "successor" as used herein shall not include any purchaser,
as such purchaser, of any of the Debentures from any Agent.
14. Notices. Except as otherwise specifically
provided herein or in the Procedures, all communications
hereunder shall be in writing, or by telex or facsimile, or by
telephone or telegram if subsequently confirmed in writing, and,
if to the Agents shall be mailed or delivered to Goldman, Sachs &
Co., 85 Broad Street, New York, NY 10004, Attention: Credit
Department, Telephone: (212) 902-1000, Facsimile: (212) 902-357-
8680; and Morgan Stanley & Co. Incorporated, 1251 Avenue of the
Americas, New York, NY 10020, Attention: Manager of Credit
Department, Telephone: (212) 703-4000, Facsimile: (212) 703-4575
and, if to the Company, shall be mailed or delivered to it at c/o
GPU Service Corporation, 100 Interpace Parkway, Parsippany, NJ
07054-1149, Attention: Vice President and Treasurer, Telephone:
(201) 263-6500, Facsimile: (201) 263-6719, with a copy thereof to
25<PAGE>
Douglas E. Davidson, Esq., Berlack, Israels & Liberman LLP, 120
West 45th Street, 29th Floor, New York, NY 10036, Telephone:
(212) 704-0100, Facsimile: (212) 704-0196.
15. Counterparts. This Agreement may be executed in
two or more counterparts, all of which together shall constitute
one and the same instrument.
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
GENERAL PUBLIC UTILITIES CORPORATION
By_______________________________
Name:
Title:
Accepted and delivered as of
the date first above written.
_______________________________
(Goldman, Sachs & Co.)
MORGAN STANLEY & CO. INCORPORATED
By_______________________________
Name:
Title:
26<PAGE>
EXHIBIT A
ADMINISTRATIVE PROCEDURES
These Administrative Procedures relate to the Debentures
defined in the Distribution Agreement, dated _____________, 1996
(the "Distribution Agreement"), between General Public Utilities
Corporation (the "Company") and Goldman, Sachs & Co. and Morgan
Stanley & Co., Incorporated (the "Agents"), to which these
Administrative Procedures are attached as Exhibit A. Defined
terms used herein and not defined herein shall have the meanings
given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement
of sales of Debentures directly by the Company to purchasers
solicited by an Agent, as agent, are set forth below. The terms
and settlement details related to a purchase of Debentures by an
Agent, as principal, from the Company will be set forth in a
Purchase Agreement pursuant to the Distribution Agreement,
unless the Company and such Agent otherwise agree as provided in
Section 5(c) of the Distribution Agreement, in which case the
procedures to be followed in respect of the settlement of such
sale will be as set forth below. An Agent, in relation to a
purchase of a Debenture by a purchaser solicited by such Agent,
is referred to herein as the "Selling Agent" and, in relation to
a purchase of a Debenture by such Agent as principal other than
pursuant to a Purchase Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of those
persons with whom such Agent is to communicate regarding offers
to purchase Debentures and the related settlement details.
Each Debenture will be issued only in fully registered form
and will be represented by either a global security (a "Global
Debenture") delivered to the Trustee, as agent for The Depository
Trust Company (the "Depositary") and recorded in the book-entry
system maintained by the Depositary (a "Book-Entry Debenture") or
a certificate issued in definitive form (a "Certificated
Debenture") delivered to a person designated by an Agent, as set
forth in the applicable Pricing Supplement. An owner of a
Book-Entry Debenture will not be entitled to receive a
certificate representing such a Debenture, except as provided in
the Indenture.
Book-Entry Debentures will be issued in accordance with the
Administrative Procedures set forth in Part I hereof, and
Certificated Debentures will be issued in accordance with the
Administrative Procedures set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY DEBENTURES
In connection with the qualification of the Book-Entry
Debentures for eligibility in the book-entry system maintained by
the Depositary, the Trustee will perform the custodial, document
control and administrative functions described below, in
accordance with its respective obligations under a Letter of<PAGE>
Representation from the Company and the Trustee to the
Depositary, dated the date hereof, and a Medium-Term Note
Certificate Agreement between the Trustee and the Depositary,
dated as of .................., 19.., (the "Certificate
Agreement"), and its obligations as a participant in the
Depositary, including the Depositary's Same-Day Funds Settlement
System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time
the rates of interest per annum to be borne by and the maturity
of Book-Entry Debentures that may be sold as a result of the
solicitation of offers by an Agent. The Company may establish a
fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation
of offers until the new posted rates have been established with
the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase
Book-Entry Debentures, other than those rejected by such Agent.
Each Agent may, in its discretion reasonably exercised, reject
any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Book-Entry Debentures
as a Purchasing Agent. The Company will have the sole right to
accept offers to purchase Book-Entry Debentures and may reject
any such offer in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or
rejection of an offer to purchase Book-Entry Debentures. If the
Company accepts an offer to purchase Book-Entry Debentures, it
will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and
Settlement Procedures:
A. After the acceptance of an offer by the Company, the
Selling Agent or Purchasing Agent, as the case may be, will
communicate promptly, but in no event later than the time set
forth under "Settlement Procedure Timetable" below, the following
details of the terms of such offer (the "Sale Information") to
the Company by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Debentures to be
purchased;
(2) If a Fixed Rate Book-Entry Debenture, the interest rate
and initial interest payment date;
2<PAGE>
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is
other than U.S. dollars, the applicable Exchange Rate
for such Specified Currency (it being understood that
currently the Depositary accepts deposits of Global
Debentures denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Debenture, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each
anniversary of the Redemption Commencement
Date;
(12) If a Floating Rate Book-Entry Debenture, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at
settlement;
(15) Book-Entry Debenture or Certificated Debenture; and
3<PAGE>
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling
Agent or Purchasing Agent, as the case may be, the Company will
communicate such Sale Information to the Trustee by facsimile
transmission or other acceptable written means. The Company will
obtain a CUSIP number for the Global Debenture from Standard &
Poor's Corporation's CUSIP Services Bureau representing such
Book-Entry Debenture and then advise the Trustee and the Selling
Agent or Purchasing Agent, as the case may be, of such CUSIP
number.
C. The Trustee will enter a pending deposit message
through the Depositary's Participant Terminal System, providing
the following settlement information to the Depositary, and the
Depositary shall forward such information to such Agent and
Standard & Poor's Corporation's CUSIP Service Bureau:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Debenture representing such
Book-Entry Debenture;
(3) Whether such Global Debenture will represent any other
Book-Entry Debenture (to the extent known at such
time);
(4) Number of the participant account maintained by the
Depositary on behalf of the Selling Agent or Purchasing
Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry
Debenture, number of days by which such date succeeds
the record date for the Depositary's purposes (which in
the case of Floating Rate Debentures which reset weekly
shall be the date five calendar days immediately
preceding the applicable Interest Payment Date and in
the case of all other Book-Entry Debentures shall be
the Regular Record Date, as defined in the Debenture)
and, if calculable at that time, the amount of interest
payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global
Debenture previously delivered by the Company representing such
Book-Entry Debenture.
E. The Depositary will credit such Book-Entry Debenture to
the Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through
the Depositary's Participant Terminal System instructing the
Depositary to (i) debit such Book-Entry Debenture to the
Trustee's participant account and credit such Book-Entry
4<PAGE>
Debenture to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Book-Entry
Debenture less such Agent's commission. The entry of such a
deliver order shall constitute a representation and warranty by
the Trustee to the Depositary that (a) the Global Debenture
representing such Book-Entry Debenture has been issued and
authenticated and (b) the Trustee is holding such Global
Debenture pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the
Depositary (i) to debit such Book-Entry Debenture to such Agent's
participant account and credit such Book-Entry Debenture to the
participant accounts of the Participants with respect to such
Book-Entry Debenture and (ii) to debit the settlement accounts of
such Participants and credit the settlement account of such Agent
for an amount equal to the price of such Book-Entry Debenture.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures F and G will be
settled in accordance with SDFS operating procedures in effect on
the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at CitiBank,
N.A., New Castle, Delaware, or such other account as the Company
may have previously specified to the Trustee, in funds available
for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry
Debentures outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Debenture to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Debenture a
confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written
confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the
Company or the Trustee, promptly furnish to the Company or the
Trustee a list of the names and addresses of the participants for
whom the Depositary has credited Book-Entry Debentures.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry
Debenture, it will prepare a Pricing Supplement reflecting the
terms of such Book-Entry Debenture and arrange to have delivered
to the Selling Agent or Purchasing Agent, as the case may be, via
facsimile, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date (as defined below), or if
5<PAGE>
the Company and the purchaser agree to settlement on the Business
Day following the date of acceptance of such offer, not later
than noon, New York City time, on such date. The Company will
arrange to have the Pricing Supplement filed with the Commission
in accordance with Rule 424(b) under the Securities Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling
Agent:
The Selling Agent will deliver to the purchaser of a
Book-Entry Debenture a written confirmation of the sale and
delivery and payment instructions. In addition, the Selling
Agent will deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Debenture prior to or together with
the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Book-Entry Debenture.
Date of Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Debenture and the authentication and
issuance of the Global Debenture representing such Book-Entry
Debenture shall constitute "settlement" with respect to such
Book-Entry Debenture. All orders of Book-Entry Debentures
solicited by a Selling Agent or made by a Purchasing Agent and
accepted by the Company on a particular date (the "Trade Date")
will be settled on a date (the "Settlement Date") which is the
fifth Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the
Company and the purchaser agree to settlement on another Business
Day which shall be no earlier than the next Business Day after
the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Debentures solicited by a Selling
Agent and accepted by the Company for settlement on the third
Business Day after the Trade Date, Settlement Procedures "A"
through "I" set forth above shall be completed as soon as
possible but not later than the respective times (New York City
time) set forth below:
6<PAGE>
Settlement
Procedure Time
A 5:00 p.m. on the Business Day following the
Trade Date or 10:00 a.m. on the
Business Day prior to the
Settlement Date, whichever is
earlier
B 12:00 noon on the second Business Day
immediately preceding the
Settlement Date
C 2:00 p.m. on the second Business Day
immediately preceding the
Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry
Debenture has not been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been determined but
no later than 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date. Settlement Procedure "H" is
subject to extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Debenture is rescheduled or
canceled, the Trustee, upon obtaining knowledge thereof, will
deliver to the Depositary, through the Depositary's Participation
Terminal System, a cancellation message to such effect by no
later than 2:00 p.m. on the Business Day immediately preceding
the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Debenture pursuant to Settlement
Procedure "F", the Trustee may deliver to the Depositary, through
the Depositary's Participant Terminal System, as soon as
practicable a withdrawal message instructing the Depositary to
debit such Book-Entry Debenture to the Trustee's participant
account, provided that the Trustee's participant account contains
a principal amount of the Global Debenture representing such
7<PAGE>
Book-Entry Debenture that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Debentures represented by a Global
Debenture, the Trustee will mark such Global Debenture
"canceled", make appropriate entries in the Trustee's records and
send such canceled Global Debenture to the Company. The CUSIP
number assigned to such Global Debenture shall, in accordance
with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Debentures represented by a Global Debenture, the Trustee will
exchange such Global Debenture for two Global Debentures, one of
which shall represent such Book-Entry Debenture or Debentures and
shall be canceled immediately after issuance and the other of
which shall represent the remaining Book-Entry Debentures
previously represented by the surrendered Global Debenture and
shall bear the CUSIP number of the surrendered Global Debenture.
If the purchase price for any Book-Entry Debenture is not
timely paid to the participants with respect to such Book-Entry
Debenture by the beneficial purchaser thereof (or a person,
including an indirect participant in the Depositary, acting on
behalf of such purchaser), such participants and, in turn, the
Agent for such Book-Entry Debenture may enter deliver orders
through the Depositary's Participant Terminal System debiting
such Book-Entry Debenture to such participant's account and
crediting such Book-Entry Debenture to such Agent's account and
then debiting such Book-Entry Debenture to such Agent's
participant account and crediting such Book-Entry Debenture to
the Trustee's participant account and shall notify the Company
and the Trustee thereof. Thereafter, the Trustee will (i)
immediately notify the Company of such order and the Company
shall transfer to such Agent funds available for immediate use in
an amount equal to the price of such Book-Entry Debenture which
was credited to the account of the Company maintained at the
Trustee in accordance with Settlement Procedure I, and (ii)
deliver the withdrawal message and take the related actions
described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable
Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on
an equitable basis for the loss of its use of funds during the
period when the funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Debenture, the Depositary may take
any actions in accordance with its SDFS operating procedures then
in effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Debentures to have
been represented by a Global Debenture, the Trustee will provide,
in accordance with Settlement Procedure "D", for the
authentication and issuance of a Global Debenture representing
the other Book-Entry Debentures to have been represented by such
Global Debenture and will make appropriate entries in its
8<PAGE>
records. The Company will, from time to time, furnish the
Trustee with a sufficient quantity of Debentures.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED DEBENTURES
Posting Rates by Company:
The Company and the Agents will discuss from time to time
the rates of interest per annum to be borne by and the maturity
of Certificated Debentures that may be sold as a result of the
solicitation of offers by an Agent. The Company may establish a
fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation
of offers until the new posted rates have been established with
the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase
Certificated Debentures, other than those rejected by such Agent.
Each Agent may, in its discretion reasonably exercised, reject
any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Certificated
Debentures as a Purchasing Agent. The Company will have the sole
right to accept offers to purchase Certificated Debentures and
may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or
rejection of an offer to purchase Certificated Debentures. If
the Company accepts an offer to purchase Certificated Debentures,
it will confirm such acceptance in writing to the Selling Agent
or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate
the following details of the terms of such offer (the "Sale
Information") to the Company by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means:
(1) Principal Amount of Certificated Debentures to be
purchased;
(2) If a Fixed Rate Certificated Debenture, the interest
rate and initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
9<PAGE>
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is
other than U.S. dollars, the applicable Exchange Rate
for such Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Debenture, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each
anniversary of the Redemption Commencement
Date;
(12) If a Floating Rate Certificated Debenture, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at
settlement;
(15) Book-Entry Debenture or Certificated Debenture; and
(16) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
10<PAGE>
If the Company accepts an offer to purchase a Certificated
Debenture, it will prepare a Pricing Supplement reflecting the
terms of such Certificated Debenture and arrange to have
delivered to the Selling Agent or Purchasing Agent, as the case
may be, via facsimile, not later than 5:00 p.m., New York City
time, on the Business Day following the Trade Date, or if the
Company and the purchaser agree to settlement on the date of
acceptance of such offer, not later than noon, New York City
time, on such date. The Company will arrange to have the Pricing
Supplement filed with the Commission in accordance with Rule
424(b) under the Securities Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling
Agent:
The Selling Agent will deliver to the purchaser of a
Certificated Debenture a written confirmation of the sale and
delivery and payment instructions. In addition, the Selling
Agent will deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Debenture prior to or together with
the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Certificated Debenture.
Date of Settlement:
All offers of Certificated Debentures solicited by a Selling
Agent or made by a Purchasing Agent and accepted by the Company
will be settled on a date (the "Settlement Date") which is the
third Business Day after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00
a.m., New York City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of
Certificated Debentures:
After receiving the Sale Information from the Selling Agent
or Purchasing Agent, as the case may be, the Company will
communicate such Sale Information to the Trustee by telephone
(confirmed in writing) or by facsimile transmission or other
acceptable written means.
The Company will instruct the Trustee by facsimile
transmission or other acceptable written means to authenticate
and deliver the Certificated Debentures no later than 2:15 p.m.,
New York City time, on the Settlement Date. Such instruction
will be given by the Company prior to 3:00 p.m., New York City
time, on the Business Day immediately preceding the Settlement
Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Debentures in which
case such instruction will be given by the Company by 11:00 a.m.,
New York City time.
11<PAGE>
Preparation and Delivery of Certificated Debentures by Trustee
and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Debenture and
appropriate receipts that will serve as the documentary control
of the transaction.
In the case of a sale of Certificated Debentures to a
purchaser solicited by a Selling Agent, the Trustee will, by 2:15
p.m., New York City time, on the Settlement Date, deliver the
Certificated Debentures to the Selling Agent for the benefit of
the purchaser of such Certificated Debentures against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date
the Selling Agent will deliver payment for such Certificated
Debentures in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Debentures
less the Selling Agent's commission; provided that the Selling
Agent reserves the right to withhold payment for which it has not
received funds from the purchaser.
In the case of a sale of Certificated Debentures to a
Purchasing Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Debentures
to the Purchasing Agent against delivery of payment for such
Certificated Debentures in immediately available funds to the
Company in an amount equal to the issue price of the Certificated
Debentures less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make
payment to the Selling Agent for a Certificated Debenture, the
Selling Agent will promptly notify the Trustee and the Company
thereof by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Debenture to the
Trustee. Immediately upon receipt of such Certificated Debenture
by the Trustee, the Company will return to the Selling Agent an
amount equal to the amount previously paid to the Company in
respect of such Certificated Debenture. The Company will
reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the
account of the Company.
The Trustee will cancel the Certificated Debenture in
respect of which the failure occurred, make appropriate entries
in its records and, unless otherwise instructed by the Company,
destroy the Certificated Debenture.
12<PAGE>
EXHIBIT B
The Company agrees to pay each Agent a commission equal
to the following percentage of the aggregate principal amount of
Debentures sold to purchasers solicited by each Agent.
Term Commission Rate
From 9 months but less than 1 year. . . . . . . . . .125%
From 1 year but less than 18 months . . . . . . . . .150%
From 18 months but less than 2 years. . . . . . . . .200%
From 2 years but less than 3 years. . . . . . . . . .250%
From 3 years but less than 4 years. . . . . . . . . .350%
From 4 years but less than 5 years. . . . . . . . . .450%
From 5 years but less than 6 years. . . . . . . . . .500%
From 6 years but less than 7 years. . . . . . . . . .550%
From 7 years but less than 10 years . . . . . . . . .600%
From 10 years but less than 15 years. . . . . . . . .625%
From 15 years but less than 20 years. . . . . . . . .675%
From 20 to 30 years . . . . . . . . . . . . . . . . .750%
Greater than 30 years . . . . . . . . . . . . [To be negotiated]<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
_________ __, 19__
General Public Utilities Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054-1149
Attention: Vice President and Treasurer
Gentlemen:
The undersigned agrees to purchase the principal amount
of the Debentures described in the Distribution Agreement dated
__________, 1996 (the "Distribution Agreement") and in Schedule 1
attached hereto (capitalized terms not defined herein shall be as
defined in the Distribution Agreement).
Our obligation to purchase Debentures hereunder is
subject to the accuracy of your representations and warranties
contained in the Distribution Agreement on the date hereof and on
the Settlement Date and to your performance and observance of the
covenants and agreements contained in the Distribution Agreement.
Our obligation hereunder is subject to the further condition that
we shall receive (1) the opinions, dated the Settlement Date,
required to be delivered pursuant to Sections 6(f) and 6(g) of
the Distribution Agreement, (2) the certificates, dated the
Settlement Date, required to be delivered pursuant to Sections
6(i) and 6(j) of the Distribution Agreement, (3) the letter,
dated the Settlement Date, required to be delivered pursuant to
Section 6(h) of the Distribution Agreement, and (4) additional
terms specified in Schedule 1 hereto.
This Agreement may be terminated by us, immediately
upon notice to the Company, at any time prior to the Settlement
Date relating thereto (i) if there has been, since the date of
this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material
adverse change, or development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings or business affairs of the Company and its
subsidiaries, if any, considered as one enterprise, whether or
not arising in the ordinary course of business the effect of
which shall be such as to make it, in our judgment, impracticable
to market the Debentures or enforce contracts for the sales of
the Debentures, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or
any new outbreak of hostilities including, but not limited to, an
escalation of hostilities which existed prior to the date hereof,
or other national or international calamity or crisis the effect
of which shall be such as to make it, in our judgment,
impracticable to market the Debentures or enforce contracts for<PAGE>
the sales of the Debentures, or (iii) if trading in any
securities of the Company shall have been suspended by the
Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, by either of said
exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, or (iv) if the rating
assigned by any nationally recognized securities rating agency to
any debt securities of the Company as of the date of this
Agreement shall have been lowered since that date or if any such
rating agency shall have publicly announced that it has placed
any debt securities of the Company on what is commonly termed a
"watch list" for possible downgrading, or (v) if there shall have
come to our attention any facts that would cause us to believe
that the Prospectus, at the time it was required to be delivered
to a purchaser of Debentures, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not
misleading.
In the event of any termination, neither party to this
Agreement will have any liability to the other party hereto,
except that, (i) if at the time of termination, we shall own any
Debentures purchased pursuant to this Agreement with the
intention of reselling them, the covenants set forth in Sections
7 and 8 of the Distribution Agreement shall remain in effect
until such Debentures are so resold and (ii) the covenant set
forth in Section 7(g) of the Distribution Agreement, the
provisions of Section 7(i) thereof, the indemnity and
contribution agreements set forth in Sections 9 and 10 thereof
and the provisions of Sections 12 and 13 thereof shall remain in
effect.
This agreement shall be governed by and construed in
accordance with the laws of New York.
[Agent]
By__________________________
Accepted: , 19__
General Public Utilities Corporation
By ________________________________
2<PAGE>
SCHEDULE 1 TO EXHIBIT C
Registration Statement:
No. 33-_______
Indenture:
Indenture dated as of __________ 1, 199_, between the Company and
United Stated Trust Company of New York, as Trustee, as
supplemented.
Title of Purchased Debentures:
Aggregate Principal Amount:
Price to Public:
Purchase Price:
____% of the principal amount of the Purchased Debentures.
Date and Time of Delivery:
Method of and Specified Funds for Payment of Purchase Price:
Closing Location:
Redemption Provisions:
Maturity:
Interest Rate:
Interest Payment Dates:
Period during which additional
Debentures may not be sold and during
which the certificate, opinion
and letter is required notwith-
standing suspension pursuant
to Sections 7(m) and 8(e),
respectively, of the Distribution
Agreement:
Additional Documents to be Delivered:
Additional Terms:<PAGE>
EXHIBIT D
Accountants' Letter
Pursuant to Sections 6(h) and 8(d), as the case may be,
of the Distribution Agreement, the Company's independent
certified public accountants shall furnish letters to the effect
that:
(i) They are independent certified public
accountants with respect to the Company and its subsidiaries
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements
and any supplementary financial information and schedules
audited (and, if applicable, financial forecasts and/or pro
forma financial information) examined by them and included
or incorporated by reference in the Registration Statement
or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the
Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have
been separately furnished to the Agents;
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report
on Form 10-Q incorporated by reference into the Prospectus
as indicated in their reports thereon copies of which have
been separately furnished to the Agents; and on the basis of
specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related
published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Exchange Act and the related published rules and
regulations;
D-1<PAGE>
(iv) The unaudited selected financial information
with respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company s Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for five such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the
Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited
procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that
caused them to believe that this information does not
conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with generally
accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information
referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference
in the Company s Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or
(ii) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus or included in
the Company s Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to
be in conformity with generally accepted accounting
principles;
D-2<PAGE>
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements
included or incorporated by reference in the Company s
Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were
derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated
by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the published
rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been
any changes in the consolidated capital stock (other
than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs
of performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference in the
Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or
any decreases in consolidated net current assets or
stockholders equity or other items specified by the
Agents, or any increases in any items specified by the
Agents, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
D-3<PAGE>
(F) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in clause (E) there were any material
decreases in consolidated net revenues or operating
profit or the total or per share amounts of
consolidated net income or other items specified by the
Agents, or any increases in any items specified by the
Agents, in each case as compared with the comparable
period of the preceding year and with any other period
of corresponding length specified by the Agents, except
in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information specified by the Agents which are derived from
the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement
specified by the Agents or in documents incorporated by
reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and
financial information with the accounting records of the
Company and its subsidiaries and have found them to be in
agreement.
All references in this Exhibit D to the Prospectus
shall be deemed to refer to the Prospectus (including the
documents incorporated by reference therein) as defined in the
Distribution Agreement as of the date thereof and to the
Prospectus as amended or supplemented (including the documents
incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or as of the Date and Time
of Delivery specified in Schedule I to the Purchase Agreement
requiring the delivery of such letter pursuant to item (3) of the
second paragraph thereof.
D-4<PAGE>
EXHIBIT 4-A
GENERAL PUBLIC UTILITIES CORPORATION
AND
UNITED STATES TRUST COMPANY OF NEW YORK,
As Trustee
INDENTURE
Dated as of ____________, 1996
Providing for the Issuance of
Debentures in Series and for the
___% Debentures,
due ______<PAGE>
INDENTURE, dated as of ____________, 1996, by and between
General Public Utilities Corporation, a Pennsylvania corporation
(the "Company"), and United States Trust Company of New York, as
trustee (the "Trustee").
Whereas, the Company desires to provide for the issuance
from time to time of its unsecured debentures (herein called the
"Securities") to be issued in one or more series as provided in
this Indenture; and
Whereas, the Company has authorized the issuance of the
initial series of Securities to be known as the ____% Debentures,
due ___ (the "___ Debentures"), and to provide therefor, the
Company has duly authorized the execution and delivery of this
Indenture, and all things necessary to make the ___ Debentures
when duly issued and executed by the Company and authenticated
and delivered hereunder, the valid obligations of the Company,
and to make this Indenture a valid and binding agreement of the
Company, in accordance with its terms, have been done;
Now, therefore, each party, intending to be legally bound
hereby, agrees as follows for the equal and ratable benefit of
the Holders of the ___ Debentures:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under
direct or indirect common control with such specified Person.
When used with respect to any Person, "control" means the power
to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf
of such Board, and any resolution of the Board of Directors means
any resolution of the Board of Directors or any committee thereof
duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means any day other than a day on which
banking institutions in The City of New York are authorized or
required by law to close.
1<PAGE>
"Capital Stock" means any and all shares, interests, rights
to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate
stock, including any Preferred Stock.
"Company" means General Public Utilities Corporation until a
Successor replaces it pursuant to Article 5 of this Indenture
and, thereafter, shall mean the Successor.
"Company Order" means a written request or order signed in
the name of the Company by an Officer of the Company and
delivered to the Trustee.
"Default" means any event which is, or after notice or
passage of time, or both, would be, an Event of Default.
"Dollars" means United States dollars.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
"Indenture" means this indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including
the provisions of the TIA that are deemed to be a part hereof.
"Interest Payment Date" means the interest payment date
specified in the Securities.
"Issue Date" means the date on which Securities are
originally issued.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Officer" means, with respect to any corporation, the
Chairman, the Chief Executive Officer, the President, any Vice
President, the Treasurer or any Assistant Treasurer, the
Comptroller or any Assistant Comptroller or the Secretary or any
Assistant Secretary of such corporation.
"Officer's Certificate" means a written certificate
containing the applicable information specified in Sections 11.04
2<PAGE>
and 11.05 hereof, signed in the name of the Company by any one of
its Officers, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing, as
applicable, the information specified in Sections 2.03, 11.04 and
11.05 hereof, by legal counsel who is reasonably acceptable to
the Trustee.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any
other entity.
"Preferred Stock" means any class of Capital Stock of an
issuer that is preferred as to dividends or rights in liquidation
as compared with any other class of Capital Stock of the same
issuer.
"Record Date" with respect to any security means the date
set to determine the holders of any security entitled to
participate in any distribution, dividend, interest or other
payment or to vote, consent, make a request or exercise any other
right associated with such security.
"Redemption Date" or "redemption date" means the date
specified for the redemption of Securities in accordance with the
terms of the Securities and Article 3 of this Indenture.
"Redemption Price" or "redemption price", with respect to
any Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture and the Securities.
"Regular Record Date", with respect to an interest payment
on the Securities, means the date set forth on the face of the
Securities for the determination of Holders entitled to receive
payment of interest on the next succeeding Interest Payment Date.
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities" means any of the securities of any series
issued, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
3<PAGE>
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the
principal of such security is due and payable, including pursuant
to any mandatory prepayment provision.
"Subsidiary" means any corporation, association,
partnership, limited liability company or other business entity
of which more than 50% of the total voting power of all the
Voting Stock or Voting Interests is at the time owned or
controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries, or (iii) one or more
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended and
as in effect on the date of this Indenture; provided, however,
that if the TIA is amended after such date, TIA means, to the
extent required by any such amendment, the TIA as so amended.
"Tranche" means those Securities of a series which, as among
themselves, have identical terms and the same original date of
issuance but which, as to other Securities of the same series,
differ as to one or more terms or have a different original date
of issuance.
"Trust Officer" means the Chairman of the Board of
Directors, the President, or any other officer or assistant
officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Trustee" means the party named as the "Trustee" in the
first paragraph of this Indenture until a successor replaces it
pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such
obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged
and which are not callable at the issuer's option and repurchase
obligations with respect to any of the foregoing entered into
with any depository institution or trust company incorporated
under the laws of the United States of America or any state
thereof, with a combined capital and surplus of at least
$50,000,000, and subject to the supervision and examination by
federal and/or state banking authorities if such repurchase
obligation is by its terms to be performed by the repurchaser
within 30 days of the repurchase agreement.
"Utility Subsidiaries" means Jersey Central Power & Light
Company, Metropolitan Edison Company and Pennsylvania Electric
Company.
"Voting Interests" means interests (including partnership
interests) entitled (without regard to the occurrence of any
4<PAGE>
contingency) to vote in the election of directors, managers or a
trustee of an entity or to direct the management of the affairs
of such entity.
"Voting Stock" means, with respect to a corporation, all
classes of Capital Stock then outstanding of such corporation
normally entitled to vote in elections of directors.
SECTION 1.02 Other Definitions.
TERM DEFINED IN SECTION
"Act". . . . . . . . . . . . . . . . . . 1.05
"Bankruptcy Law" . . . . . . . . . . . . 6.01
"Control". . . . . . . . . . . . . . . . 1.01
"Custodian". . . . . . . . . . . . . . . 6.01
"Event of Default. . . . . . . . . . . . 6.01
"Global Security". . . . . . . . . . . . 2.02
"Legal Holiday". . . . . . . . . . . . . 11.08
"Notice of Default". . . . . . . . . . . 6.01
"Outstanding Securities. . . . . . . . . 2.09
"Paying Agent" . . . . . . . . . . . . . 2.04
"Register" . . . . . . . . . . . . . . . 2.04
"Registrar". . . . . . . . . . . . . . . 2.04
"Required Currency". . . . . . . . . . . 2.14
"Subsequent Series . . . . . . . . . . . 4.02
"Successor". . . . . . . . . . . . . . . 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by SEC rule have the meanings assigned to them by such
definitions.
5<PAGE>
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in
the plural include the singular;
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(7) whenever the masculine gender is used herein, it shall
be deemed to include the female gender and the neuter,
as well.
SECTION 1.05. Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the
Trustee deems sufficient.
(3) The ownership of Securities shall be proved by the
Register.
(4) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
6<PAGE>
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(5) If the Company solicits from the Holders any request,
demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a
resolution of its Board of Directors, fix in advance a record
date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the
Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date.
ARTICLE 2
THE SECURITIES; THE ___ DEBENTURES
SECTION 2.01 Issue of Securities Generally.
The Securities may be issued in one or more series as from
time to time shall be authorized by the Board of Directors.
The Securities of each series and the Trustee's Certificate
of Authentication shall be substantially in the forms to be
attached as exhibits to this Indenture or to a supplemental
indenture or Board Resolutions providing for their issuance or in
an Officer's Certificate pursuant to such supplemental indenture
or Board Resolution, but in the case of Securities other than the
___ Debentures, with such inclusions, omissions and variations as
are authorized or permitted by this Indenture. The Securities
may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange on which the
Securities may be listed, or to conform to usage. Each Security
shall be dated the date of its authentication.
If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's Certificate
pursuant to a Board Resolution, such Board Resolution and
Officer's Certificate, if any, shall be delivered to the Trustee
at or prior to the delivery of a Company Order contemplated by
Section 2.03 for the authentication and delivery of such
Securities.
7<PAGE>
The several series of Securities may differ from the ___
Debentures, and as and between series, in respect of any or all
of the following matters:
(a) designation;
(b) date or dates of maturity, which may be serial;
(c) rate (or method of determining the rate) of
interest;
(d) interest payment dates and the frequency of
interest payments;
(e) provisions, if any, authorizing the Company to
extend the interest payment dates;
(f) authorized denominations;
(g) the place or places for the payment of principal
and for the payment of interest;
(h) limitation, if any, upon the aggregate principal
amount of Securities of the series which may be issued;
(i) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if
other than in Dollars);
(j) provisions, if any, with regard to any obligation
of the Company to permit the exchange of the Securities of
such series into stock or other securities of the Company or
of any other corporations or entities;
(k) provisions, if any, reserving to the Company the
right to redeem all or any part of the Securities of such
series before maturity at such time or times, upon such
notice and at such redemption price or prices (together with
accrued interest to the date of redemption) as may be
specified in the respective forms of Securities;
(l) provisions, if any, for any sinking or analogous
fund with respect to the Securities of such series;
(m) additional Events of Default applicable to
Securities of such series provided for pursuant to clause
(5) of Section 6.01 hereof; and
(n) any other provisions expressing or referring to
the terms and conditions upon which the Securities of such
series are to be issued under this Indenture which are not
in conflict with the provisions of this Indenture;
8<PAGE>
in each case as determined and specified by the Board of
Directors. The Trustee shall not authenticate and deliver
Securities of any series (other than the ___ Debentures) upon
initial issue unless the terms and conditions of such series
shall have been set forth in a supplemental indenture entered
into between the Company and the Trustee as provided in Section
10.01 hereof or in a Board Resolution or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution.
SECTION 2.02 Form of the ___ Debentures; Denominations; Global
Security.
The ___ Debentures and the Trustee's Certificate of
Authentication shall be substantially in the form of Exhibit A
attached hereto. The terms and provisions contained in the ___
Debentures, a form of which is attached hereto as Exhibit A,
shall constitute, and are hereby expressly made, a part of this
Indenture. The Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The Trustee shall authenticate and make available for
delivery the ___ Debentures for original issue in the aggregate
principal amount of $__________ for issuance to the purchasers
thereof upon receipt of the consideration set forth in a
resolution of the Board of Directors and a Company Order. Such
Company Order shall specify the date on which the original issue
of the ___ Debentures is to be authenticated and delivered. The
aggregate principal amount of ___ Debentures outstanding at any
time may not exceed $___________, except as provided in Section
2.08 hereof.
The ___ Debentures shall be issuable only in registered form
without coupons and only in denominations of $_____ and any
integral multiple thereof.
The ___ Debentures may be issued in the form of one or more
global Securities (each, a "Global Security") that is, as one
Security for the total principal amount of the ___ Debentures to
be outstanding, registered in the name of [Cede & Co., as nominee
for The Depositary Trust Company.] [Cede & Co.] shall be
responsible for maintaining records of the names and addresses
of, and the principal amounts owned by, its participants of its
Global Security. After initial issuance, the ___ Debentures may
be transferred or exchanged in accordance with Section 2.07
hereof.
SECTION 2.03 Execution and Authentication.
The Securities shall be executed on behalf of the Company by
its Chief Executive Officer, its President or one of its Vice
Presidents, under its corporate seal imprinted or reproduced
thereon attested by its Secretary or one of its Assistant
9<PAGE>
Secretaries. The signature of any such Officer on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt
by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in Section
2.01;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Section 2.01, either (1)
establishing such terms or (2) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery
pursuant to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in either case
in accordance with the instrument or instrumentsdelivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company and attested by appropriate Officers of the
Company as set forth above;
(d) an Opinion of Counsel to the effect that:
(1) the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(2) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(3) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly
10<PAGE>
issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in
accordance with their terms, subject, as to enforcement, to
laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation,
bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (2) and (3) above Counsel may opine
that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance with the
instrument or instruments delivered pursuant to clause (a)
above, such terms will have been duly authorized by the
Company and will have been established in conformity with
the provisions of this Indenture; and
(y) such Securities, when authenticated and delivered
by the Trustee in accordance with this Indenture and the
Company Order or Orders or specified procedures referred to
in paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided by the Indenture, and enforceable in
accordance with their terms, subject, as to enforcement, to
laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation,
bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Section 2.01 and this Section, as
11<PAGE>
applicable, at or prior to the time of the first authentication
of Securities of such series unless and until such opinion or
other documents have been superseded or revoked or expire by
their terms.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a Certificate of Authentication duly
executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and made available for delivery
hereunder.
The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee, with the concurrence of the Company, may
appoint an authenticating agent. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as a Paying Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.04 Registrar and Paying Agent.
The Company shall maintain or cause to be maintained, within
the Borough of Manhattan, State of New York, an office or agency
where the Securities may be presented for registration of
transfer or for exchange ("Registrar"), an office or agency where
Securities may be presented or surrendered for redemption or
payment ("Paying Agent"), and an office or agency where notices
and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Registrar shall keep a
register (the "Register") of the Securities and of their transfer
and exchange. The Register shall be open to inspection by the
Company and the Trustee at all reasonable times. The Company may
have one or more co-Registrars and one or more additional Paying
Agents. The terms Paying Agent and Registrar include any
additional paying agent and co-Registrar. The corporate trust
office of the Trustee at 114 West 47th Street, New York, New York
10036, Attention: Corporate Trust Department B, shall initially
be the location for the Registrar, Paying Agent and agent for
service of notice or demands on the Company.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-Registrar (if not the
Trustee or the Company). The agreement shall implement the
provisions of this Indenture that relate to such agent. The
Company shall give prompt written notice to the Trustee of any
change of location of such office or agency. If at any time the
Company shall fail to maintain or cause to be maintained any such
required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices
and demands shall be made or served at the address of the Trustee
set forth in Section 11.02 hereof. The Company shall promptly
12<PAGE>
notify the Trustee in writing of the name and address of any such
office or agent. If the Company fails to maintain a Registrar,
Paying Agent or agent for service of notices or demands, the
Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07 hereof.
The Company or any Affiliate of the Company may act as
Paying Agent, Registrar or co-Registrar or agent for service of
notices and demands in place of the Trustee upon written notice
to the Trustee of the same.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in location of any such other office
or agency.
SECTION 2.05 Paying Agent to Hold Money in Trust.
Except as otherwise provided herein, on or prior to each due
date of the principal and interest on any Security, the Company
shall deposit with the Paying Agent a sum of money sufficient to
pay such principal and interest so becoming due. The Company
shall require each Paying Agent (other than the Trustee or the
Company) to agree in writing that such Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money
held by the Paying Agent for the payment of principal and
interest on the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time
during the continuance of any such default, the Paying Agent
shall, upon the request of the Trustee, forthwith pay to the
Trustee all money so held in trust and account for any money
disbursed by it. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account
for any money disbursed by it. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the
Trustee. If the Company, a Subsidiary or an Affiliate of either
of them acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. In
the event that the Securities are not in book-entry-only form,
upon the written request of the Company, the Paying Agent shall
invest monies deposited pursuant to this Section 2.05, until such
monies are paid to the Securityholders, in obligations of the
United States Government or obligations of its agencies which are
backed by the full faith and credit of the United States.
SECTION 2.06 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list provided to it of the
names and addresses of Securityholders. If the Trustee is not
the Registrar, the Company shall cause to be furnished to the
Trustee on or prior to the Record Date for each Interest Payment
13<PAGE>
Date and at such other times as the Trustee may request in
writing, within five Business Days of such request, a list, in
such form as the Trustee may reasonably require, of the names and
addresses of Securityholders.
SECTION 2.07 Transfer and Exchange.
When Securities of any series are presented to the Registrar
or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of the
same series of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if
its requirements for such transactions are met. To permit
registrations of transfer and exchanges of Securities of any
series, the Company shall execute and the Trustee shall
authenticate Securities of the same series, all at the
Registrar's written request.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by the Holder or his attorney duly
authorized in writing.
The Company shall not charge a service charge for any
registration of transfer or exchange, but the Company and the
Trustee may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from
the Securityholder requesting such transfer or exchange (other
than any exchange of a temporary Security for a definitive
Security not involving any change in ownership).
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of (a) any Security for
a period beginning at the opening of business five days before
the mailing of a notice of redemption of Securities of the same
series and ending at the close of business on the day of such
mailing or (b) any Security selected, called or being called for
redemption, except, in the case of any Security to be redeemed in
part, the portion thereof not to be redeemed.
SECTION 2.08 Replacement Securities.
If (a) any mutilated or defaced Security is surrendered to
the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and there is delivered to the Company
and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute in
exchange for any such mutilated Security of any series or in lieu
of any such destroyed, lost or stolen Security of any series, a
14<PAGE>
new Security of the same series and of like tenor and principal
amount, bearing a number not contemporaneously outstanding, and
the Trustee shall upon written direction from the Company
authenticate and make such new Security available for delivery.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, or is
about to be redeemed by the Company pursuant to Article 3 hereof,
the Company in its discretion may, instead of issuing a new
Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section
2.08, the Company and the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) in connection
therewith.
Subject to applicable law, every new Security issued
pursuant to this Section 2.08 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and a bonafide purchaser thereof
shall be entitled to all benefits of this Indenture equally and
ratably with the Holder of any and all other Securities duly
issued hereunder.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 2.09 Outstanding Securities; Determinations of Holders'
Action; Certain Matters Relating to Currencies.
Securities outstanding at any time ("Outstanding
Securities") are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for
cancellation, those mutilated, destroyed, lost or stolen
Securities referred to in Section 2.08 hereof, those redeemed by
the Company pursuant to Article 3 hereof, those deemed to have
been paid pursuant to Section 9.01 hereof and those described in
this Section 2.09 as not outstanding. A Security does not cease
to be outstanding because the Company or a Subsidiary or
Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount
of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any Affiliate or Subsidiary of
the Company shall be disregarded and deemed not to be
outstanding; provided, further, that if the Trustee is making
such determination, it shall disregard only such Securities as it
knows to be owned by the Company or any Affiliate or Subsidiary
thereof.
15<PAGE>
Subject to the foregoing, only Securities outstanding at the
time of such determination shall be considered in any such
determination (including determinations pursuant to Articles 3, 6
and 10).
Whenever any action is to be taken hereunder by the Holders
of Securities denominated in different currencies or currency
units, then for purposes of determining the principal amount of
Securities, Securities denominated in a foreign currency or
currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of a
spot exchange rate specified in writing to the Trustee for such
series in an Officers' Certificate for exchanging such foreign
currency or currency unit into Dollars as of the date of the
taking of such action by the Holders of the requisite percentage
in principal amount of the Securities.
The Trustee shall segregate moneys, funds and accounts held
by the Trustee in one currency or currency unit from any moneys,
funds or accounts held in any other currencies or currency units,
notwithstanding any provision herein that would otherwise permit
the Trustee to commingle such amounts.
If a Security is replaced pursuant to Section 2.08, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the Paying Agent (other than the Company) holds, in
accordance with this Indenture, whenever payment of principal on
the Securities is due, whether at Stated Maturity, upon
acceleration or on a Redemption Date, money sufficient to pay the
Securities payable on that date, then immediately on the date of
Stated Maturity, upon acceleration or on such Redemption Date, as
the case may be, such Securities shall cease to be outstanding,
and interest, if any, on such Securities shall cease to accrue.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may execute temporary Securities, and upon the delivery
of a Company Order with respect thereto, the Trustee shall
authenticate and make such temporary Securities available for
delivery. Temporary Securities shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Securities of the same series in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers of the Company
executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities of any series are issued (except for
any global form of certificate issued as described in Section
2.02 hereof), the Company shall cause definitive Securities of
16<PAGE>
the same series to be prepared without unreasonable delay. After
the preparation of definitive Securities, the temporary
Securities of the same series shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities
at the office or agency of the Company designated for such
purpose pursuant to Section 2.04 hereof, without charge to the
Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute a
like principal amount of definitive Securities of the same series
of authorized denominations, and the Trustee, upon written
request of the Company signed by two Officers of the Company,
shall authenticate and make such Securities available for
delivery in exchange therefor. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.11 Cancellation.
All Securities surrendered for payment, redemption by the
Company pursuant to Article 3 hereof or registration of transfer
or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and made available for delivery hereunder which the
Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the
Trustee. The Company may not reissue, or issue new Securities to
replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or
in exchange for any Securities canceled as provided in this
Section 2.11, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be destroyed by
the Trustee, and the Trustee shall deliver a certificate of
destruction to the Company.
SECTION 2.12 CUSIP Numbers.
The Company, in issuing the Securities of any series, may
use "CUSIP" numbers applicable to such series (if then generally
in use), and the Trustee shall use such CUSIP numbers in notices
of redemption or exchange as a convenience to Holders; provided
that any such notice shall state that no representation is made
as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or
exchange and that reliance may be placed only on the other
identification numbers printed on the Securities and any
redemption shall not be affected by any defect in or omission of
such numbers.
SECTION 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities on the Interest Payment Date, it shall pay the
defaulted interest, plus (to the extent lawful) any interest
17<PAGE>
payable on the defaulted interest, to the Persons who are Holders
on a subsequent special Record Date, and such special Record
Date, as used in this Section 2.13 with respect to the payment of
any defaulted interest, shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15
days before the subsequent special record date, the Company shall
mail to each Holder and to the Trustee a notice that states the
subsequent special Record Date, the payment date and the amount
of defaulted interest to be paid.
SECTION 2.14 Payment to be in Proper Currency.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a
composite currency (the "Required Currency"), except as otherwise
specified with respect to such Securities as contemplated by
Section 2.01, the obligation of the Company to make any payment
of the principal thereof, or the premium, if any, or interest, if
any, thereon, shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other
than the Required Currency, except to the extent that such tender
or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any
such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency.
The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances
shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.
ARTICLE 3
REDEMPTION
SECTION 3.01 Redemption Right, Obligation; Notice to Trustee.
(a) The Company, at its option, may redeem the Securities
in accordance with the terms set forth in the Securities, subject
to paragraph (c) hereof.
(b) The Company is required to redeem Securities to which
Section 4.02 hereof applies in accordance with the terms of said
Section 4.02 at the special redemption price set forth in the
Securities, subject to paragraph (c) hereof.
(c) If the Company elects or is required to redeem
Securities in accordance with the terms set forth in the
Securities, it shall notify the Trustee in writing of the
Redemption Date, the aggregate principal amount of Securities to
be redeemed and the Redemption Price.
18<PAGE>
SECTION 3.02 Selection of Securities to be Redeemed.
If less than all the Outstanding Securities of any series or
Tranche are to be redeemed at any time, the Trustee shall select
the Securities of such series to be redeemed on a pro rata basis,
by lot or by any other method the Trustee considers fair and
appropriate. If all of the Securities of the series to be
partially redeemed are held as a Global Security by The
Depositary Trust Company or any successor securities depository,
as custodian, the Trustee shall select the Securities by lot.
The Trustee shall make the selection at least 30 days, but not
more than 90 days, or such other number of days as specified in
the form of Securities for a series, before the Redemption Date
from Outstanding Securities not previously called for redemption.
Securities and portions of them the Trustee selects shall be in
authorized denominations only. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to
be redeemed.
SECTION 3.03 Notice of Redemption; Conditional Notice.
At least 30 days but not more than 90 days, or such other
number of days as specified in the form of Securities for a
series, before a Redemption Date, the Company shall mail or cause
to be mailed a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed at the
Holder's last address, as it appears on the Register. A copy of
such notice shall be mailed to the Trustee when the notice is
mailed to Holders of the affected Securities. At the Company's
written request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense.
The notice shall identify the Securities (by series,
maturity and by certificate number) to be redeemed, the provision
of the Securities or this Indenture pursuant to which the
Securities called for redemption are being redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the CUSIP number (subject to Section 2.12 hereof);
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(6) if fewer than all the Outstanding Securities of any
series are to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed and that, on
and after the Redemption Date, upon surrender of such Securities,
19<PAGE>
a new Security or Securities of the same series and maturity in
principal amount equal to the unredeemed portion thereof will be
issued; and
(7) that, unless the Company fails to deposit with the
Paying Agent funds sufficient to make such redemption payment,
interest will cease to accrue on Securities called for redemption
on and after the Redemption Date.
If, when a notice of redemption is mailed, the Company shall
not have irrevocably directed the Trustee to apply towards such
redemption funds deposited with the Trustee or held by it for the
redemption of the Securities called for redemption, such notice
may state that it is subject to the receipt of the redemption
monies by the Trustee on or before the Redemption Date, and in
such case, the notice of redemption shall be of no effect unless
such monies are so received on or before the Redemption Date.
SECTION 3.04 Effect of Notice of Redemption.
Subject to the provisions of the last paragraph of Section
3.03 hereof, after notice of redemption is given, all Securities
called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon the later of the
Redemption Date and the date such Securities are surrendered to
the Trustee or the Paying Agent, such Securities shall be paid at
the Redemption Price, plus accrued and unpaid interest to the
Redemption Date.
SECTION 3.05 Deposit of Redemption Price.
Subject to the provisions of the last paragraph of Section
3.03 hereof, on or prior to a Redemption Date, the Company shall
irrevocably deposit with the Trustee or the Paying Agent (or if
the Company or an Affiliate is the Paying Agent, the Company
shall segregate and hold in trust or cause such Affiliate to
segregate and hold in trust) money sufficient to pay the
Redemption Price of, and accrued and unpaid interest on, all
Securities to be redeemed on that date. After the Redemption
Date, interest shall cease to accrue on the Securities to be
redeemed with respect to which the Company has deposited
sufficient money to pay the Redemption Price and accrued interest
whether or not such Securities are surrendered for payment.
SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security of any series or Tranche that
is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same series and Tranche, if
applicable, equal in principal amount to the unredeemed portion
of such Security.
20<PAGE>
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of the Securities.
The Company shall pay the principal of and interest
(including interest accruing on or after the filing of a petition
in bankruptcy or reorganization relating to the Company, whether
or not a claim for post-filing interest is allowed in such
proceeding) on the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. An
installment of principal or interest shall be considered paid on
the applicable date due if on such date the Trustee or the Paying
Agent holds, in accordance with this Indenture, money sufficient
to pay all of such installment then due. The Company shall pay
interest on overdue principal and interest on overdue
installments of interest (including interest accruing on or after
the filing of a petition in bankruptcy or reorganization relating
to the Company, whether or not a claim for post-filing interest
is allowed in such proceeding), to the extent lawful, at the rate
per annum borne by the Securities in default, which interest on
overdue interest shall accrue from the date such amounts became
overdue, or from such other date as may be specified in the
Securities.
SECTION 4.02 Ownership of Utility Subsidiaries
So long as any of the ___ Debentures or Securities of any
subsequent series which shall expressly incorporate therein the
terms of this Section 4.02 remain outstanding, the Company shall
directly or indirectly own and hold the legal title to and
beneficial interest in at least 70% of the outstanding shares of
voting common stock of each of the Utility Subsidiaries and any
affiliate thereof to which any material assets of any such
Utility Subsidiary shall have been transferred; provided,
however, that the foregoing shall not prohibit a merger or
consolidation of two or more of the Utility Subsidiaries so long
as the Company continues to directly or indirectly own and hold
the legal title to and beneficial interest in at least 70% of the
outstanding shares of common stock of the surviving Utility
Subsidiary. Notwithstanding the foregoing, the Company may sell,
transfer or dispose of more than 30% of the outstanding shares of
common stock of one or more of the Utility Subsidiaries provided
that it promptly applies the net cash proceeds of any such sale,
transfer or disposition in excess of 30% ratably to redeem the
___ Debentures and all Securities of any such subsequent series
at the special redemption price specified therefor in the ___
Debentures and in the Securities of any such subsequent series,
together with all accrued and unpaid interest on the Securities
being redeemed to the redemption date.
SECTION 4.03 Limitation on Issuance of Secured Indebtedness
So long as any of the ___ Debentures or Securities of any
subsequent series which shall expressly incorporate therein the
21<PAGE>
terms of this Section 4.03 remain outstanding, the Company shall
not create, assume or suffer to exist any Lien (as defined below)
on any property or assets now owned or hereafter acquired by the
Company without equally and ratably securing the obligations of
the Company to the holders of any and all ___ Debentures and
Securities of any such subsequent series then outstanding,
except:
(i) Liens arising out of deposits with, or the
giving of security to or as required by, any governmental
agency or any body created or approved by law or
governmental regulation, which are required as a condition
to the transaction of any business or the obtaining or
exercise of any privilege or license or to enable the
Company to participate in any arrangements established by
law to cover any insurance risks or in connection with
worker's unemployment insurance, old age pensions, social
security or similar matters;
(ii) Liens for taxes, assessments and governmental
charges or levies not yet due and payable or that the
Company can thereafter pay without penalty or that the
Company has not paid because it is contesting the same in
good faith by appropriate proceedings diligently pursued (so
long as during the period of such contest the Company shall
not suffer any loss of any privilege of doing business or
any other right, power, privilege, permit or franchise, in
each case which is necessary or material to the operation of
its business);
(iii) Liens existing at the time of acquisition of
the property affected thereby or Liens incurred to secure
payment of all or a part of the purchase price of such
property or to secure debt incurred prior to, at the time of
or within 60 days after the acquisition of such property for
the purpose of financing all or part of the purchase price
thereof, provided such Liens are limited to such property
and improvements thereon;
(iv) Liens placed prior to, at the time of or
within 60 days of completion of construction or improvement
of property to secure debt incurred to provide payment of
all or a portion of the cost of construction or improvement
of such property, provided such Liens are limited to the
property or portion thereof upon which the construction or
improvements being financed occurred;
(v) any other Liens imposed by mandatory
provisions of law or incurred in the ordinary course of
business, including attachment, judgment and other similar
Liens arising in connection with court proceedings, in
respect of obligations which are not due and payable or
which are being contested in good faith by appropriate
proceedings and for which the Company's reserves are deemed
by it to be adequate to discharge the liabilities in respect
22<PAGE>
thereof, provided that no such Liens shall secure
borrowings, or materially detract from the value or
interfere with the use of the properties subject thereto or
affected thereby which could reasonably be expected to
materially impair the business or operations of the Company;
(vi) Liens affecting the fuel used in any power
generating operations of the Company;
(vii) easements, restrictions and other similar
encumbrances arising in the ordinary course of business,
which in the aggregate do not materially adversely affect
the Company's use of its properties;
(viii) in addition to the foregoing, Liens securing
amounts not to exceed in the aggregate $25,000,000 at any
one time outstanding; or
(ix) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any Lien referred to in the foregoing clauses
(i) to (viii) inclusive of any debt secured thereby,
provided that (y) the principal amount of debt secured
thereby shall not exceed the principal amount of debt so
secured at the time of such extension, renewal or
replacement and (z) such extension, renewal or replacement
Lien shall be limited to all or part of substantially the
same property which secured the Lien extended, renewed or
replaced.
As used herein, the term "Lien" with respect to any property
or assets means (y) any mortgage, lien, pledge, charge, security
interest or other encumbrance of any kind in respect of such
property or assets or (z) the interest of a vendor or lessor
arising out of the acquisition or agreement to acquire such
property or assets under any conditional sale agreement, lease
purchase agreement, sale and leaseback agreement, or other
similar title retention agreement.
SECTION 4.04 Certain Covenants Concerning Dividends, etc.
So long as any of the ___ Debentures or Securities of any
subsequent series which shall expressly incorporate therein the
terms of this Section 4.04 remain outstanding, the Company will
not declare or pay any dividends or make any distributions on its
capital stock (other than dividends or distributions payable
solely in common shares of the Company), or, directly or
indirectly, purchase, redeem or otherwise acquire or retire for
value any capital stock of the Company or any options, warrants
or other rights to acquire capital stock of the Company, or
permit any subsidiary of the Company to purchase, redeem or
otherwise acquire or retire for value any capital stock of the
Company or any options, warrants or other rights to acquire
capital stock of the Company, unless at the time of any such
declaration, payment, purchase, redemption, acquisition or
23<PAGE>
retirement and after giving effect thereto no Event of Default
(or event which, with the giving of notice or the passage of time
or both, would become an Event of Default) relating to the
failure to make payment of principal or premium on any Securities
when due or interest within 15 days after the same becomes due
and payable shall have occurred and be continuing.
SECTION 4.05 SEC Reports.
The Company shall file with the Trustee, within 30 days
after it files them with the SEC, copies of its annual report and
of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with
the SEC pursuant to Sections 13 or 15(d) of the Exchange Act. If
the Company is not subject to the reporting requirements of
Sections 13 or 15(d) of the Exchange Act, the Company shall file
with the Trustee and the SEC, in accordance with the rules and
regulations prescribed by the SEC, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act, in respect of a
security listed and registered on a national securities exchange
as may be prescribed in such rules and regulations. The Company
shall also comply with the provisions of Section 314(a) of the
TIA.
SECTION 4.06 Compliance Certificates.
(a) The Company shall deliver to the Trustee within 90 days
after the end of each of the Company's fiscal years an Officer's
Certificate, stating whether or not the signer knows of any
Default or Event of Default. Such certificate shall contain a
certification from the principal executive officer, principal
financial officer, treasurer, assistant treasurer or principal
accounting officer, comptroller or assistant comptroller of the
Company as to his or her knowledge of the Company's compliance
with all conditions and covenants under this Indenture. For
purposes of this Section 4.04(a), such compliance shall be
determined without regard to any period of grace or requirement
of notice provided under this Indenture. If such Officer does
know of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default, and its status.
Such Officer's Certificate need not comply with Section 11.04
hereof.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, as promptly as practicable
after any Officer becomes aware of any continuing Default or
Event of Default, an Officer's Certificate specifying such
Default, Event of Default or other default and what action the
Company is taking or proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee any
information reasonably requested by the Trustee in connection
with the compliance by the Trustee or the Company with the TIA.
24<PAGE>
SECTION 4.07 Further Instruments and Acts.
Upon request of the Trustee, the Company shall execute and
deliver such further instruments and do such further acts as may
be reasonably necessary or proper to carry out more effectively
the purposes of this Indenture.
SECTION 4.08 Investment Company Act.
The Company shall not become an investment company subject
to registration under the Investment Company Act of 1940, as
amended.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge, Etc.
The Company may not consolidate with or merge with or into,
or sell, convey, transfer or lease all or substantially all of
its properties and assets (either in one transaction or a series
of transactions) to, any Person unless:
(1) the Person formed by or surviving such consolidation or
merger or to which such sale, conveyance, transfer or lease shall
have been made (the "Successor") if other than the Company, is
organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia, and the
Successor shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the
Securities and the Indenture;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
occurred and be continuing; and
(3) the Company delivers to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, transfer or lease and
such supplemental indenture comply with this Indenture.
The Successor will be the successor to the Company, and will
be substituted for, and may exercise every right and power and
become the obligor on the Securities with the same effect as if
the Successor had been named as, the Company herein. The
predecessor shall be released from the obligations of the Company
set forth in this Indenture and in the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
25<PAGE>
An "Event of Default" occurs if one of the following shall
have occurred and be continuing:
(1) The Company defaults in the payment, when due and
payable, of (a) interest on any Security and the default
continues for a period of 15 days, or (b) the principal or
premium, if any, of any Security when the same becomes due and
payable at maturity, upon acceleration, on any Redemption Date,
or otherwise;
(2) The Company defaults in the performance of, or fails
to comply with, any of its other covenants or agreements in the
Securities or this Indenture (other than an event of default
pursuant clause (5) of this Section 6.01) and such failure
continues for 30 days after receipt by the Company of a "Notice
of Default";
(3) The Company, pursuant to or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
and such Custodian is not discharged within 90
days;
(d) makes a general assignment for the benefit of its
creditors; or
(e) admits in writing its inability to pay its debts
generally as they become due;
(4) court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company in an
involuntary case or proceeding;
(b) appoints a Custodian of the Company or for all or
substantially all of its properties; or
(c) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in
effect for 90 days; or
(5) The occurrence of any additional Event of Default
applicable to Securities of a particular series pursuant to
Section 2.01(m) hereof as provided for in the form of Security
thereof or otherwise, (including, without limiatation, defaults
in the performance of, or failure to comply with, the covenants
26<PAGE>
or agreements in Section 4.02, 4.03 or 4.04 hereof) , provided,
however, that any such Event of Default shall be an Evant of
Default only with respect to such series.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary
or involuntary or is effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Title 11, United States
Code, or any similar Federal or state law for the relief of
debtors. "Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities at the
time outstanding notify the Company and the Trustee, of the
Default and the Company does not cure such Default within the
time specified in clause (2) above after receipt of such notice.
Any such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default."
SECTION 6.02 Acceleration.
If any Event of Default other than an Event of Default under
clauses (3) or (4) of Section 6.01 hereof occurs and is
continuing, the Trustee may, by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding, or in the case of an Event of
Default under clause (5) of Section 6.01, the Holders of at least
25% in aggregate principal amount of the Securities of such
series affected thereby at the time outstanding, considered as
one class, may, by notice to the Company and the Trustee (each,
an "Acceleration Notice"), and the Trustee shall, upon the
request of such Holders, declare the principal of and accrued and
unpaid interest on all of the Securities, or all of the
Securities of such series as the case may be, to be due and
payable. Upon such a declaration, such principal and interest
shall be due and payable immediately.
The Company shall deliver to the Trustee, as promptly as
practicable after it obtains knowledge thereof, written notice in
the form of an Officer's Certificate of any event which with the
giving of notice and the lapse of time would become an Event of
Default under clause (2) of Section 6.01 hereof, its status and
what action the Company is taking or proposes to take with
respect thereto.
If an Event of Default specified in clauses (3) or (4) of
Section 6.01 hereof occurs, the principal of and interest on all
the Securities shall if so fact become and be immediately due and
27<PAGE>
payable without any declaration or other act on the part of the
Trustee or any Securityholders.
The Holders of a majority in aggregate principal amount of
the Securities at the time outstanding, or the Securities of such
series at the time outstanding, as the case may be, by notice to
the Trustee, may rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and
if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due
solely because of acceleration. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may, in its own name or as trustee of an express trust,
institute, pursue and prosecute any proceeding, including,
without limitation, any action at law or suit in equity or other
judicial or administrative proceeding to collect the payment of
principal of or interest on the Securities, or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of the
Securities in the proceeding. A delay or omission by the Trustee
or any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults.
Subject to Section 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Securities of any series at the
time outstanding, by written notice to the Trustee (and without
notice to any other Securityholder), may waive an existing
Default or Event of Default affecting the Securities of such
series and its consequences. When a Default is waived, it is
deemed cured and shall cease to exist, but no such waiver shall
extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05 Control by Majority.
The Holders of a majority in aggregate principal amount of
the Securities at the time outstanding may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee on behalf of the Holders or of
exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other
28<PAGE>
Securityholders or would involve the Trustee in personal
liability. The Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 6.06 Limitation on Suits.
Except as provided in Section 6.07 hereof, a Securityholder
may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least a majority in aggregate
principal amount of the Securities at the time outstanding make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security and indemnity against any loss, liability or expense
satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60
days after receipt of the notice, the request and the offer of
security and indemnity; and
(5) the Holders of a majority in aggregate principal amount
of the Securities at the time outstanding do not give the Trustee
a direction inconsistent with the request during such 60 days.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or
priority over any other Securityholder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of the principal amount of
or premium, if any, or interest on the Securities held by such
Holder, on or after the respective due dates expressed in the
Securities or any Redemption Date, or to bring suit for the
enforcement of any such payment on or after such respective dates
shall not be impaired or affected adversely without the consent
of each such Holder.
SECTION 6.08 Collection Suit by the Trustee.
If an Event of Default described in Section 6.01(1) hereof
occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company
or any obligor on the Securities for the whole amount owing with
respect to the Securities and the amounts provided for in Section
7.07 hereof.
29<PAGE>
SECTION 6.09 The Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relating to the Company
or its properties or assets, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of the
principal amount and interest on the Securities and to file such
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same; and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07
hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article
6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Securityholders for amounts due and unpaid on
the Securities for the principal amount,
Redemption Price or interest, if any, as the case
may be, ratably, without preference or priority of
any kind, according to such amounts due and
payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10.
30<PAGE>
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any
party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 hereof or a suit by Holders
of more than 10% in aggregate principal amount of the Securities
at the time outstanding.
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury or other law wherever enacted,
now or at any time hereafter in force, that would prohibit or
forgive the Company from paying all or any portion of the
principal or interest on the Securities as contemplated herein or
affect the covenants or the performance by the Company of its
obligations under this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE 7
THE TRUSTEE
SECTION 7.01 Duties of the Trustee.
(1) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default,
(a) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and (b)
in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
31<PAGE>
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(3) No provision in this Indenture shall relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that:
(a) this paragraph (3) does not limit the effect of
paragraphs (1) and (2) of this Section 7.01;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer
unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith
in accordance with a direction received by it
pursuant to Section 6.05 hereof; and
(d) the Trustee may refuse to perform any duty or
exercise any right or power or extend or risk its
own funds or otherwise incur any financial
liability unless it receives security and
indemnity reasonably satisfactory to it against
any loss, liability or expense.
(4) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (1), (2), (3) and
(5) of this Section 7.01 and to Section 7.02 hereof.
(5) Subject to the provisions of Section 2.09 and Article 9
hereof, money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall not be liable for interest on any money held by
it hereunder.
SECTION 7.02 Rights of the Trustee.
Except as otherwise provided in Section 7.01 hereof:
(1) the Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper
person. The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee determines to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney;
32<PAGE>
(2) whenever the Trustee is requested by the Company to act
or refrain from acting hereunder, the Trustee may require an
Officer's Certificate directing it to act or refrain from so
acting, and, if determined by it to be appropriate, an Opinion of
Counsel. The Trustee shall not be liable for any action it takes
or omits to take in the absence of bad faith in reliance on such
Officer's Certificate and Opinion of Counsel;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(4) the Trustee may act through agents and shall not be
responsible for the misconduct, failure to act or negligence of
any agent appointed with due care;
(5) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers;
(6) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon; and
(7) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security and indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
SECTION 7.03 Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Paying Agent, Registrar or
co-Registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04 The Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement in
this Indenture or the Securities or any report or certificate
issued by the Company hereunder (other than the Trustee's
33<PAGE>
Certificate of Authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall in accordance with the TIA mail to
each Securityholder, as their names and addresses appear on the
Register, notice of the Default within 90 days after it becomes
known to the Trustee unless such Default shall have been cured or
waived. Except in the case of a Default described in Section
6.01(1) hereof, the Trustee may withhold such notice if and so
long as the responsible Trust Officer in good faith determines
that the withholding of such notice is in the interests of
Securityholders. The second sentence of this Section 7.05 shall
be in lieu of the proviso to TIA Section 315(b). Said proviso is
hereby expressly excluded from this Indenture, as permitted by
the TIA.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each [May 31] beginning with the [May
31] next following the date of this Indenture, the Trustee shall
mail to each Securityholder a brief report dated as of such [May
31] in accordance with and to the extent required under TIA
Section 313.
A copy of each report at the time of its mailing to
Securityholders shall be filed with the Company, the SEC and each
securities exchange on which the Securities are listed. The
Company agrees to promptly notify the Trustee whenever the
Securities become listed on any securities exchange and of any
delisting thereof.
SECTION 7.07 Compensation and Indemnity.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company
and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
advances of its agents and counsel), including all reasonable
expenses and advances incurred or made by the Trustee in
connection with any membership on any creditors' committee,
except any such expense or advance as may be attributable to its
negligence or bad faith, provided, however, that the Trustee
shall not be obligated to advance or expend its own funds under
any provision of this Indenture; and
34<PAGE>
(3) to indemnify the Trustee, its officers, directors and
shareholders, for, and to hold it harmless against, any and all
loss, liability or expense, incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or any trust
created pursuant thereto, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall have a claim and lien prior to the
Securities as to all property and funds held by it hereunder for
any amount owing it or any predecessor Trustee pursuant to this
Section 7.07, except with respect to funds held in trust for the
payment of principal of or interest on particular Securities.
The Company's payment obligations pursuant to this Section
7.07 shall survive the discharge of this Indenture. When the
Trustee renders services or incurs expenses after the occurrence
of a Default specified in Section 6.01 hereof, the compensation
for services and expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company in
writing at least 30 days prior to the date of the proposed
resignation; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment
pursuant to this Section 7.08. The Holders of a majority in
aggregate principal amount of the Securities at the time
outstanding may remove the Trustee by so notifying the Trustee in
writing and such Holders shall appoint a successor Trustee, which
shall be subject to the consent of the Company unless an Event of
Default has occurred and is continuing. The Trustee shall resign
if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. A successor Trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and
to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Securityholders. Subject to payment
35<PAGE>
of all amounts owing to the Trustee under Section 7.07 hereof and
subject further to its lien under Section 7.07, the retiring
Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee. If a successor Trustee does
not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders
of a majority in aggregate principal amount of the Securities at
the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Securityholder may petition any court of competent jurisdiction
for its removal and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust
business or assets (including this Trusteeship) to, another
corporation, the resulting, surviving or transferee corporation
without any further act shall, with the concurrence of the
Company, be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of
TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b). In determining
whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA
Section 310(b)(1) shall be deemed incorporated herein.
SECTION 7.11 Preferential Collection of Claims Against the
Company.
If and when the Trustee shall be or become a creditor of the
Company, the Trustee shall be subject to the provisions of the
TIA regarding the collection of claims against the Company.
ARTICLE 8
SINKING FUNDS
SECTION 8.01 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking funds for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 2.01
hereof for such Securities.
The minimum amount of any sinking fund payment provided for
by the terms of any Securities is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of such Securities
36<PAGE>
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided
in Section 8.02 hereof. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the
terms of such Securities.
SECTION 8.02 Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series and Tranche, if applicable, (other than any previously
called for redemption) and (2) may apply as a credit Securities
of a series and Tranche, if applicable, which have been redeemed
either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking
fund payment with respect to any Securities of such series and
Tranche, if applicable, required to be made pursuant to the terms
of such Securities as and to the extent provided for by the terms
of such Securities; provided that the Securities to be so
credited have not been previously so credited. The Securities to
be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of
the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 8.03 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for any Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities pursuant to Section 8.02 hereof and will also deliver
to the Trustee any Securities to be so delivered. Such Officer's
Certificate shall also state that the Securities forming the
basis of any such credit do not include any Securities which have
been redeemed through the operation of this Article 8 or
previously credited against any sinking fund payment required
under this Article 8. Not less than 30 days prior to such
sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.02 hereof and cause notice of
the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.03
hereof (other than the last paragraph thereof). Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 3.04,
3.05 and, if applicable, 3.06 hereof.
37<PAGE>
ARTICLE 9
SATISFACTION AND DISCHARGE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 9.01 Satisfaction and Discharge of Securities.
The Company shall be deemed to have paid and discharged the
entire indebtedness on any Securities outstanding upon the
deposit referred to in subparagraph (A) below, and the provisions
of this Indenture with respect to such Securities shall no longer
be in effect (except as to (1) the rights of registration of
transfer, substitution and exchange of Securities, (2) the
replacement of apparently mutilated, defaced, destroyed, lost or
stolen Securities, (3) the rights of Holders to receive payments
of principal thereof and interest thereon, (4) the rights of the
Holders as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them, (5) the
obligation of the Company to maintain an office or agency for
payments on and registration of transfer of the Securities, and
(6) the rights, obligations and immunities of the Trustee
hereunder), and such Securities shall be deemed to have been paid
for all purposes of this Indenture and the Trustee shall, at the
request and expense of the Company, execute proper instruments
acknowledging the same, if:
(A) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders (i) cash in an amount,
or (ii) U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as
will ensure the availability of cash, or (iii) a combination
thereof, sufficient without reinvestment to pay when due the
principal of and premium, if any, on all such Securities
then outstanding, whether at the Stated Maturity, [upon
acceleration] or upon the redemption of such Securities, and
interest, if any, due on such Securities on or prior to the
Stated Maturity thereof;
(B) no Default or Event of Default with respect to such
Securities has occurred and is continuing on the date of
such deposit or occurs as a result of such deposit;
(C) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated
by this provision have been complied with; and
(D) the Company has delivered to the Trustee (i) either a
private Internal Revenue Service ruling or an Opinion of
Counsel to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the
manner and at the same times as would have been the case if
38<PAGE>
such deposit, defeasance and discharge had not occurred, and
(ii) an Opinion of Counsel to the effect that (A) the
deposit shall not result in the Company, the Trustee, the
Paying Agent, or the trust being deemed to be an "investment
company" under the Investment Company Act of 1940, as
amended, and (B) such deposit creates a valid trust in which
the Holders of such Securities have the sole beneficial
ownership interest or that the Holders of such Securities
have a nonavoidable first priority security interest in such
trust. Notwithstanding the foregoing, the Company's
obligations to pay principal of and premium, if any, and
interest on such Securities shall continue until the
Internal Revenue Service ruling or Opinion of Counsel
referred to in clause (i) above is provided with regard to
and without reliance upon such obligations continuing to be
obligations of the Company.
SECTION 9.02 Satisfaction and Discharge of Indenture.
This Indenture shall upon a written request or order signed
in the name of the Company by an Officer and delivered to the
Trustee cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 2.07, 2.08, 2.10, 3.02, 3.03, 3.06 and
8.03 (as to notice of redemption), 2.04 , 2.05, 7.07, 7.08 and
7.10 and this Article Nine shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
7.07 any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and U.S. Government Obligations held by the
Trustee pursuant to Section 9.03.
SECTION 9.03 Application by Trustee of Funds Deposited for
Payment of Securities.
Subject to Section 9.05 of this Indenture, all moneys
deposited with the Trustee pursuant to Section 9.01 hereof shall
be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular
Securities for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to
39<PAGE>
become due thereon for principal, and premium, if any, thereon,
and interest; but such money need not be segregated from other
funds except to the extent required by law and Section 2.09
hereof. In the event that the Securities are not in book-entry-
only form, upon the written direction and request of the Company,
the Paying Agent shall invest cash deposited pursuant to Section
9.01 in U.S. Government Obligations, until such monies are paid
to the Securityholders.
SECTION 9.04 Repayment of Moneys Held by Paying Agent.
All moneys held by any Paying Agent under this Indenture
with respect to Securities that have been paid and discharged
under Section 9.01 hereof shall, upon demand of the Company, be
repaid to it or paid to the Trustee, and thereupon such Paying
Agent shall be released from all further liability with respect
to such moneys.
SECTION 9.05 Return of Moneys Held by the Trustee and Paying
Agent Unclaimed for Three Years.
Any moneys deposited with or paid to the Trustee or any
Paying Agent for the payment of the principal of or premium, if
any, or interest on any Security and not applied but remaining
unclaimed for three years after the date when such principal or
premium, if any, or interest shall have become due and payable
shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, be repaid to the Company
or its designated agent by the Trustee or such Paying Agent and
the Holder of such Security shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any Paying Agent with respect to such
moneys shall thereupon cease.
ARTICLE 10
AMENDMENTS
SECTION 10.01 Without Consent of Holders.
From time to time, when authorized by a resolution of the
Board of Directors, the Company and the Trustee, without notice
to or the consent of the Holders of the Securities issued
hereunder, may amend or supplement this Indenture or the
Securities:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 hereof;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
40<PAGE>
(4) to make any other change that does not adversely affect
the rights of any Securityholder;
(5) to comply with any requirement of the SEC in connection
with the qualification of this Indenture under the TIA; or
(6) to set forth the terms and conditions, which shall not
be inconsistent with this Indenture, of the series of Securities
(other than the ___ Debentures) that are to be issued hereunder
and the form of Securities of such series.
SECTION 10.02 With Consent of Holders.
With the written consent of the Holders of at least a
majority in aggregate principal amount of any series of
Securities at the time outstanding who are affected by any
amendment or waiver, the Company and the Trustee may amend this
Indenture or the Securities or may waive future compliance by the
Company with any provisions of this Indenture or the Securities
of such series. However, without the consent of each
Securityholder affected, such an amendment or waiver may not:
(1) reduce the principal amount of the Securities, or
reduce the principal amount of the Securities the Holders of
which must consent to an amendment of this Indenture or a waiver;
(2) change the Stated Maturity of the principal of, or the
interest or rate of interest on the Securities, change adversely
to the Holders the redemption or sinking fund provisions of
Article 3 or Article 8 hereof or in the Securities, or impair the
right to institute suit for the enforcement of any such payment
or make any Security payable in money or securities other than
that stated in the Security;
(3) waive a Default in the payment of the principal of, or
interest on, any Security; or
(4) change Section 6.07 hereof.
It shall not be necessary for the consent of the Holders
under this Section 10.02 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
If certain Holders agree to defer or waive certain
obligations of the Company hereunder with respect to Securities
held by them, such deferral or waiver shall not affect the rights
of any other Holder to receive the payment or performance
required hereunder in a timely manner, unless such deferral or
waiver complies with the requirements of this Section 10.02.
After an amendment or waiver under this Section 10.02
becomes effective, the Company shall mail to each Holder affected
by such amendment or waiver a notice briefly describing the
41<PAGE>
amendment or waiver. Any failure of the Company to mail such
notices, or any defect therein, shall not, however, in any way
impair or affect the validity of such amendment or waiver.
SECTION 10.03 Compliance with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article 10 shall comply with the TIA.
SECTION 10.04 Revocation and Effect Of Consents, Waivers and
Actions.
Until an amendment, waiver or other action by Holders
becomes effective, a consent to it or any other action by a
Holder of a Security hereunder is a continuing consent by the
Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting
Holder's Security, even if notation of the consent, waiver or
action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to
such Holder's Security or portion of the Security if the Trustee
receives the written notice of revocation before the consent of
the requisite aggregate principal amount of the Securities at the
time outstanding has been obtained and not revoked. After an
amendment, waiver or action becomes effective, it shall bind
every Securityholder, except as provided in Section 10.02 hereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to
consent to any amendment or waiver. If a record date is fixed,
then, notwithstanding the first two sentences of the immediately
preceding paragraph, those Persons who were Holders at such
record date or their duly designated proxies, and only those
Persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such
record date.
SECTION 10.05 Notation on or Exchange of Securities.
Securities authenticated and made available for delivery
after the execution of any supplemental indenture pursuant to
this Article 10 may, and shall, if required by the Trustee, bear
a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and made available for
delivery by the Trustee in exchange for outstanding Securities of
the same series.
42<PAGE>
SECTION 10.06 Trustee to Sign Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized
pursuant to this Article 10 if the supplemental indenture does
not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing such amendment the Trustee shall be
entitled to receive, and shall be fully protected in relying
upon, an Officer's Certificate and Opinion of Counsel stating
that such supplemental indenture is authorized or permitted by
this Indenture.
SECTION 10.07 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article 10, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes and every Holder of Securities
theretofore or thereafter authenticated and made available for
delivery hereunder shall be bound thereby.
SECTION 10.08 Modification Without Supplemental Indenture.
If the terms of any particular series of Securities shall
have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by
Section 2.02, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not
be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 10.05 and 10.07.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of subsection (c)
of Section 318 of the TIA, such duties imposed shall control. The
provisions of Sections 310 to 317, inclusive, of the TIA that
impose duties on any Person (including provisions automatically
deemed included in an indenture unless the indenture provides
that such provisions are excluded) are a part of and govern this
Indenture, except as, and to the extent, they are expressly
excluded from this Indenture, as permitted by the TIA.
43<PAGE>
SECTION 11.02 Notices.
Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows:
if to the Company:
General Public Utilities Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054-1149
Attention: Vice Presient and Treasurer
Facsimile No.: (201) 263-6719
if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attn: Corporate Trust Department,
Department B
Facsimile No.: (212) 852-1636
The Company or the Trustee, by giving notice to the other,
may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address
as it appears on the Register of the Registrar and shall be
sufficiently given if mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each
Registrar, Paying Agent or co-Registrar.
SECTION 11.03 Communication by Holders with Other Holders.
Securityholders may communicate, pursuant to TIA Section
312(b), with other Securityholders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee,
the Registrar, the Paying Agent and anyone else shall have the
protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee, if requested by the Trustee:
44<PAGE>
(1) an Officer's Certificate (complying with Section 11.05
hereof) stating that, in the opinion of such Officer, all
conditions precedent to the taking of such action have been
complied with; and
(2) an Opinion of Counsel (complying with Section 11.05
hereof) stating that, in the opinion of such counsel, all such
conditions precedent to the taking of such action have been
complied with.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each Officer's Certificate and Opinion of Counsel with
respect to compliance with a covenant or condition provided for
in this Indenture shall include:
(1) a statement that each individual making such Officer's
Certificate or Opinion of Counsel has read, or with respect to an
Officer's Certificate caused to have read under such individual's
supervision, such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such Officer's Certificate or Opinion of
Counsel are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement that, in the opinion of such individual,
such covenant or condition has been complied with; provided,
however, that with respect to matters of fact not involving any
legal conclusion, an Opinion of Counsel may rely on an Officer's
Certificate or certificates of public officials.
SECTION 11.06 Severability Clause.
If any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 11.07 Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar and Paying Agent may
make reasonable rules for their functions.
SECTION 11.08 Legal Holidays.
A "Legal Holiday" is any day other than a Business Day. If
any specified date (including a date for giving notice) is a
45<PAGE>
Legal Holiday, the action to be taken on such date shall be taken
on the next succeeding day that is not a Legal Holiday, and if
such action is a payment in respect of the Securities, no
principal or interest installment shall accrue for the
intervening period.
SECTION 11.09 Governing Law.
This Indenture shall be governed by and construed in
accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York,
without regard to its principles of conflicts of laws.
SECTION 11.10 No Recourse Against Others.
No director, officer, employee or stockholder, as such, of
the Company shall have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall
waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the
Securities.
SECTION 11.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements
of the Trustee in this Indenture shall bind its successors and
assigns.
SECTION 11.12 Multiple Original Copies of this Indenture.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together
represent the same agreement. Any signed copy shall be sufficient
proof of this Indenture.
SECTION 11.13 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any
Subsidiary. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 11.14 Table of Contents; Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings
of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
46<PAGE>
SECTION 11.15 Benefits of the Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
47<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties
hereto as of the date first above written.
GENERAL PUBLIC UTILITIES CORPORATION
By:
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
Name:
Title: <PAGE>
EXHIBIT A
[FORM OF FACE OF ___ DEBENTURES]
____% Debentures, due ___
No. __________________ $___________
General Public Utilities Corporation, a Pennsylvania corporation
(the "Company", which term includes any successor corporation
under the Indenture hereinafter referred to), promises to pay to
_______________ or registered assigns, the principal amount of
__________________________ Dollars on ____________, ___, ___.
Regular Record Dates: ______________ and _________________.
Interest Payment Dates: ____________ and __________________
commencing on ______________, 199__, except as provided in the
Indenture.
This Security shall not be valid until an authorized officer
of the Trustee manually signs the Trustee's Certificate of
Authentication below.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof which shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
GENERAL PUBLIC UTILITIES CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
Dated: _____________________
1<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
By: __________________________
Authorized Signatory
2<PAGE>
[FORM OF REVERSE SIDE OF ___ DEBENTURE]
____ % Debentures, due ___
1. Payment of Interest
General Public Utilities Corporation, a Pennsylvania
corporation (the "Company"), promises to pay interest on the
principal amount of this Security (the "___ Debentures") at the
rate per annum shown in its title above. Interest will be
payable [semi-annually] on ___________ and _____________ in each
year (each an "Interest Payment Date"), commencing __________,
199__. Interest on this ___ Debenture will accrue for each day
that elapses from the most recent date to which interest has been
paid, or if no interest has been paid, from the date of its
authentication, to the next Interest Payment Date; provided that,
if there is no existing Event of Default in the payment of
interest and if this Security is authenticated between a record
date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent
lawful, at the rate per annum borne by this Security.
2. Method of Payment
The Company will pay interest on the ___ Debentures
(except defaulted interest) to the persons who are registered
Holders at the close of business on _____________ or
_________________ (or if all the ___ Debentures are held in book-
entry-only form, on the Business Day immediately preceding the
Interest Payment Date) even if the ___ Debenture is thereafter
canceled on registration of transfer or registration of exchange.
Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest
in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However,
the Company may pay principal and interest by its check payable
in such money. It may mail an interest payment to a
Securityholder's registered address.
3. Paying Agent and Registrar
Initially, the Trustee will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent or
Registrar without notice, other than notice to the Trustee. The
Company or an Affiliate of the Company may act as Paying Agent,
Registrar or co-Registrar.
3<PAGE>
4. Indenture
The Company issued the ___ Debentures under an Indenture,
dated as of ____________, 1996 (the "Indenture"), between the
Company and the Trustee. The Indenture also provides for the
issuance by the Company from time to time of additional
Securities of different series and with different terms and
conditions but subject, nevertheless, to the Indenture. The
terms of the ___ Debentures include those stated herein and in
the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (the "TIA").
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The ___ Debentures
are subject to all such terms, and Securityholders are referred
to the Indenture and the TIA for a statement of those terms.
The ___ Debentures are general unsecured obligations of the
Company limited to $___________ aggregate principal amount.
5. Redemption
At the option of the Company, the ___ Debentures are
redeemable from and after __________ ___, as a whole, or from
time to time in part, at the Regular Redemption Price(s) set
forth in the table below expressed as a percentage of its
principal amount thereof, together with accrued and unpaid
interest to the date of redemption.
The ___ Debentures shall be redeemed by the Company as a
whole, or from time to time in part, at the Special Redemption
Price(s) set forth in the table below expressed as a percentage
of the principal amount thereof, together with accrued interest
to the date of redemption, on any date prior to Stated Maturity,
pursuant to the provisions of Sections 4.02 of the Indenture:
If redeemed during the
12-month period beginning Special
_______________ Redemption
Regular Redemption Price (%) Price (%)
6. Notice of Redemption; Conditional Notice.
Notice of redemption will be mailed at least 30 days but not
more than 90 days before the Redemption Date to each Holder of
___ Debentures to be redeemed at the Holder's registered address.
Interest on the Securities to be redeemed by the Company will
cease to accrue after the Redemption Date. ___ Debentures in
denominations larger than $_____ of principal amount may be
redeemed in part but only in integral multiples of $_____ of
principal amount.
If a notice relating to a redemption at the option of the
Company states that it is subject to the receipt by the Trustee
4<PAGE>
of funds from the Company on or before the Redemption Date, such
notice shall be ineffective unless such funds are so received.
7. Denominations; Transfer; Exchange
The ___ Debentures are in registered form, without coupons,
in denominations of $_____ of principal amount and integral
multiples of $_____. A Holder may transfer or exchange ___
Debentures in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need
not transfer or exchange any Securities for a period of five days
before notice of redemption is given or any Securities that are
selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be
redeemed).
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
9. Amendment; Waiver
Subject to certain exceptions in the Indenture which require
the consent of every Holder, (i) the Indenture or the ___
Debentures may be amended with the written consent of the Holders
of a majority in aggregate principal amount of all Securities or
the ___ Debentures at the time outstanding, respectively, and
(ii) certain defaults or noncompliance with certain provisions
may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the 20___ Debentures at
the time outstanding. Subject to certain exceptions in the
Indenture, without the consent of any Securityholder, the Company
and the Trustee may amend the Indenture or the Securities to cure
any ambiguity, defect or inconsistency, to bind a successor to
the obligations of the Indenture, to provide for uncertificated
Securities in addition to certificated Securities, to comply with
any requirements of the Securities and Exchange Commission in
connection with the qualification of the Indenture under the TIA,
to make any change that does not adversely affect the rights of
any Securityholder or to provide for the issuance of any other
series of Securities. Amendments bind all Holders and subsequent
Holders.
10. Defaults and Remedies
Under the Indenture, Events of Default include (i) default
in payment of the principal amount, or premium, if any, or
interest, in respect of the Securities when the same becomes due
and payable subject, in the case of interest, to the grace period
and any extension period provided for in the Indenture; (ii)
failure by the Company to comply with its other covenants in the
Indenture or the Securities, subject to notice and lapse of time;
5<PAGE>
and (iii) certain events of bankruptcy, insolvency or
reorganization of the Company. If an Event of Default occurs and
is continuing, the Trustee, or the Holders of at least 25% in
aggregate principal amount of the Securities at the time
outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of
Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it
receives reasonable indemnity and security. Subject to certain
limitations, Holders of a majority in aggregate principal amount
of the Securities at the time outstanding may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing Default (except a
Default in paying principal, premium, if any, and/or interest) if
it determines that withholding notice is in their interests.
11. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and
collect obligations owed to it by the Company or its Affiliates
and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee.
12. No Recourse Against Others
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of
the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
13. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (tenants in
common), TEN ENT (tenants by the entireties), JT TEN (joint
tenants with right of survivorship and not as tenants in common),
CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act).
14. Unclaimed Money
Subject to applicable law and the Indenture, if money for
the payment of principal or interest remains unclaimed for three
years, the Trustee or Paying Agent will pay the money back to the
6<PAGE>
Company at its request. After that, Holders entitled to such
money must look to the Company for payment.
15. Discharge Prior to Maturity
If the Company deposits with the Trustee or Paying Agent
money or U.S. Government Obligations sufficient to pay the
principal of, premium, if any, and interest on the Securities at
maturity and an Opinion of Counsel as required by the Indenture,
the Company will be discharged from the Indenture under certain
conditions and except for certain provisions thereof.
16. Successor
When a successor Person to the Company assumes all the
obligations of its predecessor under the Securities and the
Indenture in accordance with the Indenture, such predecessor
shall be released from those obligations.
17. Governing Law
THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
7<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to:
_________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
Dated: ________________ Signature: ________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guaranty: ________________________
(New York commercial bank or trust company or member
of an accepted medallion guaranty)
8<PAGE>
INDENTURE BETWEEN GENERAL PUBLIC UTILITIES CORPORATION
AND ___________________________________
DATED AS OF _____________, 1996
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions. . . . . . . . . . . . . . .
SECTION 1.02 Other Definitions. . . . . . . . . . . .
SECTION 1.03 Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . .
SECTION 1.04 Rules of Construction. . . . . . . . . .
SECTION 1.05 Acts of Holders. . . . . . . . . . . . .
ARTICLE 2
THE SECURITIES; THE ___ DEBENTURES
SECTION 2.01 Issue of Securities Generally. . . . . .
SECTION 2.02 Form of the ___ Debentures;
Denominations; Global Security . . . . .
SECTION 2.03 Execution and Authentication . . . . . .
SECTION 2.04 Registrar and Paying Agent . . . . . . .
SECTION 2.05 Paying Agent to Hold Money in Trust. . .
SECTION 2.06 Securityholder Lists . . . . . . . . . .
SECTION 2.07 Transfer and Exchange. . . . . . . . . .
SECTION 2.08 Replacement Securities . . . . . . . . .
SECTION 2.09 Outstanding Securities; Determinations
of Holders' Action; Certain Matters
Relating to Currencies . . . . . . . . .
SECTION 2.10 Temporary Securities . . . . . . . . . .
SECTION 2.11 Cancellation . . . . . . . . . . . . . .
SECTION 2.12 CUSIP Numbers. . . . . . . . . . . . . .
SECTION 2.13 Defaulted Interest . . . . . . . . . . .
ii<PAGE>
ARTICLE 3
REDEMPTION
SECTION 3.01 Redemption Right, Obligation; Notice to
Trustee. . . . . . . . . . . . . . . . .
SECTION 3.02 Selection of Securities to be Redeemed .
SECTION 3.03 Notice of Redemption; Conditional
Notice . . . . . . . . . . . . . . . . .
SECTION 3.04 Effect of Notice of Redemption . . . . .
SECTION 3.05 Deposit of Redemption Price. . . . . . .
SECTION 3.06 Securities Redeemed in Part. . . . . . .
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of the Securities. . . . . . . .
SECTION 4.02 Limitations on Issuance of Senior
Securities . . . . . . . . . . . . . . .
SECTION 4.03 SEC Reports. . . . . . . . . . . . . . .
SECTION 4.04 Compliance Certificates. . . . . . . . .
SECTION 4.05 Further Instruments and Acts . . . . . .
SECTION 4.06 Investment Company Act . . . . . . . . .
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge, Etc. . . . .
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. . . . . . . . . . . .
SECTION 6.02 Acceleration . . . . . . . . . . . . . .
SECTION 6.03 Other Remedies . . . . . . . . . . . . .
SECTION 6.04 Waiver of Past Defaults. . . . . . . . .
SECTION 6.05 Control by Majority. . . . . . . . . . .
SECTION 6.06 Limitation on Suits. . . . . . . . . . .
SECTION 6.07 Rights of Holders to Receive Payment . .
iii<PAGE>
SECTION 6.08 Collection Suit by the Trustee . . . . .
SECTION 6.09 The Trustee May File Proofs of Claim . .
SECTION 6.10 Priorities . . . . . . . . . . . . . . .
SECTION 6.11 Undertaking for Costs. . . . . . . . . .
SECTION 6.12 Waiver of Stay, Extension or
Usury Laws . . . . . . . . . . . . . . .
ARTICLE 7
THE TRUSTEE
SECTION 7.01 Duties of the Trustee. . . . . . . . . .
SECTION 7.02 Rights of the Trustee. . . . . . . . . .
SECTION 7.03 Individual Rights of the Trustee . . . .
SECTION 7.04 The Trustee's Disclaimer . . . . . . . .
SECTION 7.05 Notice of Defaults . . . . . . . . . . .
SECTION 7.06 Reports by Trustee to Holders. . . . . .
SECTION 7.07 Compensation and Indemnity . . . . . . .
SECTION 7.08 Replacement of Trustee . . . . . . . . .
SECTION 7.09 Successor Trustee by Merger. . . . . . .
SECTION 7.10 Eligibility; Disqualification. . . . . .
SECTION 7.11 Preferential Collection of Claims
Against the Company. . . . . . . . . . .
ARTICLE 8
SINKING FUND
SECTION 8.01 Applicability of Article . . . . . . . .
SECTION 8.02 Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . .
SECTION 8.03 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . .
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 9.01 Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . .
iv<PAGE>
SECTION 9.02 Application by Trustee of Funds
Deposited for Payment of Securities. . .
SECTION 9.03 Repayment of Moneys Held by Paying
Agent. . . . . . . . . . . . . . . . . .
SECTION 9.04 Return of Moneys Held by the Trustee and
Paying Agent Unclaimed for Three Years .
ARTICLE 10
AMENDMENTS
SECTION 10.01 Without Consent of Holders . . . . . . .
SECTION 10.02 With Consent of Holders. . . . . . . . .
SECTION 10.03 Compliance with Trust Indenture Act. . .
SECTION 10.04 Revocation and Effect Of Consents,
Waivers and Actions. . . . . . . . . . .
SECTION 10.05 Notation on or Exchange of Securities. .
SECTION 10.06 Trustee to Sign Supplemental
Indentures . . . . . . . . . . . . . . .
SECTION 10.07 Effect of Supplemental Indentures. . . .
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls . . . . . .
SECTION 11.02 Notices. . . . . . . . . . . . . . . . .
SECTION 11.03 Communication by Holders with Other
Holders. . . . . . . . . . . . . . . . .
SECTION 11.04 Certificate and Opinion as to Conditions
Precedent. . . . . . . . . . . . . . . .
SECTION 11.05 Statements Required in Certificate or
Opinion. . . . . . . . . . . . . . . . .
SECTION 11.06 Severability Clause. . . . . . . . . . .
SECTION 11.07 Rules by Trustee, Paying Agent and
Registrar. . . . . . . . . . . . . . . .
SECTION 11.08 Legal Holidays . . . . . . . . . . . . .
SECTION 11.09 Governing Law. . . . . . . . . . . . . .
SECTION 11.10 No Recourse Against Others . . . . . . .
v<PAGE>
SECTION 11.11 Successors . . . . . . . . . . . . . . .
SECTION 11.12 Multiple Original Copies of this
Indenture. . . . . . . . . . . . . . . .
SECTION 11.13 No Adverse Interpretation of Other
Agreements . . . . . . . . . . . . . . .
SECTION 11.14 Table of Contents; Headings, Etc . . . .
SECTION 11.15 Benefits of the Indenture. . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . .
[FORM OF FACE OF THE SECURITY] . . . . . . . . . . . . . . .
Trustee's Certificate of Authentication . . . . . . . .
[FORM OF REVERSE SIDE OF SECURITY] . . . . . . . . . . . . .
1. Payment of Interest . . . . . . . . . . . . . . . .
2. Method of Payment . . . . . . . . . . . . . . . . .
3. Paying Agent and Registrar. . . . . . . . . . . . .
4. Indenture . . . . . . . . . . . . . . . . . . . . .
5. Redemption. . . . . . . . . . . . . . . . . . . . .
6. Notice of Redemption; Conditional Notice. . . . . .
7. Denominations; Transfer; Exchange . . . . . . . . .
8. Persons Deemed Owners . . . . . . . . . . . . . . .
9. Amendment; Waiver . . . . . . . . . . . . . . . . .
10. Defaults and Remedies . . . . . . . . . . . . . . .
11. Trustee Dealings with the Company . . . . . . . . .
12. No Recourse Against Others. . . . . . . . . . . . .
13. Abbreviations . . . . . . . . . . . . . . . . . . .
14. Unclaimed Money . . . . . . . . . . . . . . . . . .
15. Discharge Prior to Maturity . . . . . . . . . . . .
16. Successor . . . . . . . . . . . . . . . . . . . . .
17. Governing Law . . . . . . . . . . . . . . . . . . .
ASSIGNMENT FORM. . . . . . . . . . . . . . . . . . . . . . .
vi<PAGE>
(LETTERHEAD OF BERLACK, ISRAELS & LIBERMAN LLP)
Exhibit 5-A
July 10, 1996
General Public Utilities Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054-1149
Re: Registration Statement on Form S-3
Dear Sirs:
General Public Utilities Corporation (the "Company")
has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"1933 Act"), a Registration Statement on Form S-3 (the
"Registration Statement"), dated today's date, of which this
opinion is to be a part, relating to the proposed issuance and
sale by the Company from time to time of up to $300,000,000
aggregate principal amount of Debentures (the "Debentures"). The
Debentures are to be issued by the Company pursuant to an
indenture (the "Indenture") between the Company and United States
Trust Company of New York, as Trustee (the "Trustee").
We have been counsel to the Company for many years. In
such capacity, we are familiar with the affairs of the Company
and the transactions that are the subject matter of the
Registration Statement. We have examined such corporate records
of the Company and such other instruments, documents,
certificates and agreements and made such further investigation
as we have deemed necessary as a basis for this opinion. With
respect to all matters of Pennsylvania law, we have relied on the
opinion of Ballard Spahr Andrews & Ingersoll filed as Exhibit 5-B
to the Registration Statement.<PAGE>
For purposes of this opinion, we have assumed that (1)
the proposed transactions are carried out on the basis set forth
in the Registration Statement and in conformity with the
requisite authorizations, approvals, consents or exemptions under
the securities laws of the various States and other jurisdictions
of the United States, (2) the Commission shall have issued an
order declaring effective (a) the Registration Statement under
the 1933 Act and (b) the Company's related Application on Form U-
1 under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), (3) the maturity dates, the interest
rates, the interest payment dates, the redemption provisions and
prices and other terms of the Debentures shall have been
determined in accordance with the provisions of the Indenture and
as set forth in the Registration Statement and the Debentures
will be executed and delivered as provided in the Indenture, (4)
the Indenture shall have qualified under the Trust Indenture Act
of 1939, as amended, and shall have been duly executed and
delivered by the Company and the Trustee, and (5) the sale of the
Debentures does not violate Section 12(f) of the 1935 Act or Rule
70 thereunder.
Based upon the foregoing, we are of the opinion that,
subject to the foregoing assumptions and qualifications, the
Debentures, when properly authenticated by the Trustee under the
Indenture and delivered by the Company against payment therefor,
will be legally issued and will be binding obligations of the
Company, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws affecting
creditors rights generally and general equitable principles.<PAGE>
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and as a part thereof. We
also consent to the reference to our firm under "Legal Matters"
in the Prospectus which is a part of the Registration Statement.
Very truly yours,
BERLACK, ISRAELS & LIBERMAN LLP<PAGE>
(LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL)
Exhibit 5-B
July 10, 1996
General Public Utilities Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054-1149
Re: Registration Statement on Form S-3
Dear Sirs:
General Public Utilities Corporation (the "Company")
has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"1933 Act"), a Registration Statement on Form S-3 (the
"Registration Statement"), dated today's date, of which this
opinion is a part, relating to the proposed issuance and sale by
the Company from time to time in one or more series of up to
$300,000,000 aggregate principal amount of Debentures (the
"Debentures"). The Debentures are to be issued by the Company
pursuant to an indenture (the "Indenture") between the Company
and United States Trust Company of New York, as trustee (the
"Trustee").
We have been Pennsylvania counsel to the Company, a
Pennsylvania corporation, for many years. In such capacity, we
have reviewed various proceedings taken and proposed to be taken
in connection with the issuance of the Debentures. We have
examined such corporate records of the Company and such other
instruments, documents, certificates and agreements and made such
further investigation as we have deemed necessary as a basis for
this opinion.
For purposes of this opinion, we have assumed that (1)
the proposed transactions are carried out on the basis set forth
in the Registration Statement and in conformity with the
requisite authorizations, approvals, consents or exemptions under
the securities laws of the various states and other jurisdictions
of the United States, (2) the Commission shall have issued an <PAGE>
General Public Utilities Corporation
July 10, 1996
Page 2
order declaring effective (a) the Registration Statement under
the 1933 Act and (b) the Company's related Application on Form
U-1 under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), (3) the maturity dates, the interest
rates, the interest payment dates, the redemption provisions and
prices and other terms of the Debentures shall have been
determined in accordance with the provisions of the Indenture and
as set forth in the Registration Statement and the Debentures
will be executed and delivered as provided in the Indenture, (4)
the Indenture will be qualified in accordance with the provisions
of the Trust Indenture Act of 1939, as amended, and shall be duly
executed and delivered by the Company and the Trustee and (5) the
sale of the Debentures does not violate Section 12(f) of the 1935
Act or Rule 70 thereunder.
Based upon the foregoing, we are of the opinion so far
as the laws of Pennsylvania are concerned, that, subject to the
foregoing assumptions, the Debentures, when properly
authenticated by the Trustee under the Indenture and delivered by
the Company against payment therefor, will be legally issued and
will be binding obligations of the Company, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights generally
and general principles of equity.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and as a part thereof. We
also consent to the reference to our firm under "Legal Matters"
in the Prospectus which is a part of the Registration Statement.
In addition, we hereby consent to the reliance by Berlack,
Israels & Liberman LLP on this opinion as to all matters of
Pennsylvania law in rendering their opinion to you which will
also be an exhibit to the Registration Statement.
Very truly yours,
BALLARD SPAHR ANDREWS
& INGERSOLL<PAGE>
<TABLE>
Page 1 of 2
GENERAL PUBLIC UTILITIES CORPORATION AND SUBSIDIARY COMPANIES
STATEMENT SHOWING COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS OF SUBSIDIARIES BASED ON SEC REGULATION S-K, ITEM 503
(In Thousands)
<CAPTION>
Twelve Months Ended
December 31, December 31, December 31, December 31, December 31, March 31, March 31,
1991 1992 1993 1994 1995 1996 1996
(actual) (as adjusted)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING REVENUES $3,371,599 $3,434,153 $3,596,090 $3,649,516 $3,804,656 $3,913,618 $3,913,618
OPERATING EXPENSES 2,841,356 2,821,710 2,868,135 3,008,944 3,070,150 3,127,255 3,129,880
Interest portion
of rentals (A) 29,248 28,374 25,536 24,655 27,362 27,182 27,182
Interest on funded
indebtedness and
other interest of
service company
subsidiaries (B) 5,785 4,366 4,204 3,637 3,666 3,632 3,632
Net expense 2,806,323 2,788,970 2,838,395 2,980,652 3,039,122 3,096,441 3,099,066
OTHER INCOME:
Allowance for funds
used during
construction 14,409 12,580 9,936 11,827 14,671 14,449 14,449
Other income/
(expense), net 41,433 30,503 (7,579) (152,236) 216,110 227,219 227,219
Interest on funded
indebtedness and
other interest of
EI Group (C) 3 9 4 15 2,133 4,017 4,017
Total other income 55,845 43,092 2,361 (140,394) 232,914 245,685 245,685
EARNINGS AVAILABLE FOR FIXED
CHARGES AND PREFERRED
STOCK DIVIDENDS
(excluding taxes
based on income) $ 621,121 $ 688,275 $ 760,056 $ 528,470 $ 998,448 $1,062,862 $1,060,237
FIXED CHARGES:
Interest on funded
indebtedness $ 171,321 $ 178,176 $ 191,142 $ 186,259 $ 192,904 $ 196,089 $ 218,439
Other interest 35,961 19,604 21,525 47,498 (D) 56,396 (D) 56,694 (D) 56,694(D)
Interest portion
of rentals (A) 29,248 28,374 25,536 24,655 27,362 27,182 27,182
Total fixed charges $ 236,530 $ 226,154 $ 238,203 $ 258,412 $ 276,662 $ 279,965 302,315
RATIO OF EARNINGS TO
FIXED CHARGES 2.63 3.04 3.19 2.05 3.61 3.80 3.51
Preferred stock dividend
requirement 35,918 36,557 28,757 20,692 16,945 16,832 16,832
Ratio of income before
provision for income
taxes to net income (E) 151.7% 160.4% 160.9% 146.5% 157.9% 159.9% 159.5%
Preferred stock dividend
requirement on a pretax
basis 54,488 58,637 46,270 30,314 26,756 26,914 26,847
Fixed charges, as above 236,530 226,154 238,203 258,412 276,662 279,965 302,315
Total fixed charges
and preferred
stock dividends $ 291,018 $ 284,791 $ 284,473 $ 288,726 $ 303,418 $ 306,879 $ 329,162
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES
AND PREFERRED STOCK
DIVIDENDS 2.13 2.42 2.67 1.83 3.29 3.46 3.22
</TABLE>
<PAGE>
Exhibit 12-A
Page 2 of 2
GENERAL PUBLIC UTILITIES CORPORATION AND SUBSIDIARY COMPANIES
STATEMENT SHOWING COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS OF SUBSIDIARIES
BASED ON SEC REGULATION S-K,ITEM 503
(In Thousands)
NOTES:
(A) The Company has included the equivalent of the interest portion of all
rentals charged to income as fixed charges for this statement and has
excluded such components from Operating Expenses.
(B) Represents fixed charges of GPU Service Corporation and GPU Nuclear
Corporation, which are accounted for as Operating Expenses in the
Company's consolidated income statement.
(C) Represents fixed charges of the EI Group, which are accounted for as Other
Income and Deductions in the Company's consolidated income statement.
(D) Includes dividends on subsidiary-obligated mandatorily redeemable
preferred securities of $24,816 and $7,692 for the years 1995 and 1994,
respectively, and $27,491 for the twelve months ended March 31, 1996
(actual and as adjusted).
(E) Represents income before provision for income taxes, preferred stock
dividends and cumulative effect of accounting change divided by income
before preferred stock dividends and cumulative effect of accounting
change as follows:
<TABLE>
Twelve Months Ended
December 31, December 31, December 31, December 31, December 31, March 31, March 31,
1991 1992 1993 1994 1995 1996 1996
(actual) (as adjusted)
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Income before provision
for income taxes,
preferred stock dividends
and cumulative effect of
accounting change $384,591 $462,121 $521,853 $270,058 $721,786 $782,897 $757,922
Income before preferred
stock dividends and
cumulative effect of
accounting change 253,562 288,193 324,430 184,380 457,080 489,723 475,089
</TABLE>
<PAGE>
(LETTERHEAD OF COOPERS & LYBRAND L.L.P.)
Exhibit 23-C
CONSENT OF INDEPENDENT ACCOUNTS
We consent to the incorporation by reference in this registration
statement of General Public Utilities Corporation (the "Company")
on Form S-3 of our report dated January 31, 1996, on our audits
of the consolidated financial statements and financial statement
schedules of General Public Utilities Corporation and Subsidiary
Companies as of December 31, 1995 and 1994, and for each of the
three years in the period ended December 31, 1995, which report
is included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995. We also consent to the reference
to our Firm under the caption "Experts".
COOPERS & LYBRAND L.L.P.
New York, New York
July 9, 1996<PAGE>
Exhibit 24-B
GENERAL PUBLIC UTILITIES CORPORATION
RESOLVED, That the proper officers of this Corporation be,
and they hereby are, authorized to execute and file, in
the name and on behalf of this Corporation, with the
Securities and Exchange Commission ("SEC") (a) a
Declaration on Form U-1 ("Form U-1") pursuant to the
requirements of the 1935 Act, and (b) a Registration
Statement on Form S-3 ("Form S-3"), pursuant to the
requirements of the Securities Act of 1933, and in each
case any and all amendments (including without
limitation post-effective amendments) relating thereto
with all exhibits and other documents in connection
therewith, for its approval relating to the issuance
and sale of the Debentures.
RESOLVED, That Messrs. J. G. Graham, I. H. Jolles, T. G.
Howson and D. E. Davidson be, and they hereby are,
designated as attorneys-in-fact to act for and in the
name of this Corporation in connection with the
foregoing matters, and Messrs. D. E. Davidson, and T.
G. Howson and Mrs. M. A. Nalewako be, and each of them
hereby is, designated as an agent for service in
respect of any and all such documents.
*******************
THIS IS TO CERTIFY that the undersigned is Assistant
Secretary of General Public Utilities Corporations, a
Pennsylvania corporation; that the above and foregoing is a true
and correct copy of resolutions duly and regularly adopted by the
Board of Directors of General Public Utilities Corporation at a
meeting thereof duly convened and held on the 4th day of April,
1996 at which meeting a quorum was present and voted; and that
said resolutions have not been annulled, revoked or amended in
any way whatsoever but are in full force and effect.
WITNESS the signature of the undersigned as such officer of
the Company and its corporate seal hereunto affixed this 10th day
of July, 1996.
/s/Sharon K. Cepeda
Sharon K. Cepeda, Assistant Secretary
(SEAL)<PAGE>
Exhibit 25
FORM T-1
===================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) _______
__________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5459866
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal
executive offices)
__________________
General Public Utilities Corporation
(Exact name of obligor as specified in its charter)
Pennsylvania 13-5516989
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 Interpace Parkway 07054-1149
Parsippany, New Jersey (Zip Code)
(Address of principal executive offices)
__________________
% Debentures Series due ____
(Title of the indenture securities)
===================================================<PAGE>
GENERAL
1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Reserve Bank of New York (2nd District),
New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
2. Affiliations with the Obligor
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15:
General Public Utilities Corporation currently is not in
default under any of its outstanding securities for which
United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, 14 and 15 of Form T-1 are not required under General
Instruction B.
16. List of Exhibits.
T-1.1 - "Chapter 204, Laws of 1853, An Act to Incorporate
the United States Trust Company of New York, as
Amended", is incorporated by reference to Exhibit
T-1.1 to Form T-1 filed on September 20, 1991 with
the Securities and Exchange Commission (the
"Commission") pursuant to the Trust Indenture Act of
1939 (Registration No. 2221291).
T-1.2 - The trustee was organized by a special act of the
New York Legislature in 1853 prior to the time that
the New York Banking Law was revised to require a
Certificate of authority to commence business.
Accordingly, under New York Banking Law, the Charter
(Exhibit T-1.1) constitutes an equivalent of a
certificate of authority to commence business.<PAGE>
T-1.3 - The authorization of the trustee to exercise
corporate trust powers is contained in the Charter
(Exhibit T-1.1).
16. List of Exhibits
(Continued)
T-1.4 - The By-laws of the United States Trust Company of
New York, as amended to date, are incorporated by
reference to Exhibit T-1.4 to Form T-1 filed on
September 20, 1991 with the Commission pursuant to
the Trust Indenture Act of 1939 (Registration No.
2221291).
T-1.6 - The consent of the trustee required by Section
321(b) of the Trust Indenture Act of 1939.
T-1.7 - A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
NOTE
As of July 9, 1996, the trustee had 2,999,020 shares of Common
Stock outstanding, all of which are owned by its parent company,
U.S. Trust Corporation. The term "trustee" in Item 2, refers to
each of United States Trust Company of New York and its parent
company, U.S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to
matters peculiarly within the knowledge of the obligor or its
directors, the trustee has relied upon information furnished to
it by the obligor and will rely on information to be furnished by
the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
__________________
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, United States Trust Company of New York, a
corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State
of New York, on the 9th day of July, 1996.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By:<PAGE>
Louis P. Young
Vice President<PAGE>
Exhibit T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
September 1, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform
Act of 1990, and subject to the limitations set forth therein,
United States Trust Company of New York ("U.S. Trust") hereby
consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon
request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: S/Gerard F. Ganey
Senior Vice President<PAGE>
Exhibit T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
MARCH 31, 1996
($ IN THOUSANDS)
ASSETS
Cash and Due from Banks $ 47,046
Short-Term Investments 50
Securities, Available for Sale 758,118
Loans 1,221,210
Less: Allowance for Credit Losses 13,113
Net Loans 1,208,097
Premises and Equipment 58,360
Other Assets 125,979
Total Assets $2,197,650
LIABILITIES
Deposits:
Non-Interest Bearing $ 387,509
Interest Bearing 1,446,148
Total Deposits 1,833,657
Short-Term Credit Facilities 82,285
Accounts Payable and Accrued Liabilities 128,745
Total Liabilities $2,044,687
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 42,394
Retained Earnings 96,511
Unrealized Gains on Securities Available
for Sale (Net of Taxes) (937)
Total Stockholder's Equity 152,963
Total Liabilities and
Stockholder's Equity $2,197,650
I, Richard E. Brinkmann, Senior Vice President & Comptroller of
the named bank do hereby declare that this Statement of Condition
has been prepared in conformance with the instructions issued by
the appropriate regulatory authority and is true to the best of
my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
June 7, 1996<PAGE>
EXHIBIT 26
[LETTERHEAD OF GENERAL PUBLIC UTILITIES CORPORATION]
______, 199_
Dear Prospective Purchaser:
General Public Utilities Corporation ("Company") is
requesting proposals for the purchase of $___________ aggregate
principal amount of Debentures, ____ Series due ______
("Debentures"). Proposals will not be accepted for less than all
of the Debentures.
All proposals for the Debentures must be made on the
Form of Proposal and in accordance with the Statement of Terms
and Conditions Relating to Proposals for the Purchase of
Debentures ("Terms and Conditions"), copies of which are
enclosed, together with a copy of the related Purchase Agreement.
All proposals must be submitted to the Company in
accordance with such procedures and on such day and time as shall
be designated by the Company by telephonic and written notice.
Such notice shall be first communicated by the Company not less
than 72 hours prior to the designated time.
A Registration Statement on Form S-3 relating to these
securities has been declared effective by the Securities and
Exchange Commission ("SEC").
The specific terms of the Debentures with respect to
maturity, sinking fund, redemption prices, etc. are included in
Appendix A to this letter. In accordance with the Terms and
Conditions, please include the annual interest rate (which rate
shall be a multiple of 1/8 of 1%) and the price to be paid to the
Company, which shall be not less than ____% nor more than ____%
of the principal amount of the Debentures. Representatives of
the Company will notify you as to whether your proposal has been
accepted or rejected by the Company. Such notice shall be given
not later than three hours after the time designated for receipt
by the Company of written confirmation of telephonic proposals on
the date designated for the submission of proposals, in
accordance with the Terms and Conditions.
Enclosed is a copy of the Company's Registration
Statement on Form S-3 relating to the Debentures, together with
the order of the SEC in connection therewith, and the Company's<PAGE>
Annual Report on Form 10-K for 199_ [, Quarterly Report(s) on
Form 10-Q for the quarter(s) ended ______________ and Current
Report(s) on Form 8-K dated ____________], as filed with the SEC.
Also enclosed are copies of the Company's Declaration on Form
U-1, as amended, filed by the Company under the Public Utility
Holding Company Act of 1935, together with the related order of
the SEC. Winthrop, Stimson, Putnam & Roberts, who are acting as
counsel for the prospective purchasers of the Debentures, are
sending you copies of the Preliminary Blue Sky Survey and, if
requested in accordance with Section 1(e)(1) of the Terms and
Conditions, a Legal Investment Survey. Should you wish to
discuss the legal aspects of the offering, or the fees and
disbursements of such counsel, please contact Stephen K. Waite,
Esq. of that firm at (212) 858-1000.
Representatives of the Company will be available by
telephone conference call at ________ on ___________, 199_ to
answer any questions you may have.
Sincerely,
GENERAL PUBLIC UTILITIES CORPORATION
By: T. G. Howson
Title: Vice President and Treasurer
- 2 -<PAGE>
Appendix A
Aggregate Principal Amount:
Maturity:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
- 3 -<PAGE>
GENERAL PUBLIC UTILITIES CORPORATION
Statement of
Terms and Conditions Relating to Proposals
for the Purchase of
Debentures
General Public Utilities Corporation ("Company")
expects to issue from time to time in one or more series up to
$300,000,000 aggregate principal amount of its Debentures. The
Company will invite proposals, in accordance with the notice
provisions and the other terms and conditions hereof, for the
purchase of all or a portion of such Debentures. The Debentures
to be issued in response to proposals therefor is referred to
herein as the "Debentures". Proposals for the purchase of the
Debentures may be transmitted to the Company only in accordance
with the terms and conditions hereof. Any communication received
by the Company relating to the purchase of the Debentures other
than as contemplated herein shall be treated as market
information and not as a proposal.
1. Information Concerning the Company and the
Debentures.
Prospective purchasers may examine at the office of
General Public Utilities Corporation, 100 Interpace
Parkway, Parsippany, New Jersey 07054, at any time
during business hours, copies of the following:
(a) the Registration Statement (including
exhibits, the prospectus contained therein
("Prospectus"), and the documents incorporated therein
by reference), and any amendments or supplements
thereto, relating to the Debentures, filed with the
Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended ("Registration
Statement");
(b) the Declaration on Form U-1 and all
amendments thereto (including exhibits and the
documents incorporated therein by reference) of the
Company, filed with the SEC under the Public Utility
Holding Company Act of 1935, as amended ("1935 Act"),
and the related order of the SEC;
(c) the Indenture, dated as of _____________,
1996, and all indentures supplemental thereto and, when
available and if applicable, the form of Supplemental<PAGE>
Indenture thereto to be dated as of the first day of
the month in which the Debentures are issued
("Indenture" and "Supplemental Indenture",
respectively) to United States Trust Company of New
York, as Trustee ("Trustee"), under which the
Debentures are to be issued , or the applicable
resolution of the Board of Directors of the Company
("Resolution") or Officer's Certificate ("Officer's
Certificate"), authorizing the Debentures as provided
by the Indenture.
(d) the Form of Proposal ("Proposal") to be used
by prospective purchasers in offering to purchase the
Debentures, which includes the form of Purchase
Agreement for the purchase of the Debentures ("Purchase
Agreement");
(e) (1) if requested by a single prospective
purchaser or a Representative, as defined below, a
survey by Winthrop, Stimson, Putnam & Roberts, who are
the counsel referred to in Section 8 hereof, with
respect to the legality of the Debentures as
investments for savings banks, life and certain other
insurance companies and fiduciaries in certain
jurisdictions, and (2) a Preliminary Blue Sky survey by
that firm with respect to the qualification of the
Debentures for sale under the securities laws of
various jurisdictions; and
(f) one or more statements, when available, with
respect to proposals for the Debentures and the terms
of the Debentures, which shall specify (1) the date and
time for the submission of proposals for the
Debentures; (2) the principal amount of the Debentures;
(3) the series designation of the Debentures, (4) the
minimum and maximum percentages of principal amounts
which may be specified in the Proposal as the purchase
price for the Debentures, (5) the term of the
Debentures, which shall not be less than one year nor
more than 40 years, (6) the terms and conditions upon
which the Debentures may be redeemed, either at the
option of the Company, pursuant to any sinking fund for
the Debentures or otherwise, and (7) such other
provisions as may be necessary or desirable to
establish the terms and conditions of the Debentures
and the terms of proposals therefor.
Copies of items (d) and (e) and copies of the
Registration Statement (excluding exhibits) will be supplied in
reasonable quantities to prospective purchasers on request. The
Company will make copies of the form of Indenture and of the
statement(s) referred to in item (f) above available to
prospective purchasers as soon as practicable, but in no event
less than 24 hours prior to the time for the submission of
proposals.
- 2 -<PAGE>
The Company reserves the right to amend the
Registration Statement and Prospectus and the aforesaid
Declaration on Form U-1 and to make changes in the form of the
Indenture or Supplemental Indenture, and in the form of any other
documents relating to the issuance and sale of the Debentures
including any applicable Resolution or Officer's Certificate, at
any time and from time to time with the approval of Winthrop,
Stimson, Putnam & Roberts, or as may be provided in the Purchase
Agreement after such agreement has become effective. The Company
will give telephonic notice, confirmed in writing, of the date
and time for the receipt of proposals and of any such amendments
and changes to its request for proposals, which in its opinion
are material, made prior to the submission of proposals, to any
person who will be submitting a proposal and who notifies the
Company at 100 Interpace Parkway, Parsippany, New Jersey 07054,
Attn: T. G. Howson, Vice President and Treasurer, that it
desires such notice and furnishes the name, address and telephone
number of the person to whom such notice shall be given. The
notice of any such amendment or change need not include the text
thereof, but the text thereof may be examined at said office.
[The Debentures will be issuable in book-entry-only form.]
2. Form and Content of Proposals.
Each proposal must be for the purchase of the entire
amount of Debentures for which proposals are being received, and
shall specify (i) the interest rate (which shall be a multiple of
1/8th of 1%) on the Debentures and (ii) the price to be paid to
the Company for the Debentures, which price shall be stated as a
percent of the principal amount of the Debentures and shall be
not less than nor more than the minimum and maximum percentages
of the principal amount thereof specified in the statement
referred to in Section 1(f) hereof, plus accrued interest from
the first day of the month in which the Debentures are issued, to
the date of delivery of and payment for the Debentures.
Proposals may be made by a single prospective purchaser
or by a group of prospective purchasers. No prospective
purchaser who makes a separate single proposal may participate in
a group proposal, and no prospective purchaser who participates
in one group proposal may participate in another group proposal.
In the case of a proposal by a group of prospective
purchasers, the several members of the group shall act through a
duly authorized representative or representatives (herein
referred to as the "Representative"), who shall be named as
Representative in such group proposal and who may be included in
the group. If a proposal of a group of prospective purchasers is
accepted, the obligations of the members of the group shall be
several and not joint, including the obligation to purchase the
principal amount of Debentures set forth opposite the respective
names of such members in Schedule A to such group proposal.
If a proposal is submitted by a Representative on
behalf of a group of prospective purchasers, and the principal
- 3 -<PAGE>
amount of Debentures to be purchased by any member of the group
is incorrectly stated in Schedule A to such proposal, the
Representative may correct any such error or errors forthwith
upon discovery thereof. If no such correction is made or, if
after all such corrections are made, the total amount set forth
in said Schedule A is more or less than the entire principal
amount of Debentures for which proposals are being received, then
the total principal amount of Debentures offered to be purchased
by the Representative shall be deemed to be increased or
decreased, as the case may be, to the extent of the discrepancy.
All proposals must be signed by a single prospective
purchaser or, in the case of a proposal by a group of prospective
purchasers, by their Representative on behalf of the group, and
must be submitted in duplicate.
3. Certain Representations by the Prospective
Purchasers to be Furnished to the Company.
By submitting a proposal for the Debentures, each
prospective purchaser shall be deemed to represent to the
Company, as of the date of the proposal for the Debentures, that,
except as stated to the Company in writing prior to the time for
receipt of proposals for the Debentures:
(a) neither such prospective purchaser nor any of
its directors, officers or partners have a material
relationship with the Company;
(b) such prospective purchaser and its directors
and officers or partners, as a group, do not own
beneficially 10% or more of any class of capital stock
of the Company;
(c) neither such prospective purchaser nor any of
its directors, executive officers or partners directly
or indirectly controls or is directly or indirectly
controlled by or is under direct or indirect common
control of the Trustee;
(d) such prospective purchaser and its directors,
executive officers or partners, as a group, do not own
beneficially more than 10% of the voting securities of
the Trustee;
(e) neither the Trustee nor any director,
executive officer or partner thereof is a "director,
officer, partner, employee, appointee or
representative" of such prospective purchaser, as those
terms are defined in or pursuant to the Trust Indenture
Act of 1939, as amended ("1939 Act");
(f) other than any matters disclosed to the
Company pursuant to paragraphs (c), (d) and (e) above,
there is no relationship between such prospective
- 4 -<PAGE>
purchaser or any director, executive officer or partner
thereof and the Trustee that would disqualify the
Trustee under the 1939 Act from acting as trustee with
respect to any of the Company's debt securities;
(g) such prospective purchaser is not a "holding
company", a "subsidiary company" of a "holding
company", or an "affiliate" or "associate company" of a
"holding company" or of a "public utility company",
each as defined in the 1935 Act;
(h) such prospective purchaser has not prepared
any report or memorandum for external use in connection
with the proposed offering; and
(i) such prospective purchaser's commitment to
purchase the Debentures will not result in a violation
of the financial responsibility requirements of Rule
15c3-1 under the Securities Exchange Act of 1934, and
is not prohibited or restricted by any action of the
SEC or of any national securities exchange applicable
to such prospective purchaser.
4. Submission of Proposals.
As set forth below and in a statement to be furnished
to prospective purchasers pursuant to Section 1(f) hereof, the
Company will receive proposals by telephone, confirmed in writing
(including facsimile). The "time for the submission of
proposals" as used herein shall mean the earliest time designated
in a statement to be furnished to prospective purchasers pursuant
to Section 1(f) hereof for submission of telephonic proposals to
the Company.
(a) Each telephonic proposal, confirmed in
writing, for the Debentures must be received by the Company on
the date and no later than the time designated by the Company in
a statement furnished to prospective purchasers pursuant to
Section 1(f) hereof. Such telephonic proposals must be directed
to the person and telephone number specified therein by the
Company for each prospective purchaser and must provide the
Company with (i) the name of any single prospective purchaser or
all members of a group of prospective purchasers and the
Representative of such group, (ii) a telephone number at which
such proposal may be immediately confirmed and the name of the
individual who will provide confirmation, (iii) the interest rate
to be borne by the Debentures and (iv) the price to be paid to
the Company for the Debentures. Such telephonic proposals must
be confirmed in writing by means of a duly executed proposal in
writing on the Form of Proposal (with Schedule A thereto
completed), or by other similar written instrument acceptable to
the Company and providing the information required in this
paragraph to be set forth, which must be delivered to the offices
of Berlack, Israels & Liberman LLP, 120 West 45th Street, New
York, New York 10036, Attention: Douglas E. Davidson, Esq., by
- 5 -<PAGE>
5:00 p.m. on such date, and sent by facsimile transmission to the
offices of the Company at the telephone number specified by the
Company in a statement furnished to prospective purchasers
pursuant to Section 1(f) hereof, as soon as possible but in no
event more than one hour after the time specified as the deadline
for receipt of telephonic proposals. Except as set forth in the
fourth paragraph of Section 2 hereof, any failure by a
prospective purchaser to confirm a telephonic proposal in a
timely manner by a duly executed proposal in writing on the Form
of Proposal or other similar written instrument acceptable to the
Company, with all information properly specified therein, may
result in such telephonic proposal being rejected as not in the
proper form as specified by the Company.
(b) The Company reserves the right, in its
discretion from time to time, to postpone the times or date for
telephonic submission and written confirmation of proposals, and
will give telephonic notice, confirmed in writing, of any such
postponement to any prospective purchaser who shall have
furnished its name to the Company for such purpose pursuant to
Section 1 hereof.
(c) The Company reserves the right to designate,
not less than 24 hours prior to the time, or postponed time,
specified for submission of proposals, a principal amount less
than the principal amount originally specified for the Debentures
in the Company's request for proposals for the purchase of the
Debentures, in which event the principal amount so designated
shall be deemed to be the principal amount of the Debentures.
5. Acceptance or Rejection of Proposals.
Subject to the reservations set forth below, the
decision of the Company with respect to the proposals submitted
will be announced not later than three hours after the time
designated for submission of proposals on the date designated for
such submission as specified in each case by the Company in a
statement furnished to prospective purchasers pursuant to Section
1(f) hereof, or at such later time or date as may be fixed by the
Company as provided in Section 4(b) hereof. Within three hours
of the receipt of proposals, the Company will (subject to the
provisions and reservations stated below) accept the proposal
which will provide the Company with the lowest "annual cost of
money". Said "annual cost of money" in respect of each proposal
shall be determined by the Company as twice the semi-annual rate
necessary to discount the semi-annual debt service payments
(interest or interest and principal, as due) to amounts which in
the aggregate equal the purchase price for the Debentures,
exclusive of accrued interest. The decision of the Company with
respect to the lowest "annual cost of money" shall in all cases
be final. Each proposal will be accepted or rejected in its
entirety. All proposals shall be irrevocable until three hours
after the time for submission of proposals, unless sooner
rejected.
- 6 -<PAGE>
If two or more such proposals provide an identical
lowest "annual cost of money" to the Company, then the Company
(unless it shall reject all proposals) shall by oral or
telephonic announcement give the makers of such identical
proposals the opportunity (the duration of which shall be in the
Company's discretion, but shall not extend beyond one hour after
such announcement) to improve their proposals, such improved
proposals to be made in a manner similar to that specified in a
statement furnished to prospective purchasers pursuant to Section
1(f) hereof, adjusted to reflect the new proposal submission and
confirmation times. The Company will accept, subject to the
reservations stated below, the improved proposal which will
provide the lowest "annual cost of money" to the Company. If no
improved proposal is so made, or if on resubmission, two or more
proposals providing an identical lowest "annual cost of money" to
the Company are again received, the Company may, in its sole
discretion and without liability to the maker of any other
proposal, accept any one of the identical proposals providing the
lowest "annual cost of money" to the Company.
Notwithstanding the foregoing provisions hereof, the
Company reserves the right:
(a) to reject all proposals (at or after the
submission and confirmation thereof irrespective of the terms
stated therein), and
(b) to reject the proposal of any prospective
purchaser or of any group of prospective purchasers (i) if such
prospective purchaser or any member of such group of prospective
purchasers is in such relationship with the Trustee as would
disqualify the Trustee from acting as Trustee under the Indenture
if the proposal of such prospective purchaser or group of
prospective purchasers shall be accepted, (ii) if the Company, in
the opinion of its counsel, may not lawfully sell the Debentures
to such prospective purchaser or to any member of such group of
prospective purchasers, and, in either such event, in the case of
a group of prospective purchasers, if within one hour after the
time for submission of proposals, the member or members of such
group causing such disqualification or illegality have not
withdrawn from the group and the remaining members, including
substituted members, if any are permitted by the Company, have
not agreed to purchase the Debentures which such withdrawing
member or members have offered to purchase, (iii) if the Company
is not satisfied with the financial responsibility of such
prospective purchaser or any member of any such group of
prospective purchasers, or (iv) if the acceptance of such
proposal might, in the judgment of the Company, bring about the
risk of a delay in the sale of the Debentures.
6. Determination of Redemption Prices
of the Debentures.
As soon as practicable after the acceptance of a
proposal, any applicable redemption prices of the Debentures will
- 7 -<PAGE>
be determined by the Company in accordance with a statement
furnished to prospective purchasers pursuant to the statement
referred to in Section 1(f) hereof. Such determination by the
Company shall be final.
7. Purchase Agreement.
Upon the acceptance of a proposal for the Debentures,
the Company will forthwith signify such acceptance by signing a
duplicate or reproduction copy of the proposal of the successful
purchaser, or, in the case of a proposal by a group of
purchasers, of the Representative on its behalf. Upon such
acceptance of a proposal, the Purchase Agreement shall become
effective without any separate execution thereof, and thereafter
all rights of the Company and of the successful purchaser, or
group of purchasers, shall be determined solely in accordance
with the terms of the proposal and such Purchase Agreement,
subject, however, to such changes therein as may be appropriate
if the successful purchaser or group of purchasers shall not
contemplate a public offering of the Debentures. Forthwith upon
such acceptance of any proposal, the successful purchaser or, in
the case of a proposal by a group of purchasers, the
Representative on its behalf, shall furnish to the Company in
writing the information which is (i) required to supplement the
Prospectus and for the filing thereof and (ii) required to be
filed with the SEC under the 1935 Act.
8. Opinion of Counsel for the Purchasers.
Winthrop, Stimson, Putnam & Roberts have been selected
by the Company as counsel to give to the successful purchaser or
purchasers an opinion with respect to the legal matters specified
in Section 5(e) of the Purchase Agreement. Such counsel have
participated from the standpoint of prospective purchasers of the
Debentures in the preparation of the proposal papers and the
documents under which the Debentures are to be issued and have
reviewed or will review the corporate proceedings and the
registration procedure with respect to the authorization and
issuance of the Debentures. They have also prepared the survey
referred to in Section 1(e)(2) hereof. Prospective purchasers
may confer with Winthrop, Stimson, Putnam & Roberts with respect
to any of the foregoing matters. The compensation and
disbursements of such counsel are to be paid by the successful
purchaser or purchasers, except as otherwise provided in the
Purchase Agreement, and any prospective purchaser and any
Representative of a group of prospective purchasers may obtain
from such counsel, upon request, advice regarding the amount of
such compensation and an estimate of the amount of such
disbursements.
9. Miscellaneous.
The Company reserves the right to waive any
irregularity, which it deems to be immaterial, in complying with
any of the foregoing terms and conditions.
- 8 -<PAGE>
GENERAL PUBLIC UTILITIES CORPORATION
By: T. G. Howson
Title: Vice President and Treasurer
__________, 199_
- 9 -<PAGE>
[To Be Submitted In Duplicate]
P R O P O S A L
for the purchase of
__________* principal amount of Debentures of
_____% Series* due ______*
GENERAL PUBLIC UTILITIES CORPORATION
__________________
Interest Rate: % per annum
Price: _____% of principal amount
General Public Utilities Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054
Ladies and Gentlemen:
Referring to the Statement of Terms and Conditions
Relating to Proposals for the Purchase of Debentures dated
__________, 199_ ("Terms and Conditions") for the purchase in one
or more series of up to $300,000,000 aggregate principal amount
of Debentures of General Public Utilities Corporation
("Company"), the persons, firms and corporations named in
Schedule A attached hereto ("Prospective Purchasers") submit
herewith the following Proposal for the above series of
Debentures of the Company ("Debentures"):
1. Each of the Prospective Purchasers, severally and
not jointly, hereby offers to purchase from the Company, at the
price (expressed as a percentage of the principal amount of the
Debentures specified in the space provided therefor above) plus
accrued interest from the first day of the month in which the
Debentures are issued to the date of delivery of and payment for
the Debentures, and upon the terms and conditions set forth in
the Terms and Conditions, including the statements relating to
the Debentures furnished to the Prospective Purchasers by the
Company pursuant to Section 1(f) thereof, and in the form of
Purchase Agreement attached hereto as Schedule B (the "Purchase
______________________
* Insert the principal amount, the series designation and
the year of maturity of the Debentures designated by
the Company pursuant to Section 1 of the Terms and
Conditions.<PAGE>
Agreement"), the principal amount of Debentures set forth
opposite the name of such Prospective Purchaser in said Schedule
A (unless corrected or deemed to have been corrected as provided
in Section 2 of the Terms and Conditions, in which case said
principal amount shall be as so corrected or deemed to have been
corrected). The interest rate for the Debentures shall be that
specified in the space provided therefor above.
2. If this Proposal shall be accepted by the Company,
the Purchase Agreement shall thereupon become effective as of the
time of the acceptance of this Proposal without any separate
execution thereof, with the blanks therein deemed to be
appropriately filled in, in accordance with the terms of this
Proposal, and with such modifications therein as may be necessary
and as are contemplated by the Terms and Conditions.
3. This Proposal is independent of all other
proposals which may be presented to the Company pursuant to the
Terms and Conditions.
4. Each of the Prospective Purchasers acknowledges
receipt of a copy of the Terms and Conditions and the Prospectus
relating to the Debentures.
5. By making this Proposal each of the Prospective
Purchasers confirms its representations to the Company as set
forth in Section 3 of the Terms and Conditions.
The undersigned Representative represents and warrants
that it has all necessary power and authority to submit proposals
for each of the Prospective Purchasers in respect of the matters
referred to in this Proposal and to act on behalf of each of the
Prospective Purchasers in any purchase of the Debentures if this
Proposal is accepted as contemplated by the Terms and Conditions.
Please indicate your acceptance of this Proposal by
signing below or on a counterpart hereof, in which event each
such counterpart shall be deemed to be an original but both of
which, when taken together, shall constitute one and the same
document.
Very truly yours,
Representative(s)
By:
Acting on behalf of the
several Prospective
Purchasers named in Schedule
A attached hereto, including
itself; or single prospective
purchaser.
- 2 -<PAGE>
Accepted ___________, 199_
GENERAL PUBLIC UTILITIES CORPORATION
By:
Title:_______________________________
- 3 -<PAGE>
SCHEDULE A
Name of
Prospective Purchaser Principal Amount
_________
Total...................................
- 4 -<PAGE>
SCHEDULE B
GENERAL PUBLIC UTILITIES CORPORATION
DEBENTURES
PURCHASE AGREEMENT
AGREEMENT made as of the date of acceptance of the
proposal (which includes Schedule A thereto) to which this
Agreement is attached as Schedule B ("Proposal"), between General
Public Utilities Corporation, a Pennsylvania corporation
("Company"), and the several Purchasers (hereinafter defined) of
the Company's Debentures of the designated series in the
principal amount and with the interest rate and maturity
specified in the Proposal ("Debentures").
SECTION 1. Registration and Issue of Debentures.
(a) The Company proposes to issue the Debentures under its
Indenture dated as of __________, 1996, between the Company and
United States Trust Company of New York, as Trustee ("Trustee"),
as supplemented and amended and as to be further supplemented and
amended by a supplemental indenture between the Company and the
Trustee, a resolution of the Board of Directors of the Company or
an officer's certificate, as the case may be, authorizing the
Debentures (said Indenture, as so supplemented and amended and to
be supplemented, being hereinafter referred to as the
"Indenture"; such supplemental indenture, resolution or officer's
certificate, each as executed and delivered, being hereinafter
referred to as the "Supplemental Indenture", the "Resolution" or
the "Officer's Certificate", respectively, which Debentures and
Indenture are more fully described in the prospectus hereinafter
referred to.
(b) The Company represents and warrants that it has
duly filed with the Securities and Exchange Commission ("SEC") a
registration statement on Form S-3 relating to $300,000,000
aggregate principal amount of the Company's Debentures and the
offering thereof from time to time in accordance with Rule 415
under the Securities Act of 1933, as amended ("1933 Act"), and
has filed such amendments thereto, if any, and such amended
preliminary prospectus as may have been required to the date
hereof. Such registration statement as so amended has been
declared effective by the SEC. Copies of such registration
statement have been delivered to the Representative hereinafter
referred to, and copies of a prospectus supplement ("Prospectus
Supplement") or prospectus filed pursuant to Rule 424(b) under
the 1933 Act satisfactory to counsel for the Purchasers
reflecting the terms of the Debentures will similarly be
delivered. The Company will not file any amendment to said
registration statement, any prospectus supplement or any
documents with the SEC pursuant to Sections 13, 14 or 15 of the
Securities Exchange Act of 1934, as amended ("1934 Act"), which<PAGE>
modify said registration statement, unless such amendment,
supplement or modification is reasonably satisfactory to counsel
for the Purchasers. Such registration statement as so amended at
the date of this Agreement, and the prospectus constituting a
part thereof, as amended or supplemented to reflect the terms of
the offering of the Debentures pursuant to a prospectus
supplement or prospectus filed by the Company pursuant to Rule
424(b) under the 1933 Act (including, in each case, all documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act), are hereinafter called the "Registration
Statement" and the "Prospectus", respectively, except that if the
Company files any documents pursuant to Sections 13, 14 or 15 of
the 1934 Act after the date of this Agreement and prior to the
termination of the offering of the Debentures by the Purchasers,
which documents are deemed to be incorporated by reference in the
Prospectus, the term "Prospectus" shall refer to the Prospectus
as supplemented by the documents so filed from and after the date
said documents are mailed or otherwise delivered for filing to
the SEC. The Company will advise Winthrop, Stimson, Putnam &
Roberts, who are acting as counsel for the Purchasers, of the
filing of any amendment or supplement to the Prospectus
(including any documents incorporated by reference), prior to any
such filing and will not file any such amendment or supplement to
which counsel for the Purchasers shall reasonably object in
writing.
SECTION 2. Purchase and Sale. Subject to the terms
and conditions herein set forth, the Company agrees to sell to
the several persons, firms or corporations named in the Proposal
(herein referred to as "Purchasers" or singly as "Purchaser" and
the Purchaser or Purchasers named as Representative(s) in the
Proposal being herein referred to as "Representative"), severally
and not jointly, and each of the Purchasers, upon the basis of
the representations and warranties herein set forth, agrees to
purchase from the Company, severally and not jointly, the
principal amount of Debentures set forth opposite its name in the
Proposal at the price set forth in the Proposal plus accrued
interest thereon from the first day of the month in which the
Debentures are issued, to the date of delivery of and payment for
the Debentures.
SECTION 3. Public Offering. The Company is advised
by the Representative that the Purchasers propose to make a bona
fide public offering of the Debentures as soon as practicable.
The Representative is contemporaneously advising the Company of
such details of the offering, including the price to the public
and the concessions, if any, to dealers, brokers and others, as
are needed to complete the filing of any supplement to the
Prospectus.
SECTION 4. Delivery of and Payment for the
Debentures. (a) Payment of the purchase price for the
Debentures, including accrued interest at the rate specified in
the Proposal from the first day of the month in which the
Debentures are issued to the Closing Date (as hereinafter
- 2 -<PAGE>
defined), shall be made by or on behalf of the several Purchasers
by a certified, bank cashier's or official bank check or checks
payable in Federal funds to the order of the Company, at the
offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park
Plaza, New York, New York 10004-1490 (or such other place or
places of payment as may be agreed upon between the Company and
the Representative), at 10:00 A.M., New York time, on the date
which is [three] business days after the date on which the
Proposal is accepted by the Company, or at such other time and by
such alternative method as shall be agreed upon by the Company
and the Representative, upon delivery of the Debentures to the
Representative for the account of the Purchasers at the offices
of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza,
New York, New York 10004-1490 (or such other place or places of
delivery as shall be agreed upon between the Company and the
Representative). The consummation and the time and date of such
payment and delivery, which may be postponed as provided in
paragraph (c) below, are herein referred to, respectively, as the
"Closing" and the "Closing Date."
(b) The Debentures will be delivered to the
Representative for the respective accounts of the Purchasers in
[fully registered form in the denomination of $______ and an
integral multiple thereof or book-entry-only form] and registered
in such names as the Representatives may reasonably request in
writing not later than 12:00 Noon, New York time, on the second
business day prior to the Closing Date, or, in the case of fully
registered Debentures, to the extent not so requested, registered
in the names of the respective Purchasers in such denominations
as the Company may determine. The Company agrees to make such
certificates available to the Representative not later than 12:00
Noon, New York time, on the business day next preceding the
Closing Date at the offices of Winthrop, Stimson, Putnam &
Roberts, One Battery Park Plaza, New York, New York 10004-1490
(or such other place or places as shall be agreed upon between
the Company and the Representative).
(c) If any one or more of the Purchasers shall fail or
refuse to purchase and pay for the principal of Debentures set
forth opposite its or their names in the Proposal in accordance
with the terms hereof ("Defaulted Debentures"), the Company shall
immediately notify the Representative orally, and the Representa-
tive shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Purchasers, or
any other purchasers (which other purchasers shall be deemed to
make the representations contained in Section 3 of the Terms and
Conditions) to purchase all, but not less than all, of the
Defaulted Debentures in such amounts as may be agreed upon and
upon the terms herein set forth. If, however, during such 24
hours the Representative shall not have completed such
arrangements for the purchase of all of the Defaulted Debentures,
then the Company shall have the right within a further period of
24 hours:
- 3 -<PAGE>
(i) to require each non-defaulting Purchaser to
purchase the Defaulted Debentures of the defaulting
Purchaser up to a principal amount thereof equal to 10%
of the principal amount of Debentures which such non-
defaulting Purchaser has otherwise agreed to purchase
hereunder; and
(ii) to procure one or more other members of the
National Association of Securities Dealers, Inc.,
satisfactory to the Representative, to purchase, upon
the terms herein set forth, the aggregate principal
amount of Defaulted Debentures which the non-defaulting
Purchasers shall not be obligated to purchase pursuant
to the foregoing clause (i).
In the event of a default by any Purchaser or
Purchasers as set forth in this Section, either the
Representative or the Company shall have the right to postpone
the Closing Date for a period not exceeding seven days in order
that any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements may be
effected.
SECTION 5. Conditions of Purchasers' Obligations.
The obligations of the several Purchasers to purchase and pay for
the Debentures are subject to the following conditions:
(a) Any Prospectus or Prospectus Supplement required
to be filed pursuant to Rule 424(b) under the 1933 Act to reflect
the terms of the Proposal shall have been timely filed in
accordance with the 1933 Act.
(b) On the Closing Date there shall be in full force
and effect orders of the SEC under the 1933 Act and the Public
Utility Holding Company Act of 1935, as amended ("1935 Act"),
permitting the issuance and sale of the Debentures in accordance
with the terms thereof, each containing no provision unacceptable
to the Representative (it being understood that any such order in
effect as of the date of this Agreement does not contain any such
unacceptable provision and that no subsequent order shall be
deemed to contain any such unacceptable provision, unless the
Representative within 24 hours after receiving a copy thereof
from the Company shall have given notice to the Company to the
effect that such order contains an unacceptable provision or
unacceptable provisions).
(c) On the Closing Date
(i) no stop order suspending the
effectiveness of the Registration Statement shall be in
effect, and no proceedings for that purpose shall be
pending before, or to the knowledge of the Company
threatened by, the SEC;
- 4 -<PAGE>
(ii) since the respective most recent dates
as of which information is given in the Registration
Statement and Prospectus and up to the Closing Date,
there shall have been no material adverse change in the
business, properties or financial condition of the
Company, except as reflected in or contemplated by the
Registration Statement and the Prospectus, and since
such dates and up to the Closing Date there shall have
been no material transaction entered into by the
Company other than transactions disclosed in or
contemplated by the Registration Statement and the
Prospectus and transactions in the ordinary course of
business;
(iii) the Company shall have performed all
agreements contained herein to be performed by it at or
prior to such date; and
(iv) the representations and warranties of
the Company herein contained shall be true and correct;
and the Representative shall have received, prior to
payment for the Debentures, a certificate, dated the
Closing Date and signed by the President or any Vice
President of the Company, to such effect.
(d) On the Closing Date, the Representative shall be
furnished with opinions of Berlack, Israels & Liberman LLP and
Ballard Spahr Andrews & Ingersoll (together, herein sometimes
referred to as "counsel for the Company"), dated the Closing Date
and with copies thereof for each of the other Purchasers, to the
effect that:
(i) the Company is a corporation duly
incorporated and validly existing under the laws of the
Commonwealth of Pennsylvania and has corporate
authority to carry on its business as described in the
Prospectus, to own and operate the properties used and
useful in said business and to issue the Debentures;
(ii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid
instrument legally binding upon the Company (except as
limited by bankruptcy, insolvency, fraudulent
conveyance or other similar laws [, including, without
limitation, the Atomic Energy Act of 1954 and the
regulations thereunder,] affecting creditors' rights
generally);
(iii) when the Debentures have been duly
executed by the Company, authenticated by the Trustee
and delivered by the Company, and payment therefor has
been received by the Company pursuant to this
Agreement, they will be valid and binding obligations
of the Company in accordance with their terms, subject
to the limitations set forth in item (ii);
- 5 -<PAGE>
(iv) the Debentures conform as to legal
matters to the statements concerning them in the
Prospectus, and the summary therein of certain
provisions of the Indenture constitutes a correct
summary thereof for use in the Prospectus;
(v) all approvals, consents, and orders of
the SEC legally required for the execution and delivery
of the Indenture and the issuance and sale of the
Debentures have been obtained, and no approval or
consent of any other commission or other governmental
authority is legally required for such execution,
delivery, issuance and sale (except that the sale of
the Debentures in certain jurisdictions may be subject
to the provisions of the securities laws of such
jurisdictions) and the issuance and sale of the
Debentures are in accordance with the approvals and
consents obtained;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) at the time the Registration Statement
became effective, and as of the date hereof, the
Registration Statement and Prospectus (except the
financial statements and other financial information
included or incorporated by reference therein, as to
which counsel need express no opinion) complied as to
form in all material respects with the requirements of
the 1933 Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the SEC
regarding registration statements on Form S-3 and
related prospectuses; and
(viii) with respect to matters required to be
included in the Registration Statement, the statements
made in the Registration Statement under the heading
"Description of the Debentures" fairly present the
information called for insofar as such statements
constitute summaries of certain documents referred to
therein.
In addition, such counsel shall state that to the best
of such counsel's knowledge, without independent check or
verification except as indicated, nothing has come to the
attention of such counsel that would lead them to believe that
the Registration Statement at the time it became effective, or if
an annual report on Form 10-K has been filed by the Company with
the SEC subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing (in
each case other than with respect to the financial statements and
other financial information included or incorporated by reference
therein), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
- 6 -<PAGE>
the Prospectus, at the time it was electronically transmitted to
the SEC or at the Closing Date (other than with respect to the
financial statements and other information included or
incorporated by reference therein), contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
In giving such opinion, Berlack, Israels & Liberman LLP
may rely upon the opinion of Ballard Spahr Andrews & Ingersoll,
Philadelphia, Pennsylvania as to all matters of Pennsylvania law
and legal conclusions based thereon.
(e) On the Closing Date, the Representative shall be
furnished with an opinion of Winthrop, Stimson, Putnam & Roberts
(herein sometimes referred to as "counsel for the Purchasers"),
dated the Closing Date, and with copies thereof for each of the
other Purchasers, stating in substance the matters set forth in
subparagraphs (ii), (iii), (iv), (v), (vi), (vii) and the
penultimate paragraph of paragraph (d) of this Section 5; and
stating that the opinion given pursuant to paragraph (d) of this
Section 5 is satisfactory in form to them. In giving such
opinion, counsel for the Purchasers may rely as to all matters of
Pennsylvania law and legal conclusions based thereon upon the
opinion of Ballard Spahr Andrews & Ingersoll called for by
paragraph (d) of this Section 5.
(f) On the Closing Date, the Representative shall be
furnished with a letter from Coopers & Lybrand L.L.P., dated such
date and addressed to the Board of Directors of the Company and
the Representative, with copies thereof for each of the
Purchasers, to the effect that: (i) they are independent
certified public accountants with respect to the Company within
the meaning of the 1933 Act and the applicable published rules
and regulations thereunder; (ii) in their opinion, the financial
statements and supplemental schedules audited by them and
incorporated by reference in the Prospectus and included or
incorporated by reference in the Company's most recent Annual
Report on Form 10-K filed with the SEC under Section 13 of the
1934 Act ("Form 10-K") comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and
the published rules and regulations thereunder ("1934 Act
Regulations"); (iii) on the basis of (1) procedures performed as
specified by the American Institute of Certified Public
Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, on the
unaudited balance sheets and related unaudited condensed
statements of income, retained earnings and cash flows of the
Company incorporated by reference in the Registration Statement
and included in the Company's quarterly reports on Form 10-Q
(collectively, "Form 10-Qs"), (2) a reading of the latest
unaudited operating revenues and net income included or
incorporated by reference in the Prospectus, (3) a reading of the
latest available unaudited financial statements of the Company,
- 7 -<PAGE>
(4) a reading of the minutes of the meetings of the Board of
Directors of the Company as set forth in the minute books since
December 31, 199_, and (5) inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an audit made in accordance with generally accepted
auditing standards and would not necessarily reveal matters of
significance with respect to the comments made in such letter
and, accordingly that Coopers & Lybrand L.L.P. makes no
representations as to the sufficiency of such procedures for the
several Purchasers' purposes), nothing has come to their
attention which caused them to believe that (A) the unaudited
financial statements included in the Form 10-Qs do not comply as
to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or that
any material modifications should be made to said unaudited
financial statements for them to be in conformity with generally
accepted accounting principals, (B) any material modifications
should be made to the unaudited amounts of operating revenues and
net income for the most recent 12-month period included or
incorporated by reference in the Registration Statement for them
to be in conformity with generally accepted accounting principals
or (C) on the date of the latest available financial statements
and on a specified date not more than five days prior to the
Closing Date there was any change in the common stock, cumulative
preferred stock without mandatory redemption, cumulative
preferred stock with mandatory redemption, subsidiary-obligated
mandatorily redeemable preferred securities or long-term debt
(except for such stock and long-term debt acquired for sinking
fund purposes or redeemed pursuant to sinking fund provisions, or
changes in obligations under capital leases incurred in the
ordinary course of the Company's business and the amortization of
discounts and premiums) of the Company, or any decrease in its
net assets (except as occasioned by the declaration of
dividends), in each case as compared with the amounts shown in
the most recent balance sheet included in the most recent Form
10-K or Form 10-Q, except in all instances for changes or
decreases which the Registration Statement discloses have
occurred or may occur, and (iv) they have proved the arithmetic
accuracy of or performed certain other procedures on the
Consolidated Ratio of Earnings to Combined Fixed Charges and
Preferred Dividends of Subsidiaries contained in the Registration
Statement under the heading "Consolidated Ratio of Earnings to
Combined Fixed Changes and Preferred Dividends of Subsidiaries"
and such other financial information contained or incorporated by
reference in the Registration Statement as reasonably requested
by the Representative; provided, that said letter may vary from
the requirements specified above in such manner as the
Representative may deem not to be material or may be acceptable
to the Representative with the consent of Purchasers who,
together with the Representative, have agreed to purchase in the
aggregate 50% or more of the Debentures.
- 8 -<PAGE>
SECTION 6. Conditions of Company's Obligations.
The obligations of the Company to issue and sell the Debentures
are subject to the following conditions:
(a) Any prospectus or prospectus supplement pursuant
to Rule 424(b) under the 1933 Act shall have been filed not later
than the time specified in or agreed to under paragraph (a) of
Section 5 hereof.
(b) On the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall be pending before or,
to the knowledge of the Company, threatened by the SEC.
(c) On the Closing Date there shall be in full force
and effect orders of the SEC under the 1933 Act and the 1935 Act
permitting the issuance and sale of the Debentures in accordance
with the terms thereof, each containing no provision unacceptable
to the Company (it being understood that any such order in effect
as of the date of this Agreement does not contain any such
unacceptable provision and that no subsequent order shall be
deemed to contain any such unacceptable provision, unless the
Company, within 24 hours after receiving a copy thereof, shall
give notice to the Representative to the effect that such order
contains an unacceptable provision or unacceptable provisions).
(d) On the Closing Date the Company shall concurrently
sell and receive payment for all of the Debentures.
SECTION 7. Covenants of the Company. In further
consideration of the agreements of the Purchasers herein
contained, the Company agrees that:
(a) The Company will file with the SEC a prospectus or
prospectus supplement pursuant to Rule 424(b) under the 1933 Act,
with such changes therein as may be approved by counsel for the
Purchasers, as soon as practicable after the acceptance of the
Proposal.
(b) As soon as the Company is advised thereof, it will
notify the Representative orally (i) when any amendment or
supplement to the Registration Statement has been filed, and (ii)
when any stop order has been issued under the 1933 Act with
respect to the Registration Statement or any proceedings therefor
have been instituted or to the knowledge of the Company are
threatened; and it will use its best efforts to prevent the
issuance of any such stop order and secure the prompt removal
thereof, if issued. The Company will not, after the acceptance
of the Proposal and prior to termination of the offering of the
Debentures, file any amendment of or any further supplement to
the Registration Statement or the Prospectus unless such
amendment or supplement is reasonably satisfactory to counsel for
the Purchasers.
- 9 -<PAGE>
(c) The Company will, on or prior to the Closing Date,
deliver to the Representative and also, on request, to counsel
for the Purchasers:
(i) a copy of the Registration Statement as
originally filed and of each amendment thereto, each
signed by or on behalf of the proper officers of the
Company and a majority of its Board of Directors,
including a signed copy of each consent, opinion and
certificate included therein or filed as an exhibit
thereto, and also including the exhibits to, and the
documents incorporated by reference in, such
Registration Statement and amendments thereto (other
than such exhibits as are incorporated in the
Registration Statement by reference, unless
specifically requested); and
(ii) such other documents (including copies of the
Registration Statement and of any amendments thereto,
in each case including documents incorporated therein
by reference but excluding exhibits) appropriately
signed or certified if so requested, relating to the
issuance and validity of the Debentures as the
Representative or counsel for the Purchasers may
reasonably request.
(d) Promptly after the date of any prospectus
supplement or prospectus electronically transmitted or mailed for
filing to the SEC to reflect the terms of the Proposal, the
Company will furnish to the Purchasers, in accordance with the
Representative's instructions, without charge, as many copies of
the Prospectus (without the documents incorporated therein by
reference) as the Representative may reasonably request for the
purposes contemplated by the 1933 Act, and will deliver to the
Representative as soon as practicable after the effective date of
the Registration Statement sufficient conformed copies of the
Registration Statement and of all amendments thereto (in each
case including documents incorporated therein by reference but
excluding exhibits) for distribution of one to each Purchaser.
If any event relating to or affecting the Company, or of which
the Company shall be advised by the Representative, shall occur,
which in the opinion of the Company or of counsel for the
Purchasers should be set forth in a supplement to or an amendment
of the Prospectus in order to make the Prospectus not misleading
in the light of the circumstances when it is delivered to a
Purchaser, the Company will, upon the occurrence of each such
event, forthwith at its expense, (i) prepare and furnish to the
Representative a reasonable number of copies of a supplement or
amendment to the Prospectus, reasonably satisfactory to counsel
for the Purchasers, or (ii) file with the SEC documents to be
incorporated by reference in the Prospectus, reasonably
satisfactory to counsel for the Purchasers in either case so that
statements in the Prospectus as so supplemented, amended or
modified will not contain as of the date of such supplement,
amendment or modification, any untrue statement of a material
- 10 -<PAGE>
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
when the Prospectus is delivered, not misleading.
(e) After the acceptance of the Proposal, and prior to
the termination of the offering of the Debentures, the Company
will file promptly all documents required to be filed with the
SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act, which documents shall be reasonably satisfactory to counsel
for the Purchasers.
(f) The Company will make generally available to its
security holders, as soon as practicable, an earning statement of
the Company (covering a period and otherwise in form consistent
with the provisions of Section 11(a) and Rule 158 promulgated
under the 1933 Act which earning statement need not be certified
by independent public accountants unless required by the 1933
Act), which earning statement shall be in the same detail as the
Statement of Income incorporated by reference in the Registration
Statement.
(g) The Company will use its best efforts to comply
with the conditions precedent to the obligations of the
Purchasers, specified in Section 5 hereof, or to cause such
conditions to be complied with.
(h) The Company will pay all expenses in connection
with the preparation of the Registration Statement and
Prospectus, the issuance and delivery of the Debentures, and the
printing and delivery of copies of the Registration Statement,
the Prospectus, the Terms and Conditions and the various
documents therein referred to; and will pay all taxes, if any, on
the issuance of the Debentures, but will not pay any transfer
taxes. The Company will not, however, be required to pay any
amount for any expenses of the Representative or of any of the
Purchasers or compensation and disbursements of their counsel,
except as provided in Section 9(c) hereof, and, except as
provided in said Section 9(c), the Purchasers agree to pay such
expenses, compensation and disbursements. The Company shall not,
in any event, be liable to the several Purchasers for damages on
account of loss of anticipated profits.
(i) The Company will use its best efforts to qualify
at its expense the Debentures for offer and sale, under the
securities laws in such states as the Representative may
designate, and will pay all fees and expenses including fees and
disbursements of counsel not to exceed $_____ incurred in
connection with the preparation of surveys relating thereto and
to the legality for investment, if any, provided that the Company
shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any state.
SECTION 8. Representations and Warranties of the
Company; Indemnification. (a) The Company represents and
warrants to each Purchaser that
- 11 -<PAGE>
(i) when any prospectus or prospectus
supplement reflecting the acceptance of the Proposal is
filed with, or electronically transmitted for filing
to, the SEC, and at the Closing Date, (A) the
Registration Statement will comply in all material
respects with the provisions of the 1933 Act and the
rules and regulations of the SEC thereunder, and will
not contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) the Prospectus will comply in all
material respects with the provisions of the 1933 Act
and the rules and regulations of the SEC thereunder and
will not contain any untrue statement of a material
fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading; except that the representations and
warranties contained in this subsection (i) shall not
apply to statements in or omissions from the
Registration Statement and Prospectus made in reliance
upon and in conformity with information furnished
herein or in writing to the Company by any Purchaser or
by the Representative on behalf of any Purchaser
expressly for use in the Registration Statement or
Prospectus;
(ii) the documents incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were filed with the SEC,
complied in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations, and, when
read together with the other information in the
Prospectus, and, when any prospectus or prospectus
supplement reflecting the acceptance of the Proposal is
filed with, or electronically transmitted for filing
to, the SEC, and at the Closing Date, will not contain
any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they are made, not
misleading, and any documents deemed to be incorporated
by reference in the Prospectus will, when they are
filed with the SEC, comply in all material respects
with the requirements of the 1934 Act and the 1934 Act
Regulations and will not contain any untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances under which they are made, not
misleading;
(iii) Coopers & Lybrand L.L.P. are independent
certified public accountants with respect to the
- 12 -<PAGE>
Company within the meaning of the 1933 Act and the
rules and regulations of the SEC thereunder;
(iv) the performance by the Company of the
terms of this Agreement will not result in a breach by
the Company of any terms of, or constitute a default
under, any other material agreement or undertaking of
the Company; and
(v) except as reflected in, or contemplated
by, the Registration Statement and Prospectus, since
the respective most recent dates as of which
information is given in the Registration Statement and
Prospectus, there has not been any material adverse
change in the business, properties or financial
condition of the Company, and since such dates there
has not been any material transaction entered into by
the Company other than transactions disclosed in or
contemplated by the Registration Statement and
Prospectus and transactions in the ordinary course of
business, and the Company has no material contingent
obligation which is not disclosed in the Registration
Statement and Prospectus.
(b) The Company agrees to indemnify and hold harmless
each Purchaser and each person, if any, who controls any
Purchaser within the meaning of Section 15 of the 1933 Act, as
follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever arising out of any
untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be
stated therein or necessary to make the statements
therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, unless such statement
or omission or such alleged statement or omission was
made in reliance upon and in conformity with written
information furnished to the Company by any Purchaser
or by the Representative on behalf of any Purchaser
expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability,
claim, damage and expense whatsoever to the extent of
- 13 -<PAGE>
the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or
omission or any alleged untrue statement or omission,
if such settlement is effected with the written consent
of the Company; and
(iii) against any and all expense whatsoever
reasonably incurred in investigating, preparing or
defending against any litigation, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above.
This indemnity agreement is subject to the condition
that insofar as it relates to any untrue statement or omission,
or any alleged untrue statement or omission, made in any
preliminary prospectus or the Prospectus but eliminated or
remedied in a supplement or amendment thereto, such indemnity
agreement shall not inure to the benefit of any Purchaser (or of
any person controlling such Purchaser) from and after the time
such supplement or amendment shall have been furnished unless the
Prospectus is used as so supplemented or amended, provided that
such use shall not require delivery of documents incorporated by
reference. In no case shall the Company be liable under this
indemnity agreement with respect to any claim made against any
Purchaser or any such controlling person unless the Company shall
be notified in writing of the nature of the claim promptly after
the assertion thereof, but failure so to notify the Company shall
not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The Company shall
be entitled to participate at its own expense in the defense, or,
if it so elects within a reasonable time after receipt of such
notice, to assume the defense of any suit brought to enforce any
such claim, but if it so elects to assume the defense, such
defense shall be conducted by counsel chosen by it and approved
by the Purchaser or Purchasers or controlling person or persons,
defendant or defendants in any suit so brought, which approval
shall not be unreasonably withheld. In the event that the
Company elects to assume the defense of any such suit and retains
such counsel, the Purchaser or Purchasers or controlling person
or persons, defendant or defendants in the suit, shall bear the
fees and expenses of any additional counsel thereafter retained
by them. In the event that the parties to any such action
(including impleaded parties) include both the Company and one or
more Purchasers and any such Purchaser shall have been advised by
counsel chosen by it and satisfactory to the Company that there
may be one or more legal defenses available to it which are
different from or additional to those available to the Company,
the Company shall not have the right to assume the defense of
such action on behalf of such Purchaser and will reimburse such
Purchaser and any person controlling such Purchaser as aforesaid
for the reasonable fees and expenses of any counsel retained by
them, it being understood that the Company shall not, in
- 14 -<PAGE>
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all
such Purchasers and controlling persons, which firm will be
designated in writing by the Representative. The Company agrees
to notify the Representative promptly after the assertion of any
claim against it, any of its directors or any of its officers who
signed the Registration Statement, or any person who controls the
Company within the meaning of Section 15 of the 1933 Act, in
connection with the sale of the Debentures.
(c) Each Purchaser severally agrees that it will
indemnify and hold harmless the Company, its directors, and each
of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act to the same extent as the indemnity
contained in subsection (b) of this Section, but only with
respect to statements or omissions made in the Registration
Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information furnished to the Company by such Purchaser or by the
Representative on behalf of such Purchaser expressly for use in
the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). In case any action shall be brought against
the Company or any person so indemnified based on the
Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and in respect of which indemnity may be
sought against any Purchaser, such Purchaser shall have the
rights and duties given to the Company, and the Company and each
person so indemnified shall have the rights and duties given to
the Purchasers by the provisions of subsection (b) of this
Section.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement
provided for in this Section 8 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Purchasers shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more Purchasers in
respect of such offering in such proportions that the Purchasers
shall be responsible for that portion of the aggregate losses,
liabilities, claims, damages and expenses represented by the
percentage that the underwriting discount appearing on the cover
page of the Prospectus Supplement relating to the Debentures
bears to the initial public offering price appearing thereon and
the Company shall be responsible for the balance, provided,
however, that no such person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
- 15 -<PAGE>
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls a
Purchaser within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Purchaser and each
director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Company.
(e) The indemnity agreements contained in this Section
8 shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Company, or any
Purchaser or any controlling person, and shall survive the
delivery of the Debentures to the Purchasers.
SECTION 9. Termination and Survival. (a) This
Agreement may be terminated by notice to the Company by the
Representative with the consent of Purchasers who have agreed to
purchase in the aggregate 50% or more of the aggregate principal
amount of the Debentures (a) at any time prior to the expiration
of 24 hours after acceptance of the Proposal (but not after the
initial public offering of the Debentures), if the market value
of securities in general or political, financial or economic
conditions shall have so materially changed after the time for
the submission of proposals for the Debentures and within the
time set forth above as, in the judgment of the Representative,
to render it inadvisable to proceed with the public offering of
the Debentures, and (ii) at any time prior to the Closing if,
subsequent to the time for the submission of proposals (A) a
general banking moratorium shall have been declared by Federal
authorities which in the judgment of the Representative would
materially restrict a free market for the Debentures, (B) there
shall have been a general suspension of trading on the New York
Stock Exchange, (C) there shall have occurred any new outbreak or
escalation of hostilities or other national or international
calamity or crisis the effect of which on the financial markets
of the United States shall be such as, in the judgment of the
Representative, to make it impracticable for the Purchasers to
enforce contracts for the sale of the Debentures, or (D) the
Company and its subsidiaries, considered as one enterprise, shall
have sustained a loss by fire, flood, accident or other calamity
which is substantial with respect to the property of the Company
and its subsidiaries, considered as one enterprise, and which in
the judgment of the Representative renders it inadvisable to
consummate the sale of the Debentures and the delivery of the
Debentures by the several Purchasers at the initial public
offering price, whether or not such loss shall have been insured.
The time of the initial public offering for the purposes of this
Section 9 shall mean the time at which the Debentures are first
generally offered by the Representative on behalf of the
Purchasers to dealers by letter, facsimile transmission or
telegram.
(b) This Agreement shall terminate:
- 16 -<PAGE>
(i) if, under the conditions, within the
time and otherwise as provided in Section 4(c) hereof,
neither the Representative nor the Company shall
procure another party or parties to purchase Defaulted
Debentures;
(ii) if any of the conditions specified in
Section 5 hereof shall not have been fulfilled and the
Representative shall give notice to the Company that
this Agreement is terminated by reason thereof; or
(iii) if any of the conditions specified in
Section 6 hereof shall not have been fulfilled and the
Company shall give notice to the Representative that
this Agreement is terminated by reason thereof.
(c) Subject to the provisions of paragraph (d) below,
in the event that this Agreement shall terminate as provided in
paragraph (a) or (b) above, no Purchaser (other than a Purchaser
who shall have failed or refused to purchase the Debentures which
it has agreed to purchase hereunder without some reason
sufficient to justify its termination of its obligations
hereunder) shall be under any liability to the Company, and the
Company shall not be under any liability to any Purchaser, except
that the Company shall, unless such termination shall be under
the provisions of paragraph (a) or (b)(i) above, pay the
Representative, for the account of the Purchasers severally, the
amount of their out-of-pocket expenses (but not exceeding $15,000
in the aggregate in addition to the fee and disbursements of
counsel for the Purchasers, a statement of the amount of such fee
and estimate of such disbursements having been furnished to the
Company) reasonably incurred by the Purchasers hereunder, except
for those Purchasers who have failed or refused (without some
reason sufficient to justify the termination of their obligations
hereunder) to purchase and pay for the Debentures which such
Purchasers have agreed to purchase hereunder. The Company will
not in any event be liable to any of the several Purchasers for
damages on account of loss of anticipated profits.
(d) The agreements and representations and warranties
set forth in Sections 1, 7(h), 7(i) and 8 hereof shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of any Purchaser or
controlling person or by or on behalf of the Company, and
regardless of acceptance of any payment for the Debentures
hereunder, and the agreements and representations and warranties
set forth in Sections 1, 7(h), 7(i) and 8 hereof shall remain
operative and in full force and effect, regardless of termination
hereof as above provided or otherwise.
SECTION 10. Notices. All notices and other
communications hereunder shall be in writing or by telegram or
facsimile transmission (confirmed in writing) (or where oral
notice is specified, shall be promptly confirmed in writing or by
telegram or facsimile transmission (confirmed in writing)) and if
- 17 -<PAGE>
to the Company, shall be mailed or delivered to General Public
Utilities Corporation, 100 Interpace Parkway, Parsippany, New
Jersey 07054, Attention: T. G. Howson, Vice President and
Treasurer or if to the Purchaser or the Representative shall be
mailed or delivered to such person at the address set forth for
the Representative in the Proposal.
SECTION 11. Validity and Interpretation. The
validity, construction and interpretation of this Agreement shall
be governed by the laws of the State of New York. In the event
that the Proposal was made by a single person, firm or
corporation, as used herein the term "Purchaser" shall mean such
single person, firm or corporation, the term "Representative"
shall mean such Purchaser, the term "Purchasers" shall be read in
the singular to mean such Purchaser, and the provisions of this
Agreement shall be deemed appropriately modified to reflect that
it is an Agreement between the Company and a single Purchaser.
SECTION 12. Succession. This Agreement shall inure to
the benefit of the Company, of the several Purchasers and, with
respect to paragraphs (b), (c), (d) and (e) of Section 8 hereof,
of each controlling person, officer and director referred to in
said paragraphs, and their respective successors, assigns,
executors and administrators. Nothing in this Agreement is
intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under
or in respect to this Agreement or any provision herein
contained. The terms "successors" and "assigns" as used in this
Agreement shall not include any purchaser, as such purchaser, of
any of the Debentures from any of the several Purchasers.
- 18 -<PAGE>
Difference Description
1. The statements on page 2 of A statement that the
each Prospectus will be in registration statement
the left-hand margin on the has been filed and has
cover pages printed not become effective.
vertically.
2. The page numbers in the The printed and distri-
electronic document do buted document will have
not correspond to the pages fewer pages than the filed
in the printed document. document because there is
more material on each page
of the printed document
and Part II is not part of
the printed document.
- 19 -<PAGE>
