As filed with the Securities and Exchange Commission on
May 18, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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JERSEY CENTRAL POWER & LIGHT COMPANY
(Exact name of registrant as specified
in its charter)
NEW JERSEY
(State or other jurisdiction of incorporation or organization)
21-0485010
(I.R.S. Employer Identification No.)
2800 Pottsville Pike
Reading, Pennsylvania 19605
(610) 929-3601
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Terrance G. Howson
Vice President and Treasurer
GPU Service, Inc.
310 Madison Avenue
Morristown, New Jersey 07962
(973) 455-8200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Please send copies of all communications to:
DOUGLAS E. DAVIDSON, ESQ. SCOTT L. GUIBORD, ESQ.
Berlack, Israels & Liberman LLP Secretary
120 West 45th Street Jersey Central Power & Light Company
New York, New York 10036 2800 Pottsville Pike
(212) 704-0100 Reading, Pennsylvania 19605
(610) 929-3601
RICHARD L. HARDEN, ESQ.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
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Approximate date of commencement of proposed sale to the public: At such
time or times after the effective date of this Registration Statement as the
registrant shall determine based on market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box./ /
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, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering./ /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.//
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box./ /
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title of Each Class Offering Maximum Amount Of
Of Securities To Be Amount To Be Price Per Aggregate Registration
Registered Registered Unit* Offering Price* Fee
- -------------------- ----------- -------- --------------- ------------
Senior Notes. . . . $100,000,000 100% $100,000,000 $27,800
* Estimated solely for purposes of calculating the registration fee pursuant to
Rule 457.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
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 THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(a), MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
2
SUBJECT TO COMPLETION, DATED May 18, 1999
PROSPECTUS
$100,000,000
JERSEY CENTRAL POWER & LIGHT COMPANY
SENIOR NOTES
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Jersey Central Power & Light Company will be selling Senior Notes from
time to time in an amount not to exceed $100,000,000 pursuant to this prospectus
and supplements to this prospectus.
Each series of Senior Notes will be issued under a Senior Note Indenture
between us and United States Trust Company of New York, as senior note trustee.
Initially, the Senior Notes will be secured by one or more series of our First
Mortgage Bonds which will be issued and delivered to the senior note trustee
under our First Mortgage Bond Indenture dated as of March 1, 1946, as amended
and supplemented. However, on the date that the senior note trustee holds 80% or
more of all of our outstanding First Mortgage Bonds, the Senior Notes will no
longer be secured by any First Mortgage Bonds. At that time, the Senior Notes
will be unsecured obligations of Jersey Central Power & Light Company and will
rank equally with all of our other unsecured and unsubordinated indebtedness.
We will provide the specific terms of each series of Senior Notes, their
offering prices and how they will be offered in supplements to this prospectus.
You should read this prospectus and any applicable supplement carefully before
you invest.
Our principal executive offices are located at 2800 Pottsville Pike,
Reading, Pennsylvania 19605 and our telephone number is (610) 929-3601.
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These securities have not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission, nor have these
organizations determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
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May 18, 1999
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You should read and rely only on the information incorporated by reference
or provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. Neither we nor any underwriters,
agents or dealers are making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any supplement, or incorporated by reference, is accurate as of
any date other than the date such information is given.
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TABLE OF CONTENTS PAGE
- ----------------- ----
About This Prospectus..........................3
Jersey Central Power & Light Company...........3
Where You Can Find More Information............4
Use of Proceeds................................5
Ratios of Earnings to Fixed Charges............5
Description of Senior Notes....................5
Description of Senior Note
Mortgage Bonds................................24
Plan of Distribution .........................29
Legal Matters.................................31
Experts.......................................31
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ABOUT THIS PROSPECTUS
......This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf process, we may, from time to time through December 31, 2000, sell
the Senior Notes described in this prospectus in one or more offerings up to a
total dollar amount of $100,000,000. This prospectus provides you with a general
description of the Senior Notes. Each time we sell a series of Senior Notes, we
will provide you with a supplement to this prospectus that will contain specific
information about the terms of that series. Any supplement may also add, update
or change information contained in this prospectus. Before you invest, you
should read both this prospectus and any supplement to this prospectus together
with the additional information about us described under "Where You Can Find
More Information."
......For more detailed information about the Senior Notes, you can read the
exhibits filed with the registration statement.
JERSEY CENTRAL POWER & LIGHT COMPANY
......Jersey Central Power & Light Company (the "Company"), a public utility
furnishing electric service wholly within the State of New Jersey, is a
subsidiary of GPU, Inc., a holding company registered under the Public Utility
Holding Company Act of 1935. The Company provides retail electric service within
a territory located in northern, western and east central New Jersey having a
population of approximately 2.6 million. The Company's principal executive
offices are located at 2800 Pottsville Pike, Reading, Pennsylvania 19605, and
its telephone number is (610) 929-3601.
......During 1998, residential sales accounted for about 45% of the Company's
operating revenues from customers and 41% of kilowatt-hour sales to customers;
commercial sales accounted for about 39% of the Company's operating revenues
from customers and 40% of kilowatt-hour sales to customers; industrial sales
accounted for about 15% of the Company's operating revenues from customers and
19% of kilowatt-hour sales to customers; and sales to rural electric
cooperatives, municipalities (primarily for street and highway lighting) and
others accounted for about 1% of the Company's operating revenues from customers
and less than 1% of kilowatt-hour sales to customers. The revenues derived from
the 25 largest customers in the aggregate accounted for approximately 9% of
operating revenues from customers for the year 1998. The Company also makes
interchange and spot market sales of electricity to other utilities.
......The electric generating and transmission facilities of the Company and its
affiliates, Pennsylvania Electric Company and Metropolitan Edison Company
(collectively doing business as "GPU Energy"), are physically interconnected and
are operated as a
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single integrated and coordinated system. The transmission facilities of the
integrated system are physically interconnected with neighboring nonaffiliated
utilities in Pennsylvania, New Jersey, Maryland, New York and Ohio. The Company
is a member of the Pennsylvania-New Jersey-Maryland Interconnection ("PJM") and
the Mid-Atlantic 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.
WHERE YOU CAN FIND MORE INFORMATION
......The Company, a New Jersey corporation, files annual, quarterly and current
reports and other information with the Securities and Exchange Commission under
File No. 1-3141. These Securities and Exchange Commission filings are available
to the public over the Internet at the Securities and Exchange Commission's web
site at http://www.sec.gov. You may also read and copy any of these Securities
and Exchange Commission filings at the Securities and Exchange Commission's
public reference room in Washington, D.C. located at 450 Fifth Street, N.W.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further
information about the operation of the public reference room. Some of our
securities are listed on the New York Stock Exchange and such reports and other
information can also be inspected and copied at the offices of such exchange on
the 7th Floor, 20 Broad Street, New York, New York.
......The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus
and should be read with the same care. Information that we file later with the
Securities and Exchange Commission will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings (including those made after the initial filing of the
registration statement and prior to effectiveness) we make with the Securities
and Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until we sell all of the Senior Notes described
in this prospectus.
- - Our Annual Report on Form 10-K for the year ended December 31, 1998.
- - Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
- - Our Current Report on Form 8-K dated April 16, 1999.
You may request a free copy of these filings by writing or telephoning us
at the following address: Jersey Central Power &
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Light Company, 2800 Pottsville Pike, Reading, Pennsylvania 19605, attention:
Secretary. Our telephone number is (610) 929-3601.
USE OF PROCEEDS
Except as shall otherwise be provided in a supplement to this prospectus,
the Company intends to use the net proceeds from the sale of the Senior Notes
offered from time to time:
- - to redeem other outstanding securities of the Company, including first
mortgage bonds, preferred stock and preferred securities,
- - to repay outstanding short-term bank loans or other unsecured indebtedness,
- - for construction purposes and
- - for other corporate purposes, including to reimburse the Company's treasury
for funds previously expended for the above purposes.
The use of proceeds with respect to a particular series of Senior Notes will be
set forth in the related supplement to this prospectus.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's Ratio of Earnings to Fixed Charges for each of the periods
indicated was as follows:
Years ended December 31, Twelve Months
Ended
March 31, 1999
1994 1995 1996 1997 1998 (unaudited)
- ---- ---- ---- ---- ---- -----------
3.09 3.44 2.89 3.57 4.01 4.08
The Ratio of Earnings to Fixed Charges represents, on a pre-tax basis, the
number of times earnings cover fixed charges. Earnings consist of net income to
which has been added fixed charges and taxes based on income of the Company.
Fixed charges consist of interest on funded indebtedness, other interest
(including distributions on Company Obligated Mandatorily Redeemable Preferred
Securities), amortization of net gain on reacquired debt and net discount on
debt and the interest portion of all rentals charged to income.
DESCRIPTION OF SENIOR NOTES
The following is a summary of certain terms and provisions of the Senior
Notes and the Senior Note Indenture (as defined below). Reference is made to the
Senior Note Indenture which is
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an exhibit to the registration statement of which this prospectus forms a part.
General
The Senior Notes may be issued from time to time in one or more series in
amounts and on terms to be determined at or prior to the time or times of sale,
under the Senior Note Indenture, as it may be amended or supplemented (the
"Senior Note Indenture"), between the Company and United States Trust Company of
New York (the "Senior Note Trustee").
Until the Release Date (as defined below), all of the Senior Notes
outstanding under the Senior Note Indenture will be secured by one or more
series of the Company's Senior Note Mortgage Bonds (as defined below) issued and
delivered by the Company to the Senior Note Trustee. See "-- Security; Release
Date." On the Release Date, the Senior Notes will cease to be secured by the
Senior Note Mortgage Bonds, will become unsecured general obligations of the
Company and will rank on a parity with other unsecured and unsubordinated
indebtedness of the Company. The Senior Note Indenture provides that prior to
the Release Date, the principal amount of the Senior Notes that may be issued
and outstanding cannot exceed the principal amount of the Senior Note Mortgage
Bonds then held by the Senior Note Trustee. See "Description of Senior Note
Mortgage Bonds -- Issuance of Additional First Mortgage Bonds."
There is no requirement under the Senior Note Indenture that future issues
of debt securities of the Company be issued exclusively under the Senior Note
Indenture; accordingly, the Company will be free to employ other indentures or
documentation, containing provisions different from those included in the Senior
Note Indenture or applicable to one or more issues of Senior Notes, in
connection with future issues of other debt securities.
There is no limitation on the amount of Senior Notes that may be issued
under the Senior Note Indenture. However, the Senior Note Indenture contains
certain restrictive covenants prohibiting the Company from (1) issuing,
assuming, guaranteeing or permitting to exist after the Release Date, so long as
any Senior Notes are outstanding, any secured debt without effectively securing
the Senior Notes equally and ratably with such secured debt, or (2) entering
into or permitting to exist certain sale/leaseback transactions, subject, in
each case, to certain exceptions described under "-- Certain Covenants of the
Company."
There is no provision in the Senior Note Indenture or the Senior Notes
that requires the Company to redeem, or permit the holders to cause a redemption
of, the Senior Notes or that otherwise protects the holders in the event that
the Company incurs substantial additional indebtedness, whether or not in
connection with a change in control of the Company.
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Reference is made to a supplement to this prospectus for a description of
the following terms of the series of Senior Notes in respect of which this
prospectus is being delivered, to the extent such terms supplement or differ
from the description of the Senior Notes contained in this prospectus: (1) the
designation of such Senior Notes; (2) the aggregate principal amount of such
Senior Notes; (3) the price (expressed as a percentage of principal amount) at
which such Senior Notes will be issued; (4) the date or dates on which the
principal of such Senior Notes is payable; (5) the rate or rates at which such
Senior Notes will bear interest, or method of calculation of such rate or rates,
the date or dates from which such interest will accrue, the dates on which such
interest will be payable ("Interest Payment Dates"), and the regular record
dates for the interest payable on such Interest Payment Dates ("Regular Record
Dates"); (6) the option, if any, of the Company to redeem such Senior Notes and
the period or periods within which, or the date or dates on which, the prices at
which and the terms and conditions upon which, such Senior Notes may be
redeemed, in whole or in part, upon the exercise of such option; (7) the
obligation, if any, of the Company to redeem or purchase such Senior Notes at
the option of the registered holder or pursuant to any sinking fund or analogous
provisions and the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon which,
such Senior Notes will be redeemed or purchased, in whole or in part, pursuant
to such obligation; (8) if prior to the Release Date, the designation of the
related series of Senior Note Mortgage Bonds being delivered to the Senior Note
Trustee in connection with the issuance of such Senior Notes; and (9) any other
terms of such Senior Notes not inconsistent with the Senior Note Indenture.
Unless otherwise indicated in a supplement to this prospectus, the Senior
Notes will be issued (1) in denominations of $1,000 and integral multiples
thereof, and (2) in book-entry only form and represented by one or more Global
Securities, as described under "-- Book-Entry Senior Notes."
Payment of Principal and Interest
Until the Senior Notes are paid or payment thereof is provided for, the
Company will, at all times, maintain a paying agent (the "Paying Agent") in The
City of New York capable of performing the duties described herein to be
performed by the Paying Agent. The Company has initially appointed United States
Trust Company of New York, 114 West 47th Street, New York, New York 10036 as
Paying Agent. Any change in the Paying Agent or its address effected prior to
the issuance of any series of Senior Notes will be set forth in a supplement to
this prospectus. Thereafter, the Company will notify the holders of the Senior
Notes in accordance with the Senior Note Indenture of any change in the Paying
Agent or its address.
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Each series of Senior Notes will bear interest from the later of (1) the
date such series is issued and authenticated (the "Original Issue Date") or the
date specified in such series or (2) the most recent date to which interest has
been paid or duly provided for with respect to such series, in each case at the
rate set forth in a supplement to this prospectus, until the principal amount
thereof is paid or made available for payment. Interest on each series of Senior
Notes will be payable on such Interest Payment Dates as are set forth in a
supplement to this prospectus and at maturity or upon earlier redemption;
provided, however, that the first Interest Payment Date for any series of Senior
Notes with an Original Issue Date between a Regular Record Date set forth in a
supplement to this prospectus and an Interest Payment Date will be the Interest
Payment Date following the next Regular Record Date. Each payment of interest in
respect of an Interest Payment Date will include interest accrued to but
excluding such Interest Payment Date. Interest will be computed on the basis of
a 360-day year of twelve 30-day months (and for any partial periods shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months).
Interest payable on any Interest Payment Date will be paid to the person
in whose name a Senior Note is registered at the close of business on the Record
Date next preceding such Interest Payment Date; provided, however, that interest
payable at maturity or upon earlier redemption will be payable to the person to
whom principal shall be payable.
Any payment required to be made in respect of a Senior Note on a date that
is not a Business Day need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such date,
and no additional interest shall accrue as a result of such delayed payment.
"Business Day" shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State
of New York, or in the city where the corporate trust office of the Senior Note
Trustee is located, are obligated or authorized by law or executive order to
close.
Principal of, premium, if any, and interest on any series of Senior Notes
represented by Global Securities will be paid in the manner described under
"--Book-Entry Senior Notes."
Redemption Provisions
Except as shall otherwise be provided in a supplement to this prospectus,
each series of Senior Notes will be redeemable, as a whole or in part, at the
Company's option, at any time or from time to time, prior to the maturity of
such series, on at least 30 days, but not more than 60 days, prior notice mailed
to the registered address of each holder of the such series.
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The redemption prices will be equal to the greater of (1) 100% of the
principal amount of the series of Senior Notes to be redeemed or (2) as
determined by an Independent Investment Banker (as defined below), the sum of
the present values of the Remaining Scheduled Payments (as defined below)
discounted (for purposes of determining such present value), on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months), at a
discount rate equal to the sum of the Treasury Rate (as defined below) and a
number of basis points to be set forth in a supplement to this prospectus.
In each case, accrued interest on such series of Senior Notes to be
redeemed will be payable to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the series of Senior Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series. "Independent Investment Banker"
means one of the Reference Treasury Dealers appointed by the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations for such redemption
date after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (2) if the Senior Note Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations. "Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Senior Note Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Senior Note Trustee by such Reference
Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day
preceding such redemption date.
"Reference Treasury Dealer" means such nationally recognized investment
banking firms that are primary U.S. Government securities dealers as are set
forth in a supplement to this prospectus.
"Remaining Scheduled Payments" means, with respect to each series of
Senior Note to be redeemed, the remaining scheduled payments of principal of and
interest on such series that would be
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due after the related redemption date but for such redemption. If such
redemption date is not an Interest Payment Date with respect to such series, the
amount of the next succeeding scheduled interest payment on such series will be
reduced by the amount of interest accrued on such series to such redemption
date.
On and after the redemption date, interest will cease to accrue on the
series of Senior Notes or any portion of thereof called for redemption (unless
the Company does not deposit the money for the payment of the redemption price
and accrued interest pursuant to the next succeeding paragraph). If less than
all the Senior Notes of any series are to be redeemed, the Senior Notes of such
series to be redeemed shall be selected by the Senior Note Trustee by such
method as it shall deem fair and appropriate.
Any notice of redemption at the option of the Company may state that such
redemption will be conditional upon receipt by the Senior Note Trustee (or a
Paying Agent), on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest on such
series of Senior Notes and that if such money has not been so received, such
notice will be of no force and effect and the Company will not be required to
redeem such series of Senior Notes.
Except as shall otherwise be provided in a supplement to this prospectus,
the Senior Notes will not be subject to a sinking fund.
The Company may at any time purchase Senior Notes at any price in the open
market or otherwise. Senior Notes so purchased by the Company may be surrendered
to the Senior Note Trustee for cancellation.
Security; Release Date
Until the Release Date, the Senior Notes will be secured by one or more
series of the Company's first mortgage bonds (the "Senior Note Mortgage Bonds")
issued and delivered by the Company to the Senior Note Trustee (see "Description
of Senior Note Mortgage Bonds"). Upon the issuance of a series of Senior Notes
prior to the Release Date, the Company will simultaneously issue and deliver to
the Senior Note Trustee, as security for all the Senior Notes being issued, a
series of Senior Note Mortgage Bonds that will have the same stated maturity
date and corresponding redemption provisions, and will be in the same aggregate
principal amount and have the same interest rate as the corresponding series of
Senior Notes being issued. Any payment by the Company to the Senior Note Trustee
of principal of, premium, if any, and interest on, a series of Senior Note
Mortgage Bonds will be applied by the Senior Note Trustee to satisfy the
Company's obligations with respect to principal of, premium, if any, and
interest on, the related series of Senior Notes.
The Release Date will be the earlier of (1) the date that all First
Mortgage Bonds (as defined herein), other than the
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Senior Note Mortgage Bonds, have been retired (whether at, before or after the
maturity thereof) through payment, redemption, purchase, defeasance or otherwise
and (2) the date upon which the Senior Note Trustee holds Senior Note Mortgage
Bonds constituting not less than 80% in aggregate principal amount of all
outstanding First Mortgage Bonds. On the Release Date, the Senior Note Trustee
will deliver to the Company for cancellation all Senior Note Mortgage Bonds and,
not later than 30 days thereafter, will provide notice to all holders of the
Senior Notes of the occurrence of the Release Date. As a result, on the Release
Date, the Senior Note Mortgage Bonds shall cease to secure the Senior Notes and
the Senior Notes will become unsecured and unsubordinated general obligations of
the Company.
Each series of Senior Note Mortgage Bonds will be a series of First
Mortgage Bonds of the Company, all of which are secured by a first lien on
substantially all of the Company's property. See "Description of Senior Note
Mortgage Bonds - Kind and Priority of Lien." Upon the payment or cancellation of
any outstanding Senior Notes, the Senior Note Trustee shall surrender to the
Company for cancellation an equal principal amount of the related series of
Senior Note Mortgage Bonds. The Company shall not permit, at any time prior to
the Release Date, the aggregate principal amount of Senior Note Mortgage Bonds
held by the Senior Note Trustee to be less than the aggregate principal amount
of the Senior Notes then outstanding. After the issuance of the first series of
Senior Notes under the Senior Note Indenture, no additional First Mortgage Bonds
will be issued by the Company under the Mortgage (as defined herein) other than
as collateral security for the Senior Notes.
Events of Default
The following constitute events of default under the Senior Note
Indenture: (a) default in the payment of principal of or premium, if any, on any
Senior Note when due and payable; (b) default in the payment of interest on any
Senior Note when due and payable which continues for 60 days; (c) default in the
performance or breach of any other covenant or agreement of the Company in the
Senior Notes or in the Senior Note Indenture and the continuation thereof for 90
days after written notice thereof to the Company by the Senior Note Trustee or
the holders of at least 33% in aggregate principal amount of the outstanding
Senior Notes; (d) prior to the Release Date, the occurrence of a "completed
default" as defined under the Mortgage; provided, however, that the waiver or
cure of such default and the recision and annulment of the consequences thereof
under the Mortgage shall constitute a waiver of the corresponding event of
default under the Senior Note Indenture and a recision and annulment of the
consequences thereof under the Senior Note Indenture; and (e) certain events of
bankruptcy, insolvency, reorganization, assignment or receivership of the
Company.
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If an event of default under the Senior Note Indenture occurs and is
continuing, either the Senior Note Trustee or the holders of a majority in
aggregate principal amount of the outstanding Senior Notes may declare, by
notice in writing, the principal of and interest on all Senior Notes to be due
and payable immediately. Upon such acceleration of the Senior Notes, the Senior
Note Mortgage Bonds shall be immediately redeemable upon demand of the Senior
Note Trustee (and surrender thereof to the Mortgage Trustee, as herein defined)
at a redemption price of 100% of the principal amount thereof, together with
interest to the redemption date. See "Description of Senior Note Mortgage Bonds
Redemption Provisions of Senior Note Mortgage Bonds." At any time after an
acceleration of the Senior Notes has been obtained (and provided the
acceleration of all Senior Note Mortgage Bonds has not occurred), if the Company
pays or deposits with the Senior Note Trustee a sum sufficient to pay all
matured installments of interest and the principal and any premium which has
become due on the Senior Notes otherwise than by acceleration and all defaults
shall have been cured or waived, then such payment or deposit will cause an
automatic rescission and annulment of the acceleration of the Senior Notes.
The Senior Note Indenture provides that the Senior Note Trustee generally
will be under no obligation to exercise any of its rights or powers under the
Senior Note Indenture at the request or direction of any of the holders of the
Senior Notes unless such holders have offered to the Senior Note Trustee
reasonable security or indemnity. Subject to such provisions for indemnity and
certain other limitations contained in the Senior Note Indenture, the holders of
a majority in aggregate principal amount of the outstanding Senior Notes
generally will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Senior Note Trustee, or of
exercising any trust or power conferred on the Senior Note Trustee. The holders
of a majority in aggregate principal amount of the outstanding Senior Notes
generally will have the right to waive any past default or event of default
(other than a payment default) on behalf of all holders of the Senior Notes. The
Senior Note Indenture provides that no holder of the Senior Notes may institute
any action against the Company under the Senior Note Indenture unless such
holder previously shall have given to the Senior Note Trustee written notice of
an event of default and continuance thereof and unless the holders of a majority
in aggregate principal amount of the Senior Notes then outstanding affected by
such event of default shall have requested the Senior Note Trustee to institute
such action and shall have offered the Senior Note Trustee reasonable indemnity,
and the Senior Note Trustee shall not have instituted such action within 60 days
of such request. Furthermore, no holder of the Senior Notes will be entitled to
institute any such action if and to the extent that such action would disturb or
prejudice the rights of other holders of the Senior Notes. Notwithstanding that
the right of a holder of the Senior Notes to institute a proceeding with respect
to the Senior Note Indenture is subject to certain conditions
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precedent, each holder of a Senior Note has the right, which is absolute and
unconditional, to receive payment of the principal of, and premium, if any, and
interest on such Senior Note when due and to institute suit for the enforcement
of any such payment, and such rights may not be impaired without the consent of
such holders of Senior Notes. The Senior Note Indenture provides that the Senior
Note Trustee, within 90 days after the occurrence of a default with respect to
the Senior Notes, is required to give holders of the Senior Notes notice of any
default known to the Senior Note Trustee, unless cured or waived, but, except in
the case of default in the payment of principal of, or premium, if any, or
interest on, any Senior Notes, the Senior Note Trustee may withhold such notice
if it determines in good faith that it is in the interest of such holders to do
so. The Company is required to deliver to the Senior Note Trustee each year an
officer's certificate as to whether or not the Company is in compliance with the
conditions and covenants under the Senior Note Indenture.
Book-Entry Senior Notes
Except as shall otherwise be provided in a supplement to this prospectus,
the Senior Notes will be issued in book-entry only form (each Senior Note so
issued, a "Book-Entry Senior Note"), and will be represented by one or more
registered Global Securities (each, a "Global Security") that will be deposited
with, or on behalf of, The Depository Trust Company, New York, New York ("DTC")
or such other Depository which may replace DTC as Depository for the Book-Entry
Senior Notes (the "Depository"), and registered in the name of a nominee of the
Depository.
Upon issuance, all Book-Entry Senior Notes of the same series will be
represented by one Global Security. Except under the circumstances described
below, Book-Entry Senior Notes will not be exchangeable for Senior Notes in
certificated form and will not otherwise be issuable in certificated form.
If the Depository notifies the Company that it is at any time unwilling or
unable to continue as Depository and a successor Depository is not appointed
within 90 days after receipt of such notice, the Company will cause to be issued
Senior Notes in certificated form ("Certificated Senior Notes") in exchange for
the Global Security or Global Securities representing the corresponding
Book-Entry Senior Notes. In addition, the Company may at any time and in its
sole discretion determine not to have any Book-Entry Senior Notes represented by
one or more Global Securities and, in such event, will cause to be issued
individual Certificated Senior Notes in exchange for the Global Security or
Global Securities representing the corresponding Book-Entry Senior Notes.
Lastly, within seven days of the occurrence of an event of default under the
Senior Note Indenture, the Company will cause to be issued Certificated Senior
Notes in exchange for the Global Security or Securities representing the
corresponding Book-Entry Senior Notes.
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In any such instance, a beneficial owner of a Book-Entry Senior Note represented
by a Global Security will be entitled to physical delivery of Certificated
Senior Notes equal in principal amount to such Book-Entry Senior Note and to
have such Certificated Senior Notes registered in its name.
The following is based on information furnished by DTC:
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 Securities Exchange Act of 1934 (the "Exchange Act"). DTC holds
securities that its participants ("Direct Participants") deposit with DTC.
DTC also facilitates the settlement among Direct 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. 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 and, together with Direct Participants,
the "Participants"). The rules applicable to DTC and its Participants are
on file with the Securities and Exchange Commission.
Purchases of Book-Entry Senior Notes represented by Global
Securities under the DTC system must be made by or through Direct
Participants, which will receive a credit for such purchases of Book-Entry
Senior Notes on DTC's records. The ownership interest of each actual
purchaser of each Book-Entry Senior Note represented by a Global Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the
Direct or Indirect Participant through which the Beneficial Owner entered
into the transaction. Transfers of ownership interests in the Book-Entry
Senior Notes represented by Global Securities 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
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their ownership interests in Book-Entry Senior Notes represented by Global
Securities, except in the event that use of the book-entry system for such
Book-Entry Senior Notes is discontinued.
To facilitate subsequent transfers, all Global Securities deposited
with, or on behalf of, DTC are registered in the name of DTC's partnership
nominee, Cede & Co. The deposit of Global Securities with DTC and their
registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the
Book-Entry Senior Notes represented by Global Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts
such Book-Entry Senior Notes are credited which may or may not be the
Beneficial Owners. The 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 shall be sent to Cede & Co. If less than all of
the Book-Entry Senior Notes having the same Original Issue Date and other
terms are being redeemed, DTC's practice is to determine by lot the amount
of the interest of each Direct Participant to be so redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the
Book-Entry Senior Notes represented by Global Securities. Under its usual
procedures, DTC mails 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
Book-Entry Senior Notes represented by Global Securities are credited on
the applicable record date (identified in a listing attached to the
Omnibus Proxy).
Principal and any premium and/or interest payments on the Book-Entry
Senior Notes represented by Global Securities will be made to DTC in
immediately available funds. DTC's practice is to credit Direct
Participants' accounts on the date on which interest is payable in
accordance with the respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payment on such date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in "street
name", and will be the responsibility of such Participant and not of DTC,
the underwriters, dealers or agents or the Company, subject to any
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statutory or regulatory requirements as may be in effect from time to
time. Payment of principal and any premium and/or interest to DTC is the
responsibility of the Company and the Senior Note Trustee. Disbursement of
such payments to Direct Participants shall be the responsibility of DTC,
and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities Depository
with respect to the Book-Entry Senior Notes at any time by giving
reasonable notice to the Company and the Senior Note Trustee. Under such
circumstances, in the event that a successor securities Depository is not
obtained, Senior Notes in certificated form are required to be printed and
delivered in exchange for Book-Entry Senior Notes held by DTC.
The Company may decide to discontinue use of the system and
book-entry transfers through DTC (or a successor securities Depository).
In that event, Senior Notes in certificated form will be printed and
delivered in exchange for Book-Entry Senior Notes held by DTC.
So long as Cede & Co. is the registered owner of any series of
Book-Entry Senior Notes, as nominee of DTC, reference herein to holders of
such series of Book-Entry Senior Notes shall mean Cede & Co. or DTC and
shall not mean the Beneficial Owners of the Book-Entry Senior Notes.
Management of DTC is aware that some computer applications, systems
and the like for processing data ("Systems") that are dependent upon
calendar dates, including dates before, on, and after January 1, 2000, may
encounter "Year 2000 problems." DTC has informed Direct Participants and
Indirect Participants and other members of the financial community (the
"Industry") that it has developed and is implementing a program so that
its Systems, as the same relate to the timely payment of distributions
(including principal and interest payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan
includes a testing phase, which is expected to be completed within
appropriate time frames.
However, DTC's ability to perform properly its services is also
dependent upon other parties, including, but not limited to, issuers and
their agents, as well as DTC's Direct Participants and Indirect
Participants, third party vendors from whom DTC licenses software and
hardware, and third party vendors on whom DTC relies for information or
the provision of services, including telecommunication and electrical
utility service providers, among others. DTC has informed the Industry
that it is contacting (and will continue to contact) third party vendors
from whom DTC acquires services to: (1)
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impress upon them the importance of such services being Year 2000
compliant; and (2) determine the extent of their efforts for Year 2000
remediation (and, as appropriate, testing) of their services. In addition,
DTC is in the process of developing such contingency plans as it deems
appropriate.
According to DTC, the information in the preceding two paragraphs
with respect to DTC has been provided to the Industry for informational
purposes only and is not intended to serve as a representation, warranty,
or contract modification of any kind.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
The underwriters, dealers or agents of any Senior Notes may be Direct
Participants of DTC.
None of the Company, the Senior Note Trustee, any underwriters, agents or
dealers or any agent for payment on or registration of transfer or exchange of
any Global Security will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial interests in
such Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Modification with Consent of Holders
Modification and amendment of the Senior Note Indenture may be effected by
the Company and the Senior Note Trustee with the consent of the holders of a
majority in aggregate principal amount of the outstanding Senior Notes affected
thereby, provided that no such modification or amendment may, without the
consent of the holder of each outstanding Senior Note affected thereby, (a)
change the maturity date of any Senior Note; (b) reduce the rate (or change the
method of calculation thereof) or extend the time of payment of interest on any
Senior Note; (c) reduce the principal amount of, or premium payable on, any
Senior Note; (d) change the coin or currency of any payment of principal of, or
premium, if any, or interest on, any Senior Note; (e) change the date on which
any Senior Note may be redeemed or repaid at the option of the holder thereof or
adversely affect the rights of a holder to institute suit for the enforcement of
any payment on or with respect to any Senior Note; (f) impair the interest of
the Senior Note Trustee in the Senior Note Mortgage Bonds held by it or, prior
to the Release Date, reduce the principal amount of any series of Senior Note
Mortgage Bonds securing the Senior Notes to an amount less than the principal
amount of the related series of Senior Notes or alter the payment provisions of
such Senior Note Mortgage Bonds in a manner adverse to the holders of the Senior
Notes; or (g) modify the foregoing requirements or reduce the
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percentage of outstanding Senior Notes necessary to modify or amend the Senior
Note Indenture or to waive any past default to less than a majority.
Modification without Consent of Holders
Modification and amendment of the Senior Note Indenture may be effected by
the Company and the Senior Note Trustee without the consent of the holders (a)
to add to the covenants of the Company for the benefit of the holders or to
surrender a right conferred on the Company in the Senior Note Indenture; (b) to
add further security for the Senior Notes; (c) to supply omissions, cure
ambiguities or correct defects, which actions, in each case, are not prejudicial
to the interest of the holders in any material respect; or (d) to make any other
change that is not prejudicial to the holders of the Senior Notes in any
material respect.
A supplemental indenture which changes or eliminates any covenants or
other provision of the Senior Note Indenture (or any supplemental indenture)
which has expressly been included solely for the benefit of one or more series
of the Senior Notes, or which modifies the rights of the holders of the Senior
Notes of such series with respect to such covenant or provision, will be deemed
not to affect the rights under the Senior Note Indenture of the holders of the
Senior Notes of any other series.
Defeasance and Discharge
The Senior Note Indenture provides that the Company will be discharged
from any and all obligations in respect to the Senior Notes and the Senior Note
Indenture (except for certain obligations such as obligations to register the
transfer or exchange of the Senior Notes, replace stolen, lost or mutilated
Senior Notes and maintain paying agencies) if, among other things, the Company
irrevocably deposits with the Senior Note Trustee, in trust for the benefit of
the holders of Senior Notes, money or certain United States government
obligations, or any combination thereof, which will provide money in an amount
sufficient, without reinvestment, to make all payments of principal of, premium,
if any, and interest on, the Senior Notes on the dates such payments are due in
accordance with the terms of the Senior Note Indenture and the Senior Notes;
provided that unless all of the Senior Notes mature within 90 days of such
deposit by redemption or otherwise, the Company shall also have delivered to the
Senior Note Trustee an opinion of counsel to the effect that the Company has
received from, or there has been published by, the Internal Revenue Service or
that there has been a change of law (collectively, an "External Tax
Pronouncement"), in either case to the effect that the holders of the Senior
Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such defeasance or discharge of the Senior Note Indenture.
Thereafter, the holders of the Senior
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Notes may look only to such deposit for payment of the principal of, and
interest and any premium on, the Senior Notes.
If the Company makes the deposit of cash or certain United States
government obligations referred to above with respect to one or more series of
Senior Notes, and otherwise complies with the requirements of the Senior Note
Indenture (except that the opinion of counsel referred to above need not be
based upon an External Tax Pronouncement), then the Company shall be released
with respect to such series of Senior Notes from its obligations described under
"-- Certain Covenants of the Company -- Limitation on Liens" and "-- Limitation
of Sale and Lease-Back Transactions" and "-- Consolidation, Merger and Sale or
Disposition of Assets."
Consolidation, Merger and Sale or Disposition of Assets
The Company may not consolidate with or merge into any other corporation
or sell or otherwise dispose of its properties as or substantially as an
entirety to any person unless (1) the successor or transferee corporation or the
person that receives such properties pursuant to such sale, transfer or other
disposition shall be a corporation organized and existing under the laws of the
United States or any state thereof or the District of Columbia, (2) the
successor or transferee corporation or the person that receives such properties
pursuant to such sale, transfer or other disposition assumes by supplemental
indenture the due and punctual payment of the principal of and premium, if any,
and interest on all the Senior Notes and the performance of every covenant of
the Senior Note Indenture to be performed or observed by the Company; and (3) if
prior to the Release Date, the successor or transferee corporation or the person
that receives such properties pursuant to such sale, transfer or other
disposition assumes the Company's obligations under the Mortgage with respect to
the Senior Note Mortgage Bonds. Upon any such consolidation, merger, sale,
transfer or other disposition of the properties of the Company substantially as
an entirety, the successor corporation formed by such consolidation or into
which the Company is merged or the person to which such sale, transfer or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Senior Note Indenture with the
same effect as if such successor corporation or person had been named as the
Company therein, and the Company will be released from all obligations under the
Senior Note Indenture. For purposes of the Senior Note Indenture, the conveyance
or other transfer by the Company of (1) all or any portion of its facilities for
the generation of electric energy or (2) all of its facilities for the
transmission of electric energy, in each case considered alone or in any
combination with properties described in the other clause, shall in no event be
deemed to constitute a conveyance or other transfer of all the properties of the
Company, as or substantially as an entirety.
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Certain Covenants of the Company
Limitation on Liens
The Senior Note Indenture provides that, so long as any such Senior Notes
are outstanding, the Company may not issue, assume, guarantee or permit to exist
after the Release Date any Debt (as defined below) that is secured by any
mortgage, security interest, pledge or lien ("Lien") of or upon any Operating
Property (as defined below) of the Company, whether owned at the date of the
Senior Note Indenture or thereafter acquired, without in any such case
effectively securing the Senior Notes (together with, if the Company shall so
determine, any other indebtedness of the Company ranking equally with the Senior
Notes) equally and ratably with such Debt (but only so long as such Debt is so
secured).
The foregoing restriction will not apply to: (1) Liens on any Operating
Property existing at the time of its acquisition (which Liens may also extend to
subsequent repairs, alterations and improvements to such Operating Property);
(2) Liens on Operating Property of an entity existing at the time such entity is
merged into or consolidated with, or such entity disposes of its properties (or
those of a division) as or substantially as an entirety to, the Company; (3)
Liens on Operating Property to secure the cost of acquisition, construction,
development or substantial repair, alteration or improvement of property or to
secure any Debt incurred to provide funds for any such purpose or for
reimbursement of funds previously expended for any such purpose, provided such
Liens are created or assumed contemporaneously with, or within 18 months after,
such acquisition or the completion of substantial repair or alteration,
construction, development or substantial improvement; (4) Liens in favor of any
state or any department, agency or instrumentality or political subdivision of
any state, or for the benefit of holders of securities issued by any such entity
(or providers of credit enhancement with respect to such securities), to secure
any Debt (including, without limitation, obligations of the Company with respect
to industrial development, pollution control or similar revenue bonds) incurred
for the purpose of financing all or any part of the purchase price or the cost
of substantially repairing or altering, constructing, developing or
substantially improving Operating Property of the Company; (5) Liens under the
Mortgage permitted by the Senior Note Indenture; (6) Liens to secure payment of
compensation to the Senior Note Trustee as provided in the Senior Note
Indenture; (7) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
clauses (1) through (6), provided, however, that the principal amount of Debt
secured thereby and not otherwise authorized by said clauses (1) to (6),
inclusive, shall not exceed the principal amount of Debt, plus any premium or
fee payable in connection with any such extension, renewal or replacement, so
secured at the time of such extension, renewal or
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replacement. However, the foregoing restrictions will not apply to the issuance,
assumption or guarantee by the Company of Debt secured by a Lien which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with all other secured Debt of the Company (not including
secured Debt permitted under any of the foregoing exceptions) and the Value (as
defined below) of Sale and Lease-Back Transactions (as defined below) existing
at such time (other than Sale and Lease-Back Transactions the proceeds of which
have been applied to the retirement of certain indebtedness, Sale and Lease-Back
Transactions in which the property involved would have been permitted to be
subjected to a Lien under any of the foregoing exceptions in clauses (1) to (7)
and Sale and Lease-Back Transactions that are permitted by the first sentence of
"--Limitations on Sale and Lease-Back Transactions" below), does not exceed the
greater of 15% of Tangible Assets and 15% of Capitalization (as such terms are
defined below).
Limitation on Sale and Lease-Back Transactions
The Senior Note Indenture provides that so long as any Senior Notes are
outstanding, the Company may not enter into or permit to exist after the Release
Date any Sale and Lease-Back Transaction with respect to any Operating Property
(except for transactions involving leases for a term, including renewals, of not
more than 48 months), if the purchasers' commitment is obtained more than 18
months after the later of the completion of the acquisition, construction or
development of such Operating Property or the placing in operation of such
Operating Property or of such Operating Property as constructed or developed or
substantially repaired, altered or improved. This restriction will not apply if
(a) the Company would be entitled pursuant to any of the provisions described in
clauses (1) to (7) of the first sentence of the second paragraph under
"--Limitation on Liens" above to issue, assume, guarantee or permit to exist
Debt secured by a Lien on such Operating Property without equally and ratably
securing the Senior Notes, (b) after giving effect to such Sale and Lease-Back
Transaction, the Company could incur pursuant to the provisions described in the
second sentence of the second paragraph under "--Limitation on Liens", at least
$1.00 of additional Debt secured by Liens (other than Liens permitted by clause
(a)), or (c) the Company applies within 180 days an amount equal to, in the case
of a sale or transfer for cash, the net proceeds (not exceeding the net book
value), and, otherwise, an amount equal to the fair value (as determined by its
Board of Directors) of the Operating Property so leased, to the retirement of
Senior Notes or other Debt of the Company ranking equally with the Senior Notes,
subject to reduction for Senior Notes and such Debt retired during such 180-day
period otherwise than pursuant to mandatory sinking fund or prepayment
provisions and payments at stated maturity.
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Certain Definitions
"Capitalization" means the total of all the following items appearing on,
or included in, the consolidated balance sheet of the Company: (1) liabilities
for Debt maturing more than 12 months from the date of determination; and (2)
common stock, preferred stock, Hybrid Preferred Securities (as defined in the
Senior Note Indenture), premium on capital stock, capital surplus, capital in
excess of par value and retained earnings (however the foregoing may be
designated), less, to the extent not otherwise deducted, the cost of shares of
capital stock reacquired by the Company. Subject to the foregoing,
"Capitalization" shall be determined in accordance with generally accepted
accounting principles ("GAAP") and practices applicable to the type of business
in which the Company is engaged and that are approved by independent accountants
regularly retained by the Company, and may be determined as of a date not more
than 60 days prior to the happening of an event for which such determination is
being made.
"Debt" means any outstanding debt of the Company for money borrowed
evidenced by notes, debentures, bonds or other securities, or guarantees of any
thereof.
"Operating Property" means (1) any interest in real property owned by the
Company and (2) any asset owned by the Company that is depreciable in accordance
with GAAP excluding, in either case, any interest of the Company as lessee under
any lease (except for a lease that results from a Sale and Lease-Back
Transaction) which has been or would be capitalized on the books of the lessee
in accordance with GAAP.
"Sale and Lease-Back Transaction" means any arrangement with any person
providing for the leasing to the Company of any Operating Property (except for
leases for a term, including any renewals thereof, of not more than 48 months),
which Operating Property has been or is to be sold or transferred by the Company
to such person; provided, however, Sale and Lease-Back Transaction does not
include any arrangement first entered into prior to the date of the Senior Note
Indenture.
"Tangible Assets" means the amount shown as total assets on the
consolidated balance sheet of the Company, less the following: (1) intangible
assets including, but without limitation, such items as goodwill, trademarks,
trade names, patents, and unamortized debt discount and expense, and (2)
appropriate adjustments, if any, on account of minority interests. Tangible
Assets shall be determined in accordance with GAAP and practices applicable to
the type of business in which the Company is engaged and that are approved by
the independent accountants that are regularly retained by the Company, and may
be determined as of a date not more than 60 days prior to the happening of the
event for which such determination is being made.
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"Value" means, with respect to a Sale and Lease-Back Transaction, as of
any particular time, the amount equal to the greater of (1) the net proceeds to
the Company from the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction, and (2) the net book value of such property, as
determined by the Company in accordance with GAAP, in either case multiplied by
a fraction, the numerator of which shall be equal to the number of full years of
the term of the lease that is part of such Sale and Lease-Back Transaction
remaining at the time of determination and the denominator of which shall be
equal to the number of full years of such term, without regard, in any case, to
any renewal or extension options contained in such lease.
Voting of Senior Note Mortgage Bonds Held by Senior Note Trustee
The Senior Note Trustee, as the holder of Senior Note Mortgage Bonds, will
attend any meeting of bondholders under the Mortgage, or, at its option, will
deliver its proxy in connection therewith relating to matters with respect to
which it is entitled to vote or consent.
The Senior Note Trustee shall vote all Senior Note Mortgage Bonds then
held by it or consent with respect thereto, proportionately with the vote or
consent of the holders of all other First Mortgage Bonds outstanding under the
Mortgage, the holders of which are eligible to vote or consent; provided,
however, that the Senior Note Trustee shall not so vote in favor of, or so
consent to, any amendment or modification of the Mortgage which, if it were an
amendment or modification of the Senior Note Indenture, would require the
consent of the holders of Senior Notes as described under "-- Modification With
Consent of Holders," without the prior consent of holders of Senior Notes which
would be required for such an amendment or modification of the Senior Note
Indenture.
Resignation or Removal of Senior Note Trustee
The Senior Note Trustee may resign at any time upon written notice to the
Company specifying the day upon which the resignation is to take effect and such
resignation will take effect immediately upon the later of the appointment of a
successor Senior Note Trustee and such specified day.
The Senior Note Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with the Senior Note Trustee and signed
by the holders, or their attorneys-in-fact, of at least a majority in aggregate
principal amount of the then outstanding Senior Notes. In addition, so long as
no event of default under the Senior Note Indenture or event which, with the
giving of notice or lapse of time or both, would become an event of default has
occurred and is continuing, the Company may remove the Senior Note Trustee upon
written notice to the holder of each Senior Note outstanding and the Senior Note
Trustee, and appointment of a successor Senior Note Trustee.
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Concerning the Senior Note Trustee
The United States Trust Company of New York is the Senior Note Trustee
under the Senior Note Indenture and the Mortgage Trustee under the Mortgage. The
Senior Note Indenture provides that the Company's obligations to compensate the
Senior Note Trustee and reimburse the Senior Note Trustee for expenses,
disbursements and advances will constitute indebtedness which will be secured by
a lien generally prior to that of the Senior Notes upon all property and funds
held or collected by the Senior Note Trustee as such. The Senior Note Indenture
provides that the Senior Note Trustee shall be subject to and shall comply with
the provisions of Section 310(b) of the Trust Indenture Act of 1939, as amended,
and that nothing in the Senior Note Indenture shall be deemed to prohibit the
Senior Note Trustee or the Company from making any application permitted
pursuant to such section.
Governing Law
The Senior Note Indenture and each Senior Note will be governed by New
York law.
DESCRIPTION OF SENIOR NOTE MORTGAGE BONDS
General
Each series of Senior Note Mortgage Bonds will be a series of first
mortgage bonds (the "First Mortgage Bonds") to be issued under and secured by
the Company's Indenture dated as of March 1, 1946 between the Company and United
States Trust Company of New York, as successor trustee (the "Mortgage Trustee"),
as heretofore amended and supplemented, and to be further amended and
supplemented by one or more Supplemental Indentures with respect to the Senior
Note Mortgage Bonds (collectively, the "Mortgage"). The statements herein
concerning the First Mortgage Bonds and the Mortgage are summaries and do not
purport to be complete. They may make use of defined terms and are subject to,
and qualified in their entirety by, all of the provisions of the Mortgage, which
is incorporated herein by reference.
The Senior Note Mortgage Bonds will be issued as security for the
Company's obligations under the Senior Note Indenture and will be immediately
delivered to, and registered in the name of, the Senior Note Trustee. The Senior
Note Indenture provides that the Senior Note Trustee shall not transfer any
Senior Note Mortgage Bonds except (1) to a successor trustee, (2) to the Company
(as provided in the Senior Note Indenture) or (3) in compliance with a court
order in connection with a bankruptcy or reorganization proceeding of the
Company. The Senior Note Trustee shall generally vote the Senior Note Mortgage
Bonds proportionately with what it believes to be the vote of the holders of all
other First Mortgage Bonds then outstanding, as
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described under "Description of Senior Notes - Voting of Senior Note Mortgage
Bonds Held by Senior Note Trustee."
The Senior Note Mortgage Bonds will correspond to the corresponding series
of Senior Notes in respect of principal amount, interest rate, maturity date and
redemption provisions. Upon payment of the principal of or premium, if any, or
interest on the Senior Notes, Senior Note Mortgage Bonds of the corresponding
series in a principal amount equal to the principal amount of such Senior Notes
will, to the extent of such payment of principal, premium or interest, be deemed
fully paid and the obligation of the Company to make such payment shall be
discharged.
At March 31, 1999, the Company had outstanding $1,173.5 million in
principal amount of First Mortgage Bonds issued under the Mortgage.
Redemption Provisions of Senior Note Mortgage Bonds
The Senior Note Mortgage Bonds will be redeemed on the respective dates
and in the respective principal amounts which correspond to the redemption dates
for, and the principal amounts to be redeemed of, the corresponding series of
Senior Notes. The Senior Note Mortgage Bonds are not redeemable by operation of
the improvement fund or the maintenance provisions of the Mortgage or with the
proceeds of released property.
In the event of an event of default under the Senior Note Indenture and
acceleration of the Senior Notes, the Senior Note Mortgage Bonds will be
immediately redeemable in whole, upon demand of the Senior Note Trustee (and
surrender thereof to the Mortgage Trustee), at a redemption price of 100% of the
principal amount thereof, together with accrued interest to the redemption date.
See "Description of Senior Notes - Events of Default."
Kind and Priority of Lien
The Senior Note Mortgage Bonds and all First Mortgage Bonds outstanding
under the Mortgage will be equally and ratably secured by a direct first lien on
substantially all of the Company's property (except certain real estate not
necessary or appropriate for the Company's business; cash, contracts, choses in
action and securities not specifically subjected to the lien of the Mortgage;
certain equipment not installed as fixed property; merchandise and supplies
acquired, and electricity or products generated or purchased for resale; and
materials and supplies held for consumption), subject to excepted encumbrances,
matters of minor nature and the lien of the Trustee for compensation,
indemnified losses and expenses. The Mortgage provides for subjecting similar
after-acquired property to the lien thereof subject to certain restrictions upon
the acquisition of property subject to outstanding prior lien bonds which are
effective so long as the First Mortgage Bonds are outstanding.
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Release and Substitution of Property
Machinery, equipment, fixtures, appliances and other similar property
which is worn-out, obsolete or unnecessary for the operations of the Company may
be disposed of by the Company without a release by the Mortgage Trustee provided
that the Company replaces it with other property (not necessarily of the same
character) which is equal in value to the property so disposed of. Leases,
rights-of-way, franchises, licenses and permits may be abandoned, surrendered or
modified without a release by the Mortgage Trustee provided any changed or
substituted lease, right-of-way, franchise, license or permit is subject to the
lien of the Mortgage and any consideration received by the Company in connection
therewith must be deposited with the Mortgage Trustee. Such provisions do not
have a material effect on the Company's property. Mortgaged property, subject to
certain conditions, may be released upon substitution of cash or certain other
property of equivalent value and in certain other circumstances. Money received
by the Mortgage Trustee as the result of any release of property may be
withdrawn against, among other things, bondable value of property additions and
bonds previously issued and retired.
The Mortgage Trustee is required to report to bondholders within 90 days
after the release of property of a value of 10% or more of the principal amount
of then outstanding First Mortgage Bonds, and annually as to all other released
property.
Dividend Restrictions
The Mortgage restricts common stock dividends payable by the Company to
the amount of the Company's accumulated earned surplus less $1,729,154. The
amount available for declaration and payment of dividends on the Company's
common stock pursuant to this restriction will be contained in a supplement to
this prospectus.
Issuance of Additional First Mortgage Bonds
So long as the Company is not in default in the performance of any
covenant to be performed by it under the Mortgage and obtains all requisite
authorizations of governmental bodies, it may issue additional First Mortgage
Bonds to the extent of any one or more of the following: (1) 60% of the bondable
value of property additions; (2) the amount of refundable prior lien bonds
theretofore or then retired or deposited with the Mortgage Trustee, as provided
in the Mortgage; (3) the aggregate principal amount of certain bonds theretofore
or then retired; or (4) the amount of cash deposited with the Mortgage Trustee
against the issuance of First Mortgage Bonds.
First Mortgage Bonds may be issued pursuant to (1) and (4) above (and
pursuant to (2) and (3) above unless the interest charges on the retired
refundable prior lien bonds or retired First Mortgage Bonds to be the basis of
such issuance were included in a
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net earnings certificate previously furnished to the Mortgage Trustee) only if,
for any period of twelve consecutive months out of the fifteen calendar months
preceding the first day of the month involving the issuance of additional First
Mortgage Bonds, net earnings available for interest shall be at least two times
the annual interest requirements on the First Mortgage Bonds and all prior lien
bonds then and to be outstanding. Net earnings available for interest generally
consists of the excess of gross operating revenues over operating expenses
(other than income taxes), including provision for depreciation equal to the
greater of (1) the book provision for depreciation or (2) the "minimum provision
for depreciation" as outlined below under "Maintenance Fund", plus or minus net
non-operating income or loss with non-operating income limited to 5% of
operating income. Moreover, the Company's charter contains provisions limiting
the ratio of securities evidencing funded indebtedness and unsecured
indebtedness to total capitalization.
The principal amount of additional First Mortgage Bonds issuable pursuant
to these provisions will be contained in a supplement to this prospectus.
Sinking and Improvement Fund
The supplemental indenture creating each series of First Mortgage Bonds
requires that, so long as any such First Mortgage Bonds are outstanding, the
Company will make annual sinking and improvement fund deposits equal to 1% of
the principal amount of First Mortgage Bonds (except First Mortgage Bonds issued
against retired First Mortgage Bonds) delivered by the Trustee prior to January
1 of the year of deposit. Deposits are to be made in cash, reduced by credits
elected by the Company for (1) 60% of bondable value of property additions and
(2) the principal amount of refundable prior lien bonds and certain bonds
previously issued and retired. Cash so deposited may be withdrawn upon the same
basis that a credit may be taken as set forth in the preceding sentence, or may
be applied to the payment, purchase or redemption of First Mortgage Bonds. The
Company met the 1998 sinking fund requirement through the application of
property additions. "Bondable value of property additions" means essentially (a)
the net difference between (1) the lesser of the cost or fair value to the
Company of property additions since January 1, 1946 and (2) all retirements of
property then or thereafter owned, taken at the lesser of original cost or fair
value, as certified to the Mortgage Trustee as property additions, or the
"minimum provision for depreciation", whichever is greater, after credit for
cash substituted for any such retired property, less (b) 10/6ths of the amount
of prior lien bonds having become refundable prior lien bonds and less (c) the
amount of the bondable value of property additions previously used for the
withdrawal of cash, the issuance of bonds or sinking fund credit.
Sinking fund cash amounting to $100,000 or more held by the Mortgage
Trustee on December 31 of any year must be applied to the
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retirement of First Mortgage Bonds. The Company may direct the Mortgage Trustee
to use sinking fund cash held by it to purchase First Mortgage Bonds in the open
market or to invite tenders of First Mortgage Bonds to it. If cash held by the
Mortgage Trustee is applied to the purchase of First Mortgage Bonds at less than
par, an amount equal to such discount must be paid to the Company.
Maintenance Fund
The Company is required to make expenditures for property additions and/or
to deposit with the Mortgage Trustee, cash (less, at the option of the Company,
credit for refundable prior lien bonds and First Mortgage Bonds theretofore or
then retired) annually beginning in 1946, in an amount not less than the
"minimum provision for depreciation." All cash so deposited with the Mortgage
Trustee may, during the next succeeding three years, be withdrawn by the Company
to the extent that the amount not less than that expended for property additions
exceeds the "minimum provision for depreciation."
So long as any First Mortgage Bonds are outstanding, the term "minimum
provision for depreciation" with reference to any period after 1952 means an
amount equal to the greater of (i) 15% of the gross operating revenues derived
from bondable property during such period after deducting the aggregate cost of
electric energy and manufactured or natural gas purchased during such period for
resale in connection with the operation of bondable property, less the charges
to operating expense during such period for current repairs and maintenance of
bondable property, and (ii) an amount computed at the rate of 2.25% per annum as
applied to depreciable electric utility property for each year or portion
thereof embraced within such period.
Modification or Amendment of Mortgage
Except as set forth in the next sentence, the rights of the bondholders
may be modified with the consent of the holders of 75% of the principal amount
of the First Mortgage Bonds of all series affected provided that no waiver of a
past default or the consequences thereof shall be effective unless approved by
the holders of not less than a majority of the principal amount of all the First
Mortgage Bonds at the time outstanding. However, no modification of the terms of
payment of principal, premium or interest and no modification permitting the
creation of additional prior or parity liens, reducing the percentage of the
principal amount of First Mortgage Bonds required for modification or depriving
the bondholders of the lien of the Mortgage, is effective against any bondholder
without such bondholder's consent.
Defaults and Notice Thereof
Events of default include default in the payment of principal and premium,
if any, of any of the First Mortgage Bonds; default for 60 days in payment of
interest on any of the First Mortgage
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Bonds; default in the payment of principal or interest continued beyond the
period of grace on any prior lien bonds; default, for 60 days after notice, in
the performance of any covenant in the Mortgage; and bankruptcy, insolvency or
reorganization (under certain circumstances) of the Company. The Mortgage
Trustee may withhold notice to bondholders of default (except default in payment
of principal, premium, interest or sinking and improvement fund installments) if
its responsible officers determine that it is in the interest of the bondholders
to do so.
Concerning the Mortgage Trustee
The Mortgage Trustee is permitted to engage in other transactions with the
Company, except that if it acquires any conflicting interest, as defined in the
Mortgage, it must eliminate it or resign and is required in certain cases to
share with the bondholders the benefits of payments received within four months
prior to default. The Mortgage Trustee is the Company's office or agency for the
payment and exchange of First Mortgage Bonds.
Direction by the holders of a majority in principal amount of the First
Mortgage Bonds then outstanding is necessary to require the Mortgage Trustee to
take action. The Mortgage Trustee may require reasonable indemnification before
being required to enforce the lien of the Mortgage. Holders of not less than 25%
in principal amount of outstanding First Mortgage Bonds or the Mortgage Trustee
may declare the principal and interest of all outstanding First Mortgage Bonds
due upon the occurrence of a completed default, but the holders of a majority in
principal amount of the outstanding First Mortgage Bonds may, under certain
circumstances including the curing of such default, annul any such declaration.
Satisfaction and Discharge of Mortgage
Upon the Company's making due provision for the payment of all of the
First Mortgage Bonds and paying all other sums due under the Mortgage, the
Mortgage shall cease to be of further effect and may be satisfied and discharged
of record.
Evidence as to Compliance with Mortgage Provisions
Compliance with the provisions of the Mortgage is evidenced by written
statements of Company officers or persons selected and paid by the Company. In
certain cases, opinions of counsel and certificates of an engineer, accountant,
appraiser or other expert (who in some instances must be independent) must be
furnished. The Mortgage requires that the Company furnish annually to the
Mortgage Trustee a certificate that the Company has complied with, and is not in
default under, the provisions of the Mortgage.
PLAN OF DISTRIBUTION
The Company may sell the Senior Notes: (1) directly to
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purchasers; (2) to or through underwriters; or (3) through agents or dealers.
The supplement to this prospectus relating to each series of Senior Notes will
set forth the terms of the offering thereof, including the name or names of any
such underwriters, agents or dealers; the purchase price of and the net proceeds
to the Company from such sale; any underwriting discounts and commissions or
agency fees and other items constituting underwriters' or agents' compensation;
the initial public offering price; and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in an offering, the Senior Notes will be acquired
by such underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
Senior Notes may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering will be named in a supplement to this
prospectus relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover of such
supplement. Unless otherwise set forth in a supplement to this prospectus
relating thereto, the obligations of the underwriters to purchase the particular
Senior Notes will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all such Senior Notes if any are
purchased.
If dealers are utilized in a sale of Senior Notes, the Company will sell
such securities to the dealers as principal. The dealers may then resell such
Senior Notes to the public at varying prices to be determined by such dealers at
the time of resale. The names of the dealers and the terms of the transaction
will be set forth in a supplement to this prospectus relating thereto.
The Senior Notes may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Senior Notes with respect to which this prospectus is delivered will
be named, and any commissions payable by the Company to such agent will be set
forth, in a supplement to this prospectus relating thereto. Unless otherwise
indicated in a supplement to this prospectus, any such agent will be acting on a
best efforts basis for the period of its appointment.
Any underwriters utilized may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under the Exchange
Act. Stabilizing transactions permit bids to purchase the underlying security so
long as the
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stabilizing bids do not exceed a specified maximum. Syndicate covering
transactions involve purchases of the Senior Notes in the open market after the
distribution has been completed in order to cover syndicate short positions.
Such stabilizing transactions and syndicate covering transactions may cause the
price of the Senior Notes to be higher than it would otherwise be in the absence
of such transactions.
Agents, dealers and underwriters may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
Unless otherwise specified in a supplement to this prospectus, the Senior
Notes will not be listed on a national securities exchange. No assurance can be
given that any broker-dealer will make a market in any series of Senior Notes,
and, in any event, no assurance can be given as to the liquidity of the trading
market for any of the Senior Notes. A supplement to this prospectus will state,
if known, whether or not any broker-dealer intends to make a market in the
Senior Notes. If no such determination has been made, such supplement will so
state.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Berlack,
Israels & Liberman LLP, New York, New York and for any underwriters, agents or
dealers by Winthrop, Stimson, Putnam & Roberts, New York, New York. Winthrop,
Stimson, Putnam & Roberts may rely on the opinion of Berlack, Israels & Liberman
LLP as to matters of New Jersey law. Attorneys of Berlack, Israels & Liberman
LLP own an aggregate of 14,560 shares of the Common Stock of the Company's
parent, GPU, Inc.
EXPERTS
The consolidated financial statements and financial statement schedule,
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1998, are incorporated herein by reference in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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II-2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission Registration Fee...... $ 27,800
* Blue Sky Fees............................................ $ 5,000
* Accountants' Fees and Expenses........................... $ 25,000
* Company Counsel Fees and Expenses........................ $100,000
* Trustees' Fees and Expenses, including Counsel
and Authentication Fees.................................. $ 30,000
* Printing of Registration Statement, Prospectus,
Prospectus Supplements, Supplemental Indentures,
etc...................................................... $ 15,000
* Rating Agencies' Fees.................................... $ 30,000
* Miscellaneous............................................ $ 17,200
-------
*Total Expenses........................................ $250,000
- - ------------------------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Company provide, in part, as follows:
(a) 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
civil, criminal, administrative or arbitrative action, suit or proceeding, and
any appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding, other than a proceeding by or in the right of the
Corporation, 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, trustee, employee or agent of another corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or
other enterprise, whether or not for profit, to the fullest extent permitted by
law, including without limitation indemnification against liabilities (amounts
paid or incurred in satisfaction of settlements, judgments, fines and penalties)
and expenses (reasonable costs, disbursements and counsel fees) incurred by such
person in connection with such proceeding, if
(i) such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the
corporation; and
(ii) with respect to any criminal proceeding, such person had no
reasonable cause to believe his conduct was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its
<PAGE>
equivalent, shall not of itself create a presumption that such person did not
meet the applicable standards of conduct set forth in Section (a)(i) or in
Section (a)(ii).
(b) The Corporation shall pay the expenses of a person in connection
with any proceeding by or in the right of the Corporation to procure a judgment
in its favor which involves such person by reason of his being or having been a
director, officer or employee of the Corporation (and may pay the expenses of an
agent of the Corporation) if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation. However, in such proceeding no indemnification shall be provided in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation, unless and only to the extent that the
Superior Court or the court in which such proceeding was brought shall determine
upon application that despite the adjudication of liability, but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Superior Court or such other court shall deem
proper.
(c) The Corporation shall indemnify a corporate agent, as defined in
N.J.S. 14A:3-5(1), against expenses to the extent that such corporate agent has
been successful on the merits or otherwise in any proceeding referred to in
Section (a) and (b) or in defense of any claim, issue or matter therein.
(d) Any indemnification under Section (a) and, unless ordered by a
court, under Section (b), may be made by the Corporation only as authorized in a
specific case upon a determination that indemnification is proper in the
circumstances because the director, officer, employee or agent met the
applicable standard of conduct set forth therein. Unless otherwise provided in
the certificate of incorporation or by-laws, such determination shall be made
(i) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not
parties to or otherwise involved in the proceeding; or
(ii) if such a quorum is not obtainable, or, even if obtainable and
such quorum of the board of directors or committee by a
majority vote of the disinterested directors so directs, by
independent legal counsel, in a written opinion, such counsel
to be designated by the board of directors.
(e) Expenses incurred by a director, officer or employee in
connection with such a proceeding shall (and expenses incurred by an agent in
connection with such a proceeding may) be paid by the Corporation in advance of
the final disposition of the proceeding as authorized by the board of directors
upon receipt of an undertaking by or on behalf of such person to repay such
amount
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unless it shall ultimately be determined that he is entitled to be indemnified
as provided in this section.
(f) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude any
other rights to which a person may be otherwise entitled provided that no
indemnification shall be made to or on behalf of a person if a judgment or other
final adjudication adverse to such person establishes that his acts or omissions
(a) were in breach of his duty of loyalty to the corporation or its
shareholders, (b) were not in good faith or involved a knowing violation of law
or (c) resulted in receipt by the corporate agent of an improper personal
benefit.
(g) The Corporation shall have the power to purchase and maintain
insurance on behalf of any director, officer, employee or agent of the
Corporation against any expenses incurred in any proceeding and any liabilities
asserted against him by reason of his being or having been such, whether or not
the Corporation would have the power to indemnify him against such expenses and
liabilities under the provisions of this Section. The Corporation may purchase
such insurance from, or such insurance may be reinsured in whole or in part by,
an insurer owned by or otherwise affiliated with the Corporation, whether or not
such insurer does business with other insureds.
(h) 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.
(i) 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 thereof 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.
(j) 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
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<PAGE>
inure to the benefit of the heirs, executors and administrators of such person.
Section 14A:3-5 of the New Jersey Business Corporation Act 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 person's having taken action
on behalf of the corporation.
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 for acts in the discharge of their duties and,
subject to certain exceptions, the Company is insured to the extent that it is
required or permitted by law to indemnify the directors and officers of such
loss. The premiums for such insurance are paid by the Company.
ITEM 16. EXHIBITS.
1-A - Form of Underwriting Agreement - to be filed by Form 8-K.
1-B - Form of Distribution Agreement - to be filed by Form 8-K.
4-A - Form of Senior Note Indenture for the Senior Notes.
4-A(a) - Cross-reference sheet showing location in the Senior Note
Indenture of provisions of Sections 310(a) through 318(a) of
the Trust Indenture Act of 1939 - Included in Exhibit 4-A
hereto.
4-B - Indenture of Jersey Central Power & Light Company, dated as
of March 1, 1946, as amended and supplemented by eight
supplemental indentures Incorporated by reference to the
Company's Instruments of Indebtedness Nos. 1 to 7, inclusive,
and 9 and 10 filed as part of Amendment No. 1 to General
Public Utilities Corporation's Annual Report on Form U5S for
the year 1959, File Nos. 30-126 and 1-3292.
4-B-1 - Ninth Supplemental Indenture, dated as of November 1, 1962
- Incorporated by reference to Exhibit 2-C, Registration
No. 2-20732.
4-B-2 - Tenth Supplemental Indenture, dated as of October 1, 1963
- Incorporated by reference to Exhibit 2-C, Registration
No. 2-21645.
4-B-3 - Eleventh Supplemental Indenture, dated as of
October 1, 1964 - Incorporated by reference to
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<PAGE>
Exhibit 5-A-3, Registration No. 2-59785.
4-B-4 - Twelfth Supplemental Indenture, dated as of November 1, 1965
- Incorporated by reference to Exhibit 5-A-4, Registration
No. 2-59785.
4-B-5 - Thirteenth Supplemental Indenture, dated as of August 1,
1966 - Incorporated by reference to Exhibit 4-C,
Registration No. 2-25124.
4-B-6 - Fourteenth Supplemental Indenture, dated as of September 1,
1967 - Incorporated by reference to Exhibit 5-A-6,
Registration No. 2-59785.
4-B-7 - Fifteenth Supplemental Indenture, dated as of October 1,
1968 - Incorporated by reference to Exhibit 5-A-7,
Registration No. 2-59785.
4-B-8 - Sixteenth Supplemental Indenture, dated as of October 1,
1969 - Incorporated by reference to Exhibit 5-A-8,
Registration No. 2-59785.
4-B-9 - Seventeenth Supplemental Indenture, dated as of June 1, 1970
- Incorporated by reference to Exhibit 5-A-9, Registration
No. 2-59785.
4-B-10 - Eighteenth Supplemental Indenture, dated as of December 1,
1970 - Incorporated by reference to Exhibit 5-A-10,
Registration No. 2-59785.
4-B-11 - Nineteenth Supplemental Indenture, dated as of February 1,
1971 - Incorporated by reference to Exhibit 5-A-11,
Registration No. 2-59785.
4-B-12 - Twentieth Supplemental Indenture, dated as of November 1,
1971 - Incorporated by reference to Exhibit 5-A-12,
Registration No. 2-59875.
4-B-13 - Twenty-first Supplemental Indenture, dated as of August 1,
1972 - Incorporated by reference to Exhibit 5-A-13,
Registration No. 2-59785.
4-B-14 - Twenty-second Supplemental Indenture, dated as of August 1,
1973 - Incorporated by reference to Exhibit 5-A-14,
Registration No. 2-59785.
4-B-15 - Twenty-third Supplemental Indenture, dated as of October 1,
1973 - Incorporated by reference to Exhibit 5-A-15,
Registration No. 2-59785.
4-B-16 - Twenty-fourth Supplemental Indenture, dated as of December
1, 1973 - Incorporated by reference to Exhibit 5-A-16,
Registration No. 2-59785.
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4-B-17 - Twenty-fifth Supplemental Indenture, dated as of November 1,
1974 - Incorporated by reference to Exhibit 5-A-17,
Registration No. 2-59785.
4-B-18 - Twenty-sixth Supplemental Indenture, dated as of March 1,
1975 - Incorporated by reference to Exhibit 5-A-18,
Registration No. 2-59785.
4-B-19 - Twenty-seventh Supplemental Indenture, dated as of July 1,
1975 - Incorporated by reference to Exhibit 5-A-19,
Registration No. 2-59785.
4-B-20 - Twenty-eighth Supplemental Indenture, dated as of October 1,
1975 - Incorporated by reference to Exhibit 5-A-20,
Registration No. 2-59785.
4-B-21 - Twenty-ninth Supplemental Indenture, dated as of February 1,
1976 - Incorporated by reference to Exhibit 5-A-21,
Registration No. 2-59785.
4-B-22 - Supplemental Indenture No. 29A, dated as of May 31, 1976 -
Incorporated by reference to Exhibit 5-A-22, Registration
No. 2-59785.
4-B-23 - Thirtieth Supplemental Indenture, dated as of June 1, 1976 -
Incorporated by reference to Exhibit 5-A-23, Registration
No. 2-59785.
4-B-24 - Thirty-first Supplemental Indenture, dated as of May 1, 1977
- Incorporated by reference to Exhibit 5-A-24, Registration
No. 2-59785.
4-B-25 - Thirty-second Supplemental Indenture, dated as of January
20, 1978 - Incorporated by reference to Exhibit 5-A-25,
Registration No. 2-60438.
4-B-26 - Thirty-third Supplemental Indenture, dated as of January 1,
1979 Incorporated by reference to Exhibit A-20(b), Certificate
Pursuant to Rule 24, SEC File No. 70-6242.
4-B-27 - Thirty-fourth Supplemental Indenture, dated as of June 1,
1979 Incorporated by reference to Exhibit A-28, Certificate
Pursuant to Rule 24, SEC File No. 70-6290.
4-B-28 - Thirty-sixth Supplemental Indenture, dated as of October 1,
1979 Incorporated by reference to Exhibit A-30, Certificate
Pursuant to Rule 24, SEC File No. 70-6354.
4-B-29 - Thirty-seventh Supplemental Indenture, dated as of September
1, 1984 - Incorporated by reference to
II-6
<PAGE>
Exhibit A-1(cc), Certificate Pursuant to Rule 24, SEC File
No. 70-7001.
4-B-30 - Thirty-eighth Supplemental Indenture, dated as of July 1,
1985 Incorporated by reference to Exhibit A-1(dd), Certificate
Pursuant to Rule 24, SEC File No. 70-7109.
4-B-31 - Thirty-ninth Supplemental Indenture, dated as of April 1,
1988 Incorporated by reference to Exhibit A-1(a), Certificate
Pursuant to Rule 24, SEC File No. 70-7263.
4-B-32 - Fortieth Supplemental Indenture, dated as of June 14, 1988 -
Incorporated by reference to Exhibit A-1(ff), Certificate
Pursuant to Rule 24, SEC File No. 70-7603.
4-B-33 - Forty-first Supplemental Indenture, dated as of April 1,
1989 Incorporated by reference to Exhibit A-1(gg), Certificate
Pursuant to Rule 24, SEC File No. 70-7603.
4-B-34 - Forty-second Supplemental Indenture, dated as of July 1,
1989 Incorporated by reference to Exhibit A-1(hh), Certificate
Pursuant to Rule 24, SEC File No. 70-7603.
4-B-35 - Forty-third Supplemental Indenture, dated as of March 1,
1991 - Incorporated by reference to Exhibit 4-B-35,
Registration No. 33-45314.
4-B-36 - Forty-fourth Supplemental Indenture, dated as of March 1,
1992 - Incorporated by reference to Exhibit 4-B-36,
Registration No. 33-49405.
4-B-37 - Forty-fifth Supplemental Indenture, dated as of October 1,
1992 - Incorporated by reference to Exhibit 4-B-37,
Registration No. 33-49405.
4-B-38 - Forty-sixth Supplemental Indenture, dated April 1, 1993 -
Incorporated by reference to Exhibit C-15, 1992 Annual Report
of GPU of Form U5S, SEC File No. 30-126.
4-B-39 - Forty-seventh Supplemental Indenture, dated April 10, 1993 -
Incorporated by reference to Exhibit C-16, 1992 Annual Report
of GPU on Form U5S, SEC File No. 30-126.
4-B-40 - Forty-eighth Supplemental Indenture, dated April 15, 1993 -
Incorporated by reference to Exhibit C-17, 1992 Annual Report
of GPU on Form U5S, SEC File No. 30-126.
II-7
<PAGE>
4-B-41 - Forty-ninth Supplemental Indenture, dated October 1, 1993 -
Incorporated by reference to Exhibit C-18, 1993 Annual Report
of GPU on Form U5S, SEC File No. 30-126.
4-B-42 - Fiftieth Supplemental Indenture, dated August 1, 1994 -
Incorporated by reference to Exhibit C-19, 1994 Annual Report
of GPU on form U5S, SEC File No. 30-126.
4-B-43 - Fifty-first Supplemental Indenture, dated August 15, 1996 -
Incorporated by reference to Exhibit 4-A-43, 1996 Annual
Report on Form 10-K, SEC File No. 1-6047.
4-C - Form of Fifty-second Supplemental Indenture for the Senior
Note Mortgage Bonds.
4-D - Forms of Senior Notes - Incorporated by reference to
Exhibits A through D of Exhibit 4-A hereto.
4-E - Form of Senior Note Mortgage Bonds - Incorporated by
reference to Exhibit A of Exhibit 4-C hereto.
5 - Opinion of Berlack, Israels & Liberman LLP.
12-A - Statement Showing Computation of Ratio of Earnings to Fixed
Charges Incorporated by reference to Exhibit 12-B to the
Company's Annual Report on Form 10-K for the year 1998, SEC
File No. 1-446.
12-B - Statement Showing Computation of Ratio of Earnings to Fixed
Charges for the twelve months ended March 31, 1999.
23-A - Consent of Berlack, Israels & Liberman LLP (included in
their opinion filed as Exhibit 5).
23-B - Consent of PricewaterhouseCoopers LLP.
24 - Power of Attorney - Included on signature pages.
25-A - Statement of Eligibility under the Trust Indenture Act of
1939 of United States Trust Company of New York, as Trustee
under the Senior Note Indenture.
- ---------
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.
II-8
<PAGE>
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, as amended (the "1933 Act");
(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. Notwithstanding the foregoing, 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; 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 paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
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.
(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 1933 Act,
each filing of the Registrants annual report
II-9
<PAGE>
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, 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 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions under Item 15 above, 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 1933 Act 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 a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling 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 whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-10
<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 including, by the time of sale, the security
rating for the securities registered required thereby, and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the Township of Morris, State of New Jersey on the 18th day
of May, 1999.
JERSEY CENTRAL POWER & LIGHT COMPANY
By: /s/ D. Baldassari
---------------------
D. Baldassari, President
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that Jersey Central Power & Light Company and
each of its undersigned officers and directors hereby constitutes and appoints
each of B.L. Levy, Ira H. Jolles and T.G. Howson his/her/its true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for his/her/it and in his/her/its 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/her
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/ F.D. Hafer Chairman, Chief Executive Officer May 18, 1999
- --------------------
(F.D. Hafer) (Principal Executive Officer) and
Director
/s/ D. Baldassari President and Director May 18, 1999
- --------------------
(D. Baldassari)
II-11
<PAGE>
/s/ B.L. Levy Vice President and Chief FinancialMay 18, 1999
- --------------------
(B.L. Levy) Officer (Principal Financial Officer)
/s/ C.A. Mascari Vice President and Comptroller May 18, 1999
- --------------------
(C.A. Mascari) (Principal Accounting Officer)
/s/ C.B. Snyder Director May 18, 1999
- --------------------
(C.B. Snyder)
/s/ G.E. Persson Director May 18, 1999
- --------------------
(G.E. Persson)
/s/ S.C. Van Ness Director May 18, 1999
- --------------------
(S.C. Van Ness)
/s/ S.B. Wiley Director May 18, 1999
- --------------------
(S.B. Wiley)
II-12
EXHIBITS TO BE FILED BY EDGAR
EXHIBITS
4-A - Form of Senior Note Indenture for the Senior Notes.
4-C - Form of Fifty-second Supplemental Indenture for the Senior
Note Mortgage Bonds.
5 - Opinion of Berlack, Israels & Liberman LLP.
12-B - Statement Showing Computation of Ratio of Earnings to Fixed
Charges for the twelve months ended March 31, 1999.
23-B - Consent of PricewaterhouseCoopers LLP.
25-A - Statement of Eligibility under the Trust Indenture Act of
1939 of United States Trust Company of New York, as Trustee
under the Senior Note Indenture.
vii
Exhibit 4-A
JERSEY CENTRAL POWER & LIGHT COMPANY
AND
UNITED STATES TRUST COMPANY OF NEW YORK
TRUSTEE
-----------------
INDENTURE
DATED AS OF May 18, 1999
-------------------------------------------------------
-------------------------------------------------------
<PAGE>
ii
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE
OF THE PROVISIONS INSERTED PURSUANT TO SECTIONS 310
THROUGH 318(a),INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
Trust Indenture Act Indenture
Section Section
310 (a) (1)....................................................9.09
(a) (2)........................................................9.09
(a) (3)..............................................Not Applicable
(a) (4)..............................................Not Applicable
(a) (5) .......................................................9.09
(b)............................................................9.08
(c)..................................................Not Applicable
311 (a)....................................................... 9.14
(b)............................................................9.14
(c)..................................................Not Applicable
312 (a)............................................7.01 and 7.02(a)
(b)......................................................7.02(b)
(c)......................................................7.02(c)
313 (a).....................................................7.04(a)
(b). ....................................................7.04(b)
(c). ....................................................7.04(d)
(d)......................................................7.04(c)
314 (a)...............................................7.03 and 6.06
(b).........................................................6.05
(c) (1)...........................................1.03 and 15.05
(c) (2)...........................................1.03 and 15.05
(c) (3)...........................................Not Applicable
(d)................................................1.03 and 4.06
(e).....................................................15.05(b)
(f)...............................................Not Applicable
315 (a)........................................................9.01
(b).........................................................8.08
(c)......................................................9.01(a)
(d)......................................................9.01(b)
(e).........................................................8.09
316 (a) .............................................8.07 and 10.04
(b)............................................8.04(b) and 13.02
(c)........................................................10.06
317 (a)(1) .................................................8.02(b)
(a) (2)..................................................8.02(c)
(b)................................................5.02 and 6.04
318 (a).......................................................15.07
- -------------------
NOTE: This cross-reference sheet shall not, for any purpose, be deemed to be
a part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 General ...................................................1
Section 1.02 Trust Indenture Act........................................2
Section 1.03 Definitions................................................2
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally. ...........................................9
Section 2.02 Form Of Trustee's Certificate Of Authentication...........10
Section 2.03 Amount Unlimited..........................................10
Section 2.04 Denominations, Dates, Interest Payment
And Record Dates .........................................10
Section 2.05 Execution, Authentication, Delivery And Dating............11
Section 2.06 Exchange And Registration Of Transfer Of Notes............15
Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes................17
Section 2.08 Temporary Notes...........................................17
Section 2.09 Cancellation Of Notes Paid, Etc...........................18
Section 2.10 Interest Rights Preserved.................................18
Section 2.11 Special Record Date.......................................18
Section 2.12 Payment Of Notes..........................................19
Section 2.13 Notes Issuable In The Form Of A Global Note...............20
Section 2.14 CUSIP Numbers.............................................22
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 Applicability Of Article..................................23
Section 3.02 Notice Of Redemption; Selection Of Notes..................23
Section 3.03 Payment Of Notes On Redemption; Deposit Of
Redemption Price..........................................24
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 4.01 Delivery Of Initial Series Of Senior
Note First Mortgage Bonds.................................25
Section 4.02 Receipt...................................................26
Section 4.03 Senior Note First Mortgage Bonds Held
By The Trustee............................................26
Section 4.04 No Transfer Of Senior Note First Mortgage
Bonds; Exceptions.........................................26
iii
<PAGE>
Section 4.05 Delivery To The Company Of All Senior Note
First Mortgage Bonds......................................26
Section 4.06 Fair Value Certificate....................................26
Section 4.07 Further Assurances........................................28
Section 4.08 Exchange And Surrender Of Senior Note
First Mortgage Bonds......................................28
Section 4.09 Acceptance Of Additional Senior Note First
Mortgage Bonds............................................29
Section 4.10 Terms Of Senior Note First Mortgage Bonds.................29
Section 4.11 Senior Note First Mortgage Bonds As Security
For Notes.................................................29
ARTICLE V
SATISFACTION AND DISCHARGE;
UNCLAIMED MONEYS
Section 5.01 Satisfaction And Discharge............................... 30
Section 5.02 Deposited Moneys To Be Held In Trust By
Trustee.................................................. 32
Section 5.03 Paying Agent To Repay Moneys Held.........................32
Section 5.04 Return Of Unclaimed Moneys................................33
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 Payment Of Principal And Interest.........................33
Section 6.02 Offices For Payments, Etc.................................33
Section 6.03 Appointment To Fill A Vacancy In Office
Of Trustee............................................... 34
Section 6.04 Provision As To Paying Agent. ............................34
Section 6.05 Opinions Of Counsel.......................................35
Section 6.06 Certificates And Notice To Trustee........................36
Section 6.07 Restrictions On Liens.....................................36
Section 6.08 Restrictions On Sale And Lease-Back
Transactions..............................................38
Section 6.09 Corporate Existence.......................................39
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 Company To Furnish Noteholder Lists.......................39
Section 7.02 Preservation and Disclosure of Noteholder Lists...........39
Section 7.03 Reports By The Company....................................41
Section 7.04 Reports By The Trustee....................................41
iv
<PAGE>
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 Events Of Default.........................................42
Section 8.02 Collection Of Indebtedness By Trustee;
Trustee May Prove Debt....................................44
Section 8.03 Application Of Proceeds...................................46
Section 8.04 Limitations On Suits By Noteholders.......................47
Section 8.05 Suits For Enforcement.....................................48
Section 8.06 Powers And Remedies Cumulative; Delay Or
Omission Not Waiver Of Default............................48
Section 8.07 Direction of Proceedings and Waiver of
Defaults By Majority of Noteholders.......................49
Section 8.08 Notice of Default.........................................49
Section 8.09 Undertaking To Pay Costs..................................50
Section 8.10 Restoration of Rights on Abandonment of
Proceedings...............................................50
Section 8.11 Defaults Under The First Mortgage.........................50
Section 8.12 Waiver of Usury, Stay or Extension Laws...................50
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties and Responsibilities of Trustee....................51
Section 9.02 Reliance on Documents, Opinions, Etc......................52
Section 9.03 No Responsibility For Recitals, Etc.......................53
Section 9.04 Trustee, Authenticating Agent, Paying
Agent Or Registrar May Own Notes..........................53
Section 9.05 Moneys To Be Held In Trust................................53
Section 9.06 Compensation And Expenses Of Trustee......................53
Section 9.07 Officers' Certificate As Evidence.........................54
Section 9.08 Conflicting Interest Of Trustee...........................54
Section 9.09 Existence And Eligibility Of Trustee......................54
Section 9.10 Resignation Or Removal Of Trustee.........................55
Section 9.11 Appointment Of Successor Trustee..........................56
Section 9.12 Acceptance By Successor Trustee...........................56
Section 9.13 Succession By Merger, Etc.................................57
Section 9.14 Limitations On Rights Of Trustee As A Creditor............57
Section 9.15 Authenticating Agent......................................57
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 Action By Noteholders.....................................58
Section 10.02 Proof Of Execution By Noteholders.........................58
Section 10.03 Persons Deemed Absolute Owners. ..........................59
Section 10.04 Company-Owned Notes Disregarded...........................59
Section 10.05 Revocation Of Consents; Future Holders Bound. ............59
Section 10.06 Record Date For Noteholder Acts...........................60
v
<PAGE>
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 Purposes Of Meetings......................................60
Section 11.02 Call Of Meetings By Trustee...............................61
Section 11.03 Call Of Meetings By Company Or Noteholders................61
Section 11.04 Qualifications For Voting.. ..............................61
Section 11.05 Regulations...............................................61
Section 11.06 Voting. ..................................................62
Section 11.07 Rights Of Trustee Or Noteholders Not Delayed..............62
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 Company May Consolidate, Etc. Only On
Certain Terms.............................................63
Section 12.02 Successor Corporation Substituted.........................64
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent of
Noteholders...............................................64
Section 13.02 Supplemental Indentures With Consent Of
Noteholders...............................................65
Section 13.03 Compliance With Trust Indenture Act;
Effect Of Supplemental Indentures.........................67
Section 13.04 Notation On Notes.........................................67
Section 13.05 Evidence Of Compliance Of Supplemental
Indenture To Be Furnished Trustee.........................67
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 Indenture And Notes Solely Corporate
Obligations...............................................67
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Provisions Binding On Company's Successors................68
Section 15.02 Official Acts By Successor Corporation....................68
Section 15.03 Notices...................................................68
Section 15.04 Governing Law.............................................68
vi
<PAGE>
Section 15.05 Evidence Of Compliance With Conditions
Precedent.................................................68
Section 15.06 Business Days.............................................70
Section 15.07 Trust Indenture Act To Control............................70
Section 15.08 Table Of Contents, Headings, Etc..........................70
Section 15.09 Execution In Counterparts.................................70
Section 15.10 Manner Of Mailing Notice To Noteholders...................70
Section 15.11 Approval By Trustee Of Expert Or Counsel..................71
EXHIBIT A - Form of Global Note Prior to Release Date..............A-1
EXHIBIT B - Form of Note Prior to Release Date.....................B-1
EXHIBIT C - Form of Global Note Following Release Date.............C-1
EXHIBIT D - Form of Note Following Release Date....................D-1
vii
<PAGE>
THIS INDENTURE, dated as of ----- --, 1999, between JERSEY CENTRAL POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws of the
State of New Jersey (the "COMPANY"), and UNITED STATES TRUST COMPANY OF NEW
YORK, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its Notes (as herein after defined), to be issued
as in this Indenture provided;
WHEREAS, subject to the provisions of Section 4.11 hereof, the Company has
issued a series of Senior Note First Mortgage Bonds (as hereinafter defined) and
has delivered such series to the Trustee to hold in trust for the benefit of the
respective Holders (as hereinafter defined) from time to time of the Notes, and,
subject to the terms and provisions hereof, the Company may deliver additional
Senior Note First Mortgage Bonds to the Trustee for such purpose or require the
Trustee to deliver to the Company, for cancellation, any and all Senior Note
First Mortgage Bonds held by the Trustee;
AND WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed, and the execution
of this Indenture and the issue hereunder of the initial series of Notes have in
all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Notes by the Holders thereof
and of the sum of one dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the Company,
intending to be legally bound hereby, covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective Holders from time to time
of the Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. The terms defined in this Article I (whether or not
capitalized and except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Article I.
<PAGE>
Section 1.02 Trust Indenture Act. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
......(b) Unless otherwise indicated, all terms used in this Indenture
that are defined by the TIA, defined by the TIA by reference to another statute
or defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
Section 1.03 Definitions. For purposes of this Indenture, the
following terms shall have the following meanings.
"Authenticating Agent" shall mean any agent of the Trustee which shall be
appointed and acting pursuant to Section 9.15 hereof.
"Authorized Agent" shall mean any agent of the Company designated as such
by an Officers' Certificate delivered to the Trustee.
"Board Of Directors" shall mean the Board of Directors of the Company or
the Executive Committee of such Board or any other duly authorized committee of
such Board.
"Board Resolution" shall mean 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.
"Business Day" shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State
of New York, or in the city where the corporate trust office of the Trustee is
located, are obligated or authorized by law or executive order to close.
"Capital Lease" shall mean any lease which has been or would be
capitalized on the books of the lessee in accordance with GAAP.
"Capitalization" shall mean the total of all the following items appearing
on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for Debt maturing more than twelve (12) months from the date of
determination; and (ii) common stock, preferred stock, Hybrid Preferred
Securities, premium on capital stock, capital surplus, capital in excess of par
value, and retained earnings (however the foregoing may be designated), less, to
the extent not otherwise deducted, the cost of shares of capital stock of the
Company held in its treasury. Subject to the foregoing, Capitalization shall be
determined in accordance with GAAP and practices applicable to the type of
business in which the Company is engaged and that are approved by independent
accountants regularly retained by the Company, and
2
<PAGE>
may be determined as of a date not more than sixty (60) days prior to the
happening of an event for which such determination is being made.
"Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
"Company" shall mean the corporation named as the "Company" in the first
paragraph of this Indenture, and its successors and assigns permitted hereunder.
"Company Order" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President (whether or
not designated by a number or numbers or a word or words added before or after
the title "Vice President"), the Treasurer or an Assistant Treasurer, of the
Company, and delivered to the Trustee. At the Company's option, a Company Order
may take the form of a supplemental indenture to this Indenture.
"Consolidated Subsidiary" shall mean any Subsidiary whose accounts are or
are required to be consolidated with the accounts of the Company in accordance
with GAAP.
"Corporate Trust Office of The Trustee", or other similar term, shall mean
the corporate trust office of the Trustee, at which at any particular time its
corporate trust business shall be principally administered, which office is at
the date of the execution of this Indenture located at 114 West 47th Street,
25th Floor, New York, New York, 10036-1532.
"Debt" shall mean any outstanding debt of the Company for money borrowed
evidenced by notes, debentures, bonds, or other securities, or guarantees of any
thereof.
"Depositary" shall mean, unless otherwise specified in a Company Order
pursuant to Section 2.05 hereof, The Depository Trust Company, New York, New
York, or any successor thereto registered and qualified as a clearing agency
under the Exchange Act, or other applicable statute or regulation.
"Event Of Default" shall mean any event specified in Section 8.01 hereof,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expert" shall mean any officer of the Company familiar with the terms of
the First Mortgage and this Indenture, any law firm, any investment banking
firm, or any other Person, satisfactory in the reasonable judgment of the
Trustee.
3
<PAGE>
"First Mortgage" shall mean the Indenture, dated as of March 1, 1946, from
the Company to United States Trust Company of New York, as successor trustee, as
supplemented and amended from time to time.
"First Mortgage Bonds" shall mean all first mortgage bonds issued by the
Company and outstanding under the First Mortgage, other than Senior Note First
Mortgage Bonds.
"GAAP" shall mean generally accepted accounting principles in the United
States of America, applied on a basis consistent with those used in the
preparation of any financial statements referred to herein, unless otherwise
stated herein.
"Global Note" shall mean a Note that, pursuant to Section 2.05 hereof, is
issued to evidence Notes, that is delivered to the Depositary or pursuant to the
instructions of the Depositary and that shall be registered in the name of the
Depositary or its nominee.
"Hybrid Preferred Securities" shall mean any preferred securities issued
by a Hybrid Preferred Securities Subsidiary, where such preferred securities
have the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends substantially
all of the proceeds from the issuance of such preferred securities to the
Company, or a wholly owned subsidiary of the Company, in exchange for
Subordinated Indebtedness issued by the Company;
(ii) such preferred securities contain terms providing for the
deferral of interest payments corresponding to provisions providing for the
deferral of interest payments on the related Subordinated Indebtedness; and
(iii) the Company makes periodic interest payments on the related
Subordinated Indebtedness, which interest payments are in turn used by the
Hybrid Preferred Securities Subsidiary to make corresponding payments to the
holders of the preferred securities.
"Hybrid Preferred Securities Subsidiary" shall mean any limited
partnership or business trust (or similar entity) (i) all of the general
partnership or common equity interest of which is owned (either directly or
indirectly through one or more wholly-owned Subsidiaries of the Company or any
Consolidated Subsidiary of the Company) at all times by the Company, (ii) that
has been formed for the purpose of issuing Hybrid Preferred Securities and (iii)
substantially all of the assets of which consist at all times solely of
Subordinated Indebtedness issued by the Company and payments made from time to
time on such Subordinated Indebtedness.
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"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" shall mean (a) each date designated as such for
the payment of interest on a Note specified in a Company Order pursuant to
Section 2.05 hereof (provided that the first Interest Payment Date for any Note,
the Original Issue Date of which is after a Regular Record Date but prior to the
respective Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date), (b) a date of Maturity of such Note
and (c) only with respect to defaulted interest on such Note, the date
established by the Trustee for the payment of such defaulted interest pursuant
to Section 2.11 hereof.
"Lien" shall mean any mortgage, security interest, pledge or lien.
"Maturity" or "Maturity Date", when used with respect to any Note, shall
mean the date on which the principal of such Note (together with all accrued
interest thereon) becomes due and payable as therein or herein provided, whether
at the Stated Maturity thereof or by declaration of acceleration, redemption or
otherwise.
"Mortgage Trustee" shall mean the Person serving as trustee at the time
under the First Mortgage.
"Note" or "Notes" shall mean any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"Noteholder", "Holder of Notes" or "Holder" shall mean any Person in whose
name at the time a particular Note is registered on the books of the Trustee
kept for that purpose in accordance with the terms hereof.
"Officers' Certificate" when used with respect to the Company, shall mean
a certificate signed by one of the Chairman, the President, any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "Vice President"), and by one of the Chief Financial
Officer, Treasurer, any Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company; provided, that no individual shall be entitled to sign
in more than one capacity.
"Operating Property" shall mean (i) any interest in real property owned by
the Company and (ii) any asset owned by the Company that is depreciable in
accordance with GAAP, excluding, in either case, any interest of the Company as
lessee under a Capital Lease (except for a lease that results from a Sale and
Lease-Back Transaction).
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"Opinion Of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 15.05 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain reasonable conditions and qualifications satisfactory to
the Trustee.
"Original Issue Date" shall mean for a Note, or portion thereof, the date
upon which it, or such portion, was issued by the Company pursuant to this
Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
"Outstanding", when used with reference to Notes, shall, subject to
Section 10.04 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company), provided that if such
Notes are to be redeemed prior to the Maturity thereof, notice of such
redemption shall have been given as provided in Article III, or provisions
satisfactory to the Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof, that have been paid and discharged
or are deemed to have been paid and discharged pursuant to the provisions of
this Indenture; and
(d) Notes in lieu of or in substitution for which other Notes shall
have been authenticated and delivered, or which have been paid, pursuant to
Section 2.07 hereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
"Principal Executive Offices Of The Company" shall mean 2800 Pottsville
Pike, Reading, Pennsylvania 19605, or such other place where the main corporate
offices of the Company are located as designated in writing to the Trustee by an
Authorized Agent.
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"Regular Record Date" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.05, for an Interest Payment Date for a particular
Note (except for an Interest Payment Date with respect to defaulted interest on
such Note) (a) the fifteenth day of the calendar month next preceding each
Interest Payment Date (unless the Interest Payment Date is the date of Maturity
of such Note, in which event, the Regular Record Date shall be as described in
clause (b) hereof) and (b) the date of Maturity of such Note.
"Related Series of Notes" shall mean, when used in reference to the First
Mortgage Bonds, Senior Notes Series A, the Company's Senior Notes,---% Due ----
Series A and, when used in reference to any other series of Senior Note First
Mortgage Bonds, shall mean the series of Notes in respect of which such series
of Senior Note First Mortgage Bonds were delivered to the Trustee pursuant to
Section 4.09 hereof upon the initial authentication and issuance of such series
of Notes pursuant to Section 2.05 hereof.
"Related Series of Senior Note First Mortgage Bonds" shall mean, when used
in reference to the Company's Senior Notes, ---% Due ---- Series A, the First
Mortgage Bonds, Senior Notes Series A, and, when used in reference to any other
series of Notes, shall mean the series of Senior Note First Mortgage Bonds
delivered to the Trustee pursuant to Section 4.09 hereof in connection with the
initial authentication and issuance of such series of Notes pursuant to Section
2.05 hereof.
"Release Date" shall mean the earlier of (i) the date that all First
Mortgage Bonds, other than the Senior Note First Mortgage Bonds, have been
retired (whether at, before or after the maturity thereof) through payment,
redemption, purchase, defeasance or otherwise and (ii) the date upon which the
Trustee holds Senior Note First Mortgage Bonds constituting not less than 80% in
aggregate principal amount of all outstanding First Mortgage Bonds.
"Responsible Officer" or "Responsible Officers" when used with respect to
the Trustee shall mean one or more of the following: the chairman of the board
of directors, the vice chairman of the board of directors, the chairman of the
executive committee, the president, any vice president (whether or not
designated by a number or a word or words added before or after the title "Vice
President"), the secretary, the treasurer, any trust officer, any assistant
trust officer, any second or assistant vice president, any assistant secretary,
any assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
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"Sale and Lease-Back Transaction" shall mean any arrangement with any
Person providing for the leasing to the Company of any Operating Property
(except for leases for a term, including any renewal thereof, of not more than
forty-eight (48) months), which Operating Property has been or is to be sold or
transferred by the Company to such Person; provided, however, Sale and
Lease-Back Transaction shall not include any arrangement first entered into
prior to the date of this Indenture.
"Senior Note First Mortgage Bonds" shall mean the First Mortgage Bonds,
Senior Note Series A issued by the Company pursuant to the supplemental
indenture dated as of -------, 1999 to the First Mortgage and any other first
mortgage bonds issued by the Company under the First Mortgage pursuant to
supplemental indentures to the First Mortgage and delivered to the Trustee
pursuant to Section 4.09 hereof.
"Special Record Date" shall mean, with respect to any Note, the date
established by the Trustee in connection with the payment of defaulted interest
on such Note pursuant to Section 2.11 hereof.
"Stated Maturity" shall mean with respect to any Note, the last date on
which principal on such Note becomes due and payable as therein or herein
provided, other than by declaration of acceleration or by redemption.
"Subordinated Indebtedness" shall mean any unsecured Debt of the Company
(i) issued in exchange for the proceeds of Hybrid Preferred Securities and (ii)
subordinated to the rights of the Holders hereunder.
"Subsidiary" shall mean, as to any Person, any corporation or other entity
of which at least a majority of the securities or other ownership interest
having ordinary voting power (absolutely or contingently) for the election of
directors or other Persons performing similar functions are at the time owned
directly or indirectly by such Person.
"Tangible Assets" shall mean the amount shown as total assets on the
consolidated balance sheet of the Company, less the following: (i) intangible
assets including, but without limitation, such items as goodwill, trademarks,
trade names, patents, and unamortized debt discount and expense and (ii)
appropriate adjustments, if any, on account of minority interests. Tangible
Assets shall be determined in accordance with GAAP and practices applicable to
the type of business in which the Company is engaged and that are approved by
the independent accountants regularly retained by the Company, and may be
determined as of a date not more than sixty (60) days prior to the happening of
the event for which such determination is being made.
"Trustee" shall mean United States Trust Company of New York and, subject
to Article IX, shall also include any successor
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Trustee.
"U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
thereof for the payment of which obligations or guarantee the full faith and
credit of the United States is pledged, or (ii) certificates or receipts
representing direct ownership interests in obligations or specified portions
(such as principal or interest) of obligations described in clause (i) above,
which obligations are held by a custodian in safekeeping in a manner
satisfactory to the Trustee.
"Value" shall mean, with respect to a Sale and Lease-Back Transaction, as
of any particular time, the amount equal to the greater of (i) the net proceeds
to the Company from the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction and (ii) the net book value of such property, as
determined in accordance with GAAP by the Company, in either case multiplied by
a fraction, the numerator of which shall be equal to the number of full years of
the term of the lease that is part of such Sale and Lease-Back Transaction
remaining at the time of determination and the denominator of which shall be
equal to the number of full years of such term, without regard, in any case, to
any renewal or extension options contained in such lease.
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally.
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(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in Exhibit A (or, following the Release Date,
Exhibit C) to this Indenture, and, if the Notes are not in the form of a Global
Note, they shall be in substantially the form set forth in Exhibit B (or,
following the Release Date, Exhibit D) to this Indenture, or, in any case, in
such other form as shall be established by a Board Resolution, or a Company
Order pursuant to a Board Resolution, or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, or any
indentures supplemental hereto, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with applicable rules of any securities exchange or of the
Depositary or with applicable law or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
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(b) The definitive Notes shall be typed, printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
Section 2.02 Form Of Trustee's Certificate Of Authentication. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated, described
or provided for in the within-mentioned Indenture.
United States Trust Company of New York
By:
--------------------------------
Authorized Officer
Section 2.03 Amount Unlimited. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
Section 2.04 Denominations, Dates, Interest Payment And Record Dates
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures supplemental hereto;
provided, that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(e) hereof.
(c) Each Note shall bear interest from the later of (1) its Original Issue
Date or the date specified in such Note or (2) the most recent date to which
interest has been paid or duly provided for with respect to such Note, in each
case, until the principal of such Note is paid or made available for payment,
and interest on each Note shall be payable on each Interest Payment Date after
the Original Issue Date.
(d) Each Note shall mature on a Stated Maturity specified 10
<PAGE>
in the Note. The principal amount of each Outstanding Note shall be payable on
the Maturity Date or Dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section 2.05
hereof, interest on each of the Notes shall be calculated on the basis of a
360-day year of twelve 30-day months (and for any partial periods shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30 day months) and shall be computed at a fixed rate until the Maturity
of such Notes. The method of computing interest on any Notes not bearing a fixed
rate of interest shall be set forth in a Company Order pursuant to Section 2.05
hereof. Unless otherwise specified in a Company Order pursuant to Section 2.05
hereof, principal, interest and premium, if any, on the Notes shall be payable
in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose name
any Note is registered at the close of business on any Regular Record Date or
Special Record Date with respect to an Interest Payment Date for such Note shall
be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at Maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) So long as the Trustee is the registrar and paying agent, the Trustee
shall, as soon as practicable but no later than the Regular Record Date
preceding each applicable Interest Payment Date, provide to the Company a list
of the principal, interest and premium, if any, to be paid on Notes on such
Interest Payment Date. The Trustee shall assume responsibility for withholding
taxes on interest paid as required by law except with respect to any Global
Note.
Section 2.05 Execution, Authentication, Delivery And Dating.
(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the title "Vice President"),
its Treasurer or an Assistant Treasurer of the Company and attested by the
Secretary or an Assistant Secretary of the Company. The signature of any of
these officers on the Notes may be manual or facsimile. Typographical and other
minor errors or defects in any such signature shall not affect the validity or
enforceability of any Note that has been duly authenticated and delivered by the
Trustee.
(b) Notes bearing the manual or facsimile signatures of individuals who
were at the time of execution the proper officers of the Company shall bind the
Company, notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee in
accordance with any such Company Order shall authenticate and deliver such
Notes. The Notes shall be issued in series. Such Company Order shall specify the
following with respect to each series of Notes: (i) any limitations on the
aggregate principal amount of the Notes to be issued as part of such series,
(ii) the Original Issue Date for such series, (iii) the Stated Maturity or
Maturities of Notes of such series, (iv) the interest rate or rates, or method
of calculation of such rate or rates, for such series, the date from which such
interest will accrue and the Interest Payment Dates and Regular Record Dates for
such series, (v) the terms, if any, regarding the optional or mandatory
redemption of such series, including pursuant to any sinking fund or analogous
provisions, including redemption date or dates of such series, if any, the
period or periods within which such series will be redeemed, the price or prices
applicable to such redemption and the terms and conditions upon which such
series may or will be redeemed, in whole or in part, (vi) the terms, if any,
regarding the purchase of such series at the option of the Holder, including
purchase date or dates of such series, if any, the price or prices applicable to
such purchases and the terms and conditions upon which such series may be
purchased, in whole or in part, (vii) whether or not the Notes of such series
shall be issued in whole or in part in the form of a Global Note and, if so, the
Depositary for such Global Note, (viii) the designation of such series, (ix) if
the form of the Notes of such series is not as described in Exhibit A, Exhibit
B, Exhibit C or Exhibit D hereto, the form of the Notes of such series, (x) the
maximum annual interest rate, if any, of the Notes permitted for such series,
(xi) if prior to the Release Date, the designation of the Related Series of
Senior Note First Mortgage Bonds being delivered to the Trustee in connection
with the issuance of such series of Notes, (xii) the establishment of any office
or agency pursuant to Section 6.02 hereof, and (xiii) any other terms of such
series not inconsistent with this Indenture. Prior to authenticating Notes of
any series, and in accepting the additional responsibilities under this
Indenture in relation to such Notes, the Trustee shall receive from the Company
the following at or before the issuance of the initial Note of such series of
Notes, and (subject to Section 9.01 hereof) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked prior to
such issuance:
(1) A Board Resolution authorizing such Company Order or Orders and,
if the form of Notes is established by a Board Resolution or a Company
Order pursuant to a Board Resolution, a copy of such Board Resolution;
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(2) At the option of the Company, either an Opinion of Counsel or a
letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, stating substantially the following subject to customary
qualifications and exceptions:
(A) if the form of Notes has been established by or
pursuant to a Board Resolution, a Company Order pursuant to a Board
Resolution, or in a supplemental indenture as permitted by Section
2.01 hereof, that such form has been established in conformity with
this Indenture;
(B) that the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws of general application relating to or
affecting the enforcement of creditors' rights, the application of
general principles of equity (regardless of whether such application
is made in a proceeding at law or in equity) and by an implied
covenant of good faith and fair dealing and except as enforcement of
provisions of the Indenture may be limited by state laws affecting
the remedies for the enforcement of the security provided for in the
Indenture;
(C) if prior to the Release Date, that the Related
Series of Senior Note First Mortgage Bonds being delivered to the
Trustee in connection with the issuance of such series of Notes have
been duly authorized, executed and delivered, and that such Senior
Note First Mortgage Bonds are valid and binding obligations of the
Company, enforceable in accordance with their terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws of general
application relating to or affecting the enforcement of creditors'
rights and the application of general principles of equity
(regardless of whether such application is made in a proceeding at
law or in equity) and by an implied covenant of good faith and fair
dealing and except as enforcement of provisions thereof may be
limited by state laws affecting the remedies for the enforcement of
the security provided for in the First Mortgage; and that such
Senior Note First Mortgage Bonds are entitled to the benefit of the
First Mortgage, equally and ratably, with all First Mortgage Bonds
outstanding thereunder, except as to sinking fund provisions;
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(D) that the Indenture and, if prior to the Release
Date, the First Mortgage are qualified to the extent necessary under
the TIA;
(E) that such Notes have been duly authorized and
executed by the Company, and when authenticated by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws of general application relating to or affecting the
enforcement of creditors' rights, the application of general
principles of equity (regardless of whether such application is made
in a proceeding at law or in equity) and by an implied covenant of
good faith and fair dealing and except as enforcement of provisions
of this Indenture may be limited by state laws affecting the
remedies for the enforcement of the security provided for in this
Indenture;
(F) that all consents or approvals of any federal or
state regulatory agency required in connection with the Company's
execution and delivery of this Indenture, such series of Notes and
any Senior Note First Mortgage Bonds have been obtained and are in
full force and effect (except that no statement need be made with
respect to state securities laws);
(G) that the issuance of the Notes and, if prior to the
Release Date, the delivery by the Company of the Related Series of
Senior Note First Mortgage Bonds in connection therewith, will not
result in any default under any of the terms or covenants contained
in this Indenture or, if applicable, the
First Mortgage;
(H) if prior to the Release Date, that the First
Mortgage (except the supplemental indenture establishing the Related
Series of Senior Note First Mortgage Bonds being delivered to the
Trustee in connection with the issuance of such series of Notes) and
all financing statements have been duly filed and recorded in all
places where such filing or recording is necessary for the
perfection or preservation of the lien of the First Mortgage, and
the First Mortgage constitutes a valid and perfected first lien upon
the property purported to be covered thereby, subject only to
excepted encumbrances (as defined in the First Mortgage) and to
liens upon the property, if any, specifically identified in such
supplemental indenture prior to its recordation; and
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(I) that all conditions that must be met by the Company
to issue Notes under this Indenture have been met.
(3) If prior to the Release Date, the certificate of an Expert
meeting the requirements of Section 4.06(a) hereof and a series of Senior
Note First Mortgage Bonds meeting the requirements of Section 4.10 hereof.
(4) An Officers' Certificate stating that (i) the Company is not,
and upon the authentication by the Trustee of the series of Notes, will
not be in default under any of the terms or covenants contained in this
Indenture, (ii) all conditions that must be met by the Company to issue
Notes under this Indenture have been met, and (iii) if prior to the
Release Date, the Related Series of Senior Note First Mortgage Bonds being
delivered to the Trustee meets the requirements of Section 4.10 hereof.
(d) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual or facsimile signature of an authorized
officer, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
(e) If all Notes of a series are not to be authenticated and issued at one
time, the Company shall not be required to deliver the Company Order, Board
Resolution, certificate of an Expert, Senior Note First Mortgage Bonds,
Officers' Certificate and Opinion of Counsel (including any of the foregoing
that would be otherwise required pursuant to Section 15.05 hereof) described in
Section 2.05(c) hereof at or prior to the authentication of each Note of such
series, if such items are delivered at or prior to the time of authentication of
the first Note of such series to be authenticated and issued. If all of the
Notes of a series are not authenticated and issued at one time, for each
issuance of Notes after the initial issuance of Notes, the Company shall be
required only to deliver to the Trustee the Note and a written request (executed
by one of the Chairman, the President, any Vice President, the Treasurer, or an
Assistant Treasurer) to the Trustee to authenticate such Note and to deliver
such Note in accordance with the instructions specified by such request. Any
such request shall constitute a representation and warranty by the Company that
the statements made in the Officers' Certificate delivered to the Trustee prior
to the authentication and issuance of the first Note of such series are true and
correct on the date thereof as if made on and as of the date thereof.
Section 2.06 Exchange And Registration Of Transfer Of Notes.
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(a) Subject to Section 2.13 hereof, Notes of any series may be exchanged
for one or more new Notes of the same series of any authorized denominations and
of a like aggregate principal amount, series and Stated Maturity and having the
same terms and Original Issue Date. Notes to be exchanged shall be surrendered
at any of the offices or agencies to be maintained pursuant to Section 6.02
hereof, and the Trustee shall authenticate and deliver in exchange therefor the
Note or Notes of such series which the Noteholder making the exchange shall be
entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a register
or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article II
provided. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register shall be open for inspection by the Company. Upon due
presentment for registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees one or more new Notes
of any authorized denominations and of a like aggregate principal amount, series
and Stated Maturity and having the same terms and Original Issue Date.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee and duly executed by, the Holder or the attorney in fact of such
Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register the transfer
of any Notes selected, called or being called for redemption (including Notes,
if any, redeemable at the option of the Holder provided such Notes are then
redeemable at such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and any applicable premium, of part, but not
all, of a Note is paid, then upon surrender to the Trustee of such Note, the
Company shall execute, and the Trustee shall authenticate, deliver and register,
a Note in an authorized denomination in aggregate principal amount equal to, and
having the same terms, Original Issue Date, Stated Maturity and series as, the
unpaid portion of such Note.
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Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes. (a) If any Note
shall become mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, a new Note of like form and principal amount, series and Stated
Maturity and having the same terms and Original Issue Date and bearing a number
not contemporaneously Outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or Authenticating Agent such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, the Company 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 connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by virtue
of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
such lost or stolen Note shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder. All Notes shall be held and owned upon the
express condition that, to the extent permitted by law, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes and shall preclude to the full extent permitted
by applicable law any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.08 Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary
Notes shall be issuable in
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any authorized denomination and substantially in the form of the definitive
Notes but with such omissions, insertions and variations as may be appropriate
for temporary Notes, all as may be determined by the Company. Every such
temporary Note shall be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Notes. Without unreasonable delay the Company shall execute and shall
deliver to the Trustee definitive Notes and thereupon any or all temporary Notes
shall be surrendered in exchange therefor at the Corporate Trust Office of the
Trustee, and the Trustee shall authenticate, deliver and register in exchange
for such temporary Notes an equal aggregate principal amount of definitive
Notes. Such exchange shall be made by the Company at its own expense and without
any charge therefor to the Noteholders. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes authenticated and delivered hereunder.
Section 2.09 Cancellation Of Notes Paid, Etc. All Notes surrendered for
the purpose of payment, redemption, exchange or registration of transfer shall
be surrendered to the Trustee for cancellation and promptly canceled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by this
Indenture. The Company shall surrender to the Trustee any Notes so acquired by
it and such Notes shall be canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes so canceled.
Section 2.10 Interest Rights Preserved. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer, exchange or
substitution.
Section 2.11 Special Record Date. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on any
series of Notes on an Interest Payment Date (other than on an Interest Payment
Date that is a Maturity Date), that interest shall cease to be payable to the
Persons who were the Noteholders of such series at the applicable Regular Record
Date. In that event, when moneys become available for payment of the interest,
the Trustee shall (a) establish a date of payment of such interest and a Special
Record Date for the payment of that interest, which Special Record Date shall be
not more than 15 or fewer than 10 days prior to the date of the proposed payment
and (b) mail notice of the date of payment and of the Special Record Date not
fewer than 10 days preceding the Special Record Date to each Noteholder of such
series at the close of business on the 15th day preceding the mailing at the
address of such Noteholder, as it appeared on the register for the Notes. On the
day so established by the Trustee the interest shall be payable to the Holders
of the applicable Notes at the close of business on the Special Record Date.
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Section 2.12 Payment Of Notes. Payment of the principal, interest and
premium, if any, on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium, if any, is due on any Global Note
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee. On or before 12:00 noon, New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest is due on any Global
Note (other than at Maturity), the Trustee shall pay to the Depositary such
interest in same day funds. On or before 1:00 p.m., New York City time, or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which principal, interest payable at Maturity and premium, if any, is
due on any Global Note, the Trustee shall deposit with the Depositary the amount
equal to the principal, interest payable at Maturity and premium, if any, by
wire transfer into the account specified by the Depositary. As a condition to
the payment, at Maturity or upon redemption, of any part of the principal of,
interest on and any applicable premium of any Global Note, the Depositary shall
surrender, or cause to be surrendered, such Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depositary pursuant to
Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global Note, principal, any
applicable premium and interest due at the Maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the Corporate Trust Office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at Maturity) shall be paid by check mailed to the Holder
thereof at such Holder's address as it appears on the register by check payable
in clearinghouse funds; provided that if the Trustee receives a written request
from any Holder of Notes, the aggregate principal amount of which having the
same Interest Payment Date equals or exceeds $10,000,000, on or before the
applicable Regular Record Date for such Interest Payment Date, interest on such
Note shall be paid by wire transfer of immediately available funds to a bank
within the continental United States designated by such Holder in its request or
by direct deposit into the account of such Holder designated by such Holder in
its request if such account is maintained with the Trustee or any paying agent.
(c) The Trustee shall receive the Senior Note First Mortgage Bonds from
the Company as provided in this Indenture and shall hold the Senior Note First
Mortgage Bonds, and any and all
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sums payable thereon or with respect thereto or realized therefrom, in trust for
the benefit of the holders of the Notes, as herein provided. Subject to Article
XIII hereof, all payments made by or on behalf of the Company to the Trustee on
a series of Senior Note First Mortgage Bonds shall be deemed to be a payment by
the Company pursuant to this Section 2.12 and shall be applied by the Trustee to
pay, when due, principal of, premium, if any, and/or interest on the Related
Series of Notes and, to the extent so applied, shall satisfy the Company's
obligations on such Notes.
Section 2.13 Notes Issuable In The Form Of A Global Note.
(a) If the Company shall establish pursuant to Section 2.05 hereof that
the Notes of a particular series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 2.05 hereof and the Company Order delivered to
the Trustee thereunder, authenticate and deliver such Global Note or Notes,
which (i) shall represent, shall be denominated in an amount equal to the
aggregate principal amount of, and shall have the same terms as, the Outstanding
Notes of such series to be represented by such Global Note or Notes, (ii) shall
be registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"This Note is a Global Note registered in the name of the Depositary (referred
to herein) or a nominee thereof and, unless and until it is exchanged in whole
or in part for the individual Notes represented hereby, this Global Note may not
be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
Global Note is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York), to the Trustee for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede &
Co., any transfer, pledge or other use hereof for value or otherwise by or to
any Person is wrongful since the registered owner hereof, Cede & Co., has an
interest herein" or such other legend as may be required by the rules and
regulations of the Depositary.
(b) Notwithstanding any other provision of Section 2.06 hereof or of this
Section 2.13, unless the terms of a Global Note expressly permit such Global
Note to be exchanged in whole or in part for individual Notes, a Global Note may
be transferred, in whole but not in part, only as described in the legend
thereto.
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(c) (i) If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Global Note shall no longer be
eligible or in good standing under the Exchange Act or other applicable statute
or regulation, the Company shall appoint a successor Depositary with respect to
such Global Note. If a successor Depositary for such Global Note is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 2.05(c)(vi) hereof shall no longer be effective with respect to the
series of Notes evidenced by such Global Note and the Company shall execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Notes of such series in exchange for such Global Note, shall
authenticate and deliver, individual Notes of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of the Global Note in exchange for such Global Note. The Trustee shall
not be charged with knowledge or notice of the ineligibility of a Depositary
unless a Responsible Officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) (A) The Company may at any time and in its sole discretion
determine that all Outstanding (but not less than all) Notes of a series issued
or issuable in the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Notes in exchange for such Global Note or Notes,
shall authenticate and deliver individual Notes of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Note or Notes in exchange for such Global Note or Notes.
......(B) Within seven days after the occurrence of an Event of
Default, the Company shall execute, and the Trustee shall authenticate and
deliver, Notes of such series in definitive registered form in any authorized
denominations and in aggregate principal amount equal to the principal amount of
the Global Notes in exchange for such Global Notes.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for individual Notes, such
Global Note shall be canceled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for
delivery to the Persons in whose names such Notes are so registered, or if the
Depositary shall refuse or be unable to
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deliver such Notes, the Trustee shall deliver such Notes to the Persons in whose
names such Notes are registered, unless otherwise agreed upon between the
Trustee and the Company, in which event the Company shall cause the Notes to be
delivered to the Persons in whose names such Notes are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depositary but not prior to the
first Interest Payment Date of the respective Global Notes, the Depositary shall
be required to surrender any two or more Global Notes which have identical
terms, including, without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated at
least 30 days prior to any Interest Payment Date applicable to any of the Global
Notes surrendered to the Trustee. Upon any exchange of any Global Note with two
or more Original Issue Dates, whether pursuant to this Section or pursuant to
Section 2.06 or Section 3.03 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same before and after such
exchange, after giving effect to any retirement of Notes and the Original Issue
Dates applicable to such Notes occurring in connection with such exchange.
Section 2.14 CUSIP Numbers.
The Company in issuing Notes may use "CUSIP" numbers (if then generally in
use) and, if so used, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to holders of Notes; provided, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION OF NOTES
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Section 3.01 Applicability Of Article. Such of the Notes as are, by their
terms, redeemable prior to their Stated Maturity at the option of the Company,
may be redeemed by the Company at such times, in such amounts and at such prices
as may be specified therein and in accordance with the provisions of this
Article III.
Section 3.02 Notice Of Redemption; Selection Of Notes.
(a) The election of the Company to redeem any Notes shall be evidenced by
an Officer's Certificate which shall be given with notice of redemption to the
Trustee at least 45 days (or such shorter period acceptable to the Trustee in
its sole discretion) prior to the redemption date specified in such notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a whole
or in part shall be given by the Trustee, in the manner provided in Section
15.10 hereof, no less than 30 or more than 60 days prior to the date fixed for
redemption. Any notice which is given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. In any case, failure duly to give such notice, or any
defect in such notice, to the Holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
(c) Each such notice shall identify the Notes to be redeemed (including
CUSIP numbers) and shall specify the date fixed for redemption, the places of
redemption and the redemption price (or the method for calculation thereof) at
which such Notes are to be redeemed, and shall state that (subject to subsection
(e) of this Section) payment of the redemption price of such Notes or portion
thereof to be redeemed will be made upon surrender of such Notes at such places
of redemption, that interest accrued to the date fixed for redemption will be
paid as specified in such notice, and that from and after such date interest
thereon shall cease to accrue. If less than all of a series of Notes having the
same terms are to be redeemed, the notice shall specify the Notes or portions
thereof to be redeemed. If any Note is to be redeemed in part only, the notice
which relates to such Note shall state the portion of the principal amount
thereof to be redeemed, and shall state that, upon surrender of such Note, a new
Note or Notes having the same terms in aggregate principal amount equal to the
unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company Order
under Section 2.05 hereof, if less than all of a series of Notes, or any tranche
thereof, is to be redeemed, the Trustee shall select in such manner as it shall
deem appropriate and fair in its discretion the particular Notes to be redeemed
in whole or in part and shall thereafter promptly notify the Company in writing
of the Notes so to be redeemed. If less than all of a
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series of Notes represented by a Global Note is to be redeemed, the particular
Notes or portions thereof of such series to be redeemed shall be selected by the
Depositary for such series of Notes in such manner as the Depositary shall
determine. Notes shall be redeemed only in denominations of $1,000, provided
that any remaining principal amount of a Note redeemed in part shall be a
denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of redemption at the
option of the Company, the Company shall not have irrevocably directed the
Trustee to apply funds then on deposit with the Trustee or held by it and
available to be used for the redemption of Notes to redeem all the Notes called
for redemption, such notice, at the election of the Company, may state that it
is conditional and subject to the receipt of the redemption moneys by the
Trustee on or before the date fixed for redemption and that such notice shall be
of no effect unless such moneys are so received on or before such date.
Section 3.03 Payment Of Notes On Redemption; Deposit Of Redemption
Price.
(a) If notice of redemption for any Notes shall have been given as
provided in Section 3.02 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.02(e) hereof, such Notes or
portions of Notes called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such Notes.
Interest on the Notes or portions thereof so called for redemption shall cease
to accrue and such Notes or portions thereof shall be deemed not to be entitled
to any benefit under this Indenture except to receive payment of the redemption
price together with interest accrued thereon to the date fixed for redemption.
Upon presentation and surrender of such Notes at the place of payment specified
in such notice, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in Section
3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to 11:00 a.m. New York City time on such redemption date an
amount
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sufficient to pay the redemption price together with interest accrued to the
date fixed for redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption. If the Company shall not make such
deposit on or prior to the redemption date, the notice of redemption shall be of
no force and effect and the principal on such Notes or specified portions
thereof shall continue to bear interest as if the notice of redemption had not
been given.
(c) No notice of redemption of Notes shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall redeem such Notes but only if
funds sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for such purpose, and
(2) that notices of redemption of all Outstanding Notes may be given during the
continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a new Note or
Notes of authorized denominations in aggregate principal amount equal to, and
having the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 4.01 Delivery Of Initial Series Of Senior Note First Mortgage
Bonds. Subject to the provisions of Section 4.11 and Article V hereof, the
Company hereby (a) delivers to the Trustee, in connection with the initial
issuance of a series of Notes hereunder in an aggregate principal amount not to
exceed $-----------, Senior Note First Mortgage Bonds bearing the designation
"First Mortgage Bonds, Senior Note Series A" in the aggregate principal amount
of $-----------, fully registered in the name of the Trustee, in trust for the
benefit of the Holders from time to time of the Notes issued under this
Indenture as security for any and all obligations of the Company under the
Notes, including, but not limited to, (1) the full and prompt payment of the
principal of and premium, if any, on the Notes when and as the same shall become
due and payable in accordance with the terms and provisions of this Indenture or
the Notes, either at the Stated Maturity thereof, upon acceleration of the
Maturity thereof or upon redemption, and (2) the full and prompt payment of any
interest on the Notes when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or the Notes and (b)
delivers to the Trustee the certificate of the Expert required by Section 4.06
hereof (if required).
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Section 4.02 Receipt. The Trustee acknowledges receipt of the Senior Note
First Mortgage Bonds described in Section 4.01 hereof.
Section 4.03 Senior Note First Mortgage Bonds Held By The Trustee. The
Trustee shall, as the holder of Senior Note First Mortgage Bonds, attend such
meeting or meetings of bondholders under the First Mortgage or, at its option,
deliver its proxy in connection therewith, as relate to matters with respect to
which it is entitled to vote or consent. The Trustee shall vote all Senior Note
First Mortgage Bonds then held by it, or consent with respect thereto,
proportionally with the vote or consent of the holders of all other First
Mortgage Bonds which are outstanding under the First Mortgage, the holders of
which are eligible to vote or consent; provided, however, that the Trustee shall
not so vote in favor of, or so consent to, any amendment or modification of the
First Mortgage which, if it were an amendment or modification of this Indenture,
would require the consent of the Holders, without the prior consent, obtained in
the manner prescribed in Section 13.02 hereof, of the Holders of Outstanding
Notes which would be required under said Section 13.02 for such an amendment or
modification of this Indenture.
Section 4.04 No Transfer Of Senior Note First Mortgage Bonds; Exceptions.
Except (i) as required to effect an assignment to a successor trustee under this
Indenture, (ii) pursuant to Section 4.05 or Section 4.08 hereof, or (iii) in
compliance with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company, the Trustee
shall not sell, assign or transfer the Senior Note First Mortgage Bonds and the
Company shall issue stop transfer instructions to the Mortgage Trustee and any
transfer agent under the First Mortgage to effect compliance with this Section
4.04.
Section 4.05 Delivery To The Company Of All Senior Note First Mortgage
Bonds. When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on all Senior Note First Mortgage
Bonds shall be satisfied or deemed satisfied pursuant to Section 4.11 or Section
5.01(b) hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 4.06(b) hereof (if
such certificate is then required by Section 4.06(b) hereof), deliver to the
Company without charge therefor all of the Senior Note First Mortgage Bonds,
together with such appropriate instruments of transfer or release as may be
reasonably requested by the Company. All Senior Note First Mortgage Bonds
delivered to the Company in accordance with this Section 4.05 shall be delivered
by the Company to the Mortgage Trustee for cancellation.
Section 4.06 Fair Value Certificate. (a) If required by applicable law,
upon the delivery by the Company to the Trustee of the Senior Note First
Mortgage Bonds pursuant to Section 4.01 or Section 4.09 hereof, the Company
shall simultaneously
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therewith deliver to the Trustee a certificate of an Expert (1) stating that he,
she or it is familiar with the provisions of such Senior Note First Mortgage
Bonds and of this Indenture; (2) stating the principal amount of such Senior
Note First Mortgage Bonds so delivered, the stated interest rate (or method of
calculation of interest) of such Senior Note First Mortgage Bonds (if any) and
the Stated Maturity of such Senior Note First Mortgage Bonds; (3) identifying
the Notes being issued contemporaneously therewith, and (4) stating the fair
value to the Company of such Senior Note First Mortgage Bonds. If the fair value
to the Company of the Senior Note First Mortgage Bonds so delivered, as
described in the certificate to be delivered pursuant to this Section 4.06(a),
both (l) is equal to or exceeds (A) $25,000 and (B) 1% of the principal amount
of the Notes Outstanding at the date of delivery of such Senior Note First
Mortgage Bonds and (2) together with the fair value to the Company, as described
in the certificates to be delivered pursuant to this Section 4.06(a), of all
other Senior Note First Mortgage Bonds delivered to the Trustee since the
commencement of the then current calendar year, is equal to or exceeds 10% of
the principal amount of the Notes Outstanding at the date of delivery of such
Senior Note First Mortgage Bonds, then the certificate required by this Section
4.06(a) shall (1) be delivered by an Expert who shall be independent of the
Company and (2) in addition to the certifications described above, state the
fair value to the Company of all Senior Note First Mortgage Bonds delivered to
the Trustee pursuant to Section 4.09 hereof since the commencement of the then
current year as to which a certificate was not delivered by an Expert
independent of the Company.
(b) If Senior Note First Mortgage Bonds are delivered or surrendered
to the Company pursuant to Section 4.05 or 4.08 hereof, the Company shall
simultaneously therewith deliver to the Trustee a certificate of an Expert (1)
stating that it is familiar with the provisions of such Senior Note First
Mortgage Bonds and of this Indenture, (2) stating the principal amount of such
Senior Note First Mortgage Bonds so delivered, the stated interest rate (or
method of calculation of interest) of such Senior Note First Mortgage Bonds (if
any) and the Stated Maturity of such Senior Note First Mortgage Bonds, (3) if
applicable, identifying the Notes, the payment of the interest on and principal
of which has been discharged hereunder, and (4) stating that such delivery and
release will not impair the lien of this Indenture in contravention of the
provisions of this Indenture. If, prior to the Release Date, the fair value of
the Senior Note First Mortgage Bonds so delivered and released, as described in
the certificate to be delivered pursuant to this Section 4.06(b), both (l) is
equal to or exceeds (A) $25,000 and (B) 1% of the principal amount of the
Outstanding Notes at the date of release of such Senior Note First Mortgage
Bonds and (2) together with the fair value, as described in the certificates to
be delivered pursuant to this Section 4.06(b), of all other Senior Note First
Mortgage Bonds released from the lien of this Indenture since the commencement
of the then current calendar year, is equal to or
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exceeds 10% of the principal amount of the Notes Outstanding at the date of
release of such Senior Note First Mortgage Bonds, then the certificate required
by this Section 4.06(b) shall be delivered by an Expert who shall be independent
of the Company.
If, in connection with a delivery or release of outstanding Senior Note
First Mortgage Bonds, the Company provides to the Trustee an Opinion of Counsel
stating that the certificate described by this Section 4.06 is not required by
law, such certificate shall not be required to be delivered thereunder in
connection with such delivery or release.
Section 4.07 Further Assurances. The Company, at its own expense, shall do
such further lawful acts and things, and execute and deliver such additional
conveyances, assignments, assurances, agreements, financing statements and
instruments, as may be necessary in order to better assign, assure and confirm
to the Trustee its interest in the Senior Note First Mortgage Bonds and for
maintaining, protecting and preserving such interest.
Section 4.08 Exchange And Surrender Of Senior Note First Mortgage Bonds.
At any time a Note shall cease to be entitled to any lien, benefit or security
under this Indenture pursuant to Section 5.01(b) hereof and the Company shall
have provided the Trustee with notice thereof, the Trustee shall surrender an
equal principal amount of the Related Series of Senior Note First Mortgage
Bonds, subject to the limitations of this Section 4.08, to the Company for
cancellation. The Trustee shall, together with such Senior Note First Mortgage
Bonds, deliver to the Company such appropriate instruments of transfer or
release as the Company may reasonably request. Prior to the surrender required
by this paragraph, the Trustee shall receive from the Company the following, and
(subject to Section 9.01 hereof) shall be fully protected in relying upon, an
Officers' Certificate stating (i) the aggregate outstanding principal amount of
the Senior Note First Mortgage Bonds of the series surrendered by the Trustee,
after giving effect to such surrender, (ii) the aggregate Outstanding principal
amount of the Related Series of Notes and (iii) that the surrender of the Senior
Note First Mortgage Bonds will not result in any default under this Indenture.
The Company shall not be permitted to cause the surrender or exchange of
all or any part of a series of Senior Note First Mortgage Bonds contemplated in
this Section, if, after such surrender or exchange, the aggregate Outstanding
principal amount of the Related Series of Notes would exceed the aggregate
outstanding principal amount of such series of Senior Note First Mortgage Bonds
held by the Trustee. Any Senior Note First Mortgage Bonds received by the
Company pursuant to this Section 4.08 shall be delivered to the Mortgage Trustee
for cancellation. Notwithstanding anything herein to the contrary, until the
Release Date, the Company shall preserve and maintain the Lien of this
Indenture, and shall not permit, at any time prior to the Release Date, the
aggregate principal amount of Senior Note First
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Mortgage Bonds held by the Trustee to be less than the aggregate amount of Notes
Outstanding.
Section 4.09 Acceptance Of Additional Senior Note First Mortgage Bonds.
Upon the issuance of a series of Notes hereunder (other than the initial series
of Notes referred to in Section 4.01 hereof) at any time prior to the Release
Date, the Company shall deliver to the Trustee in trust for the benefit of the
Holders of the Notes as described in Section 4.11 hereof, and the Trustee shall
accept therefor, a Related Series of Senior Note First Mortgage Bonds registered
in the name of the Trustee conforming to the requirements of Section 4.10
hereof.
Section 4.10 Terms Of Senior Note First Mortgage Bonds. Each series of
Senior Note First Mortgage Bonds delivered to the Trustee pursuant to Section
4.01 or Section 4.09 hereof shall have the same Stated Maturity and shall be in
the same aggregate principal amount as, and have redemption provisions
corresponding to, the Related Series of Notes being issued; it being expressly
understood that such Senior Note First Mortgage Bonds may, but need not, bear
interest, any such interest to be payable on the same Interest Payment Dates as
the Related Series of Notes being issued.
Section 4.11 Senior Note First Mortgage Bonds As Security For Notes. Until
the Release Date and subject to Article V hereof, Senior Note First Mortgage
Bonds delivered to the Trustee, for the benefit of the Holders of the Notes,
shall constitute part of the trust estate and security for any and all
obligations of the Company under the Notes, including, but not limited to (1)
the full and prompt payment of the principal of and premium, if any, on such
Notes when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes, either at the Stated
Maturity thereof, upon acceleration of the Maturity thereof or upon redemption,
and (2) the full and prompt payment of any interest on such Notes when and as
the same shall become due and payable in accordance with the terms and
provisions of this Indenture or the Notes.
Notwithstanding anything in this Indenture to the contrary, from and
after the Release Date, the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the Senior Note
First Mortgage Bonds shall be deemed satisfied and discharged as provided in the
supplemental trust indenture or indentures to the First Mortgage creating such
Senior Note First Mortgage Bonds and the Senior Note First Mortgage Bonds shall
cease to secure in any manner Notes theretofore or subsequently issued. From and
after the Release Date, any conditions to the issuance of Notes that refer or
relate to Senior Note First Mortgage Bonds or the First Mortgage shall be
inapplicable.
After the issuance of the first series of Notes hereunder, the
Company shall not issue any additional First
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Mortgage Bonds under the First Mortgage other than as collateral security for
the Notes. The Company shall notify the Trustee promptly of the occurrence of
the Release Date. Notice of the occurrence of the Release Date shall be given by
the Trustee to the Holders of the Notes in the manner provided in Section 15.10
hereof not later than 30 days after the Release Date.
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 Satisfaction And Discharge.
(a) If at any time:
(1) the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on all the Outstanding Notes, as and
when the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for cancellation
all Outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in
(A) cash, (B) U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash, or (C) a combination of cash and U.S. Government Obligations, in
any case sufficient, without reinvestment, as certified by an independent
public accounting firm of national reputation in a written certification
delivered to the Trustee, to pay at Maturity or the applicable redemption
date (provided that notice of redemption shall have been duly given or
irrevocable provision satisfactory to the Trustee shall have been duly
made for the giving of any notice of redemption) all Outstanding Notes,
including principal and any premium on, and interest due or to become due
to such date of Maturity, as the case may be, and, unless all Outstanding
Notes are to be due within 90 days of such deposit by redemption or
otherwise, shall also deliver to the Trustee an Opinion of Counsel expert
in federal income tax matters to the effect that the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or similar pronouncement by the Internal Revenue Service or that
there has been a change of law (collectively, an "External Tax
Pronouncement"), in either case to the effect that the Holders of the
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or discharge of this Indenture),
and if, in any such case, (x) the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company and (y) the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating that all conditions precedent herein
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provided for relating to the satisfaction and discharge of this Indenture
have been complied with, then this Indenture shall cease to be of further
effect (except as to (i) rights of registration of transfer and exchange
of Notes, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal
thereof, and premium, if any, and interest thereon, upon the original
stated due dates therefor or upon the applicable redemption date (but not
upon acceleration of Maturity) from the moneys and U.S. Government
Obligations held by the Trustee pursuant to Section 5.02 hereof, (iv) the
rights and immunities of the Trustee hereunder, (v) the rights of the
Holders of the Notes as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, (vi) the
obligations of the Company under Sections 6.02 and 6.03 hereof, (vii) the
obligations and rights of the Trustee and the Company under Section 5.04
hereof, and (viii) the duties of the Trustee with respect to any of the
foregoing), and the Company shall be deemed to have paid and discharged
the entire indebtedness represented by, and its obligations under, the
Notes, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
such satisfaction and discharge of this Indenture, and the Trustee shall,
at the request of the Company, release the lien of this Indenture and
return to the Company all Senior Note First Mortgage Bonds and all other
property and money held by it under this Indenture and determined by it
from time to time in accordance with the certification pursuant to this
Section 5.01(a)(3) to be in excess of the amount required to be held under
this Section.
If the Notes are deemed to be paid and discharged pursuant to
Section 5.01(a)(3) hereof, within 60 days after those Notes are so deemed to be
paid and discharged, the Trustee shall cause a written notice to be given to
each Holder in the manner provided by Section 15.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and discharged;
(ii) set forth a description of any U.S. Government Obligations and
cash held by the Trustee as described above; and
(iii) if any Notes will be called for redemption, specify the date
or dates on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 9.06 hereof shall
survive.
If the Notes are deemed paid and discharged pursuant to this Section
5.01, the obligation of the Company to make payment
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with respect to the principal of, premium, if any, and interest on the Senior
Note First Mortgage Bonds shall be satisfied and discharged and the Senior Note
First Mortgage Bonds shall cease to secure the Notes in any manner.
(b) If the Company shall have paid or caused to be paid the principal of
and premium, if any, and interest on any Note, as and when the same shall have
become due and payable or the Company shall have delivered to the Trustee for
cancellation any Outstanding Note, such Note shall cease to be entitled to any
lien, benefit or security under this Indenture. Upon a Note of any series
ceasing to be entitled to any lien, benefit or security under this Indenture,
the obligation of the Company to make payment with respect to principal of and
premium, if any, and interest on a principal amount of the Related Series of
Senior Note First Mortgage Bonds equal to the principal amount of such Note
shall be satisfied and discharged and such portion of the principal amount of
such Senior Note First Mortgage Bonds shall cease to secure the Notes in any
manner.
(c) If the Company makes the deposit of cash and/or U.S. Government
Obligations with respect to one or more series of Notes described in Section
5.01(a) hereof and otherwise complies with the requirements of such Section for
the satisfaction and discharge of this Indenture (except that the opinion of
counsel referred to in Section 5.01(a)(3) need not be based on an External Tax
Pronouncement and shall be to the effect that the Holders of the Notes will not
recognize income gain or loss for federal income tax purposes as a result of
such deposit and the release of the Company from its obligations referred to in
this Section 5.01(c) under this Indenture), then the provisions of this
Indenture shall remain in full force and effect and the indebtedness represented
by, and the Company's obligations under, such Notes shall be deemed satisfied
and the Company shall be released with respect to such series of Notes from its
obligations under Sections 6.07, 6.08, 6.09 and Article XII hereof.
Section 5.02 Deposited Moneys To Be Held In Trust By Trustee. Subject to
Section 5.04, all moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 5.01 hereof, shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the Holders of the particular
Notes for the payment or redemption of which such moneys and U.S. Government
Obligations have been deposited with the Trustee of all sums due and to become
due thereon for principal and premium, if any, and interest.
Section 5.03 Paying Agent To Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by the Company, be
repaid to the Company or paid to the Trustee, and thereupon such paying agent
shall be
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released from all further obligations with respect to such moneys.
Section 5.04 Return Of Unclaimed Moneys. Any moneys deposited with or paid
to the Trustee for payment of the principal of or premium, if any, or interest
on any Notes and not applied but remaining unclaimed by the Holders of such
Notes for two years after the date upon which the principal of or premium, if
any, or interest on such Notes, as the case may be, shall have become due and
payable, shall be repaid to the Company, subject to applicable abandoned
property laws, by the Trustee on written demand by the Company; and any Holder
of any of such Notes shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 Payment Of Principal And Interest. The Company covenants and
agrees for the benefit of the Holders of the Notes that it will duly and
punctually pay or cause to be paid the principal of and premium, if any, and
interest on, each of the Notes at the places, at the respective times and in the
manner provided in such Notes or in this Indenture.
Section 6.02 Offices For Payments, Etc. So long as any Notes are
Outstanding hereunder, the Company will maintain in the Borough of Manhattan,
The City of New York, State of New York an office or agency where the Notes may
be presented for payment, for exchange as in this Indenture provided and for
registration of transfer as in this Indenture provided. The Corporate Trust
Office of the Trustee shall serve as the initial location of such office.
The Company will maintain in the Borough of Manhattan, The City of New
York, State of New York an office or agency where notices and demands to or upon
the Company in respect of the Notes or this Indenture may be served. The
Corporate Trust Office of the Trustee shall serve as the initial location of
such office.
In case the Company shall fail to maintain any office or agency required
by this Section to be located in the Borough of Manhattan, The City of New York,
State of New York or shall fail to give such notice of the location or of any
change in the location of any of the above offices or agencies, presentations
and demands may be made and notices may be served at the Corporate Trust Office
of the Trustee, and, in such event, the Trustee shall act as the Company's agent
to receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more additional offices
or agencies where the Notes may be presented for payment, for exchange as in
this Indenture provided and for
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registration of transfer as in this Indenture provided, and the Company may from
time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any office or agency provided for in this Section. The
Company will give to the Trustee prompt written notice of any such designation
or rescission thereof and of any change in the location of any such other office
or agency.
Section 6.03 Appointment To Fill A Vacancy In Office Of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 6.04 Provision As To Paying Agent. The Trustee shall be the paying
agent for the Notes and, at the option of the Company, the Company may appoint
additional paying agents (including without limitation itself). Whenever the
Company shall appoint a paying agent other than the Trustee with respect to the
Notes, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that such paying agent will hold all sums received by it as such
agent for the payment of the principal of, premium, if any, or interest,
on the Notes (whether such sums have been paid to it by the Company or by
any other obligor on the Notes) in trust for the benefit of the Holders of
the Notes, or of the Trustee until such sums shall be paid to such Holders
or otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee notice of any
failure by the Company (or by any other obligor on Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes
when the same shall be due and payable; and
(3) that such paying agent will at any time during the continuance
of any such failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
The Company will, on or prior to each due date of the principal of
and premium, if any, or interest on the Notes, deposit with the paying agent a
sum sufficient to pay such principal and premium, if any, or interest so
becoming due, such sum to be held in trust for the benefit of the Holders of the
Notes entitled to such principal of and premium, if any, or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action.
If the Company shall act as its own paying agent with
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respect to the Notes, it will, on or before each due date of the principal of
(and premium, if any,) or interest on the Notes, set aside, segregate and hold
in trust for the benefit of the Holders of the Notes, a sum sufficient to pay
such principal (and premium, if any,) or interest, so becoming due until such
sums shall be paid to such Holders or otherwise disposed of as herein provided.
The Company will promptly notify the Trustee of any failure to take such action.
The Company may at any time pay or cause to be paid to the Trustee
all sums held in trust by it or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained,
and, upon such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such money.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 5.03 and 5.04.
Section 6.05 Opinions Of Counsel. The Company will cause this
Indenture, any indentures supplemental to this Indenture, and any financing or
continuation statements to be promptly recorded and filed and rerecorded and
refiled in such a manner and in such places, as may be required by law in order
fully to preserve, protect and perfect the security interest of the Noteholders
and all rights of the Trustee, and shall deliver to the Trustee:
(a) promptly after the execution and delivery of this Indenture and
of any indentures supplemental to this Indenture but prior to the Release Date,
an Opinion of Counsel either stating that, in the opinion of such counsel, this
Indenture or such supplemental indentures and any financing or continuation
statements have been properly recorded and filed so as to make effective and to
perfect the security interest of the Trustee intended to be created by this
Indenture for the benefit of the Holders from time to time of the Notes in the
Senior Note First Mortgage Bonds, and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
perfect or make such security interest effective and stating what, if any,
action of the foregoing character may reasonably be expected to become necessary
prior to the next succeeding ------ -- to perfect, maintain and make such
security interest effective; and
(b) on or before ------- --, of each year, commencing ------ --,
1999, and prior to the Release Date, an Opinion of Counsel either stating that
in the opinion of such counsel such action has been taken, since the date of the
most recent Opinion of Counsel furnished pursuant to this Section 6.05(b) or the
first Opinion of Counsel furnished pursuant to Section 6.05(a) hereof, with
respect to the recording, filing, rerecording, or
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refiling of this Indenture, each supplemental indenture and any financing or
continuation statements, as is necessary to maintain and perfect the security
interest of the Trustee intended to be created by this Indenture for the benefit
of the Holders from time to time of the Notes in the Senior Note First Mortgage
Bonds, and reciting the details of such action, or stating that in the opinion
of such counsel no such action is necessary to maintain and perfect such
security interest and stating what, if any, action of the foregoing character
may reasonably be expected to become necessary prior to the next succeeding
- ------- -- to maintain, perfect and make such security interest effective.
Section 6.06 Certificates And Notice To Trustee. The Company shall, on or
before -------- -- of each year, commencing ------- --, 1999, deliver to the
Trustee a certificate from its principal executive officer, principal financial
officer or principal accounting officer covering the preceding calendar year and
stating whether or not, to the knowledge of such Person, the Company has
complied with all conditions and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Upon the occurrence of a default (as defined in
the First Mortgage) prior to the Release Date, the Company shall promptly notify
the Trustee of such event.
Section 6.07 Restrictions On Liens (a) So long as any Notes are
Outstanding, the Company will not issue, assume, guarantee or permit to exist
after the Release Date any Debt secured by any Lien on any Operating Property of
the Company, whether owned at the date of this Indenture or thereafter acquired,
without in any such case effectively securing the Outstanding Notes (together
with, if the Company shall so determine, any other Debt of or guaranteed by the
Company ranking equally with, the Notes) equally and ratably with such Debt (but
only so long as such Debt is so secured); provided, however, that the foregoing
restriction shall not apply to Debt secured by any of the following:
(i) Liens on any Operating Property existing at the time of
acquisition thereof (which Liens may also extend to subsequent repairs,
alterations and improvements to such Operating Property);
(ii) Liens on operating property of a corporation existing at the
time such corporation is merged into or consolidated with the Company, or at the
time of a sale, lease, or other disposition of the properties of such
corporation or a division thereof as an entirety or substantially as an entirety
to the Company;
(iii) Liens on Operating Property to secure all or part of the cost
of acquiring, constructing, developing, or
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substantially repairing, altering, or improving such property, or to secure any
Debt incurred to provide funds for any such purpose or for reimbursement of
funds previously expended for any such purpose, provided such Liens are created
or assumed contemporaneously with, or within eighteen (18) months after, such
acquisition or the completion of construction, development, or substantial
repair, alteration or improvement;
(iv) Liens in favor of any State, or any department, agency, or
instrumentality or political subdivision of any State, or for the benefit of
holders of securities issued by any such entity (or providers of credit
enhancement with respect to such securities), to secure any Debt (including,
without limitation, obligations of the Company with respect to industrial
development, pollution control or similar revenue bonds) incurred for the
purpose of financing all or any part of the purchase price or the cost of
constructing, developing, or substantially repairing, altering, or improving
Operating Property of the Company;
(v) Liens under the First Mortgage, subject to Section 4.11
hereof;
(vi) Liens under Section 9.06 hereof; or
(vii) 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 (vi), inclusive; provided, however,
that the principal amount of Debt secured thereby and not otherwise authorized
by said clauses (i) to (vi), inclusive, shall not exceed the principal amount of
Debt, plus any premium or fee payable in connection with any such extension,
renewal, or replacement, so secured at the time of such extension, renewal, or
replacement.
(b) Notwithstanding the provisions of Section 6.07(a), the Company may
issue, assume, or guarantee Debt, or permit to exist after the Release Date any
Debt, in each case, secured by Liens which would otherwise be subject to the
restrictions of Section 6.07(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 6.07(a) that would otherwise be
subject to any of the foregoing restrictions) and the Value of all Sale and
Lease-Back Transactions in existence at such time (other than any Sale and
Lease-Back Transaction that, if such Sale and Lease-Back Transaction had been a
Lien, would have been permitted by Section 6.07(a), other than Sale and
Lease-Back Transactions permitted by Section 6.08 because the commitment by or
on behalf of the purchaser was obtained no later than eighteen (18) months after
the later of events described in (i) or (ii) of Section 6.08, and other than
Sale and Lease-Back Transactions as to which application of amounts have been
made in accordance with clause (z) of Section 6.08), does not at the time exceed
the greater of fifteen percent (15%) of Tangible Assets and fifteen percent
(15%) of Capitalization.
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(c) If the Company shall issue, assume, or guarantee any Debt secured by
any Lien and if Section 6.07(a) requires that the Outstanding Notes be secured
equally and ratably with such Debt, the Company will promptly execute, at its
expense, any instruments necessary to so equally and ratably secure the
Outstanding Notes and deliver the same to the Trustee along with:
(i) An Officers' Certificate stating that the covenant of the
Company contained in Section 6.07(a) has been complied with; and
(ii) An Opinion of Counsel to the effect that the Company has
complied with the covenant contained in Section 6.07(a), and that any
instruments executed by the Company in the performance of such covenant comply
with the requirements of such covenant.
In the event that the Company shall hereafter secure Outstanding
Notes equally and ratably with any other obligation or indebtedness pursuant to
the provisions of this Section 6.07, the Company will, upon the request of the
Trustee, enter into an indenture or agreement supplemental hereto and take such
other action, if any, as the Trustee may reasonably request to enable it to
enforce effectively the rights of the Holders of Outstanding Notes so secured,
equally and ratably with such other obligation or indebtedness.
Section 6.08 Restrictions On Sale And Lease-Back Transactions. So long as
any Notes are Outstanding, the Company will not enter into or permit to exist
after the Release Date any Sale and Lease-Back Transaction with respect to any
Operating Property if, in any case, the commitment by or on behalf of the
purchaser is obtained more than eighteen (18) months after the later of (i) the
completion of the acquisition, construction, or development of such Operating
Property or (ii) the placing in operation of such Operating Property or of such
Operating Property as constructed, developed, or substantially repaired,
altered, or improved, unless (x) the Company would be entitled pursuant to
Section 6.07(a) to issue, assume, guarantee or permit to exist Debt secured by a
Lien on such Operating Property without equally and ratably securing the Notes
or (y) the Company would be entitled pursuant to Section 6.07(b), after giving
effect to such Sale and Lease-Back Transaction, to incur $1.00 of additional
Debt secured by Liens (other than Liens permitted by Section 6.07(a)) or (z) the
Company shall apply or cause to be applied, in the case of a sale or transfer
for cash, an amount equal to the net proceeds thereof (but not in excess of the
net book value of such Operating Property at the date of such sale or transfer)
and, in the case of a sale or transfer otherwise than for cash, an amount equal
to the fair value (as determined by the Board of Directors) of the Operating
Property so leased, to the retirement, within one hundred eighty (180) days
after the effective date of such Sale and Lease-Back Transaction, of Notes (in
accordance with their terms) or other Debt of the Company ranking senior to, or
equally with, the Notes; provided, however,
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that the amount to be applied to such retirement of Debt shall be reduced by an
amount equal to the principal amount, plus any premium or fee paid in connection
with any redemption in accordance with the terms of Debt voluntarily retired by
the Company within such one hundred eighty (180) day period, excluding
retirement pursuant to mandatory sinking fund or prepayment provisions and
payments at Maturity.
Section 6.09 Corporate Existence. Subject to the rights of the Company
under Article XII, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence; provided,
however, that the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation thereof is no
longer desirable in the conduct of the business of the Company.
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 Company To Furnish Noteholder Lists. The Company and any
other obligor on the Notes shall furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes:
(a) semi-annually and not more than 15 days after each Regular Record Date
for each Interest Payment Date that is not a Maturity Date, as of such Regular
Record Date, and such list need not include information received after such
date; and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, as of a date not more
than 15 days prior to the time such information is furnished, and such list need
not include information received after such date;
provided that if and so long as the Trustee shall be the registrar for the
Notes, such list shall not be required to be furnished.
Section 7.02 Preservation And Disclosure Of Noteholder Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of the
Notes (i) contained in the most recent lists furnished to it as provided in
Section 7.01, (ii) received by it in the capacity of registrar for the Notes, if
so acting, and (iii) filed with it within the two preceding years pursuant to
Section 7.04(d)(2). The Trustee may destroy any list furnished to it as provided
in Section 7.01 upon receipt of a new list so furnished.
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(b) In case three or more Holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
with respect to their rights under this Indenture or under the Notes and such
application is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section; or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of such subsection (a) and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Notes, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of such subsection (a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of a Note, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of the Company
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or the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Notes in accordance
with the provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such subsection (b).
Section 7.03 Reports By The Company. The Company shall:
(a) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, 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 from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all Holders of Notes, within 30 days after the
filing thereof with the Trustee in the manner and to the extent provided in
Section 7.04(d), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
Section 7.04 Reports By The Trustee.
(a) Annually, not later than August 15 of each year, the Trustee shall
transmit by mail a brief report dated as of such date that complies with Section
313(a) of the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports
that comply, both in content and date of delivery, with Section 313(b) of the
TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this
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section shall, at the time of such transmission to such Holders, be filed by the
Trustee with each stock exchange upon which any Notes are listed and also with
the Commission. The Company will notify the Trustee promptly in writing upon the
listing of such Notes on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
7.04(b) and (c) hereof, to all Holders of Notes whose names and addresses
have been furnished to or received by the Trustee pursuant to Section 7.01
and 7.02(a)(ii) hereof; and
(4) at the time such report is transmitted to the Holders of the
Notes, to each exchange on which Notes are listed and also with the
Commission.
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 Events Of Default.
(a) If one or more of the following Events of Default shall have occurred
and be continuing:
(1) default in the payment of any installment of interest upon any
of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of sixty (60) days;
(2) default in the payment of the principal of or any premium on any
of the Notes as and when the same shall become due and payable;
(3) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company
contained in the Notes or in this Indenture for a period of ninety (90)
days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding
that the Company remedy the same, shall have been given to the Company by
the Trustee by registered mail, or to the Company and the Trustee by the
Holders of not less than 33% in aggregate principal amount of the Notes at
the time Outstanding;
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(4) prior to the Release Date, a completed default (as defined in
the First Mortgage) has occurred and is continuing; provided, however,
that anything in this Indenture to the contrary notwithstanding, the
waiver or cure of such default under the First Mortgage and the rescission
and annulment of the consequences thereof under the First Mortgage shall
constitute a waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof hereunder;
(5) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable law, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or
for any substantial part of the property of the Company, or ordering the
winding up or liquidation of the affairs of the Company, and such decree
or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(6) the Company shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect or any other case or proceeding to be
adjudicated a bankrupt or insolvent, or consent to the entry of a decree
or order for relief in an involuntary case under any such law, or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable law, or consent to the
filing of such petition or to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of the
property of the Company, or make any general assignment for the benefit of
creditors, or the notice by it in writing of its inability to pay its
debts generally as they become due, or the taking of any corporate action
by the Company in furtherance of any such action;
then, unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of a majority in aggregate principal
amount of the Notes then Outstanding, by notice in writing to the Company (and
to the Trustee if given by such Holders), may declare the principal of and
interest on all the Notes to be due and payable immediately and upon any such
declaration the same shall become immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding and, upon
the Notes being declared to be due and payable, the Trustee shall immediately
file with the Mortgage Trustee a written demand for
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redemption of all Senior Note First Mortgage Bonds to the extent provided in the
applicable provisions of the supplemental indentures to the First Mortgage.
The foregoing paragraph, however, is subject to the condition that
if, at any time after the principal of the Notes shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, and prior to the
acceleration of all of the first mortgage bonds issued and outstanding under the
First Mortgage the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all of the Notes and
the principal of and any premium on any and all Notes which shall have become
due otherwise than by acceleration (with interest on overdue installments of
interest, to the extent that payment of such interest is enforceable under
applicable law, and on such principal and any applicable premium at the rate
borne by the Notes to the date of such payment or deposit) and all sums paid or
advanced by the Trustee hereunder, the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 9.06 hereof, and any and all defaults
under this Indenture, other than the non-payment of principal of and accrued
interest on Notes which shall have become due solely by acceleration of
Maturity, shall have been cured or waived (including any defaults under the
First Mortgage, as evidenced by notice thereof from the Mortgage Trustee to the
Trustee), then and in every such case such payment or deposit shall cause an
automatic waiver of the Event of Default and its consequences (including, if
given, the written demand for redemption of all Senior Note First Mortgage
Bonds) and shall cause an automatic rescission and annulment of the acceleration
of the Notes; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent
thereon.
(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
Section 8.02 Collection Of Indebtedness By Trustee; Trustee May Prove
Debt.
(a) The Company covenants that if an Event of Default described in clause
(a)(1) or (a) (2) of Section 8.01 shall have occurred and be continuing, then,
upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Notes, the whole amount that then shall have so
become due
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and payable on all such Notes for principal or interest, as the case may be,
with interest upon the overdue principal and any premium and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate borne by the Notes; and, in addition
thereto, such further amounts as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith. Until such
demand is made by the Trustee, the Company may pay the principal of and interest
on the Notes to the Holders, whether or not the Notes be overdue.
(b) In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, including, prior to the
Release Date, to exercise any rights to that end it may have as a holder of
Senior Note First Mortgage Bonds, and may enforce any such judgment or final
decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor
on such series of Notes wherever situated, the moneys adjudged or decreed to be
payable.
(c) In case there shall be pending proceedings relative to the Company or
any other obligor upon the Notes under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
such other obligor, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount of the
principal and interest owing and unpaid in respect of the Notes, and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including, prior to the Release
Date, any claims of the Trustee as holder of Senior Note First Mortgage
Bonds and including any amounts due to the Trustee under Section 9.06
hereof) and of the Noteholders allowed in any judicial proceedings
relative to the Company or such other obligor, or to the creditors or
property of the Company or such other obligor; and
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(2) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Noteholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Noteholders to make payments
to the Trustee, and, in the event that the Trustee shall consent to the
making of the payments directly to the Noteholders, to pay to the Trustee
such amounts due pursuant to Section 9.06 hereof.
(d) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes of any series 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
except to vote for the election of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture, or
under any of the Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof at any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee and its agents, attorneys and counsel, shall be
for the ratable benefit of the Holders of the Notes in respect of which such
action was taken.
(f) In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Notes in respect to which action as taken, and it shall not be
necessary to make any Holders of such Notes parties to any such proceedings.
Section 8.03 Application Of Proceeds. Any moneys collected by the Trustee
with respect to any of the Notes pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to
Section 9.06 hereof;
SECOND: In case the principal of the Outstanding Notes in respect of
which such moneys have been collected shall not have become due and be
unpaid, to the payment of interest on the Notes, in the order of the Maturity
of the installments of such
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interest, with interest (to the extent allowed by law) upon the overdue
installments of interest at the rate borne by the Notes, such payments to be
made ratably to the Persons entitled thereto, and then to the payment to the
Holders entitled thereto of the unpaid principal of and any applicable premium
on any of the Notes which shall have become due (other than Notes previously
called for redemption for the payment of which moneys are held pursuant to the
provisions of this Indenture), whether at Stated Maturity or by redemption, in
the order of their due dates, beginning with the earliest due date, and if the
amount available is not sufficient to pay in full all Notes due on any
particular date, then to the payment thereof ratably, according to the amounts
of principal and any applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: In case the principal of the Outstanding Notes in respect of which
such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Notes for principal and premium, if any, and interest thereon, with interest on
the overdue principal and any premium and (to the extent allowed by law) upon
overdue installments of interest at the rate borne by the Notes; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal and premium, if
any, and interest without preference or priority of principal and any premium
over interest, or of interest over principal and any premium or of any
installment of interest over any other installment of interest, or of any Note
over any other Note, ratably to the aggregate of such principal and premium, if
any, and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same,
or as a court of competent jurisdiction may determine.
Section 8.04 Limitations On Suits By Noteholders.
(a) No Holder of any Note shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of an
Event of Default with respect to such Note and of the continuance thereof, as
hereinabove provided, and unless also Noteholders of a majority in aggregate
principal amount of the Notes then Outstanding affected by such Event of Default
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after
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its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by the taker and Holder of every
Note with every other taker and Holder and the Trustee, that no one or more
Holders of Notes shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Notes, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Notes. For the protection and enforcement of
the provisions of this Section, each and every Noteholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Note to receive payment of the principal of and
premium, if any, and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
are absolute and unconditional, and shall not be impaired or affected without
the consent of such Holder.
Section 8.05 Suits For Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture, including, prior to the Release Date, its rights as holder of the
Senior Note First Mortgage Bonds, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted to it
under this Indenture, or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.
Section 8.06 Powers And Remedies Cumulative; Delay Or Omission Not Waiver
Of Default. No right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Notes to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any
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such Event of Default or an acquiescence therein; and, subject to Section 8.04,
every right and power given by this Indenture or by law to the Trustee or to the
Holders of Notes may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders of Notes, as the case may be.
Section 8.07 Direction Of Proceedings And Waiver Of Defaults By
Majority Of Noteholders.
(a) The Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding shall 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; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to Section 9.01 hereof)
the Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees or Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in Personal liability. Nothing
in this Indenture shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction or directions by Noteholders.
(b) The Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding may on behalf of all of the Holders of the Notes waive
any past default or Event of Default hereunder and its consequences except a
default in the payment of principal of or premium, if any, or interest on the
Notes. Upon any such waiver the Company, the Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Upon any such
waiver, such default shall cease to exist and be deemed to have been cured and
not to be continuing, and any Event of Default arising therefrom shall be deemed
to have been cured and not to be continuing, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 8.08 Notice Of Default. The Trustee shall, within 90 days after
the occurrence of a default with respect to the Notes, give to all Holders of
the Notes, in the manner provided in Section 15.10, notice of such default known
to the Trustee, unless such default shall have been cured or waived before the
giving of such notice, the term "default" for the purpose of this Section 8.08
being hereby defined to be any event which is or after notice or lapse of time
or both would become an Event of Default; provided that, except in the case of
default in the payment of the principal of or premium, if any, or interest on
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any of the Notes, the Trustee shall be protected in withholding such notice if
and so long as its board of directors or trustees, executive committee, or a
trust committee of directors or trustees or Responsible Officers in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Notes.
Section 8.09 Undertaking To Pay Costs. All parties to this Indenture
agree, and each Holder of any Note by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but this Section 8.09 shall not apply to any suit
instituted by the Trustee, or to any suit instituted by any Noteholder, or group
of Noteholders, holding in the aggregate more than 10% in principal amount of
the Notes Outstanding, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Note on or after the due date expressed in such Note or the applicable
redemption date.
Section 8.10 Restoration Of Rights On Abandonment Of Proceedings. In case
the Trustee or any Holder shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or to such
Holder, then, and in every such case, the Company, the Trustee and the Holders
shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the Holders
shall continue as though no such proceedings had been taken.
Section 8.11 Defaults Under The First Mortgage. In addition to every other
right and remedy provided herein, the Trustee may exercise any right or remedy
available to the Trustee in its capacity as owner and holder of Senior Note
First Mortgage Bonds which arises as a result of a completed default under the
First Mortgage whether or not an Event of Default under this Indenture shall
then have occurred and be continuing.
Section 8.12 Waiver Of Usury, Stay Or Extension 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of 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
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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 IX
CONCERNING THE TRUSTEE
Section 9.01 Duties And Responsibilities Of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and after the
curing or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B) in the absence of bad faith or actual knowledge on
the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the
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Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction, pursuant to this Indenture, of the Holders of a majority in
principal amount of the Notes, including, but not limited to, Section 8.07
hereof relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture.
Section 9.02 Reliance On Documents, Opinions, Etc. Except as
otherwise provided in Section 9.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or 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
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Noteholders, pursuant to this Indenture, unless such Noteholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred by such exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a
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majority in principal amount of the then Outstanding Notes; provided that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by this Indenture, the Trustee may require reasonable
indemnity against such expense or liability as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
Section 9.03 No Responsibility For Recitals, Etc. The recitals contained
herein and in the Notes (except in the certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with this Indenture.
Section 9.04 Trustee, Authenticating Agent, Paying Agent Or Registrar May
Own Notes. The Trustee and any Authenticating Agent, paying agent or registrar,
in its individual or other capacity, may become the owner or pledgee of Notes
with the same rights it would have if it were not Trustee, Authenticating Agent
or paying agent.
Section 9.05 Moneys To Be Held In Trust. Subject to Section 5.04 hereof,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee may allow and credit to the Company interest on any money received
hereunder at such rate, if any, as may be agreed upon by the Company and the
Trustee from time to time as may be permitted by law.
Section 9.06 Compensation And Expenses Of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law in
regard to the compensation of a trustee of an express trust), and the Company
shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and agents, including any
Authenticating Agents, and of all Persons not regularly in its
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employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability. The
obligations of the Company under this Section 9.06 to compensate the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of any particular Notes.
Section 9.07 Officers' Certificate As Evidence. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking, suffering
or omitting of any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such Officers' Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under this Indenture in reliance thereon.
Section 9.08 Conflicting Interest Of Trustee. The Trustee shall be subject
to and shall comply with the provisions of Section 310(b) of the TIA. Nothing in
this Indenture shall be deemed to prohibit the Trustee or the Company from
making any application permitted pursuant to such section.
Section 9.09 Existence And Eligibility Of Trustee. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia having a combined capital and surplus of
at least [$50,000,000] and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authorities. Such corporation shall have its principal place of
business in the Borough of Manhattan, The City of New York, State of New York,
if there be such a corporation in such location willing to act upon reasonable
and customary terms and conditions. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid authority, then for the purposes of this Section 9.09, the combined
capital and surplus shall be deemed to be as set forth in its most recent report
of condition so published. No obligor upon the Notes or Person directly or
indirectly controlling, controlled by, or under common control with such obligor
shall
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serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 9.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.10 hereof.
Section 9.10 Resignation Or Removal Of Trustee.
(a) Pursuant to the provisions of this Article, the Trustee may at any
time resign and be discharged of the trusts created by this Indenture by giving
at least 30 days prior written notice to the Company specifying the day upon
which such resignation shall take effect, and such resignation shall take effect
immediately upon the later of the appointment of a successor trustee and such
day.
(b) Any Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with such Trustee and signed and acknowledged by
the Holders of a majority in principal amount of the then Outstanding Notes or
by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and no
event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would become an Event of Default, the Company may remove
any Trustee upon written notice to the Holder of each Note Outstanding and the
Trustee and appoint a successor Trustee meeting the requirements of Section
9.09. The Company or the successor Trustee shall give notice to the Holders, in
the manner provided in Section 15.10, of such removal and appointment within 30
days of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 9.09 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (ii) the Trustee shall fail to comply with Section 9.08
hereof after written request therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and either:
(1) signed by the Chairman, President or any Vice President
of the Company and attested by the Secretary or an Assistant Secretary
of the Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of Outstanding Notes or by their attorneys in fact duly
authorized.
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(e) Any resignation or removal of the Trustee shall not become effective
until acceptance of appointment by the successor Trustee as provided in Section
9.12 hereof.
Section 9.11 Appointment Of Successor Trustee.
(a) If at any time the Trustee shall resign or be removed, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
successor Trustee to the Holder of each Note Outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 9.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(d) Any Trustee appointed under this Section 9.11 as a successor Trustee
shall be a bank or trust company eligible under Section 9.09 hereof and
qualified under Section 9.08 hereof.
Section 9.12 Acceptance By Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 9.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 9.06 hereof, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act, including all right, title, and interest in the Senior Note
First Mortgage Bonds. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such Trustee to secure any amounts then
due it pursuant to Section 9.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 9.08 hereof and eligible under Section 9.09 hereof.
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(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
Section 9.13 Succession By Merger, Etc.
(a) Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificates
of the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 9.14 Limitations On Rights Of Trustee As A Creditor. The Trustee
shall be subject to, and shall comply with, the provisions of Section 311 of the
TIA.
Section 9.15 Authenticating Agent.
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 13.04 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 9.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or
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other Person of the character and qualifications set forth in Section 9.09
hereof.
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 9.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
15.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with Section 9.06 hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof shall be applicable to
any Authenticating Agent.
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 Action By Noteholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Noteholders in Person or by agent or proxy appointed in
writing, (b) by the record of such Noteholders voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with Article XI
hereof, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders.
Section 10.02 Proof Of Execution By Noteholders.
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(a) Subject to Sections 9.01, 9.02 and 11.05 hereof, proof of the
execution of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the manner
provided in Section 11.06 hereof.
Section 10.03 Persons Deemed Absolute Owners. Subject to Sections 2.04(f)
and 10.01 hereof, the Company, the Trustee, any paying agent and any
Authenticating Agent shall deem the Person in whose name any Note shall be
registered upon the register for the Notes to be, and shall treat such Person
as, the absolute owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the principal and
premium, if any, and interest on such Note, and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Authenticating
Agent shall be affected by any notice to the contrary. All such payments shall
be valid and effectual to satisfy and discharge the liability upon any such Note
to the extent of the sum or sums so paid.
Section 10.04 Company-Owned Notes Disregarded. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Notes have
concurred in any direction, consent or waiver under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Notes which the Trustee knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith to third parties may be regarded
as Outstanding for the purposes of this Section 10.04 if the pledgee shall
establish the pledgee's right to take action with respect to such Notes and that
the pledgee is not a Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, the Trustee may rely upon an
Opinion of Counsel and an Officers' Certificate to establish the foregoing.
Section 10.05 Revocation Of Consents; Future Holders Bound. Except as may
be otherwise required in the case of a Global Note by the applicable rules and
regulations of the Depositary, at any time prior to the taking of any action by
the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which
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have consented to such action may, by filing written notice with the Trustee at
the Corporate Trust Office of the Trustee and upon proof of ownership as
provided in Section 10.02(a) hereof, revoke such action so far as it concerns
such Note. Except as aforesaid, any such action taken by the Holder of any Note
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Note and of any Notes issued in exchange, substitution or upon
registration of transfer therefor, irrespective of whether or not any notation
thereof is made upon such Note or such other Notes.
Section 10.06 Record Date For Noteholder Acts. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Noteholders
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 the record
date, but only the Noteholders of record at the close of business on the record
date shall be deemed to be Noteholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of Outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
Outstanding Notes shall be computed as of the record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other act
by the Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to this Indenture not later than six months after the
record date. Any such record date shall be at least 30 days prior to the date of
the solicitation to the Noteholders by the Company.
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 Purposes Of Meetings. A meeting of Noteholders may be called
at any time and from time to time pursuant to this Article XI for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article XIII;
(b) to remove the Trustee pursuant to Article IX;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to Section 13.02 hereof; or
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(d) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Notes, as the case
may be, under any other provision of this Indenture or under applicable law.
Section 11.02 Call Of Meetings By Trustee. The Trustee may at any time
call a meeting of Holders of Notes to take any action specified in Section 11.01
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given to Holders of the Notes that may be
affected by the action proposed to be taken at such meeting in the manner
provided in Section 15.10 hereof. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting.
Section 11.03 Call Of Meetings By Company Or Noteholders. If at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then Outstanding, shall have requested
the Trustee to call a meeting of Noteholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Noteholders may determine the
time and the place for such meeting and may call such meeting to take any action
authorized in Section 11.01 hereof, by giving notice thereof as provided in
Section 11.02 hereof.
Section 11.04 Qualifications For Voting. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
Section 11.05 Regulations.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Noteholders as provided
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in Section 11.03 hereof, in which case the Company or Noteholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by the Holders of a majority in aggregate principal amount of the Notes present
in Person or by proxy at the meeting.
(c) Subject to Section 10.04 hereof, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that no vote shall be cast or
counted at any meeting in respect of any Note determined to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the Person to vote on behalf of other Noteholders.
At any meeting of Noteholders duly called pursuant to Section 11.02 or 11.03
hereof, the presence of Persons holding or representing Notes in an aggregate
principal amount sufficient to take action on any business for the transaction
for which such meeting was called shall constitute a quorum. Any meeting of
Noteholders duly called pursuant to Section 11.02 or 11.03 hereof may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Notes present in Person or by proxy at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 11.06 Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes or of their representatives by proxy and
the principal amount of Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of such meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 11.02 hereof. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
Section 11.07 Rights Of Trustee Or Noteholders Not Delayed.
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Nothing in this Article XI shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders of Notes under any of the provisions of this Indenture or of the
Notes.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 Company May Consolidate, Etc. Only On Certain Terms. The
Company shall not consolidate with or merge into any other corporation or entity
or sell, or otherwise dispose of its properties as or substantially as an
entirety to any Person unless the Company has delivered to the Trustee the
supplemental indenture referred to in (b) below and an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this Article XII and
that all conditions precedent herein provided for have been complied with, and
the corporation formed by such consolidation or into which the Company is merged
or the Person which receives such properties pursuant to such sale, transfer or
other disposition (a) shall be a corporation or other entity organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia; (b) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium, if any, and interest on all of the Notes and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed and (c) if such consolidation, merger, sale, transfer or other
disposition occurs prior to the Release Date, shall expressly assume, by an
indenture supplemental to the First Mortgage, executed and delivered to the
Mortgage Trustee, the due and punctual payment of the principal of and premium,
if any, and interest on all of the Senior Note First Mortgage Bonds and the
performance of every covenant of the First Mortgage on the part of the Company
to be performed or observed.
Anything in this Indenture to the contrary notwithstanding, the conveyance
or other transfer by the Company of (a) all or any portion of its facilities for
the generation of electric energy, or (b) all of its facilities for the
transmission of electric energy, in each case considered alone or in any
combination with properties described in any other clause, shall in no event be
deemed to constitute a conveyance or other transfer of all the properties of the
Company, as or substantially as an entirety. The character of particular
facilities shall be determined in accordance with the Uniform System of Accounts
prescribed for public utilities and licensees subject to the Federal Power Act,
as amended, to the extent applicable.
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Section 12.02 Successor Corporation Substituted. Upon any consolidation or
merger, or any sale, transfer or other disposition of the properties of the
Company substantially as an entirety in accordance with Section 12.01 hereof,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent Of Noteholders.
(a) The Company, when authorized by Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions arising
under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders in any material respect, for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or supplementing any
defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Note Outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision
or such change or elimination is applicable only to Notes issued after the
effective date of such change or elimination;
(3) to establish the form of Notes as permitted by Section 2.01
hereof or to establish or reflect any terms of any Note determined
pursuant to Section 2.05 hereof;
(4) to evidence the succession of another corporation to the Company
as permitted hereunder, and the assumption by any such successor of the
covenants of the Company herein and in the Notes;
(5) to grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties
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imposed upon it by law;
(7) to specify further the duties and responsibilities of, and to
define further the relationships among the Trustee, any Authenticating
Agent and any paying agent;
(8) to add to the covenants of the Company for the benefit of the
Holders of one or more series of Notes, to add to the security for the
Notes, to surrender a right or power conferred on the Company herein or to
add any Event of Default with respect to one or more series of Notes;
(9) to comply with the Company's obligations under Section 6.07; and
(10) to make any other change that is not prejudicial to the Holders
in any material respect.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 13.01 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time Outstanding, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02 Supplemental Indentures With Consent Of Noteholders.
(a) With the consent (evidenced as provided in Section 10.01 hereof) of
the Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
(1) change the Stated Maturity of any Note, or reduce the rate (or
change the method of calculation thereof) or extend the time of payment of
interest thereon, or reduce the principal amount thereof or any premium
thereon, or change the coin or currency in which the principal of any Note
or premium, if any, or interest thereon is payable, or change the date on
which any Note may be redeemed or adversely affect the rights of the
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Noteholders to institute suit for the enforcement of any payment of
principal of or premium, if any, or interest on any Note, or impair the
interest hereunder of the Trustee in the Senior Note First Mortgage Bonds,
or prior to the Release Date, reduce the principal amount of any series of
Senior Note First Mortgage Bonds to an amount less than the principal
amount of the Related Series of Notes or alter the payment provisions of
such Senior Note First Mortgage Bonds in a manner adverse to the Holders
of the Notes, in each case without the consent of the Holder of each Note
so affected; or
(2) modify this Section 13.02(a) or reduce the aforesaid percentage
of Notes, the Holders of which are required to consent to any such
supplemental indenture or to reduce the percentage of Notes, the Holders
of which are required to waive Events of Default, in each case, without
the consent of the Holders of all of the Notes then Outstanding.
(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture (or any supplemental indenture) which has
expressly been included solely for the benefit of one or more series of Notes,
or which modifies the rights of the Holders of Notes of such series with respect
to such covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Notes of any other series.
(d) It shall not be necessary for the consent of the Holders of Notes
under this Section 13.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 13.02, the Trustee shall give
notice in the manner provided in Section 15.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
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Section 13.03 Compliance With Trust Indenture Act; Effect Of Supplemental
Indentures. Any supplemental indenture executed pursuant to this Article XIII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XIII, the Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Noteholders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 13.04 Notation On Notes. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article XIII may
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 Notes so
modified as approved by the Trustee and the Board of Directors with respect to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Notes then Outstanding.
Section 13.05 Evidence Of Compliance Of Supplemental Indenture To Be
Furnished Trustee. The Trustee, subject to Sections 9.01 and 9.02 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XIII.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 Indenture And Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in this Indenture, the First Mortgage or in any supplemental
indenture, or in any Note or in any Senior Note First Mortgage Bond, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Provisions Binding On Company's Successors. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
Section 15.02 Official Acts By Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
Section 15.03 Notices. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Noteholders on the Company may be given or served by being deposited postage
prepaid in a post office letter box addressed (until another address is filed by
the Company with the Trustee) at the principal executive offices of the Company,
to the attention of the Secretary. Any notice, direction, request or demand by
any Noteholder, the Company or the Mortgage Trustee to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee, Attention:
Corporate Trust Department.
SECTION 15.04 GOVERNING LAW. THIS INDENTURE AND EACH NOTE SHALL BE
GOVERNED BY AND DEEMED TO BE A CONTRACT UNDER, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS
OF LAW.
Section 15.05 Evidence Of Compliance With Conditions Precedent.
(a) Upon any application or demand by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 6.06
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hereof) shall include (1) a statement that each Person making such certificate
or opinion has read such covenant or condition and the definitions relating
thereto; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of each
such Person, such Person has made such examination or investigation as is
necessary to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of each such Person, such condition or covenant
has been complied with.
(c) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such Person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any Opinion of Counsel delivered
hereunder may contain standard exceptions and qualifications reasonably
satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any officer of the Company,
or of counsel, may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an independent public accountant
or firm of accountants, unless such officer or counsel, as the case may be,
knows that the certificate or opinion or representations with respect to the
accounting matters upon which the certificate, statement or opinion of such
officer or counsel may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous. Any certificate or
opinion of any firm of independent public accountants filed with the Trustee
shall contain a statement that such firm is independent.
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(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 15.06 Business Days. Unless otherwise provided pursuant to Section
2.05(c) hereof, in any case where the date of Maturity of the principal of or
premium, if any, or interest on any Note or the date fixed for redemption of any
Note is not a Business Day, then payment of such principal or premium, if any,
or interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of Maturity
or the date fixed for redemption, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal or premium, if any, of the Note is required
to be paid.
Section 15.07 Trust Indenture Act To Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by the TIA, such required provision of the TIA shall govern.
Section 15.08 Table Of Contents, Headings, Etc. The table of contents and
the titles 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.
Section 15.09 Execution In Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 15.10 Manner Of Mailing Notice To Noteholders.
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or the Company to or
on the Holders of Notes, as the case may be, shall be given or served by
first-class mail, postage prepaid, addressed to the Holders of such Notes at
their last addresses as the same appear on the register for the Notes referred
to in Section 2.06, and any such notice shall be deemed to be given or served by
being deposited in a post office letter box in the form and manner provided in
this Section 15.10. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give notice to any
Holder by mail, then such notification to such Holder as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
(b) The Company shall also provide any notices required under this
Indenture by publication, but only to the extent that
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such publication is required by the TIA, the rules and regulations of the
Commission or any securities exchange upon which any series of Notes is listed.
Section 15.11 Approval By Trustee Of Expert Or Counsel. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
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.
JERSEY CENTRAL POWER & LIGHT
COMPANY
By
-----------------------------
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK
AS TRUSTEE
By
-----------------------------
Name:
Title:
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A-2
EXHIBIT A
FORM OF GLOBAL NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE TRUSTEE FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
JERSEY CENTRAL POWER & LIGHT COMPANY
SENIOR NOTE, % DUE SERIES
----- ------ ---
CUSIP: NUMBER:
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: MATURITY DATE:
JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of New Jersey (the "COMPANY"), for value
received hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
- ---------- or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semiannually in arrears on the ---- and ----- in
each year, commencing on the first such Interest Payment Date succeeding
- ----------, at the per annum Interest Rate set forth above, until the principal
hereof is paid or made available for payment. No interest shall accrue on the
Maturity Date, so long as the principal amount of this Global Note is paid on
the Maturity Date. The interest so payable and punctually paid or duly provided
for on any such Interest Payment Date (except for interest payable on the
<PAGE>
Maturity Date set forth above or, if applicable, upon redemption or
acceleration) will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
for such interest, which shall be the-------- or --------, as the case may be,
next preceding such Interest Payment Date; provided that the first Interest
Payment Date for any part of this Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment Date,
shall be the Interest Payment Date following the next succeeding Regular Record
Date; and provided that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption or acceleration, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture (as defined below), any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Noteholders not more than fifteen days or fewer than ten days prior to
such Special Record Date. Payment of the principal of, interest and premium, if
any, on this Note shall be payable pursuant to Section 2.12(a) of the Indenture.
This Global Note is a global security in respect of a duly authorized
issue of Senior Notes, ---% Due -----, Series -- (the "NOTES OF THIS SERIES",
which term includes any Global Notes representing such Notes) of the Company
issued and to be issued under an Indenture dated as of ----------, 1999, between
the Company and United States Trust Company of New York, as trustee (the
"TRUSTEE", which term includes any successor Trustee under the Indenture) and
indentures supplemental thereto (collectively, the "INDENTURE"). Under the
Indenture, one or more series of notes may be issued and, as used herein, the
term "Notes" refers to the Notes of this Series and any other outstanding series
of Notes. Reference is hereby made to the Indenture for a more complete
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Global Note
has been issued in respect of the series designated on the first page hereof,
limited in aggregate principal amount to $------.
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Indenture, dated as of March 1, 1946, from the Company
to United States Trust Company of New York, as successor trustee (the "MORTGAGE
TRUSTEE"), as supplemented and modified (collectively, the "FIRST MORTGAGE").
Reference is made to the First Mortgage and the Indenture for a description of
the rights of the Trustee as holder of the Senior Note First Mortgage Bonds, the
property mortgaged and pledged, the nature and extent of the security and
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the rights of the holders of first mortgage bonds under the First Mortgage and
the rights of the Company and of the Mortgage Trustee in respect thereof, the
duties and immunities of the Mortgage Trustee and the terms and conditions upon
which the Senior Note First Mortgage Bonds are secured and the circumstances
under which additional first mortgage bonds may be issued.
From and after such time as the earlier of (i) the date that all First
Mortgage Bonds, other than the Senior Note First Mortgage Bonds, have been
retired (at, before or after the maturity thereof) through payment, redemption,
purchase or otherwise and (ii) the date upon which the Trustee holds Senior Note
First Mortgage Bonds constituting not less than 80% in aggregate principal
amount of all outstanding First Mortgage Bonds (the "Release Date"), the Senior
Note First Mortgage Bonds shall cease to secure the Notes in any manner. In
certain circumstances prior to the Release Date as provided in the Indenture,
the Company is permitted to reduce the aggregate principal amount of a series of
Senior Note First Mortgage Bonds held by the Trustee, but in no event prior to
the Release Date to an amount less than the aggregate outstanding principal
amount of the series of Notes initially issued contemporaneously with such
Senior Note First Mortgage Bonds.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
or Global Note issued upon transfer, exchange or substitution of such Note or
Global Note shall bear the Original Issue Date of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[Insert redemption and notice provisions, if any]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months (and for any partial period
shall be calculated on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months). If any Interest Payment Date or date on which the
principal of this Global Note is required to be paid is not a Business Day, then
payment of principal, premium, if any, or interest need not be made on such date
but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or date on which the principal
of this Global Note is required to be paid and, in the case of timely payment
thereof, no interest shall accrue for the period from and after such Interest
Payment Date or the date on which the principal of this Global Note is required
to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust,
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all as set forth in the Indenture) if the Company deposits with the Trustee
cash, U.S. Government Obligations which through the payment of interest thereon
and principal thereof in accordance with their terms will provide cash, or a
combination of cash and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and premium, if
any, and interest on the Notes on the dates such payments are due in accordance
with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of and
interest on the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture and, upon such declaration, the Trustee shall
demand the redemption of the Senior Note First Mortgage Bonds to the extent
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon this
Global Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and premium, if any, or interest on
this Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Note may be transferred only as permitted by the legend
hereto.
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<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual or facsimile
signature of an authorized officer, this Global Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JERSEY CENTRAL POWER & LIGHT
COMPANY
Dated: By:
-----------------------------
Title:
------------------------------
Attest:
------------------------------
Title:
------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF
NEW YORK, As Trustee
By:
------------------------------
Authorized Officer
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - Custodian
----- -------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common
--------------------
State
Additional abbreviations may also be used though not in the
above list.
--------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- -------------------------------------------------
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
- --------------------- attorney to transfer said
note on the books of the Company, with full power
of substitution in the premises.
A-6
<PAGE>
Dated:
----------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular, without alteration or
enlargement or any change whatever.
A-7
<PAGE>
B-2
EXHIBIT B
FORM OF NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
JERSEY CENTRAL POWER & LIGHT COMPANY
SENIOR NOTE, % DUE , SERIES
---- ----- ---
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation of the State of New Jersey
(the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon
from------------- or from the most recent date to which interest has been paid
or duly provided for, semiannually in arrears on -------------and
- ---------------in each year, commencing on the first such Interest Payment Date
succeeding ----------------, at the per annum Interest Rate set forth above,
until the principal hereof is paid or made available for payment. No interest
shall accrue on the Maturity Date, so long as the principal amount of this Note
is paid in full on the Maturity Date. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date (except for interest
payable on the Maturity Date set forth above or, if applicable, upon redemption
or acceleration) will, as provided in the Indenture (as defined below), be paid
to the Person in whose name this Note is registered at the close of business on
the Regular Record Date for such interest, which shall be the ------------ or
- -------------, as the case may be, next preceding such Interest Payment Date;
provided that the first Interest Payment Date for any Note of this Series, the
Original Issue Date of which is after a Regular Record Date but prior to the
applicable Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date; and provided, further, that interest
payable on the Maturity Date set forth above or, if applicable, upon redemption
or acceleration, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture (referred to on the
reverse hereof), any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice
<PAGE>
whereof shall be given to Noteholders not more than fifteen days nor fewer than
ten days prior to such Special Record Date. Principal, applicable premium, if
any, and interest due at the maturity of this Note shall be payable in
immediately available funds when due upon presentation and surrender of this
Note at the Corporate Trust Office of the Trustee or at the authorized office of
any paying agent in the Borough of Manhattan, the City and State of New York.
Interest on this Note (other than interest payable at maturity) shall be paid by
check in clearinghouse funds to the Holder as its name appears on the register;
provided that if the Trustee receives a written request from any Holder of Notes
(as defined below), the aggregate principal amount of all of which having the
same Interest Payment Date as this Note equals or exceeds $10,000,000, on or
prior to the applicable Regular Record Date, interest on this Note shall be paid
by wire transfer of immediately available funds to a bank within the continental
United States designated by such Holder in its request or by direct deposit into
the account of such Holder designated by such Holder in its request if such
account is maintained with the Trustee or any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual or facsimile signature of an authorized officer, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
JERSEY CENTRAL POWER & LIGHT
COMPANY
Dated: By:
----------------------------
Title:
----------------------------
Attest:
----------------------------
Title:
----------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
B-2
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK, As Trustee
By:
-----------------------------------
Authorized Officer
B-3
<PAGE>
[FORM OF REVERSE OF NOTE]
JERSEY CENTRAL POWER & LIGHT COMPANY SENIOR NOTE, % DUE , SERIES
---- ---- ----
This Note is one of a duly authorized issue of Senior Notes,---% Due ----,
Series -- (the "NOTES OF THIS SERIES") of the Company issued and to be issued
under an Indenture dated as of ----------, 1999 between the Company and United
States Trust Company of New York, as trustee (the "TRUSTEE", which term includes
any successor Trustee under the Indenture) and indentures supplemental thereto
(collectively, the "INDENTURE"). Under the Indenture, one or more series of
notes may be issued and, as used herein, the term "Notes" refers to the Notes of
this Series and any other outstanding series of Notes. Reference is hereby made
to the Indenture for a more complete statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Noteholders and of the terms upon which the Notes are and are to
be authenticated and delivered. This Note is one of the series designated on the
face hereof, limited in aggregate principal amount to $--------.
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "SENIOR NOTE FIRST MORTGAGE BONDS")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Indenture, dated as of March 1, 1946, from the Company
to United States Trust Company of New York, as successor trustee (the "MORTGAGE
TRUSTEE"), as supplemented and modified (collectively, the "FIRST MORTGAGE").
Reference is made to the First Mortgage and the Indenture for a description of
the rights of the Trustee as holder of the Senior Note First Mortgage Bonds, the
property mortgaged and pledged, the nature and extent of the security and the
rights of the holders of first mortgage bonds under the First Mortgage and the
rights of the Company and of the Mortgage Trustee in respect thereof, the duties
and immunities of the Mortgage Trustee and the terms and conditions upon which
the Senior Note First Mortgage Bonds are secured and the circumstances under
which additional first mortgage bonds may be issued.
From and after such time as the earlier of (i) the date that all First
Mortgage Bonds, other than the Senior Note First Mortgage Bonds, have been
retired (at, before or after the maturity thereof) through payment, redemption,
purchase or otherwise and (ii) the date upon which the Trustee holds Senior Note
First Mortgage Bonds constituting not less than 80% in aggregate principal
amount of all outstanding First Mortgage Bonds (the "Release Date"), the Senior
Note First Mortgage Bonds shall cease to secure the notes in any manner. In
certain circumstances prior to the Release Date as provided in the Indenture,
the Company is permitted to reduce the aggregate principal amount of a series of
Senior Note First Mortgage Bonds held by the Trustee, but in no event prior to
the Release Date to an amount less than the aggregate outstanding principal
amount of the series of Notes initially issued contemporaneously with such
B-4
<PAGE>
Senior Note First Mortgage Bonds.
[Insert redemption and notice provisions, if any]
Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months (and for any partial period shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months). If any Interest Payment Date or the date on which the
principal of this Note is required to paid is not a Business Day, then payment
of principal, premium, if any, or interest need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if
made on such Interest Payment Date or the date on which the principal of this
Note is required to be paid, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of this Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee cash, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide cash, or a
combination of cash and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and premium, if
any, and interest on the Notes on the dates such payments are due in accordance
with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of and
interest on the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture and, upon such declaration, the Trustee shall
demand the redemption of the Senior Note First Mortgage Bonds to the extent
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu thereof whether
or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Notes will have any right to
B-5
<PAGE>
institute any proceeding with respect to the Indenture or for any remedy
thereunder unless such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to such Notes, the Holders
of not less than a majority in principal amount of the outstanding Notes
affected by such Event of Default shall have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as Trustee and
the Trustee shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of and
premium, if any, or interest on this Note on or after the respective due dates
expressed here.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the times, places and rates and the coin or currency
prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the Corporate Trust
Office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of this Series of like tenor and of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes of this Series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this Series are exchangeable for a like aggregate principal amount of
Notes of this Series of like tenor and of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
B-6
<PAGE>
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
B-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - Custodian
------ ---------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ---------------------------
State
Additional abbreviations may also be used though not in the
above list.
--------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- -------------------------------------------------
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
- -------------------- attorney to transfer said
note on the books of the Company, with full power
of substitution in the premises.
Dated:
-----------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
B-8
<PAGE>
C-2
EXHIBIT C
FORM OF GLOBAL NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
JERSEY CENTRAL POWER & LIGHT COMPANY
SENIOR NOTE, % DUE , SERIES
---- ----- ---
CUSIP: NUMBER:
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: MATURITY DATE:
JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of New Jersey (the "COMPANY"), for value
received hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of
-----------------------------
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
- ---------- or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semiannually in arrears on the ---------- and
- ------------ in each year, commencing on the first such Interest Payment Date
succeeding -----------------, at the per annum Interest Rate set forth above,
until the principal hereof is paid or made available for payment. No interest
shall accrue on the Maturity Date, so long as the principal amount of this
Global Note is paid on the Maturity Date. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date (except for interest
payable on the Maturity Date set forth above or, if applicable, upon redemption
or acceleration) will, as provided in the Indenture, be paid to the Person in
whose name this Note is
<PAGE>
registered at the close of business on the Regular Record Date for such
interest, which shall be the --------- or -----------, as the case may be, next
preceding such Interest Payment Date; provided, that the first Interest Payment
Date for any part of this Note, the Original Issue Date of which is after a
Regular Record Date but prior to the applicable Interest Payment Date, shall be
the Interest Payment Date following the next succeeding Regular Record Date; and
provided, that interest payable on the Maturity Date set forth above or, if
applicable, upon redemption or acceleration, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in the Indenture
(as defined below), any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid to the Person in whose name this Note is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to
Noteholders not more than fifteen days or fewer than ten days prior to such
Special Record Date. Payment of principal of, interest and premium, if any, on
this Global Note shall be payable pursuant to Section 2.12(a) of the Indenture.
This Global Note is a global security in respect of a duly authorized
issue of Senior Notes, --% Due ----, Series --(the "NOTES OF THIS SERIES", which
term includes any Global Notes representing such Notes) of the Company issued
and to be issued under an Indenture dated as of ---------, 1999 between the
Company and United States Trust Company of New York, as trustee (herein called
the "TRUSTEE", which term includes any successor Trustee under the Indenture)
and indentures supplemental thereto (collectively, the "INDENTURE"). Under the
Indenture, one or more series of notes may be issued and, as used herein, the
term "Notes" refers to the Notes of this Series and any other outstanding series
of Notes. Reference is hereby made to the Indenture for a more complete
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Global Note
has been issued in respect of the series designated on the first page hereof,
limited in aggregate principal amount to $-----.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
or Global Note issued upon transfer, exchange or substitution of such Note or
Global Note shall bear the Original Issue Date of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[Insert redemption and notice provisions, if any]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months (and for any partial period
shall be calculated on the basis of the number of days elapsed in a 360-day year
of twelve 30-day
C-2
<PAGE>
months). If where any Interest Payment Date or date on which the principal of
this Global Note is required to be paid is not a Business Day, then payment of
principal, premium, if any, or interest need not be made on such date but may be
made on the next succeeding Business Day with the same force and effect as if
made on such Interest Payment Date or date on which the principal of this Global
Note is required to be paid and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of this Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee cash, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide cash, or a
combination of cash and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and premium, if
any, and interest on the Notes on the dates such payments are due in accordance
with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon this
Global Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder
C-3
<PAGE>
hereof for the enforcement of payment of the principal of and premium, if any,
or interest on this Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual or facsimile
signature of an authorized officer, this Global Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture unless otherwise indicated
herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JERSEY CENTRAL POWER & LIGHT
COMPANY
Dated: By:
-----------------------
Title:
-----------------------
Attest:
-----------------------
Title:
-----------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series
herein designated, described or
provided for in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK, As Trustee
By:
---------------------------------
Authorized Officer
C-4
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT - Custodian
------ --------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ---------------------------
State
Additional abbreviations may also be used though not in the
above list.
--------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- -------------------------------------------------
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
- ------------------- attorney to transfer said note
on the books of the Company, with full power of
substitution in the premises.
Dated:
----------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
C-5
<PAGE>
EXHIBIT D
FORM OF NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
JERSEY CENTRAL POWER & LIGHT COMPANY
SENIOR NOTE, % DUE , SERIES
--- ------ ------
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of New Jersey (the "COMPANY"), for value
received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
- ---------------or from the most recent date to which interest has been paid or
duly provided for, semiannually in arrears on --------------------
and----------------- in each year, commencing on the first such Interest Payment
Date succeeding , at the per annum Interest Rate set forth above, until the
principal hereof is paid or made available for payment. No interest shall accrue
on the Maturity Date, so long as the principal amount of this Note is paid in
full on the Maturity Date. The interest so payable and punctually paid or duly
provided for on any such Interest Payment Date (except for interest payable on
the Maturity Date set forth above or, if applicable, upon redemption or
acceleration) will, as provided in the Indenture (as defined below), be paid to
the Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the ----------------- or
- ----------, as the case may be, next preceding such Interest Payment Date;
provided that the first Interest Payment Date for any Note, the Original Issue
Date of which is after a Regular Record Date but prior to the applicable
Interest Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, further that interest payable on
the Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be payable.
Except as otherwise provided in the Indenture (referred to on the reverse
hereof), any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Noteholders not
more than fifteen days nor
<PAGE>
fewer than ten days prior to such Special Record Date. Principal, applicable
premium, if any, and interest due at the maturity of this Note shall be payable
in immediately available funds when due upon presentation and surrender of this
Note at the Corporate Trust Office of the Trustee or at the authorized office of
any paying agent in the Borough of Manhattan, the City and State of New York.
Interest on this Note (other than interest payable at Maturity) shall be paid by
check in clearinghouse funds to the Holder as its name appears on the register;
provided that if the Trustee receives a written request from any Holder of Notes
(as defined below), the aggregate principal amount of all of which having the
same Interest Payment Date as this Note equals or exceeds $10,000,000, on or
prior to the applicable Regular Record Date for such Interest Payment Date,
interest on the Note shall be paid by wire transfer of immediately available
funds to a bank within the continental United States designated by such Holder
in its request or by direct deposit into the account of such Holder designated
by such Holder in its request if such account is maintained with the Trustee or
any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JERSEY CENTRAL POWER & LIGHT
COMPANY
Dated: By:
--------------------------
Title:
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Attest:
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Title:
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TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
D-2
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK, As Trustee
By:
----------------------------
Authorized Officer
D-3
<PAGE>
[FORM OF REVERSE OF NOTE]
JERSEY CENTRAL POWER & LIGHT COMPANY
SENIOR NOTE, % DUE , SERIES
--- ----- ---
This Note is one of a duly authorized issue of Senior Notes, --% Due ----,
Series -- Series (the "NOTES OF THIS SERIES") of the Company issued and to be
issued under an Indenture dated as of ------------, 1999, between the Company
and United States Trust Company of New York, as trustee (herein called the
"TRUSTEE", which term includes any successor Trustee under the Indenture) and
indentures supplemental thereto (collectively, the "INDENTURE"). Under the
Indenture, one or more series of notes may be issued and, as used herein, the
term "Notes" refers to the Notes of this Series and any other outstanding series
of Notes. Reference is hereby made to the Indenture for a more complete
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Note is one
of the series designated on the face hereof, limited in aggregate principal
amount to $------.
Each Note of this Series shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date. Each Note
issued upon transfer, exchange or substitution of such Note shall bear the
Original Issue Date of such transferred, exchanged or substituted Note, as the
case may be.
[Insert redemption and notice provisions, if any]
Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months (and for any partial period shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months). In any case where any Interest Payment Date or the date
on which the principal of this Note is required to paid is not a Business Day,
then payment of principal, premium, if any, or interest need not be made on such
date but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or the date on which the
principal of this Note is required to be paid, and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of this Note is
required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee cash, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance
D-4
<PAGE>
with their terms will provide cash, or a combination of cash and U.S. Government
Obligations, in any event in an amount sufficient, without reinvestment, to pay
all the principal of and premium, if any, and interest on the Notes on the dates
such payments are due in accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu thereof whether
or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and premium, if any, or interest on
this Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the times, places and rates and the coin or currency
prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
D-5
<PAGE>
Notes of this Series of like tenor and of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes of this Series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this Series are exchangeable for a like aggregate principal amount of
Notes of this Series of like tenor and of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
D-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations: TEN COM -- as tenants in common
UNIF GIFT
MIN ACT - Custodian
----- -------
(Cust) (Minor)
TEN ENT -- as tenants by the
entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants in
common ---------------------------
State
Additional abbreviations may also be used though not in the
above list.
--------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- -------------------------------------------------
the within note and all rights thereunder, hereby
irrevocably constituting and appointing
- ------------------- attorney to transfer said note
on the books of the Company, with full power of
substitution in the premises.
Dated:
------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
D-7
Exhibit 4-C
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Executed in 50 Counterparts of which
this is Counterpart No. ------
-----------------------------------
----------------------------------------------
MORTGAGE
JERSEY CENTRAL POWER & LIGHT COMPANY
to
UNITED STATES TRUST COMPANY OF NEW YORK,
Successor Trustee
---------------------
FIFTY-SECOND SUPPLEMENTAL INDENTURE
---------------------
Dated as of --------------, 1999
--------------------------------------------------------
This instrument prepared by:
-----------------------
Marc B. Lasky, Esq.
<PAGE>
MORTGAGE
FIFTY-SECOND SUPPLEMENTAL INDENTURE, dated as of the --------- day of
- ----------, 1999, made and entered into by and between JERSEY CENTRAL POWER &
LIGHT COMPANY, a corporation organized and existing under the laws of the State
of New Jersey (hereinafter called the "Company"), party of the first part, and
UNITED STATES TRUST COMPANY OF NEW YORK, a bank and trust company organized
under the State of New York bank law, with its principal corporate trust office
at 114 West 47th Street, New York, New York, 10036-1532, as Successor Trustee
under the Original Indenture hereinafter mentioned (the Successor Trustee being
hereinafter sometimes called "Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered to City Bank
Farmers Trust Company an Indenture dated as of March 1, 1946 (hereinafter called
the "Original Indenture"), to secure the principal of and the interest and
premium (if any) on all bonds at any time issued and outstanding thereunder, to
declare the terms and conditions upon which bonds are to be issued thereunder
and to subject to the lien thereof certain property therein described; and
WHEREAS, United States Trust Company of New York is now acting as
Successor Trustee under the Original Indenture and the indentures supplemental
thereto hereinafter enumerated; and
WHEREAS, the Original Indenture has heretofore been supplemented by a
First Supplemental Indenture dated as of December 1, 1948, a Second Supplemental
Indenture dated as of April 1, 1953, a Third Supplemental Indenture dated as of
June 1, 1954, a Fourth Supplemental Indenture dated as of May 1, 1955, a Fifth
Supplemental Indenture dated as of August 1, 1956, a Sixth Supplemental
Indenture dated as of July 1, 1957, a Seventh Supplemental Indenture dated as of
July 1, 1959, an Eighth Supplemental Indenture dated as of June 1, 1960, a Ninth
Supplemental Indenture dated as of November 1, 1962, a Tenth Supplemental
Indenture dated as of October 1, 1963, an Eleventh Supplemental Indenture dated
as of October 1, 1964, a Twelfth Supplemental Indenture dated as of November 1,
1965, a Thirteenth Supplemental Indenture dated as of August 1, 1966, a
Fourteenth Supplemental Indenture dated as of September 1, 1967, a Fifteenth
Supplemental Indenture dated as of October 1, 1968, a Sixteenth Supplemental
Indenture dated as of October 1, 1969, a Seventeenth Supplemental Indenture
dated as of June 1, 1970, an Eighteenth Supplemental Indenture dated as of
December 1, 1970, a Nineteenth Supplemental Indenture dated as of February 1,
1971, a Twentieth Supplemental Indenture dated as of November 1, 1971, a
Twenty-first Supplemental Indenture dated as of August 1, 1972, a Twenty-second
Supplemental Indenture dated as of August 1, 1973, a Twenty-third Supplemental
Indenture dated as of October 1, 1973, a Twenty-fourth
<PAGE>
Supplemental Indenture dated as of December 1, 1973, a Twenty-fifth Supplemental
Indenture dated as of November 1, 1974, a Twenty-sixth Supplemental Indenture
dated as of March 1, 1975, a Twenty-seventh Supplemental Indenture dated as of
July 1, 1975, a Twenty-eighth Supplemental Indenture dated as of October 1,
1975, a Twenty-ninth Supplemental Indenture dated as of February 1, 1976, a
Supplemental Indenture No. 29A dated as of May 31, 1976, a Thirtieth
Supplemental Indenture dated as of June 1, 1976, a Thirty-first Supplemental
Indenture dated as of May 1, 1977, a Thirty-second Supplemental Indenture dated
as of January 20, 1978, a Thirty-third Supplemental Indenture dated as of
January 1, 1979, a Thirty-fourth Supplemental Indenture dated as of June 1,
1979, a Thirty-fifth Supplemental Indenture dated as of June 15, 1979, a
Thirty-sixth Supplemental Indenture dated as of October 1, 1979, a
Thirty-seventh Supplemental Indenture dated as of September 1, 1984, a
Thirty-eighth Supplemental Indenture dated as of July 1, 1985, a Thirty-ninth
Supplemental Indenture dated as of April 1, 1988, a Fortieth Supplemental
Indenture dated as of June 14, 1988, a Forty-first Supplemental Indenture dated
as of April 1, 1989, a Forty-second Supplemental Indenture dated as of July 1,
1989, a Forty-third Supplemental Indenture dated as of March 1, 1991, a
Forty-fourth Supplemental Indenture dated as of March 1, 1992, a Forty-fifth
Supplemental Indenture dated as of October 1, 1992, a Forty-sixth Supplemental
Indenture dated as of April 1, 1993, a Forty-seventh Supplemental Indenture
dated as of April 10, 1993, a Forty-eighth Supplemental Indenture dated as of
April 15, 1993, a Forty-ninth Supplemental Indenture dated as of October 1,
1993, a Fiftieth Supplemental Indenture dated as of August 1, 1994 and a
Fifty-first Supplemental Indenture dated as of August 15, 1996 (hereinafter
respectively called "First Supplemental Indenture," "Second Supplemental
Indenture," "Third Supplemental Indenture," "Fourth Supplemental Indenture,"
"Fifth Supplemental Indenture," "Sixth Supplemental Indenture," "Seventh
Supplemental Indenture," "Eighth Supplemental Indenture," "Ninth Supplemental
Indenture," "Tenth Supplemental Indenture," "Eleventh Supplemental Indenture,"
"Twelfth Supplemental Indenture," "Thirteenth Supplemental Indenture,"
"Fourteenth Supplemental Indenture," "Fifteenth Supplemental Indenture,"
"Sixteenth Supplemental Indenture," "Seventeenth Supplemental Indenture,"
"Eighteenth Supplemental Indenture," "Nineteenth Supplemental Indenture,"
"Twentieth Supplemental Indenture," "Twenty-first Supplemental Indenture,"
"Twenty-second Supplemental Indenture," "Twenty-third Supplemental Indenture,"
"Twenty-fourth Supplemental Indenture," "Twenty-fifth Supplemental Indenture,"
"Twenty-sixth Supplemental Indenture," "Twenty-seventh Supplemental Indenture,"
"Twenty-eighth Supplemental Indenture," "Twenty-ninth Supplemental Indenture,"
"Supplemental Indenture No. 29A," "Thirtieth Supplemental Indenture,"
"Thirty-first Supplemental Indenture," "Thirty-second Supplemental Indenture,"
"Thirty-third Supplemental Indenture," "Thirty-fourth Supplemental Indenture,"
"Thirty-fifth Supplemental Indenture," "Thirty-sixth Supplemental Indenture,"
"Thirty-seventh Supplemental Indenture," "Thirty-eighth Supplemental Indenture,"
"Thirty-ninth Supplemental Indenture," "Fortieth Supplemental
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<PAGE>
Indenture," "Forty-first Supplemental Indenture," "Forty-second Supplemental
Indenture," "Forty-third Supplemental Indenture," "Forty-fourth Supplemental
Indenture," "Forty-fifth Supplemental Indenture," "Forty-sixth Supplemental
Indenture," "Forty-seventh Supplemental Indenture," "Forty-eighth Supplemental
Indenture," "Forty-ninth Supplemental Indenture," "Fiftieth Supplemental
Indenture" and "Fifty-first Supplemental Indenture," collectively called "the
Supplemental Indentures"), for the purposes therein expressed; and
WHEREAS, the Original Indenture has been recorded in the proper recording
offices of the following counties in the State of New Jersey and the
Commonwealth of Pennsylvania in Books of Mortgages at the pages respectively
stated as follows:
NEW JERSEY
Mortgage
County Book Page
------------- ---------- ------
Burlington 360 1 &c
Camden 2423 37 &c
Essex I-103 155 &c
Hunterdon 439 284 &c
Mercer 732 280 &c
Middlesex 871 101 &c
Monmouth 1365 1 &c
Morris Z-16 1 &c
Ocean 385 33 &c
Passaic B-24 1 &c
Somerset 386 1 &c
Sussex 394 148 &c
Union 1474 1 &c
Warren 279 191 &c
PENNSYLVANIA
Armstrong 213 421 &c
Bucks 2133 151 &c
Dauphin N52 1 &c
Indiana 200 371 &c
Montgomery 7537 1287 &c
Northampton 1159 1 &c
; and
WHEREAS, the Supplemental Indentures have been recorded in the proper
recording offices of the appropriate counties in the State of New Jersey and the
Commonwealth of Pennsylvania; and
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<PAGE>
WHEREAS, the Original Indenture, as the same may be amended or
supplemented from time to time by indentures supplemental thereto, is
hereinafter referred to as "the Indenture"; and
WHEREAS, the Company has entered into an Indenture dated as of
- -------------------, 1999 (the "Senior Note Indenture") with United States Trust
Company of New York, as trustee (the "Senior Note Trustee"), providing for the
issuance of notes thereunder (the "Senior Notes") from time to time, and
pursuant to the Senior Note Indenture the Company has agreed to issue to the
Senior Note Trustee, as security for the Senior Notes, a new series of bonds
under the Indenture at the time of authentication of each series of Senior Notes
issued prior to the Release Date (as defined in the Senior Note Indenture); and
WHEREAS, for such purposes the Company desires to issue a new series of
bonds and by appropriate corporate action in conformity with the terms of the
Indenture has duly determined to create a separate series of bonds, which shall
be designated as "First Mortgage Bonds, Senior Note Series ----------- due
- ------------" (hereinafter sometimes referred to as the "Senior Note Series --
Bonds"), which said Senior Note Series -- Bonds are to be substantially in the
form set forth in Article II hereof with the insertion of numbers,
denominations, dated dates, maturities, redemption prices and interest rates as
determined in accordance with the terms of the Indenture; and
WHEREAS, the Senior Note Series -- Bonds shall be issued to the Senior
Note Trustee in connection with the issuance by the Company of its Senior Notes,
- ----% due ----, Series -- (the "Series -- Notes"); and
WHEREAS, all acts and things prescribed by law and by the certificate of
incorporation and by-laws of the Company necessary to make the Senior Note
Series -- Bonds, when executed by the Company and authenticated by the Trustee,
as in the Indenture provided, valid, binding and legal obligations of the
Company, entitled in all respects to the security of the Indenture, have been
performed or will have been performed prior to execution of such Senior Note
Series -- Bonds by the Company and authentication thereof by the Trustee; and
WHEREAS, the Original Indenture authorizes the Company and the Trustee to
enter into supplemental indentures for the purpose, among others, of conveying,
transferring and assigning to the Trustee, and subjecting to the lien thereof,
additional properties thereafter acquired by the Company; and
WHEREAS, the Company desires to subject specifically to the lien of the
Indenture certain property acquired by the Company since December 31, 1998; and
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<PAGE>
WHEREAS, by the provisions of Article XVII of the Original Indenture,
indentures supplemental to the Original Indenture may be executed and delivered
for the purpose of setting forth the terms, provisions and form of the Senior
Note Series __ Bonds and supplementing the Original Indenture in a manner which
is not inconsistent with the provisions thereof and does not adversely affect
the interests nor modify the rights of outstanding bonds and for the other
purposes therein more fully set forth; and
WHEREAS, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Original Indenture
and pursuant to appropriate action of its Board of Directors, has fully resolved
and determined to make, execute and deliver to the Trustee a Fifty-second
Supplemental Indenture in the form hereof for the purposes herein provided; and
WHEREAS, the Company represents that all conditions and requirements
necessary to make this Fifty-second Supplemental Indenture, in the form and upon
the terms hereof, a valid, binding and legal instrument, in accordance with its
terms, and for the purposes herein expressed, have been done, performed and
fulfilled, and the execution and delivery hereof, in the form and upon the terms
hereof, have been in all respects duly authorized.
NOW THEREFORE, THIS FIFTY-SECOND SUPPLEMENTAL INDENTURE WITNESSETH: That
Jersey Central Power & Light Company, in consideration of the premises, and the
execution and delivery by the Trustee of this Fifty-second Supplemental
Indenture and for other good and valuable considerations, receipt of which is
hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released,
conveyed, mortgaged, assigned, transferred, pledged, set over and confirmed, and
by these presents does grant, bargain, sell, alien, enfeoff, release, convey,
mortgage, assign, transfer, pledge, set over and confirm unto United States
Trust Company of New York, as Successor Trustee as aforesaid, and to its
successors in the trust created by the Original Indenture and to its and their
successors and assigns forever, all the following properties of the Company,
that is to say:
FIRST
All property additions, as defined in and by Section 1.03 of the Original
Indenture, acquired by the Company on or after January 1, 1999, and prior to
- --------------, 1999, and now owned by the Company.
SECOND
Also all property of the character and nature specified in the "Second,"
"Third," "Fourth," "Fifth," and "Sixth" subdivisions of the granting clauses of
the Original Indenture.
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<PAGE>
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from this Fifty-second
Supplemental Indenture and from the lien and operation of the Indenture, all
property which, prior to the date of this Fifty-second Supplemental Indenture,
shall have been released from the lien of, or disposed of by the Company in
accordance with the provisions of the Indenture; and all the tracts or parcels
of land and premises and all property of every kind and type excepted and
excluded from, and not heretofore or hereby expressly subjected to, the lien of
the Original Indenture by the terms thereof whether such property was owned by
the Company at the date thereof or has been acquired since that date.
SUBJECT, HOWEVER, except as otherwise expressly provided in this
Fifty-second Supplemental Indenture, to the exceptions, reservations and matters
recited in the Indenture, to the reservations, exceptions, limitations and
restrictions contained in the several deeds, grants, franchises and contracts or
other instruments through which the Company acquired or claims title to the
aforesaid property; and subject also to existing leases, to liens on easements
or rights-of-way for transmission or distribution line purposes, to taxes and
assessments not in default, to easements for alleys, streets, highways,
rights-of-way and railroads that may run across or encroach upon said lands, to
joint pole and similar agreements, to undetermined liens and charges, if any,
incidental to the construction and other permissible encumbrances, as defined in
the Original Indenture, and subject also to the provisions of Section 13.03 of
the Original Indenture.
In trust, nevertheless, upon the terms and trusts set forth in the
Indenture.
AND THIS FIFTY-SECOND SUPPLEMENTAL INDENTURE FURTHER WITNESSETH: That the
Company, for the considerations aforesaid, hereby covenants and agrees to and
with the Trustee and its successors in the trust under the Indenture, as
follows:
ARTICLE I.
CONCERNING THE TRUSTEE.
SECTION 1.01. The Trustee hereby accepts the properties hereby mortgaged
and conveyed to it upon the trusts hereinbefore referred to and agrees to
perform the same upon the terms and conditions set forth in the Indenture.
SECTION 1.02. The Trustee shall not be responsible in any manner for or
with respect to the validity or sufficiency of this Fifty-second Supplemental
Indenture, or the due execution hereof by the Company, or for or with respect to
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
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<PAGE>
ARTICLE II.
CREATION, DESCRIPTION AND FORM OF THE
SENIOR NOTE SERIES --- BONDS
SECTION 2.01. The Company hereby creates a series of bonds to be issued
under and secured by the Indenture, to be designated and to be distinguished
from bonds of all other series by the title "First Mortgage Bonds, Senior Note
Series ----- due ------------." The aggregate principal amount of the Senior
Note Series -- Bonds which may be initially authenticated and delivered shall be
limited to ------------------------------- ($----------). The Senior Note Series
- --- Bonds shall mature on ------------ and shall be issued only as a single
registered bond without coupons. The serial numbers of bonds of the Senior Note
Series -- Bonds shall be such as may be approved by any officer of the Company,
the execution thereof by any such officer either manually or by facsimile
signature to be conclusive evidence of such approval. Senior Note Series --
Bonds shall bear interest at a rate of ----% per annum until the principal
thereof shall have become due and payable, payable semi-annually on
- -------------- and ------------ in each year commencing -------------, with
interest on overdue interest payable at the rate per annum specified in this
Section 2.01. Except as provided in Sections 2.03, 2.04, 2.05, 8.03 and 17.04 of
the Original Indenture, no Senior Note Series -- Bonds shall be authenticated
and delivered after such initial issue.
SECTION 2.02. Each Senior Note Series -- Bond shall be dated the date of
its authentication and shall bear interest from ---------- or from the most
recent interest payment date to which interest has been paid or duly provided.
SECTION 2.03. The principal of and the premium, if any, and interest on
any Senior Note Series -- Bond shall be payable in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and shall be payable at the office or
agency of the Company in the Borough of Manhattan, The City of New York.
Interest on the Senior Note Series -- Bonds shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 2.04. Upon any payment of the principal of, premium, if any, and
interest on, all or any portion of the Series -- Notes, whether at maturity or
prior to maturity by redemption or otherwise or upon provision for the payment
thereof having been made in accordance with Section 5.01(a) of the Senior Note
Indenture, Senior Note Series -- Bonds in a principal amount equal to the
principal amount of such Series -- Notes and having both a corresponding
maturity date and interest rate shall, to the extent of such payment of
principal, premium, if any, and interest, be deemed paid and the obligation of
the Company thereunder to make such payment shall be discharged to such
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<PAGE>
extent and, in the case of the payment of principal (and premium, if any),
Senior Note Series -- Bonds in a principal amount equal to the related Series --
Notes shall be surrendered to the Company for cancellation as provided in
Section 4.08 of the Senior Note Indenture. The Trustee may at anytime and all
times conclusively assume that the obligation of the Company to make payments
with respect to the principal of and premium, if any, and interest on the Senior
Note Series -- Bonds, so far as such payments at the time have become due, has
been fully satisfied and discharged pursuant to the foregoing sentence unless
and until the Trustee shall have received a written notice from the Senior Note
Trustee signed by one of its officers stating (i) that timely payment of, or
premium or interest on, the Series -- Notes has not been so made, (ii) that the
Company is in arrears as to the payments required to be made by it to the Senior
Note Trustee pursuant to the Senior Note Indenture, and (iii) the amount of the
arrearage.
SECTION 2.05. Each Senior Note Series --- Bond is to be issued to and
registered in the name of United States Trust Company of New York, as the Senior
Note Trustee, or a successor trustee thereto, under the Senior Note Indenture to
secure any and all obligations of the Company under the Series -- Notes and any
other series of Senior Notes from time to time outstanding under the Senior Note
Indenture.
SECTION 2.06. Except (i) as required to effect an assignment to a
successor Trustee under the Senior Note Indenture, (ii) pursuant to Section 4.05
or Section 4.08 of the Senior Note Indenture, or (iii) in compliance with a
final order of a court of competent jurisdiction in connection with any
bankruptcy or reorganization proceeding of the Company, the Senior Note Series
- -- Bonds are not transferable. The Senior Note Series --- Bonds shall be
exchangeable for other registered bonds of the same series and for the same
aggregate principal amount, in the manner and upon the conditions prescribed in
the Indenture, upon the surrender of such bonds at the office or agency of the
Company in the Borough of Manhattan, The City of New York. The Company covenants
and agrees that, notwithstanding Section 2.03 of the Original Indenture, it will
not charge any sum for or in connection with any exchange or transfer of any
Senior Note Series ---Bond, but may require the payment of a sum sufficient to
cover any tax or taxes or other governmental charges incident to any exchange,
transfer or registration thereof.
SECTION 2.07. (a) Senior Note Series -- Bonds shall not be redeemable
except on the respective dates, in the respective principal amounts and for the
respective redemption prices which correspond to the redemption dates for, the
principal amounts to be redeemed of, and the redemption prices for, the Series
- -- Notes and except as set forth in Section 2.08 hereof.
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<PAGE>
(b) In the event the Company redeems any Series -- Notes prior to
maturity in accordance with the provisions of the Senior Note Indenture, the
Senior Note Trustee shall on the same date deliver to the Company Senior Note
Series -- Bonds in principal amounts corresponding to the Series -- Notes so
redeemed, as provided in Section 4.08 of the Senior Note Indenture.
(c) Senior Note Series -- Bonds are not redeemable by the operation
of the improvement fund or the maintenance and replacement provisions of the
Indenture or with the proceeds of released property.
(d) Notice with respect to any redemption of the Senior Note Series
- -- Bonds shall be mailed by the Company to the Trustee not less than thirty (30)
days and not more than sixty (60) days prior to the redemption date and shall
specify the matters set forth in the penultimate sentence of the first
paragraph, and if applicable, the second sentence of the second paragraph of
Section 8.02 of the Original Indenture. Notice of any such redemption shall be
given by the Trustee to the Senior Note Trustee, as the holder of the Senior
Note Series -- Bonds, in accordance with the terms of Section 8.02 of the
Original Indenture.
(e) If at the time of the mailing of any such notice of redemption,
the Company shall not have irrevocably directed the Trustee to apply funds
deposited with the Trustee, or held by it available to be used, for the
redemption of the Senior Note Series -- Bonds, to redeem all of the Senior Note
Series -- Bonds called for redemption, including accrued interest to the date
fixed for redemption, such notice may state that it is subject to the receipt of
the redemption moneys by the Trustee before the date fixed for redemption and
such notice shall be of no effect unless such moneys are so received before such
date.
(f) The last sentence of Section 2.03 of the Original Indenture
shall not apply to the Senior Note Series -- Bonds. In case less than all of the
Senior Note Series -- Bonds at the time outstanding are called for redemption,
the Company shall not be required to transfer any Senior Note Series -- Bonds,
for a period of ten (10) days before the mailing of a notice of redemption of
bonds of such Senior Note Series -- Bonds selected for redemption, to transfer
any Senior Note Series -- Bond called for redemption in its entirety or to
transfer any portion of a Senior Note Series -- Bond which portion has been
called for redemption.
SECTION 2.08. The Senior Note Series -- Bonds shall be immediately
redeemable at a redemption price of 100% of the principal amount thereof, plus
interest accrued to the redemption date, in whole, upon a written demand for
redemption by the Senior Note Trustee stating that the principal of all Senior
-9-
<PAGE>
Notes then outstanding under the Senior Note Indenture have been declared to be
immediately due and payable pursuant to the provisions of the first sentence of
Section 8.01(a) thereof.
SECTION 2.09. For purposes of Section 4.09 of the Senior Note Indenture,
the Senior Note Series -- Bonds shall be deemed to be the "Related Series of
Senior Note First Mortgage Bonds" in respect of the Series -- Notes.
SECTION 2.10. At any time a Series -- Note shall cease to be entitled to
any lien, benefit or security under the Senior Note Indenture pursuant to
Section 5.01(b) thereof and the Company shall have provided the Senior Note
Trustee with notice thereof, the Senior Note Trustee shall surrender an equal
principal amount of the Related Series of Senior Note First Mortgage Bonds,
subject to the limitations of Section 4.08 of the Senior Note Indenture, to the
Company for cancellation.
SECTION 2.11. As provided in Section 4.11 of the Senior Note Indenture,
from and after the Release Date, the obligations of the Company with respect to
the Senior Note Series -- Bonds shall be deemed to be satisfied and discharged,
the Senior Note Series -- Bonds shall cease to secure in any manner any Senior
Notes outstanding under the Senior Note Indenture, and, pursuant to Section 4.08
of the Senior Note Indenture, the Senior Note Trustee shall forthwith deliver
the Senior Note Series -- Bonds to the Company for cancellation.
SECTION 2.12. The form of the Senior Note Series --- Bonds and the
Trustee's authentication certificate to be endorsed thereon shall be
substantially as follows, the maturity date or dates, denominations, redemption
prices and interest rates thereof to be appropriately inserted.
[FORM OF SENIOR NOTE SERIES--- BONDS]
JERSEY CENTRAL POWER & LIGHT COMPANY
FIRST MORTGAGE BOND, SENIOR NOTE SERIES ----- DUE -----------
$-------------- No. -------
JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation organized and existing
under the laws of the State of New Jersey (hereinafter called the "Company"),
for value received, hereby promises to pay to United States Trust Company of New
York, as Trustee under the Company's Indenture dated as of --------------------,
1999, or registered assigns, ---------------- Dollars on --------, unless this
Bond shall have been duly called for previous redemption in whole or in part and
payment of the redemption price shall have been duly made or provided for, at
the office or agency of the Company in the
-10-
<PAGE>
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay to the registered holder hereof
interest thereon, at said office or agency, in like coin or currency, from
- -------------, or from the most recent interest payment date to which interest
has been paid or duly provided for until said principal sum has been paid or
provided for, at the rate or rates per annum provided for in Section 2.01 of the
Fifty-second Supplemental Indenture dated as of ---------------, 1999,
supplementing the Mortgage, on ------------- and ------------------ of each
year, and, to the extent permitted by law, to pay interest on overdue interest
at the rate per annum above specified.
This bond is one of an issue of bonds of the Company (hereinafter referred
to as the "bonds"), not limited in principal amount except as provided in the
Mortgage hereinafter mentioned, issuable in series, which different series may
mature at different times, may bear interest at different rates, and may
otherwise vary as in the Mortgage hereinafter mentioned provided, and is one of
a series known as its First Mortgage Bonds, Senior Note Series ------ due
- ---------- (herein called the "Senior Note Series -- Bonds"), all bonds of all
series issued and to be issued under and equally and ratably secured (except
insofar as any sinking fund or analogous fund, established in accordance with
the provisions of the Mortgage hereinafter mentioned, may afford additional
security for the bonds of any particular series) by an Indenture, dated as of
March 1, 1946, executed by the Company to City Bank Farmers Trust Company,
Trustee (herein, together with any indentures supplemental thereto, including,
but not by way of limitation, the Fifty-second Supplemental Indenture, dated as
of -------, 1999, called the "Mortgage"), under which United States Trust
Company of New York is Successor Trustee (herein called the "Trustee"), to which
Mortgage reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights and limitations of
rights of the holders of the bonds and of the Company in respect thereof, the
rights, duties and immunities of the Trustee, and the terms and conditions upon
which the bonds are, and are to be, issued and secured. The Senior Note Series
- -- Bonds are described in the Fifty-second Supplemental Indenture dated as of
- ------------------, 1999 between the Company and the Trustee (the "Fifty-second
Supplemental Indenture").
Interest on this bond shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Under an Indenture dated as of ------------, 1999 (hereinafter sometimes
referred to as the "Senior Note Indenture"), between the Company and United
Trust Company of New York, as trustee (hereinafter sometimes called the "Senior
Note Trustee"), the Company will issue, concurrently with the issuance
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<PAGE>
of this bond, an issue of notes under the Senior Note Indenture entitled Senior
Notes, ----% due ----, Series -- (the "Series -- Notes"). Pursuant to Article IV
of the Senior Note Indenture, this bond is issued to the Senior Note Trustee to
secure any and all obligations of the Company under the Series -- Notes and any
other series of senior notes from time to time outstanding under the Senior Note
Indenture. Payment of principal of, or premium, if any, or interest on, the
Series -- Notes shall constitute payments on this bond as further provided
herein and in the Fifty-second Supplemental Indenture.
As provided in Section 4.11 of the Senior Note Indenture, from and after
the Release Date (as defined in the Senior Note Indenture), the obligations of
the Company with respect to this bond shall be deemed to be satisfied and
discharged, this bond shall cease to secure in any manner any senior notes
outstanding under the Senior Note Indenture, and, pursuant to Section 4.08 of
the Senior Note Indenture, the Senior Note Trustee shall forthwith deliver this
bond to the Company for cancellation.
Upon any payment of the principal of, premium, if any, and interest on,
all or any portion of the Series -- Notes, whether at maturity or prior to
maturity by redemption or otherwise or upon provision for the payment thereof
having been made in accordance with Section 5.01(a) of the Senior Note
Indenture, Senior Note Series -- Bonds in a principal amount equal to the
principal amount of such Series --- Notes and having both a corresponding
maturity date and interest rate shall, to the extent of such payment of
principal, premium, if any, and interest, be deemed paid and the obligation of
the Company thereunder to make such payment shall be discharged to such extent
and, in the case of the payment of principal (and premium, if any) such bonds of
said series shall be surrendered to the Company for cancellation as provided in
Section 4.08 of the Senior Note Indenture. The Trustee may at anytime and all
times conclusively assume that the obligation of the Company to make payments
with respect to the principal of and premium, if any, and interest on the Senior
Note Series -- Bonds, so far as such payments at the time have become due, has
been fully satisfied and discharged pursuant to the foregoing sentence unless
and until the Trustee shall have received a written notice from the Senior Note
Trustee signed by one of its officers stating (i) that timely payment of, or
premium or interest on, the Series -- Notes has not been made, (ii) that the
Company is in arrears as to the payments required to be made by it to the Senior
Note Trustee pursuant to the Senior Note Indenture, and (iii) the amount of the
arrearage.
For purposes of Section 4.09 of the Senior Note Indenture, this bond shall
be deemed to be the "Related Series of Senior Note First Mortgage Bonds" in
respect of the Series -- Notes.
-12-
<PAGE>
The Mortgage contains provisions permitting the holders of not less than
seventy-five per centum (75%) in principal amount of all the bonds at the time
outstanding, determined and evidenced as provided in the Mortgage, or in case
the rights under the Mortgage of the holders of bonds of one or more, but less
than all, of the series of bonds outstanding shall be affected, the holders of
not less than seventy-five per centum (75%) in principal amount of the
outstanding bonds of such one or more series affected, except that if any such
action would affect the bonds of two or more series, the holders of not less
than seventy-five per centum (75%) in principal amount of outstanding bonds of
such two or more series, which need not include seventy-five per centum (75%) in
principal amount of outstanding bonds of each of such series, determined and
evidenced as provided in the Mortgage, on behalf of the holders of all the
bonds, to waive any past default under the Mortgage and its consequences except
a completed default, as defined in the Mortgage, in respect of the payment of
the principal of or interest on any bond or except a default arising from the
creation of any lien ranking prior to or equal with the lien of the Mortgage on
any of the mortgaged property, subject to the condition that, in case the rights
of the holders of less than all of the series of bonds outstanding shall be
affected, no waiver of any past default or its consequences shall be effective
unless approved by the holders of not less than a majority of all the bonds at
the time outstanding. The Mortgage also contains provisions permitting the
Company and the Trustee, with the consent of the holders of not less than
seventy-five per centum (75%) in principal amount of all the bonds at the time
outstanding, determined and evidenced as provided in the Mortgage, or in case
the rights under the Mortgage of the holders of bonds of one or more, but less
than all, of the series of bonds outstanding shall be affected, then with the
consent of the holders of not less than seventy-five per centum (75%) in
principal amount of the outstanding bonds of such one or more series affected,
except that if any such action would affect the bonds of two or more series, the
holders of not less than seventy-five per centum (75%) in principal amount of
outstanding bonds of such two or more series, which need not include
seventy-five per centum (75%) in principal amount of outstanding bonds of each
of such series, determined and evidenced as provided in the Mortgage, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Mortgage or modifying in any manner the
rights of the holders of the bonds and coupons thereunto appertaining; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any bonds, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or, subject to the provisions
of the Mortgage, limit the right of a bondholder to institute suit for the
enforcement of payment of principal or interest in accordance with the terms of
the bonds, without the consent of the holder of each bond so affected, or (ii)
reduce the aforesaid percentage of bonds, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all
-13-
<PAGE>
bonds then outstanding, or (iii) permit the creation of any lien ranking prior
to or equal with the lien of the Mortgage on any of the mortgaged property
without the consent of the holders of all bonds then outstanding, or (iv)
deprive the holder of any outstanding bond of the lien of the Mortgage on any of
the mortgaged property. Any such waiver or consent by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be conclusive and
binding upon such holder and upon all future holders of this bond, irrespective
of whether or not any notation of such waiver or consent is made upon this bond.
No reference herein to the Mortgage and no provision of this bond or of
the Mortgage shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this bond at
the time and place and at the rate and in the coin or currency herein
prescribed.
The Senior Note Series -- Bonds are issuable only in fully registered form
and shall be issued only as one single bond.
The Senior Note Series -- Bonds may be redeemed at the option of the
Company at the times and upon the terms and conditions set forth in the Mortgage
upon mailing of a notice from the Company to the Trustee not less than thirty
(30) days and not more than sixty (60) days prior to the redemption date. Notice
of any such redemption shall be given by the Trustee to the Senior Note Trustee,
as the holder of the Senior Note Series -- Bonds, as provided in the Mortgage.
The Mortgage provides that any notice of redemption of bonds may state
that it is subject to the receipt of the redemption moneys by the Trustee before
the date fixed for redemption and such notice shall be of no effect unless such
moneys are received before such date.
The Mortgage provides that if the Company shall deposit with the Trustee
in trust for the purpose funds sufficient to pay the principal of all of the
bonds of any series, or such of the bonds of any series as have been or are to
be called for redemption, and premium, if any, thereon, and all interest payable
on such bonds to the date on which they become due and payable, at maturity or
upon redemption or otherwise, and complies with the other provisions of the
Mortgage in respect thereof, then from the date of such deposit such bonds shall
no longer be secured by the lien of the Mortgage.
The Mortgage provides that, upon any partial redemption of a fully
registered bond, upon surrender thereof endorsed for transfer, new bonds of the
same series and of authorized denominations in principal amount equal to the
unredeemed portion of such fully registered bond will be delivered without
charge in exchange therefor.
-14-
<PAGE>
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a completed default as in
the Mortgage provided.
This bond is not transferable except (i) as required to effect an
assignment to a successor Trustee under the Senior Note Indenture, (ii) pursuant
to Section 4.05 or Section 4.08 of the Senior Note Indenture, or (iii) in
compliance with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. This bond shall
be exchangeable for other registered bonds of the same series and for the same
aggregate principal amount, in the manner and upon the conditions prescribed in
the Mortgage, upon the surrender of such bonds at the office or agency of the
Company in the Borough of Manhattan, the City of New York. However,
notwithstanding the provisions of Section 2.03 of the Mortgage, no charge shall
be made upon any registration of transfer or exchange of bonds of said series
other than for any tax or taxes or other governmental charge required to be paid
by the Company. The Company and the Trustee, any paying agent and any bond
registrar may deem and treat the person in whose name this bond is registered as
the absolute owner hereof, whether or not this bond shall be overdue, for the
purpose of receiving payment and for all other purposes and neither the Company
nor the Trustee nor any paying agent nor any bond registrar shall be affected by
any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Mortgage, or in any bond or coupon thereby secured, or because of any
indebtedness thereby secured, shall be had against any incorporator, or against
any past, present or future stockholder, officer or director, as such, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation under any rule of law, statute or constitution, or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise; it being expressly agreed and understood that the Mortgage, and the
obligations thereby secured, are solely corporate obligations, and that no
personal liability whatever shall attach to, or be incurred by, such
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them because of the incurring of the
indebtedness thereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in the Mortgage or in any of the bonds or
coupons thereby secured, or implied therefrom.
This bond shall not become valid or obligatory for any purpose until
UNITED STATES TRUST COMPANY OF NEW YORK, the Trustee under the Mortgage, or its
successor thereunder, shall have signed the certificate of authentication
endorsed hereon.
-15-
<PAGE>
IN WITNESS WHEREOF, JERSEY CENTRAL POWER & LIGHT COMPANY has caused this
bond to be signed in its name by the manual or facsimile signature of its
President or one of its Vice Presidents and its corporate seal, or a facsimile
thereof, to be affixed hereto and attested by the manual or facsimile signature
of its Secretary or one of its Assistant Secretaries.
Dated:
JERSEY CENTRAL POWER & LIGHT COMPANY
By:
-------------------------------
(Vice) President
Attest:
- ---------------------------------
(Assistant) Secretary
-16-
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated, provided
for in the within-mentioned Mortgage.
UNITED STATES TRUST COMPANY OF NEW YORK
By:
----------------------------------
Authorized Officer
[END OF FORM OF SENIOR NOTE SERIES -- BOND]
ARTICLE III.
MISCELLANEOUS
SECTION 3.01. For all purposes hereof, except as the context may otherwise
require, (a) all terms contained herein shall have the meanings given such terms
in, and (b) all references herein to sections of the Original Indenture shall be
deemed to be to such sections of, the Original Indenture as the same heretofore
has been or hereafter may be amended by an indenture or indentures supplemental
thereto.
SECTION 3.02. As amended and supplemented by the aforesaid indentures
supplemental thereto and by this Fifty-second Supplemental Indenture, the
Original Indenture is in all respects ratified and confirmed and the Original
Indenture and the aforesaid indentures supplemental thereto and this
Fifty-second Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
SECTION 3.03. This Fifty-second Supplemental Indenture shall be
simultaneously executed in several counterparts, and all such counterparts
executed and delivered, each as an original, shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, JERSEY CENTRAL POWER & LIGHT COMPANY, party of the
first part, has caused this instrument to be signed in its name and behalf by
its President or a Vice President, and its corporate seal to be hereunto affixed
and attested by its Secretary or an Assistant Secretary and United States Trust
Company of New York, as Successor Trustee as aforesaid, the party of the second
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<PAGE>
part, in token of its acceptance of the trust hereby created, has caused this
instrument to be signed in its name and behalf by an Authorized Officer and its
corporate seal to be hereunto affixed and attested by an Authorized Officer, all
as of the day and year first above written.
JERSEY CENTRAL POWER & LIGHT COMPANY
By:
-------------------------------------
(Vice) President
ATTEST:
- ---------------------------------
(Assistant) Secretary
Signed, sealed and delivered by
JERSEY CENTRAL POWER & LIGHT COMPANY
in the presence of:
- ---------------------------------
- ---------------------------------
UNITED STATES TRUST COMPANY
OF NEW YORK
As Successor Trustee as aforesaid
By:
-------------------------------------
Vice President
ATTEST:
- ---------------------------------
Assistant Secretary
Signed, sealed and delivered by
UNITED STATES TRUST COMPANY
OF NEW YORK in the presence of:
- ---------------------------------
- ---------------------------------
-18-
<PAGE>
STATE OF NEW JERSEY )
ss.:
COUNTY OF MORRIS )
BE IT REMEMBERED that on this ---------- day of ------, 1999 before me,
the subscriber, a notary public in and for said County and State, personally
appeared ---------------------, an (Assistant) Secretary of JERSEY CENTRAL POWER
& LIGHT COMPANY, the corporation named in and which executed the foregoing
instrument, who, being by me duly sworn according to law, does depose and say
and make proof to my satisfaction that he resides at
- --------------------------------------; that he is an (Assistant) Secretary of
JERSEY CENTRAL POWER & LIGHT COMPANY; that the seal affixed to said instrument
is the corporate seal of said corporation, the same being well known to him;
that it was so affixed by the order of the Board of Directors of said
corporation; that --------------- is a (Vice) President of said corporation;
that he saw said --------------- as such (Vice) President sign such instrument,
and affix said seal thereto and deliver said instrument and heard him declare
that he signed, sealed and delivered said instrument as the voluntary act and
deed of said corporation by its order and by order of its Board of Directors,
for the uses and purposes therein expressed; and that the said
- ------------------ signed his name thereto at the same time as subscribing
witness, and that Jersey Central Power & Light Company, the mortgagor, has
received a true copy of said instrument.
-------------------------------------
(Assistant) Secretary
Subscribed and sworn to
before me the day and
year aforesaid
-------------------------------------
[NOTARIAL SEAL]
-19-
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this --------------- day of -----------, 1999
before me, the subscriber, a notary public in and for said County and State,
personally appeared ------------------, an Assistant Secretary of UNITED STATES
TRUST COMPANY OF NEW YORK, the corporation named in and which executed the
foregoing instrument, who, being by me duly sworn according to law, does depose
and say and make proof to my satisfaction that he resides at
- ---------------------------; that he is an Assistant Secretary of UNITED STATES
TRUST COMPANY OF NEW YORK; that the seal affixed to said instrument is the
corporate seal of said corporation, the same being well known to him; that it
was so affixed by him pursuant to authority granted by the Board of Directors of
said corporation; that ----------------- is a Vice President of said
corporation; that he saw said ----------------- as such Vice President sign and
deliver said instrument and heard him declare that he signed and delivered said
instrument as the voluntary act and deed of said corporation pursuant to
authority granted by its Board of Directors, for the uses and purposes therein
expressed; and that the said --------------- signed his name thereto at the same
time as subscribing witness.
-------------------------------------
Assistant Secretary
Subscribed and sworn to
before me the day and
year aforesaid
-------------------------------------
[NOTARIAL SEAL]
-20-
<PAGE>
STATE OF NEW JERSEY )
ss.:
COUNTY OF MORRIS )
On this ----------- day of ----------, 1999, before me came
- -------------------, to me known, who, being by me duly sworn, did say that he
resides at ---------------------------; that he is a (Vice) President of JERSEY
CENTRAL POWER & LIGHT COMPANY, one of the corporations described in and which
executed the above instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that said seal was
so affixed by order of the Board of Directors of said corporation; and that he
signed his name to said instrument by like order.
-------------------------------------
Subscribed and sworn to
before me the day and
year aforesaid
[NOTARIAL SEAL]
-21-
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this ---------- day of ------------, 1999, before me came
- ------------------------, to me known, who, being by me duly sworn, did say that
he resides at -----------------------------; that he is a Vice President of
UNITED STATES TRUST COMPANY OF NEW YORK, one of the corporations described in
and which executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that said seal was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name to said instrument by like authority.
-------------------------------------
Subscribed and sworn to
before me the day and
year aforesaid
[NOTARIAL SEAL]
-22-
<PAGE>
CERTIFICATE OF RESIDENCE
United States Trust Company of New York, Successor Trustee within named,
hereby certifies that its precise residence is 114 West 47th Street, in the
Borough of Manhattan, in the City of New York, in the State of New York.
UNITED STATES TRUST COMPANY OF NEW YORK
By:
------------------------------
Vice President
-23-
EXHIBIT 5
[Berlack, Israels & Liberman LLP Letterhead]
May 18, 1999
Jersey Central Power & Light Company
2800 Pottsville Pike
Reading, Pennsylvania 19605
Re: Registration Statement on Form S-3
--- ----------------------------------
Ladies and Gentlemen:
Jersey Central Power & Light Company (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. The Registration Statement relates to the proposed issuance and sale
by the Company of up to $100,000,000 aggregate principal amount of senior notes
("Senior Notes"). The Senior Notes are to be issued by the Company pursuant to
an indenture between the Company and United States Trust Company of New York, as
Trustee (the "Senior Note Indenture"). The Senior Notes will be secured by first
mortgage bonds ("Senior Note First Mortgage Bonds") until a release date.
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, including the form of Senior Note Indenture, and
made such further investigation as we have deemed necessary as a basis for this
opinion.
For the 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) all necessary corporate action required
on the part of the Company shall have been duly taken, (3) the Commission shall
have issued an order declaring the Registration Statement effective under the
1933 Act, (4) the Senior Note Indenture shall have been qualified under the
Trust Indenture Act
<PAGE>
Jersey Central Power & Light Company
May --, 199
Page 2
of 1939, as amended, and (5) the issuance and sale of the Senior Notes do not
violate Section 12(f) of the Public Utility Holding Company Act of 1935, as
amended, or Rule 70 thereunder.
Based upon the foregoing, we are of the opinion that, subject to the
foregoing assumptions and qualifications, when properly authenticated and
delivered by the Trustee under the Senior Note Indenture, the Senior Notes 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 (including,
without limitation, the Atomic Energy Act and applicable regulations of the
Nuclear Regulatory Commission thereunder) and general equitable principles.
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
Exhibit 12B
JERSEY CENTRAL POWER & LIGHT COMPANY AND SUBSIDIARY COMPANY
STATEMENTS SHOWING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
BASED ON SEC REGULATION S-K, ITEM 503
(In Thousands)
UNAUDITED
Twelve
Months Ended
March 31,
1999
-------------
OPERATING REVENUES $2,114,203
----------
OPERATING EXPENSES 1,649,335
Interest portion of rentals (A) 11,538
----------
Net expense 1,637,797
----------
OTHER INCOME:
Allowance for funds used
during construction 1,952
Other income, net 13,981
----------
Total other income 15,933
----------
EARNINGS AVAILABLE FOR FIXED CHARGES
(excluding taxes based on income) $ 492,339
==========
FIXED CHARGES:
Interest on funded indebtedness $ 87,275
Other interest (B) 21,979
Interest portion of rentals (A) 11,538
----------
Total fixed charges $ 120,792
==========
RATIO OF EARNINGS TO FIXED CHARGES 4.08
====
NOTES:
(A) JCP&L 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) Includes dividends on company-obligated mandatorily redeemable preferred
securities of $10,700 for the twelve month period ended March 31, 1999.
Exhibit 23-B
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Jersey Central Power and Light Company (the "Company") on Form S-3
of our report, dated February 3, 1999, on our audits of the consolidated
financial statements and financial statement schedule of Jersey Central Power
and Light Company as of December 31, 1998 and 1997, and for each of the three
years in the period ended December 31, 1998, which report is included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1998. We
also consent to the reference to our Firm under the caption "Experts" in such
Registration Statement.
PricewaterhouseCoopers L.L.P.
New York, New York
May 17, 1999
Exhibit 25-A
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)
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UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(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)
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Jersey Central Power & Light Company
(Exact name of obligor as specified in its charter)
New Jersey 21-0485010
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
2800 Pottsville Pike
Reading, Pennsylvania 19605
(Address of principal executive offices) (Zip Code)
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% Senior Notes
(Title of the indenture securities)
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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:
Jersey Central Power & Light Company 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 -- Organization Certificate, as amended, issued by the
State of New York Banking Department to transact
business as a Trust Company, is incorporated by
reference to Exhibit T-1.1 to Form T-1 filed on
September 15, 1995 with the Commission pursuant to the
Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056).
T-1.2 -- Included in Exhibit T-1.1.
T-1.3 -- Included in Exhibit T-1.1.
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16. List of Exhibits
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New York,
as amended, is incorporated by reference to Exhibit
T-1.4 to Form T-1 filed on September 15, 1995 with the
Commission pursuant to the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990
(Registration No.
33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of May 12, 1999, 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.
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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 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 13th day
of May, 1999.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By:
------------------------
Louis P. Young
Vice President
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Exhibit T-1.6
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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
January 7, 1997
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
/s/Gerard F. Ganey
-----------------------------
By: Gerard F. Ganey
Senior Vice President
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EXHIBIT T-1.7
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UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
DECEMBER 31, 1998
($ IN THOUSANDS)
ASSETS
Cash and Due from Banks $ 104,220
Short-Term Investments 207,292
Securities, Available for Sale 578,874
Loans 2,061,582
Less: Allowance for Credit Losses 17,199
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Net Loans 2,044,383
Premises and Equipment 58,263
Other Assets 124,079
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Total Assets $3,117,111
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LIABILITIES
Deposits:
Non-Interest Bearing $ 709,221
Interest Bearing 1,908,861
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Total Deposits 2,618,082
Short-Term Credit Facilities 170,644
Accounts Payable and Accrued Liabilities 146,324
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Total Liabilities $2,935,050
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STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 53,041
Retained Earnings 111,402
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 2,623
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Total Stockholder's Equity 182,061
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Total Liabilities and
Stockholder's Equity $3,117,111
==========
I, Richard E. Brinkmann, Managing Director & 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, Managing Director & Controller
February 1, 1999
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