SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date earliest event reported) April 20, 1999
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PENNSYLVANIA ELECTRIC COMPANY
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(Exact Name of Registrant as Specified in Charter)
PENNSYLVANIA 1-3522 25-0718085
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
2800 Pottsville Pike, Reading, PA 19640-001
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (610)929-3601
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Item 5. Other Events.
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On April 20, 1999, Pennsylvania Electric Company (the "Company") entered
into an Underwriting Agreement with Salomon Smith Barney Inc., ABN AMRO
Incorporated, J.P. Morgan Securities Inc., NationsBanc Montgomery Securities LLC
and Warburg Dillion Read LLC, as representatives of the several underwriters,
including themselves, named in Schedule II thereto (the "Underwriters"),
providing for the issuance and sale of $125,000,000 aggregate principal amount
of Senior Notes, 5.750% Series A due 2004; $100,000,000 aggregate principal
amount of Senior Notes, 6.125% Series B due 2009; and $125,000,000 aggregate
principal amount of Senior Notes, 6.625% Series C due 2019. Reference is made to
the Company's Prospectus dated April 20, 1999, for further information regarding
the offering, including the use of proceeds.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits
(1) Underwriting Agreement, dated April 20, 1999, between
Pennsylvania Electric Company and Salomon Smith Barney
Inc., ABN AMRO Incorporated, J.P Morgan Securities Inc.,
NationsBanc Montgomery Securities LLC and Warburg Dillion
Read LLC, as representatives.
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SIGNATURES
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED HEREUNTO DULY AUTHORIZED.
Pennsylvania Electric Company
By: /s/ T. G. Howson
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T.G.Howson
Vice President and Treasurer
Date: April 26, 1999
EXHIBIT TO BE FILED BY EDGAR
(c) 1. Pennsylvania Electric Company Underwriting Agreement dated
April 20, 1999.
Exhibit (c) 1.
PENNSYLVANIA ELECTRIC COMPANY
$125,000,000 Senior Notes, 5.750% Series A due 2004
$100,000,000 Senior Notes, 6.125% Series B due 2009
$125,000,000 Senior Notes, 6.625% Series C due 2019
Underwriting Agreement
New York, New York
April 20, 1999
To the Representatives named in
Schedule I hereto of the
Underwriters named in Schedule
II hereto
Ladies and Gentlemen:
Pennsylvania Electric Company, a corporation organized under the
laws of Pennsylvania (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Indenture") dated as of April 1, 1999, between the
Company and United States Trust Company of New York, as trustee (the "Trustee").
To the extent there are no additional Underwriters listed on Schedule II other
than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
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1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. The Company
may have filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to you.
The Company will next file with the Commission a final prospectus in
accordance with Rules 415 and 424(b). As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall, except to the extent the Representatives shall agree in writing
to a modification, be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) The documents incorporated by reference in the Final
Prospectus, when they were filed with the Commission, complied in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and any further
documents so filed and incorporated by reference in the Final Prospectus
(together with any supplement thereto), when such documents are filed
with the Commission, will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Final Prospectus in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Final Prospectus.
(c) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein),
the Final Prospectus (and any
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supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, and the Trust Indenture Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Closing Date
the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto), but nothing contained herein is intended as a waiver of
compliance with the Act or any rule or regulation of the Commission
thereunder.
(d) The Company has been duly incorporated and is validly
subsisting as a corporation in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(e) The Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms.
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(g) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(h) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been obtained
under the Act and the Trust Indenture Act, and the approval of the
Pennsylvania Public Utility Commission (the "PaPUC"), and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus.
(i) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or
any of its subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their
properties.
(j) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Final
Prospectus and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows
of the Company as of the dates and for the periods indicated, comply as
to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein).
(k) Other than as set forth or incorporated by reference in the
Final Prospectus, no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property is
pending or, to the best knowledge of the Company, threatened that (i)
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could reasonably be expected to have a material adverse effect on the
Company's performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), business prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth or incorporated by reference in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(l) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, or (ii) the terms
of any material indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other material agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject.
(m) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than five Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the
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Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price therefor to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final Prospectus
or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if filing of the Final Prospectus is otherwise
required under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its
best
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efforts to prevent the issuance of any such stop order or the suspension
of any such qualification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus
to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earning statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the offering;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
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(f) The Company will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
person in privity with the Company) directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than (i) the
Securities, (ii) commercial paper obligations and (iii) ordinary
short-term bank debt) or publicly announce an intention to effect any
such transaction, until the Business Day set forth on Schedule I hereto.
(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 9:30 AM on the Business
Day following the day on which the public offering price was determined,
if such determination occurred after 3:00 PM New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
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(b) The Company shall have requested and caused Berlack, Israels
& Liberman LLP and Ballard Spahr Andrews & Ingersoll, LLP, counsel for
the Company, to have furnished to the Representatives their opinions,
dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) The Company is duly incorporated and is validly
subsisting as a corporation in good standing under the
laws of its jurisdiction of incorporation with full
corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its
business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which
requires such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(ii) The Securities conform in all material
respects to the description thereof contained in the Final
Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other
laws affecting creditors' rights generally from time to
time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law);
the Securities have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for
by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture; and the
Indenture conforms in all material respects to the
description thereof contained in the Final Prospectus;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or
before any court or governmental
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agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their
property, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed
in the Final Prospectus, and to the best of such counsel's
knowledge there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as
required;
(v) The documents incorporated by reference in the
Final Prospectus or any amendment or supplement thereto
(other than the financial statements and other financial
or statistical data contained therein, as to which such
counsel need express no opinion), when they became
effective or were filed with the Commission, as the case
may be, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(vi) the Registration Statement has become
effective under the Act; to the knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and other financial or
statistical information contained therein, as to which
such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of
the Act and the Trust Indenture Act and the respective
rules thereunder; and that they do not know of any
amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into
the Final Prospectus or required to be described in the
Registration Statement or the Final Prospectus which are
not filed or incorporated by reference or described as
required;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Company is not and, after giving effect
to the offering and sale of the Securities and the
application of the proceeds thereof as
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described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company
Act of 1940, as amended;
(ix) no consent, approval, authorization, filing
with or order of any court or governmental agency or body
is required in connection with the transactions
contemplated herein, except such as have been obtained
under the Act, the Pennsylvania Public Utility Code and
the Trust Indenture Act and such as may be required under
the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement
and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained; and
(x) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company (i) pursuant to, the
charter or by-laws of the Company, (ii) to the best of
such counsel's knowledge, pursuant to, the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or
its subsidiaries is a party or bound or to which its or
their property is subject, or (iii) pursuant to any
statute, law, rule, regulation, judgment, order or decree
applicable to the Company of any court, regulatory body,
administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or
its subsidiaries or any of its or their properties.
In addition, each such counsel shall state that although they do not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Final
Prospectus, except for those covered by their opinion in subsection (ii)
of this section 6(b), such counsel has no reason to believe that on the
Effective Date the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on the
Closing Date included or
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includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(in each case, other than the financial statements and other financial
or statistical information contained therein, as to which such counsel
need express no view);
In rendering such opinion, (A) Berlack, Israels & Liberman LLP may rely
upon the opinion of Ballard Spahr Andrews & Ingersoll, LLP as to matters
involving the Commonwealth of Pennsylvania and (B) as to matters of
fact, to the extent they deem proper, such counsel may rely on
certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Thelen Reid &
Priest LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President or a Vice President
and the principal financial or accounting officer or Vice President -
Treasurer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Final Prospectus (exclusive of any
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supplement thereto), there has been no material adverse
effect on the condition (financial or otherwise), business
prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at
the Closing Date, a letter, dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited financial
statements and financial statement schedules and pro forma
financial statements included or incorporated by reference
in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited interim financial statements, if any, made
available by the Company and its subsidiaries; a reading
of the minutes of the meetings of the Board of Directors,
Committees of the Board of Directors, and the Stockholder
of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31,
1998, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial
statements included or incorporated by reference in
the Registration Statement and the Final Prospectus
do not comply as to form in all material respects
with applicable accounting requirements of the Act
and with the related rules and regulations adopted
by the Commission with respect to financial
statements included or incorporated by reference in
quarterly reports on Form 10-Q
13
<PAGE>
under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on
a basis substantially consistent with that of the
audited financial statements included or
incorporated by reference in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to
December 31, 1998, there were any changes, at a
specified date not more than five days prior to the
date of the letter, in the common stock, cumulative
preferred stock without mandatory redemption,
company-obligated mandatorily redeemable preferred
securities or long-term debt of the Company or
decreases in the common stockholder's equity
(except as occasioned by the declaration of
dividends) as compared with the amounts shown on
the December 31, 1998 consolidated balance sheet
included or incorporated by reference in the
Registration Statement and the Final Prospectus, or
for the period from January 1, 1999 to such
specified date there were any decreases, as
compared with the corresponding period in the
preceding year in operating income or net income of
the Company and its subsidiaries, except in all
instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated
by reference in the Registration Statement and
Final Prospectus in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402
(Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of
Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the
14
<PAGE>
general accounting records of the Company and its subsidiaries)
set forth in the Registration Statement and the Final Prospectus
and in Exhibit 12 to the Registration Statement, the information
included or incorporated by reference in Items 1, 2, 6, 7 and 11
of the Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final Prospectus,
and the pro forma information appearing as Exhibit 99 to the
Company's Annual Report on Form 10-K, incorporated by reference
in the Registration Statement and the Final Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation;
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company who
have responsibility for financial and accounting matters; and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 6 or (ii)
any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make
15
<PAGE>
it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act) or any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6
shall be delivered at the office of Berlack, Israels & Liberman LLP,
counsel for the Company, at 120 West 45th Street, New York, New York
10036, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6
hereof is not satisfied, because of any termination pursuant to Section
10 hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally through Salomon Smith
Barney on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities.
16
<PAGE>
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein; provided, further, that with respect to any untrue
statement or omission of material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall
not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs under the circumstances where it
shall have been determined by a court of competent jurisdiction by final
and nonappealable judgment that (w) the Company had previously furnished
copies of the Final Prospectus to the Representatives, (x) delivery of
the Final Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Final Prospectus was corrected in the Final Prospectus and
(z) there was not sent or given to such person, at or prior to the
written confirmation of the sale of the Securities to such person, a
copy of the Final Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
17
<PAGE>
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (i)
the list of Underwriters and their respective participation in the sale
of the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraphs related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary
Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent such
failure results in the loss by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel retained in the indemnified party's reasonable
judgment), and the indemnifying party shall bear the
18
<PAGE>
reasonable fees, costs and expenses of such separate counsel if (i) the
actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded upon advice of counsel
that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, or (ii) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is held unavailable, in whole or in part,
to hold harmless an indemnified party for any reason, the Company and
the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is held unavailable for
any reason, the Company and the Underwriters severally shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page
of the Final Prospectus. Relative
19
<PAGE>
fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate
principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, then the Company shall be entitled to a
period of thirty-six hours with which to procure another party or other
parties reasonably satisfactory to the Representatives to purchase such
remaining
20
<PAGE>
Securities on the terms contained herein; if after giving effect to
arrangements for the purchase of the Securities of the defaulting
Underwriter or Underwriters by the nondefaulting Underwriters and the
Company, unpurchased Securities still remain, this Agreement will
terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the
Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the
Securities, if at any time prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on either of such
Exchanges, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred
any new outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Final Prospectus.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and
other statements of the Company and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telefaxed to the Salomon
Smith Barney Inc. General Counsel (fax no.: (212) 816-7912) and
confirmed to the General Counsel, Salomon Smith Barney Inc., at 388
Greenwich Street, New York, New York,
21
<PAGE>
10013, Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to Mr. Terrance G. Howson, Vice President
and Treasurer GPU Services, Inc., 310 Madison Avenue, Morristown, New
Jersey 07962-1957, (fax no.: (973) 644-4224) and confirmed to it at
Berlack, Israels & Liberman LLP, attention Douglas E. Davidson, Esq.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New
York.
15. Counterparts. This Agreement may be signed in two or
more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. Headings. The section headings used herein are
for convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used
in this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended
and the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to
in paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean the later of (a) each date and
time that the Registration Statement, any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement became or
become effective and
22
<PAGE>
(b) the date of the filing with the Commission of the Company's most
recent Annual Report on Form 10-K.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration
statement referred to in paragraph 1(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be.
"Rule 415", "Rule 424" and "Rule 462" refer to such rules
under the Act.
"Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to Rule
462(b) relating to the offering covered by the registration statement
referred to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act
of 1939, as amended and the rules and regulations of the Commission
promulgated thereunder.
23
<PAGE>
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a
binding agreement among the Company and the several Underwriters.
Very truly yours,
PENNSYLVANIA ELECTRIC COMPANY
By: /s/ T.G. Howson
-------------------------------
Name: T.G. Howson
Title: Vice President & Treasurer
24
<PAGE>
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Smith Barney Inc.
ABN AMRO Incorporated
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities LLC
Warburg Dillon Read LLC
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
By: Salomon Smith Barney Inc.
/s/ Joyce E. Erony
------------------------------
Name: Joyce E. Erony
Title: Director
25
<PAGE>
SCHEDULE I
Underwriting Agreement dated April 20, 1999
Registration Statement Nos.:
333-62295, 333-62295-01, 333-62295-02
Representatives:
Salomon Smith Barney Inc.
ABN AMRO Incorporated
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities LLC
Warburg Dillon Read LLC
Title, Purchase Price and Description of Securities:
Principal Purchase
Title Amount Price (1)
Senior Notes, 5.750% Series A due 2004 $125,000,000 $124,176,250
Senior Notes, 6.125% Series B due 2009 $100,000,000 $ 99,304,000
Senior Notes, 6.625% Series C due 2019 $125,000,000 $123,846,250
Sinking fund provisions: None
Redemption provisions:
The Securities are redeemable at the Company's option at prices
equal to the greater of (1) 100% of the principal amount of the
Securities to be redeemed or (2) the sum of the present values of
the Remaining Scheduled Payments (as defined in the Final
Prospectus) discounted, on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months), at a rate equal to the
sum of the Treasury Rate (as defined in the Final Prospectus)
and:
10 basis points for the Series A Notes
15 basis points for the Series B Notes
20 basis points for the Series C Notes.
- --------------------
(1) Includes accrued interest or amortization, if any.
26
<PAGE>
Other provisions: None
Closing Date, Time and Location: April 27, 1999 at 10:00 a.m. at
Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
April 27, 1999
Modification of items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant to
Section 6(e) at the Execution Time:
27
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE II
Principal Amount of Securities to be Purchased
----------------------------------------------
Senior Notes, 5.750% Senior Notes, 6.125% Senior Notes, 6.625%
Underwriters Series A, due 2004 Series B, due 2009 Series C, due 2019
------------ ------------------ ------------------ --------------------
<S> <C> <C> <C>
Salomon Smith Barney, $ 75,000,000 $ 60,000,000 $75,000,000
Inc.
ABN AMRO Inc. 12,500,000 10,000,000 12,500,000
J. P. Morgan Securities, 12,500,000 10,000,000 12,500,000
Inc.
NationsBanc Montgomery 12,500,000 10,000,000 12,500,000
Securities LLC
Warburg Dillon Read LLC 12,500,000 10,000,000 12,500,000
----------- ----------- -----------
Total $125,000,000 $100,000,000 $125,000,000
============ ============ ============
28
</TABLE>
