Exhibit (c) (1)
$100,000,000
JERSEY CENTRAL POWER & LIGHT COMPANY
Medium-Term Notes
Due From One Year to 35 Years from Date of Issue
DISTRIBUTION AGREEMENT
----------------------
July 30, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned, Jersey Central Power & Light Company, a New Jersey
corporation (the "Company"), has authorized by appropriate corporate action and
proposes to issue and sell in the manner contemplated by this Distribution
Agreement (this "Agreement") Notes (as defined in Section 2(b) hereof) in an
aggregate principal amount not to exceed $100,000,000. The Company hereby
confirms its agreement with you (individually, an "Agent" and collectively the
"Agents") as follows:
1. Appointment of Agents. Subject to the terms and conditions stated
in this Agreement, the Company hereby appoints each Agent as the agent of the
Company for the purpose of offering and soliciting offers to purchase the Notes
(any offer to purchase Notes solicited by an Agent being hereinafter referred to
as a "Solicited Offer"). In the event the Company shall sell Notes to any
purchaser of Notes during the period between the date on which the Company
accepted a Solicited Offer from such purchaser under the terms and conditions of
this Agreement and the Settlement Date (as defined in Section 4(b) hereof) and
the Company shall default on its obligation to deliver the Notes to such
purchaser, the Company shall be obligated to pay the Agent a commission for such
Notes as set forth in Exhibit B hereto. The
Agents are not authorized to appoint sub-agents or to engage the services of any
other broker or dealer in connection with the offer or sale of the Notes, except
as contemplated by Section 5(c) hereof.
2. Description of Notes; Registration Statement.
a. Description of Notes. The Company proposes to issue the Notes
under its Indenture between the Company and United States Trust Company of
New York, as trustee (the "Trustee"), dated as of July 1, 1999, as
supplemented from time to time pursuant to the terms thereof by one or
more Supplemental Indentures (the "Supplemental Indentures") in
substantially the form heretofore delivered to the Agents (such Indenture,
as so supplemented, being hereinafter referred to as the "Indenture").
Until the Release Date (hereinafter defined), the Notes will be secured by
one or more series of the Company's First Mortgage Bonds (the "Senior Note
First Mortgage Bonds"). Upon the issuance of each series of Notes prior to
the Release Date, the Company will simultaneously issue and deliver to the
First Mortgage Trustee (hereinafter defined), as security for all the
Notes, a series of Senior Note First Mortgage Bonds, in the same aggregate
principal amount and having the same stated interest rate and maturity
date and other terms as the corresponding series of Notes being issued, as
described in the Prospectus (hereinafter defined). Each series of the
Senior Note First Mortgage Bonds will be issued and delivered pursuant to
the Indenture between the Company and United States Trust Company of New
York, as successor trustee (the "First Mortgage Trustee"), dated as of
March 1, 1946, as heretofore supplemented and as it is to be further
supplemented by a Supplemental Indenture (the "First Mortgage Bonds
Supplemental Indenture") in connection with each series of Senior Note
First Mortgage Bonds in substantially the form heretofore delivered to the
Agents (said Indenture, as heretofore supplemented and as it is to be
further supplemented, being hereinafter referred to as the "Mortgage").
The Release Date will be the earlier of (1) the date that all the
Company's First Mortgage Bonds (other than Senior Note First Mortgage
Bonds) have been retired (whether at, before or after the maturity
thereof) through payment, redemption, repurchase, defeasance or otherwise,
and (2) the date upon which the Trustee holds Senior Note First Mortgage
Bonds constituting not less than 80% in aggregate principal amount of all
First Mortgage Bonds.
The Notes shall have the series designation, denominations, issue
price, maturities, interest rates, redemption provisions, if any, and
other terms as set forth in the Prospectus (as defined in Section 2(b)
hereof). The Notes will be issued, and the terms thereof established, from
time to time by the Company in accordance with the Indenture and the
Procedures (as defined in Section 4(a) hereof).
b. Registration Statement. On May 18, 1999, the Company filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (Registration No. 333-78717) relating to
$100,000,000 aggregate principal amount of the Company's Senior Notes (the
"Notes") and the offering thereof from time to time
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in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Securities Act"), and the Company has filed or will file such
amendments thereto, if any, and such prospectus and amendment thereto, if
any, as may be required to the date hereof. Such registration statement,
as so amended, has been declared effective by the Commission. Such
registration statement as so amended at the date of this Agreement, and
the prospectus constituting a part of such registration statement and all
applicable amendments or supplements thereto, including the prospectus
supplement (the "Prospectus Supplement") and any pricing supplement (each,
a "Pricing Supplement") relating to the offering of the Notes (including,
in each case, all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents")), are hereinafter called the "Registration Statement" and the
"Prospectus", respectively, except that if the Company files any documents
pursuant to Sections 13, 14 or 15 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") after the date of this Agreement and prior
to any Settlement Date (as defined in Section 4(b) hereof), which
documents are deemed to be incorporated by reference in the Prospectus,
the term "Prospectus" shall refer to the Prospectus as supplemented by the
documents so filed from and after the date said documents are mailed or
otherwise delivered for filing to the Commission.
3. Representations and Warranties of the Company. The Company
represents and warrants to each Agent as of the date of this Agreement, as of
the date of each acceptance by the Company of an offer for the purchase of
Notes, as of the date of each delivery of Notes, and as of the times referred to
in Section 8(b) hereof (each a "Representation Date"), as follows:
a. Registration Statement and Prospectus. The Registration
Statement, the Prospectus, the Indenture and the Mortgage comply in all
material respects with the applicable provisions of the Securities Act or
the Trust Indenture Act of 1939, as amended (the "1939 Act"), as the case
may be, and the rules and regulations of the Commission thereunder
(respectively, the "Securities Act Regulations" and the "1939 Act
Regulations"). Neither the Registration Statement nor the Prospectus
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading; provided, that the representations and warranties in
this Section 3(a) shall not apply to statements in or omissions from the
Registration Statement and Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an
Agent expressly for use in the Registration Statement or Prospectus, or to
any statements in or omissions from the Statement of Eligibility and
Qualifications of the Trustee under the Indenture and the First Mortgage
Trustee under the Mortgage, but nothing contained herein is intended as a
waiver of compliance with the Securities Act or the Securities Act
Regulations or any rule or regulation of the Commission thereunder.
b. Incorporated Documents. The Incorporated Documents, when filed
with the Commission, complied and will comply in all material respects
with the applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act
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Regulations"), and, when read together with other information in the
Prospectus, do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they are made, not misleading.
c. 1939 Act. The Indenture and the Mortgage have been duly
authorized and qualified under the 1939 Act.
d. Authorization and Validity of Notes. The Notes have been duly
authorized and will, when issued and paid for as contemplated in this
Agreement and duly authenticated by the Trustee under the Indenture, be
legal, valid and binding obligations of the Company enforceable in
accordance with their terms (except as limited by bankruptcy, insolvency,
fraudulent conveyance or other laws affecting the enforcement of
mortgagees' and creditors' rights generally and by general principles of
equity) and will be entitled to the benefits provided by the Indenture.
e. Authorization and Validity of the Indenture. The Indenture has
been duly authorized by the Company and when duly executed and delivered
by the Company, will constitute legal, valid and binding obligations of
the Company enforceable in accordance with its terms (except as limited by
bankruptcy, insolvency, fraudulent conveyance or other laws affecting the
enforcement of mortgagees' and creditors' rights generally and by general
principles of equity).
f. Authorization and Validity of Senior Note First Mortgage Bonds.
The Senior Note First Mortgage Bonds have been duly authorized and will,
when issued by the Company and duly authenticated by the First Mortgage
Trustee under the Mortgage, be legal, valid and binding obligations of the
Company enforceable in accordance with their terms (except as limited by
bankruptcy, insolvency, fraudulent conveyance or other laws, including,
without limitation, the Atomic Energy Act of 1954 and the regulations
thereunder (the "Atomic Energy Act"), affecting the enforcement of
mortgagees' and creditors' rights generally and by general principles of
equity) and will be entitled to the security afforded by the Mortgage.
g. Authorization and Validity of Mortgage. The Mortgage has been
duly authorized by the Company and when duly executed and delivered by the
Company, will constitute legal, valid and binding obligations of the
Company enforceable in accordance with its terms (except as limited by
bankruptcy, insolvency or other laws, including, without limitation, the
Atomic Energy Act, affecting the enforcement of mortgagees' and creditors'
rights and by general principles of equity).
h. Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent certified accountants with respect to the Company within the
meaning of the Securities Act and the Securities Act Regulations
(hereinafter, the "Independent Accountants").
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i. No Defaults. The performance by the Company of the terms of this
Agreement and the issuance of the Notes and the Senior Note First Mortgage
Bonds will not result in a breach by the Company of any terms of, or
constitute a default under, any material agreement or undertaking of the
Company.
j. Due Incorporation and Qualification. The Company is duly
incorporated and validly existing as a corporation in good standing under
the laws of the state of its incorporation with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company.
k. Regulatory Approvals; Authorizations. The New Jersey Board of
Public Utilities ("NJBPU") has authorized or, prior to any offering or
sale of the Notes by the Company, will have authorized, the issuance of
the Senior Note First Mortgage Bonds and the issuance and sale of the
Notes then being so offered or sold; and no other consent, approval,
authorization, order or decree of any court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1939 Act, the 1939 Act Regulations, the Securities Act, the Securities Act
Regulations or state securities or Blue Sky laws. The Company possesses
such certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct its business as currently operated, except where the failure to
possess such certificate, authorization or permit would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company.
l. Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and
Prospectus, except as otherwise stated therein or contemplated thereby,
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business.
m. Subsidiaries. The Company has no subsidiaries other than JCP&L
Preferred Capital, Inc. and JCP&L Capital, L.P.
4. Administrative Procedures; Settlement.
a. Administrative Procedures. Administrative procedures relating to
the offer and sale of the Notes, the issuance and delivery of certificates
representing the Notes and payment for the Notes are set forth in Exhibit
A (as they may be amended from time to time, the "Procedures"), the terms
of which are incorporated herein by
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reference. Each Agent and the Company agree to perform the respective
duties and obligations to be performed by each of them as provided in the
Procedures. The Procedures may be amended only by a written agreement
between the Company and the Agents. The Agents agree that the principal
amount of Notes to be offered and sold from time to time, and the prices,
denominations, interest rates, maturities, redemption provisions, if any,
and other terms on which the Notes are to be offered and sold will comply
with limitations established by the Company with the Agents in accordance
with the Procedures.
b. Settlement. Delivery of Notes in fully registered form shall be
made in accordance with the Procedures. The date of the delivery to the
Agents of Notes sold against delivery to the Company of funds in payment
therefor is herein called the "Settlement Date."
5. Obligations of the Agents.
a. Solicitations as Agent. On the basis of the representations and
warranties contained herein, but subject to the terms and conditions
herein set forth, each Agent agrees, as agent of the Company, to use its
reasonable best efforts when requested by the Company to solicit offers to
purchase the Notes upon the terms and conditions set forth in the
Prospectus and the Procedures. In soliciting others (including customers
of the Agents) to purchase Notes from the Company, each Agent will be
acting as sales agent for the Company and not as principal. Each Agent
will use its reasonable best efforts to solicit such purchases, provided,
that such Agent may in its sole discretion suspend its efforts from time
to time. Upon acceptance by the Company of a Solicited Offer, the Agent
responsible for such offer will make reasonable efforts to obtain
performance by the prospective purchaser of Notes, but the Agent will have
no liability to the Company if such purchase is not consummated for any
reason.
b. Commissions. Promptly on the Settlement Date, the Company will
pay each Agent a commission in the form of a discount equal to the
applicable percentage of the principal amount of Notes sold by the Company
as a result of Solicited Offers for which such Agent is responsible as set
forth in Exhibit B hereto. No portion of such commission may be reallowed
to dealers or purchasers in connection with the offer and sale of any
Notes. No commission shall be payable with respect to purchases by any
Agent as principal, except in accordance with Section 5(c) hereof.
c. Purchases as Principal. From time to time any Agent may agree
with the Company to purchase Notes from the Company as principal, and, if
requested by such Agent, such purchase shall be made in accordance with
the terms of a separate agreement to be entered into between such Agent
and the Company (which may be an oral agreement confirmed in writing or
which may take the form of an exchange of any standard form of written
communication between such Agent and the Company). Each such separate
agreement is herein referred to as a "Purchase Agreement." Each written
Purchase Agreement shall be substantially in the form of, and each oral
Purchase Agreement confirmed in writing or Purchase Agreement consisting
of an exchange of
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other standard forms of written communication (unless otherwise agreed to
by such Agent and the Company) shall be deemed to include the terms
contained in, Exhibit C attached hereto. A Purchase Agreement, to the
extent set forth therein, may incorporate by reference specified
provisions of this Agreement. Under no circumstances shall an Agent be
obligated to purchase any Notes for its own account except to the extent
the Agent has made a firm commitment with the Company in connection with
an offering which has been expressly authorized by the Company and agreed
to by such Agent pursuant to a Purchase Agreement. Each Agent's commitment
to purchase Notes pursuant to a Purchase Agreement shall be deemed to have
been made on the basis of the representations and warranties of the
Company contained herein. Unless otherwise specified in the applicable
Pricing Supplement, any Note sold to an Agent as principal will be
purchased by such Agent at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency
sale of a Note of identical maturity, and may be resold by such Agent to
investors or other purchasers. In connection with the resale of Notes
purchased by an Agent as principal, such Agent may utilize a selling or
dealer group and may reallow a portion of the discount or commission
payable to such Agent to other dealers or purchasers.
d. Compliance with Procedures; Advertising. Each Agent agrees that
in carrying out the transactions contemplated by this Agreement, it will
observe and comply with the Procedures. Each Agent agrees not to cause any
advertisement of the Notes to be published in any newspaper or periodical
or posted in any public place, and not to issue any circular relating to
the Notes other than the Prospectus, except in any such case with the
express written consent of the Company.
6. Conditions to Obligations of Agents and Purchasers. The
obligations of the Agents to act and continue to act as Agents hereunder, the
obligation of any purchaser of Notes sold in connection with a Solicited Offer,
and the obligation of any Agent to purchase Notes pursuant to a Purchase
Agreement shall be subject to the following conditions:
a. Prospectus; Prospectus Supplements. Any prospectus, prospectus
supplement or pricing supplement required to be filed pursuant to Rule
424(b) under the Securities Act to reflect the terms of an offer to
purchase Notes shall have been timely filed in accordance with the
Securities Act.
b. Regulatory Approvals. There shall be in full force and effect
orders of the NJBPU and of the Commission which are acceptable to the
Agents and which permit the execution and delivery of the Supplemental
Indentures and the First Mortgage Bonds Supplemental Indenture, the
issuance of the Senior Note First Mortgage Bonds and the issuance and sale
of the Notes substantially in accordance with the terms and conditions
herein set forth. The Agents hereby acknowledge that such orders in effect
as of the date of this Agreement are acceptable and agree that subsequent
orders (or amendments to existing orders) furnished to the Agents by the
Company shall be deemed acceptable unless the Agents shall have given
notice to the Company to the contrary not later than 24 hours after
receiving a copy thereof.
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c. Absence of Stop Orders. No stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or to the knowledge
of the Company threatened by, the Commission, and the Agents shall have
received a certificate (as described under Section 6(i) below) to such
effect, dated the date of this Agreement and signed by an officer of the
Company.
d. Performance by Company. The Company shall have performed all
agreements contained herein to be performed by it on or prior to such
date.
e. Representations and Warranties. The representations and
warranties of the Company herein contained shall be true and correct, and
the Agents shall have received a certificate (as described under Section
6(i) below) to such effect, dated the date of this Agreement and signed by
an officer of the Company.
f. Opinion of Company Counsel. On or prior to the first Settlement
Date, the Agents shall be furnished with an opinion of ▇▇▇▇▇▇▇, Israels &
▇▇▇▇▇▇▇▇ LLP (herein sometimes referred to as "Counsel for the Company"),
dated such date, to the effect that:
(i) The Company is duly incorporated and validly existing
under the laws of the State of New Jersey and has corporate authority to
carry on its business as described in the Prospectus, to own, lease and
operate the properties used and useful in said business and to issue the
Notes and the Senior Note First Mortgage Bonds and secure the same by the
Indenture and the Mortgage;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid instrument legally binding upon
the Company (except as limited by bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally);
(iii) when the Notes have been duly executed by the Company,
authenticated by the Trustee and delivered by the Company, and payment
therefor has been received by the Company pursuant to this Agreement, they
will be valid and binding obligations of the Company in accordance with
their terms and entitled to the benefits provided by the Indenture,
subject to the limitation set forth in paragraph (ii) of this Section
6(f);
(iv) the Mortgage has been duly authorized, executed and
delivered by the Company and is a valid instrument legally binding upon
the Company (except as limited by bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws including, without
limitation, the Atomic Energy Act, affecting creditors' rights generally);
(v) when the Senior Note First Mortgage Bonds have been duly
executed by the Company, authenticated by the First Mortgage Trustee and
delivered by the Company, they will be valid and binding obligations of
the Company in accordance with their terms and entitled to the lien of and
benefits provided by the Mortgage, subject to the limitation set forth in
paragraph (iv) of this Section 6(f);
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(vi) the statements made in the Prospectus under the headings
"Description of the Notes," "Description of Senior Notes" and "Description
of Senior Note Mortgage Bonds" fairly present the information required to
be included in the Propspecuts insofar as such statements constitute
summaries of certain documents referred to therein;
(vii) all approvals, consents, and orders of the NJBPU and the
Commission legally required for the execution and delivery of the
Supplemental Indentures and the First Mortgage Bonds Supplemental
Indenture, the issuance of the Senior Note First Mortgage Bonds and the
issuance and sale of the Notes have been obtained; and no approval or
consent of any other commission or other governmental authority is legally
required for such execution, delivery, issuance and sale (except that the
sale of the Notes in certain states may be subject to the provisions of
the securities laws of such states); and such approvals, consents and
orders are adequate to permit the execution and delivery of the
Supplemental Indentures and the First Mortgage Bonds Supplemental
Indenture, the issuance of the Senior Note First Mortgage Bonds and the
issuance and sale of the Notes in accordance with this Agreement, except
that a further order of the NJBPU is necessary in order for the Company to
issue and sell any Notes at rates in excess of those authorized in the
March 18, 1999 order of the NJBPU;
(viii)the Mortgage has been duly recorded, or lodged for
record, as a mortgage upon the property covered thereby in such manner as
is necessary to maintain the lien thereof, and constitutes as security for
the Notes a valid lien on all property and franchises owned by the Company
(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) as described or referred to in the
Prospectus under the heading "Description of Senior Note Mortgage Bonds"
and subheading "Kind and Priority of Lien", subject to no prior liens or
encumbrances other than those specified or referred to or as otherwise set
forth under said subheading;
(ix) each of the Indenture and the Mortgage is qualified
under the 1939 Act;
(x) this Agreement (or a Purchase Agreement, as the case may
be) has been duly authorized, executed and delivered by the Company;
(xi) at the time the Registration Statement became effective,
and as of the date hereof, the Registration Statement and Prospectus
(except the financial statements and other financial information included
or incorporated by reference therein, as to which counsel need express no
opinion) complied as to form in all material respects with the
requirements of the Securities Act and the rules and
9
regulations of the Commission regarding registration statements on Form
S-3 and related prospectuses, and the documents or portions thereof filed
with the Commission pursuant to the Exchange Act and incorporated by
reference therein, comply as to form with the Exchange Act and the
Exchange Act Regulations; and
(xii) to such counsel's knowledge, (A) there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Prospectus, other than those disclosed therein, and (B)
the execution and delivery of this Agreement (or a Purchase Agreement, as
the case may be), the Indenture and the Mortgage and the consummation of
the transactions contemplated herein and therein will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to such counsel and
to which the Company is a party or by which it may be bound, or to which
any of the property or assets of the Company is subject, or any law,
administrative regulation or administrative or court order or decree known
to such counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator having
jurisdiction over the Company; nor will such action result in any
violation of the provisions of the charter or by-laws of the Company.
In addition, such counsel shall state that to such counsel's
knowledge, but without independent check or verification except as
indicated, nothing has come to the attention of such counsel that would
lead them to believe that either (A) the Registration Statement, as of its
effective date, or, if an amendment to the Registration Statement or an
annual report on Form 10-K ("Form 10-K") has been filed by the Company
with the Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent filing, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or (B) the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission or at the date of such
opinion, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial information included or incorporated by
reference therein, as to which such counsel need express no view).
In giving such opinion, Counsel for the Company may rely (1) as to
matters of Pennsylvania law and legal conclusions based thereon, upon the
opinion of ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Reading, Pennsylvania, and
(2) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
g. Opinion of Counsel for the Agents. On or prior to the first
Settlement Date, the Agents shall be furnished with an opinion, dated such
date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (herein
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sometimes referred to as "Counsel for the Agents"), stating in substance
the matters set forth in subparagraphs (ii), (iii), (iv) (though without
reference to the Atomic Energy Act), (v), (vi), (ix), (x) and (xi) and
further stating that, based on certain examinations, investigations and
participation in certain conferences as described in such opinion, nothing
has come to the attention of such counsel that would lead them to believe
that either (A) the Registration Statement, as of its effective date, or,
if an amendment to the Registration Statement or an annual report on Form
10-K has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of the most
recent filing, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or (B)
the Prospectus, at the time it was filed with, or transmitted for filing
to, the Commission or at the date of this Agreement, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In addition, such counsel shall state that, with respect to
subsections 6(f)(iv) and 6(f)(v) above, they call the Agents' attention to
the fact that the provisions of the Atomic Energy Act impose certain
licensing and other requirements upon persons (such as the First Mortgage
Trustee or other purchasers pursuant to the remedial provisions of the
Mortgage) who seek to acquire, possess or use nuclear power generating
facilities.
In giving such opinion, Counsel for the Agents may rely (i) as to
all matters of New Jersey law and legal conclusions based thereon, upon
the opinion of Counsel for the Company, (ii) as to matters of Pennsylvania
law and legal conclusions based thereon, upon the opinion of ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Reading, Pennsylvania, and (iii) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
h. Accountant's Letter. On the date of this Agreement, the Agents
shall be furnished with a letter, dated the date of this Agreement and
addressed to the Board of Directors of the Company and the Agents from the
Independent Accountants, to the effect that:
(i) they are independent certified public accountants with
respect to the Company within the meaning of the Securities Act and the
Securities Act Regulations;
(ii) in their opinion, the financial statements and
supplemental schedules audited by them and incorporated by reference in
the Prospectus and included or incorporated by reference in the Company's
most recent Form 10-K comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the Exchange
Act Regulations;
(iii) on the basis of (1) procedures performed, as specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited balance sheets and related
unaudited condensed statements of income, retained earnings and
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cash flows of the Company incorporated by reference in the Registration
Statement and included in the Company's quarterly reports on Form 10-Q
since the filing of the most recent Form 10-K (collectively, "Form
10-Qs"), (2) a reading of the latest unaudited operating revenues and net
income included or incorporated by reference in the Prospectus, (3) a
reading of the latest available unaudited financial statements of the
Company, (4) a reading of the minutes of the meetings of the stockholder,
the Board of Directors and the Executive Committee of the Board of
Directors of the Company as set forth in the minute books since December
31, 1998, and (5) inquiries of certain officials of the Company who have
responsibility for financial and accounting matters (it being understood
that the foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards and would not
necessarily reveal matters of significance with respect to the comments
made in such letter, and accordingly that the Independent Accountants make
no representations as to the sufficiency of such procedures for the
Agents' purposes), nothing has come to their attention which caused them
to believe that (A) the unaudited financial statements included in the
Form 10-Qs do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the Exchange
Act Regulations, or that any material modifications should be made to said
unaudited financial statements for them to be in conformity with generally
accepted accounting principles, (B) any material modifications should be
made to the unaudited amounts of operating revenues and net income for the
most recent 12-month period included or incorporated by reference in the
Registration Statement for them to be in conformity with generally
accepted accounting principles or (C) on the date of the latest available
financial statements and on a specified date not more than five days prior
to the date of this Agreement, as the case may be, there was any change in
the common stock, preferred stock without mandatory redemption, preferred
stock with mandatory redemption or long-term debt (except for such stock
and long-term debt acquired for sinking fund purposes or redeemed pursuant
to sinking fund provisions, or changes in obligations under capital leases
incurred in the ordinary course of the Company's business), of the
Company, or any decrease in its net assets (except as occasioned by the
declaration of dividends), in each case as compared with the amounts shown
in the most recent balance sheet included in the most recent Form 10-K or
Form 10-Q, except in all instances for changes or decreases which the
Registration Statement discloses have occurred or may occur; and
(iv) they have proved the arithmetic accuracy of or performed
certain other procedures on (A) the following items contained in the
Registration Statement and Prospectus: (1) the dollar amounts under
"Description of Senior Note Mortgage Bonds - General" and " Dividend
Restrictions" and (2) the ratios of earnings to fixed charges under
"Ratios of Earnings to Fixed Charges"; (B) the following items contained
in the most recent Form 10-K and incorporated by reference in the
Registration Statement: (1) the dollar amounts and the ratios in the
Statements Showing Computation of Ratios of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends
based on SEC Regulation S-K, Item 503 for the most recent period therein,
and (2) the percentages under: "Part I - Item 1 - Business" with respect
to sales and operating revenue by customer
12
category; and (C) unless superseded by a more recent Form 10-K, the
following items contained in the most recent Form 10-Q and incorporated by
reference in the Registration Statement: the dollar amounts and the ratios
in the Statements Showing Computation of Ratios of Earnings to Fixed
Charges and Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends based on SEC Regulation S-K, Item 503.
i. Officer's Certificate. On the date of this Agreement, the Agents
shall have received a certificate signed by a senior financial officer of
the Company, to the effect that (a) except as reflected in, or
contemplated by, the Registration Statement and Prospectus, since the most
recent dates as of which information is given therein, there has not been
any material adverse change in the business, properties or financial
condition of the Company, and since such dates there has not been any
material transaction entered into by the Company other than transactions
disclosed in or contemplated by the Registration Statement and Prospectus
and transactions in the ordinary course of business, and the Company has
no material contingent obligation which is not disclosed in the
Registration Statement and Prospectus, (b) no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for that purpose are pending before or, to the Company's
knowledge, threatened by the Commission and (c) the representations and
warranties of the Company contained herein are true and correct as of the
date of this Agreement and as if made on the date of this Agreement.
j. Certificate. At the date of this Agreement and as of each
Settlement Date, the Agents shall have received a certificate of an
officer of the Company to the effect that (A) the resolutions of the
Company's Board of Directors at a regular meeting held on April 28, 1998
are still in full force and effect and have not been altered, amended or
rescinded or certifying any amendments or alterations thereto or any
resolutions superseding such prior resolutions and (B) the order issued by
the NJBPU is in full force and effect and sufficient to authorize the
issuance of the Senior Note First Mortgage Bonds (unless such Settlement
Date occurs after the Release Date) and the issuance and sale of the Notes
on each such Settlement Date.
k. Other Documents. The Company shall have furnished to each Agent
such further information, documents, certificates and opinions of counsel
as the Agents may reasonably request. In case any of the conditions
specified above in this Section 6 shall not have been fulfilled, or if all
legal proceedings to be taken in connection with the issuance and sale of
the Notes shall not have been reasonably satisfactory in form and
substance to Counsel for the Agents, the Agents and/or the purchasers of
Notes shall have no further obligation to proceed with any offering,
solicitation, sale or purchase with respect to the Notes.
7. Covenants of the Company. The Company agrees as follows:
a. Prospectus; Prospectus Supplements. The Company will file
with the Commission a prospectus, prospectus supplement or pricing
supplement pursuant to Rule 424(b) under the Securities Act, with
13
such changes therein as may be approved by Counsel for the Agents, as soon
as practicable after the Company has accepted an offer to purchase Notes.
b. Notice of Certain Events. The Company will notify the Agents
immediately of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any
supplement to the Prospectus, or any document to be filed pursuant to the
Exchange Act which will be incorporated by reference in the Prospectus,
(iii) the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
(v) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, (vi) any order of the NJBPU or the
Commission (or any amendment of any such order) affecting the offer and
sale of the Notes as contemplated by this Agreement and (vii) any change
in the rating assigned by any nationally recognized statistical rating
organization to any debt securities (including the Notes) of the Company.
The Company will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest practicable moment. The Company will give the
Agents notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional
Notes, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than (i) a supplement or amendment
relating solely to the sale of the Notes, (ii) a supplement or amendment
relating solely to a change in the interest rates or maturities of the
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes, and (iii) Forms 8-K that are filed solely for the purpose
of filing Exhibits pursuant to Item 601 of Regulation S-K) whether by the
filing of documents pursuant to the Exchange Act, the Securities Act or
otherwise, and will furnish the Agent with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a
reasonable time in advance of such proposed filing or preparation, as the
case may be.
c. Copies of Certain Documents. The Company will, on or prior to the
date hereof, deliver to each Agent and also, on request, to Counsel for
the Agents:
(i) a copy of the Registration Statement as originally filed
and of each amendment thereto, each signed by or on behalf of the proper
officers of the Company and a majority of its Board of Directors,
including a signed copy of each consent, opinion and certificate included
therein or filed as an exhibit thereto, and also including the exhibits
to, and the documents incorporated by reference in, such Registration
Statement and amendments thereto (other than such exhibits as are
incorporated in the Registration Statement by reference, unless
specifically requested), and, so long as this Agreement remains in effect,
as soon as possible after each supplement or amendment to the Prospectus
has been filed with the Commission, as many copies of the Prospectus, then
current, and any documents incorporated by reference therein, as the
Agents may reasonably request for the purposes contemplated by the
Securities Act; and
14
(ii) such other documents (including copies of the
Registration Statement and of any amendments thereto, in each case
including documents incorporated therein by reference but excluding
exhibits) appropriately signed or certified if so requested, relating to
the issuance and validity of the Notes as any Agent or Counsel for the
Agents may reasonably request.
d. Exchange Act Filings. After acceptance of an offer to purchase
any Notes and prior to the termination of this Agreement, the Company will
file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, which
documents shall be satisfactory to Counsel for the Agents, and will
deliver to the Agents, without charge, promptly after the filing thereof
as many copies of each such report and amendment (excluding exhibits) as
the Agents may reasonably request.
e. Delivery of Prospectuses. Promptly after the effective date of
any post-effective amendment filed after acceptance by the Company of an
offer to purchase any Notes or after the date of any pricing supplement,
prospectus supplement or prospectus reflecting the terms of such offer
filed or mailed for filing to the Commission, the Company will furnish to
each Agent, in accordance with each Agent's instructions, without charge,
as many copies of the Prospectus (without the documents incorporated
therein by reference) as each Agent may reasonably request for the
purposes contemplated by the Securities Act.
f. Material Events; Prospectus Revisions. If any event relating to
or affecting the Company, or of which the Company shall be advised by an
Agent, shall occur, which in the reasonable opinion of the Company or of
Counsel for the Agents should be set forth in a supplement to or an
amendment of the Prospectus so that the Prospectus, as amended and
supplemented, does not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered to a purchaser, not misleading, the Company
will, upon the occurrence of each such event, forthwith at its own expense
notify the Agents promptly to suspend offers for sale and solicitations of
purchase of the Notes, and promptly after the receipt of such notice the
Agents will suspend offers for sale and solicitations of purchase of the
Notes and cease using the Prospectus. If the Company shall decide to so
amend or supplement the Registration Statement or Prospectus, the Company
will promptly (i) prepare and furnish to each Agent a reasonable number of
copies of a supplement or amendment to the Prospectus, reasonably
satisfactory to Counsel for the Agents, or (ii) file with the Commission
documents to be incorporated by reference in the Prospectus, reasonably
satisfactory to Counsel for the Agents in either case so that statements
in the Prospectus as so supplemented, amended or modified will not contain
as of the date of such supplement, amendment or modification, any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when the Prospectus is delivered to a
purchaser, not misleading, and will advise the Agents when they may resume
offers for sale, and solicitations of purchases, of the Notes; provided,
that should such
15
events relate solely to the activities of the Agents, then the Agents
shall assume the expense of preparing such amendment or supplement.
If (i) during a period when an Agent owns any Notes purchased from
the Company by such Agent as principal or such Agent is otherwise required
to deliver a Prospectus in respect of transactions in the Notes, and (ii)
any event relating to or affecting the Company shall occur which, in the
reasonable opinion of the Company or of Counsel for the Agents should be
set forth in a supplement to or an amendment of the Prospectus so that the
Prospectus, as amended and supplemented, does not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered to a
purchaser, not misleading, the Company shall promptly, at its expense,
prepare and file with the Commission a supplement to or amendment of the
Prospectus so that the Prospectus will not contain as of the date of such
supplement or amendment any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made when the
Prospectus is delivered, not misleading.
g. Earning Statement. The Company will make generally available to
its security holders as soon as practicable following each calendar
quarter, commencing with the next quarter beginning after the date of this
Agreement and ending with the fifth calendar quarter after the end of the
calendar quarter in which the last sale of Notes effected pursuant hereto
occurs, an earning statement (in form complying with the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder and which need
not be certified by independent public accountants unless required by the
Securities Act) covering a twelve-month period ending at the close of the
next preceding calendar quarter, which earning statement shall be in the
same detail as the statement of income incorporated by reference in the
Registration Statement.
h. Published Reports. The Company will deliver to the Agents, so
long as this Agreement shall remain in effect, as promptly as possible
copies of any published reports of the Company to its security holders,
including any annual report and quarterly reports of the Company, and any
other financial reports made generally available to its security holders.
i. Expenses. The Company shall, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement, including (A) the reasonable
out-of-pocket expenses, including fees and expenses of Counsel for the
Agents, in connection with this Agreement and the implementation of the
program for the offer and sale of the Notes as contemplated hereby and,
unless otherwise stated in a Purchase Agreement, in connection with the
purchase of Notes by the Agents or any Agent pursuant to Section 5(c)
hereof (exclusive of fees and expenses referred to in Sections
7(i)(B)(iii) and 7(j) below), and (B) all reasonable expenses, fees and
all taxes in connection with (i) except as provided in Section 7(f) above,
the preparation, filing, printing and delivery of copies of the
Supplemental Indentures, the First Mortgage Bonds Supplemental the
16
Registration Statement and amendments thereto and the Prospectus and
amendments and supplements thereto (including in each case all documents
incorporated by reference therein), this Agreement and all other documents
relating to this offering, (ii) the preparation, printing, issuance and
delivery of the Notes and the Senior Note First Mortgage Bonds, (iii) the
qualification of the Notes under blue sky laws as aforesaid (subject to
the limit on such fees specified in subsection (j) of this Section 7),
(iv) the furnishing of the opinions of Counsel for the Company and
certificates of the Company, (v) the services rendered by its accountants
in connection with this Agreement and the transactions contemplated hereby
and (vi) the continuing advice and services of Counsel for the Agents
after the date hereof in connection with the transactions contemplated
hereby. The Agents agree to notify the Company upon execution of this
Agreement and semi-annually thereafter, in writing in reasonable detail of
the amount of such fees and expenses.
j. Blue Sky Qualifications. The Company will use its best efforts to
qualify at its expense the Notes for offer and sale under the securities
laws in such states as the Agents may from time to time designate, and
will pay all fees and expenses including fees and disbursements of counsel
not to exceed $7,500 incurred in connection with the preparation of
surveys relating thereto and to legality for investment; provided, that
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any state.
k. Company's Obligations upon Default. If the Company shall default
in its obligations to deliver Notes to a purchaser whose Solicited Offer
it has accepted, the Company shall (i) hold the Agents harmless against
any loss, claim or damage arising from or as a result of such default by
the Company and (ii) pay to each Agent any commission to which it would be
entitled in connection with such sale.
l. Copies of Certain Orders. Upon receipt by the Company of any
order of the NJBPU or the Commission (or of any amendment of any such
order) affecting the offer and sale of the Notes as contemplated by this
Agreement, the Company shall immediately deliver a copy of such order or
amendment to each Agent.
m. Sales of Notes by the Company. During the period, if any,
specified in any Purchase Agreement, the Company will not issue or
announce the proposed issuance of any Notes or of securities with terms
substantially similar to the Notes.
n. Conditions to Agency Transactions. The Company shall offer to any
person who has agreed to purchase any Notes as a result of an offer to
purchase solicited by an Agent the right to refuse to purchase and pay for
such Notes if, on the related Settlement Date, (i) there has been, since
the date on which such person agreed to purchase the Notes (the "Trade
Date"), or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries, if any, considered as one
enterprise, whether or not arising in the ordinary course of business the
effect of which shall be as to make it, in the inadvisable to purchase the
Notes, or (ii) there
17
shall have occurred any material adverse change in the financial markets
in the United States or any new outbreak of hostilities including, but not
limited to, an escalation of hostilities which existed on or prior to the
Trade Date, or other national or international calamity or crisis the
effect of which shall be such as to make it, in the reasonable judgment of
such person, impracticable or inadvisable to purchase the Notes, or (iii)
trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or trading generally on
either the American Stock Exchange or the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum price ranges for securities shall have been
required, by either of said exchanges or by order of the Commission or any
other governmental authority, or a banking moratorium shall have been
declared by Federal or New York authorities, or (iv) the rating assigned
by any nationally recognized securities rating agency to any debt
securities (including the Notes) of the Company as of the Trade Date shall
have been lowered since that date or if any such rating agency shall have
publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading.
8. Further Representations, Warranties and Covenants by the Company.
The Company further represents, warrants and agrees with the Agents as follows:
a. Reaffirmation of Representations and Warranties. Each
authorization by the Company to the Agents to offer for sale, or solicit
purchases of, the Notes as provided in the Procedures shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement are true and correct at the time of such
authorization and an undertaking that such representations and warranties
will be true and correct on the Settlement Date, in each case as though
made at and as of each such time (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to each such time).
b. Subsequent Delivery of Officer's Certificate. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented,
or a document shall be filed under the Exchange Act which is incorporated
by reference in the Registration Statement or Prospectus (except (i)
supplements or amendments relating solely to the sale of the Notes and
(ii) Forms 8-K that are filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K), the Company shall furnish or
cause to be furnished forthwith to the Agents a certificate in form and
substance satisfactory to the Agents in their reasonable judgment to the
effect that the statements contained in the certificates referred to in
Sections 6(i) and 6(j) hereof which were last furnished to the Agents are
true and correct at the time of such amendment or supplement or filing as
though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time), or, in lieu of such a certificate,
a certificate, in form and substance satisfactory to the Agents in their
reasonable judgment, of the same general tenor as the certificates
referred to in said Sections 6(i) and 6(j) but modified to relate to the
Registration
18
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate. Any certificate signed by any officer of the
Company and delivered to any Agent or to Counsel for the Agents in
connection with an offering of Notes shall be deemed a representation and
warranty by the Company to such Agent as to the matters covered thereby on
the date of such certificate and at each Representation Date subsequent
thereto.
c. Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented,
or a document shall be filed under the Exchange Act which is incorporated
by reference in the Registration Statement or Prospectus (except (i)
supplements or amendments relating solely to the sale of the Notes, (ii)
supplements or amendments relating solely to a change in the interest
rates or maturities of the Notes or a change in the principal amount of
Notes remaining to be sold or similar changes, (iii) Forms 8-K that are
filed solely for the purpose of filing exhibits pursuant to Item 601 of
Regulation S-K and (iv) any Current Report on Form 8-K or Form 10-Q unless
the Agent shall otherwise specify), the Company shall furnish or cause to
be furnished forthwith to the Agents a written opinion of Counsel for the
Company, dated the date of delivery thereof and in form and substance
reasonably satisfactory to Counsel for the Agents, of the same tenor as
paragraphs (vi) and (xi) of Section 6(f) and the paragraph next succeeding
paragraph (xii) of Section 6(f), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such opinion or, in lieu of such opinion, Counsel for the
Company may furnish to the Agents a letter to the effect that the Agents
may rely on such last opinion to the same extent as though it were dated
the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of
such letter authorizing reliance).
d. Subsequent Delivery of Accountants' Letter. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
to set forth financial information included in or derived from the
Company's financial statements, or any document containing financial
information so included or derived shall be filed under the Exchange Act
and incorporated by reference in the Prospectus, the Company shall cause
the Independent Accountants to furnish to the Agents a letter, dated the
date of filing such amendment or supplement or document with the
Commission, in form and substance satisfactory to the Agents in their
reasonable judgment, of the same general tenor as the letter referred to
in Section 6(h) hereof but with appropriate modifications to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such letter and as may be necessary to reflect changes in the
financial information included or incorporated by reference in the
Registration Statement and the Prospectus as then amended or supplemented
since the date of the last previous such letter furnished to the Agents;
provided, however, that no letter need be furnished with respect to
year-end audited financial statements of the Company if copies of such
year-end audited financial statements are delivered to the Agents, unless
in the reasonable judgement of either of you, such letter should cover
information or changes in one or more specified financial statement line
items or under "Management's Discussion and Analysis of Financial
19
Condition and Results of Operations" contained in such year-end audited
financial statements and such information or any such change requested is
not otherwise included in or derivable from the information contained in
the financial statements or financial statement schedules audited by the
Independent Accountants and referred to in the Report of Independent
Accountants contained in such year-end audited financial statements.
e. Suspension of Certain Obligations. Notwithstanding the foregoing,
if, at any time and from time to time during the term of this Agreement,
the Company delivers to the Agents notification of its decision to suspend
the solicitation of offers to purchase the Notes hereunder, and, during
the period, if any, specified in any Purchase Agreement, the Agents shall
not then hold any Notes as principal purchased pursuant to a Purchase
Agreement, then during the period of any such suspension the Company shall
be relieved of its obligation to provide to the Agents the certificate,
opinion and letter required pursuant to Sections 8(b), 8(c) and 8(d).
However, if and when any such suspension is lifted, the Company shall be
required to deliver to the Agents, prior to the resumption of such
solicitations hereunder, a certificate, opinion and letter in form and
substance reasonably satisfactory to the Agents in their reasonable
judgment, of the same general tenor as the certificates, opinion and
letter referred to in Sections 6(i) and 6(j), Section 6(f) and Section
6(h), respectively, but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented during the period of such
suspension.
9. Indemnification.
a. Indemnification of Agents. The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls either of the
Agents within the meaning of Section 15 of the Securities Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense, whatsoever arising out of (A) any untrue statement or alleged
untrue statement of a material fact, or (B) the omission or alleged
omission of a material fact required to be stated or necessary to make
statements made not misleading, in or from the Registration Statement (or
any amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), unless any such statement or
omission or such alleged statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by
either of the Agents expressly for use in the Registration Statement (or
any amendment thereto) or in such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), provided, however, that such
indemnity with respect to the Prospectus or any preliminary prospectus
shall not inure to the benefit of any Agent from whom the person asserting
any such loss, liability, claim, damage or expense purchased the Notes
concerned, to the extent that it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the
Company furnished to such Agent, prior to the written confirmation of the
sale of the Notes to such purchasing person, copies of such Prospectus or
preliminary prospectus (including, in each case, any amendment or
supplement thereto), (x) delivery of such Prospectus or preliminary
prospectus was required by the Securities Act to be made to
20
such person, (y) the untrue statement or omission of a material fact
contained in such Prospectus or preliminary prospectus was corrected in an
amendment or supplement to such Prospectus or preliminary prospectus, and
(z) there was not sent or given to such person, at or prior to the written
confirmation of the sale of the Notes to such person, a copy of such
Prospectus or preliminary prospectus, as then amended or supplemented;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever relating to or arising out of the settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission or any alleged untrue statement or
omission (including, without limitation, the aggregate amount paid in
settlement), if such settlement is affected with the written consent of
the Company; and
(iii) against any and all expenses whatsoever, reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under paragraph
(i) or (ii) above.
b. Indemnification of Company. Each Agent severally agrees that it
will indemnify and hold harmless the Company, its directors, and each of
its officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act, to the same extent as the indemnity contained in
subsection (a) of this Section, but only with respect to statements or
omissions made in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). In
case any action shall be brought against the Company or any person so
indemnified based on the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and in respect of which indemnity may be sought
against any Agent, such Agent shall have the rights and duties given to
the Company, and the Company and each person so indemnified shall have the
rights and duties given to the Agents in each case by the provisions of
subsection (a) of this Section 9.
c. General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. If the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties,
21
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel (the expenses of which are subject to the
immediately following sentence) to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. The
indemnity contained in this Section 9 shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of
the Company, or either of the Agents or any controlling person, and shall
survive the delivery of the Notes and the termination of this Agreement.
10. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 9 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Agents shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity agreement incurred by
the Company and one or both Agents in respect of such offering in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price received
by the Company from the sale of Notes to the date of such liability, and the
Company is responsible for the balance; provided, however, that no such person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Agent within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
11. Termination. This Agreement may be terminated, at any time by
any party hereto upon the giving of 24 hours written notice of such termination
to the other parties hereto effective at the close of business on the date such
notice is received. In the event of any such termination, no party shall have
any liability to any other party hereto; provided that, Sections 5(b), 7(i), 9,
10, 12 and 13 hereof shall survive the termination of this Agreement, and
provided further that, if at the time of any such termination the Agents shall
have previously confirmed sales of Notes for which delivery and payment has not
yet been made, the Company shall continue to comply with Sections 4, 7 and 8
hereof until delivery of and payment for all Notes so sold.
12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
any Purchase Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of
22
either of the Agents or any controlling person of either of the Agents, or by or
on behalf of the Company, and shall survive each delivery of and payment for any
of the Notes.
13. Miscellaneous. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York. Any suit, action or
proceeding brought by the Company or any Agent in connection with, or arising
under, this Agreement shall be brought only in the state or federal court of
appropriate jurisdiction located either in the Borough of Manhattan, the City of
New York or in any state or federal court of appropriate jurisdiction located in
the Town of Morristown, County of ▇▇▇▇▇▇, New Jersey or the District of New
Jersey. This Agreement shall inure to the benefit of the Company, the Agents
and, with respect to the provisions of Section 9 hereof, each director, officer
and controlling person referred to in said Section 9, and their respective
successors. Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Agreement. The term "successor" as
used herein shall not include any purchaser, as such purchaser, of any of the
Notes from either of the Agents.
14. Notices. Except as otherwise specifically provided herein
or in the Procedures, all communications hereunder shall be in writing, or by
telex or facsimile, or by telephone or telegram if subsequently confirmed in
writing, and, if to the Agents shall be mailed or delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Manager -
Continuously Offered Products, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (212)
761-0780 with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking Information Center
at the above address, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
and ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Medium-Term Note Desk, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (212)
648-5909 and, if to the Company, shall be mailed or delivered to it at c/o
GPU Service Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-1911, Attention:
▇.▇. ▇▇▇▇▇▇, Vice President and Treasurer, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇.
15. Counterparts. This Agreement may be executed in two or
more counterparts, all of which together shall constitute one and the same
instrument.
23
If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
Jersey Central Power & Light Company
By:
-------------------------------
Name:
Title:
Accepted and delivered as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By:
-------------------------------
Name:
Title:
24
EXHIBIT A
ADMINISTRATIVE PROCEDURES
Medium-Term Notes Due From One Year to 35 Years from Date of Issue
(the "Notes"), in the aggregate principal amount of up to $100,000,000 are to be
offered on a continuing basis by Jersey Central Power & Light Company (the
"Company") through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., who, as agents (each an "Agent", and collectively, the "Agents"), have
agreed to use their best efforts to solicit offers to purchase the Notes from
the Company. The Agents may also purchase Notes as principal for resale.
The Notes are being sold pursuant to a Distribution Agreement
between the Company and the Agents, dated July 30, 1999 (the "Distribution
Agreement"). The Notes will be issued pursuant to an Indenture between the
Company and United States Trust Company of New York, as trustee (the "Trustee"),
dated as of July 1, 1999, as supplemented from time to time pursuant to the
terms thereof by one or more supplemental indentures (such Indenture, as
supplemented and to be further supplemented, being hereinafter referred to as
the "Indenture"). A Registration Statement (the "Registration Statement," which
term shall include any additional registration statements filed in connection
with the Notes as provided in the introductory paragraph of the Distribution
Agreement) with respect to the Notes has been filed with the Securities and
Exchange Commission (the "Commission"). The Prospectus relating to the Notes
included in the Registration Statement is herein referred to as the
"Prospectus." The Prospectus as supplemented with respect to the Notes is herein
referred to as the "Prospectus Supplement." A pricing supplement to the
Prospectus with respect to the specific terms of the Notes is herein referred to
as the "Pricing Supplement," and a Prospectus Supplement together with a Pricing
Supplement, as a "Supplemented Prospectus."
The Notes will be issued in book-entry form and represented by one
or more global notes (each, a "Global Note") delivered to the Trustee as
custodian for The Depository Trust Company ("DTC") (or on behalf of such other
depository as is identified in the applicable Pricing Supplement, provided that
such depository shall execute a letter of representation and a medium-term note
certificate agreement with the Trustee with respect to the Notes), and recorded
in the book-entry system maintained by DTC and registered in the name of DTC's
nominee (each, a "Book-Entry Note").
Administrative procedures and specific terms of the offering are
explained below. Owners of beneficial interests in Book-Entry Notes will be
entitled to physical delivery of Notes in the form of a certificate issued in
definitive form equal in principal amount to their respective beneficial
interests only upon certain limited circumstances described in the Prospectus.
1
General procedures relating to the issuance of all Notes are set
forth in Part I hereof. Additionally, Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Prospectus, the Indenture or the Notes (which
in the case of Book-Entry Notes shall be the related Global Note), as the case
may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
1. Date of Issuance/Authentication. Each Note will be dated as of
the date of its authentication by the Trustee. Each Note shall also bear an
original issue date (the "Original Issue Date"). The Original Issue Date shall
remain the same for all Notes subsequently issued upon transfer, exchange or
substitution of an original Note regardless of their dates of authentication.
2. Maturities. Each Note will mature on a date selected by the
purchaser and agreed to by the Company which is not less than one year nor more
than thirty-five years from its Original Issue Date.
3. Registration. Notes will be issued only in fully registered form.
4. Interest.
(a) General. Unless otherwise indicated in the applicable Pricing
Supplement, interest payments on each Note shall equal the amount of
interest accrued from, and including, the next preceding Interest Payment
Date in respect of which interest has been paid (or from, and including,
the Original Issue Date if no interest has been paid with respect to such
Note) to, but excluding, the next succeeding Interest Payment Date.
(b) Regular Record Dates. Unless otherwise indicated in the
applicable Pricing Supplement, the Regular Record Date with respect to any
Interest Payment Date shall be the fifteenth day of the calendar month
next preceding such Interest Payment Date (whether or not a Business Day
(as hereinafter defined)).
(c) Interest Payment Dates. Interest payments will be made on each
Interest Payment Date and at Maturity commencing with the first Interest
Payment Date following the Original Issue Date; provided, however, that
the first payment of interest of any Note having an Original Issue Date
between a Regular Record Date and an Interest Payment Date will occur on
the Interest Payment Date following the next succeeding Regular Record
Date to the registered owner on such next succeeding Regular Record Date.
If an Interest Payment Date with respect to any Note would otherwise fall
on a day that is not a Business Day with respect to such Note, such
Interest Payment Date will be the next succeeding Business Day with
respect to such Note.
2
Fixed Rate Note. Interest payments on Fixed Rate Notes will be
made on the dates set forth in the related Pricing Supplement of
each year and at Maturity with respect to principal then maturing.
Floating Rate Note. Interest payments on Floating Rate
Notes will be made as specified in the Floating Rate Note.
(d) Calculation of Interest.
Fixed Rate Note. Interest (including payments for partial
periods) on each Fixed Rate Note will be calculated and paid on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Note. Interest on each Floating Rate Note will
be calculated by reference to LIBOR plus or minus the applicable
Spread, if any, and/or multiplied by the applicable Spread
Multiplier, if any. A calculation agent (the Paying Agent, unless
otherwise specified in a Pricing Supplement) will be appointed by
the Company to calculate such interest rate.
5. Acceptance and Rejection of Offers. The Company shall have the
sole right to accept offers to purchase Notes from the Agent and may reject any
such offer in whole or in part. The Agents shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes from the Company
received by them. The Agents shall have the right, in their discretion
reasonably exercised, without notice to the Company, to reject any offer to
purchase Notes in whole or in part.
6. Preparation of Pricing Supplements.
(a) If any offer to purchase a Note is accepted by the Company, the
Company, with the approval of the Agent which presented such offer (the
"Presenting Agent"), will prepare and file with the Commission a Pricing
Supplement in accordance with Rule 424 under the Act, a copy of which will
be forwarded to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Medium-Term Note
Trading Desk, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, and
▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Medium-Term Note Desk, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇, in each case not later than 4:00 p.m. on the first
Business Day immediately following the date on which such offer to
purchase is accepted. The Presenting Agent will cause a stickered
Supplemented Prospectus to be delivered to the purchaser of the Note.
(b) In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Supplemented Prospectuses
prior to their use. Outdated Pricing Supplements, and the Supplemented
Prospectuses to which they are attached (other than those retained for
files), will be destroyed.
3
7. Settlement.
(a) The receipt of immediately available funds by the Company in
payment for a Note and the authentication and delivery of such Note shall,
with respect to such Note, constitute "settlement." Offers accepted by the
Company will be settled from three to five Business Days after such
acceptance by the Company or at such other time as the purchaser and the
Company shall agree (but no earlier than the next Business Day) pursuant
to the timetable for settlement set forth in Part II hereof under
"Settlement Procedures" with respect to Book-Entry Notes. If procedures A
and B of the Settlement Procedures with respect to a particular offer are
not completed on or before the time set forth under the applicable
"Settlement Procedures Timetable," such offer shall not be settled until
the Business Day following the completion of settlement procedures A and B
or such later date as the purchaser and the Company shall agree.
(b) In the event of a purchase of Notes by any Agent as principal,
appropriate settlement details will be set forth in the applicable
Purchase Agreement if entered into between such Agent and the Company in
the form of Exhibit C to the Distribution Agreement.
8. Procedure for Changing Rates or Other Variable Terms. When a
decision has been reached to change the interest rate or any other variable term
on any Notes being sold by the Company, the Company will promptly advise the
Agents and the Agents will forthwith suspend solicitation of offers to purchase
such Notes. The Agents may telephone the Company with recommendations as to the
changed interest rates or other variable terms. At such time as the Company
advises the Agents of the new interest rates or other variable terms, the Agents
may resume solicitation of offers to purchase such Notes. Until such time only
"indications of interest" may be recorded. Immediately after acceptance by the
Company of an offer to purchase at a new interest rate or new variable term, the
Company, the Presenting Agent and the Trustee shall follow the procedures set
forth under the applicable "Settlement Procedures." The foregoing procedure for
changes shall in no way affect the Company's right to suspend all solicitations
of offers to purchase Notes as set forth in the Distribution Agreement.
9. Suspension of Solicitation; Amendment or Supplement.
(a) The Company may instruct the Agents to suspend solicitation of
purchases at any time. Upon receipt of such instructions the Agents will
forthwith suspend solicitation of offers to purchase from the Company
until such time as the Company has advised them that solicitation of
offers to purchase may be resumed. If the Company decides to amend the
Registration Statement (including incorporating any documents by reference
therein) or supplement any of such documents (other than to change rates
or other variable terms), it will promptly advise the Agents and the
Trustee and will furnish the Agents, the Trustee and their respective
counsel with copies of the proposed amendment (including any document
proposed to be incorporated by reference therein) or supplement. One copy
of such filed document,
4
along with a copy of the cover letter sent to the Commission, will be
delivered or mailed to the Agents at the following respective addresses:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Medium-Term Note Trading Desk
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) In the event that at the time the solicitation of offers to
purchase from the Company is suspended (other than to change interest
rates or other variable terms) there shall be any orders outstanding which
have not been settled, the Company will promptly advise the Agents and the
Trustee whether such orders may be settled and whether copies of the
Prospectus as theretofore amended and/or supplemented as in effect at the
time of the suspension may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility for such
decision and for any arrangements which may be made in the event that the
Company determines that such orders may not be settled or that copies of
such Prospectus may not be so delivered.
10. Delivery of Prospectus. A copy of the Supplemented Prospectus
must accompany or precede the earlier of (a) the written confirmation of a sale
sent to a customer or his agent and (b) the delivery of Notes to a customer or
his agent.
11. Authenticity of Signatures. The Agents will have no obligations
or liability to the Company or the Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the Company or the Trustee on any
Note.
12. Documents Incorporated by Reference. The Company shall supply
the Agents with an adequate supply of all documents incorporated by reference in
the Registration Statement.
13. Business Day. "Business Day" means (i) with respect to any Fixed
Rate Note, any 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 authorized
or obligated by law or executive order to close; and (ii) with respect to any
Floating Rate Note, should also include a London Business Day, which means a day
on which commercial banks are open for business (including
5
dealings in the designated LIBOR Currency (as defined in the Prospectus) in
London.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
1. Trustee. In connection with the administration of Book-Entry Note
procedures, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated July 22, 1999 (the "Letter of Representations"), and a Medium-Term
Note Certificate Agreement, dated August 17, 1989, as amended by an amendment
thereto dated April 15, 1993, and as further amended by an amendment thereto
dated July 15, 1999, between the Trustee and DTC (as so amended, the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
2. Issuance.
(a) All Fixed Rate Notes issued in book-entry form having the same
Original Issue Date, interest rate, Optional Repayment Date, if any,
original issue discount features, if any, Redemption Date, if any, and
Stated Maturity (collectively, the "Fixed Rate Note Terms") will be
represented initially by a single Book-Entry Note and all Floating Rate
Notes issued in book-entry form having the same Original issue Date,
initial interest rate, Index Maturity, Spread and/or Spread Multiplier, if
any, Stated Maturity Date, redemption and/or repayment terms, if any,
Interest Reset Date, Interest Determination Date and Calculation Date
(collectively, the "Floating Rate Note Terms") will be represented
initially by a single Book-Entry Note.
(b) Each Book-Entry Note will be dated and issued as of the date of
its authentication by the Trustee. Each Book-Entry Note will bear an
Interest Accrual Date, which will be (a) with respect to an original
Book-Entry Note (or any portion thereof), its Original Issue Date and (b)
with respect to any Book-Entry Note (or portion thereof) issued
subsequently upon exchange of a Book-Entry Note or in lieu of a destroyed,
lost or stolen Book-Entry Note, the most recent Interest Payment Date to
which interest has been paid or duly provided for on the predecessor
Book-Entry Note or Notes (or if no such payment or provision has been
made, the Original Issue Date of the predecessor Book-Entry Note or
Notes), regardless of the date of authentication of such subsequently
issued Book-Entry Note. No Book-Entry Note shall represent any Note issued
in certificated form.
3. Identification. The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP Service Bureau") for the
reservation of approximately 900 CUSIP numbers which have been reserved for
future assignment to Book-Entry Notes representing Notes issued in book-entry
form and the Company has delivered to the Trustee and DTC an initial written
list of such CUSIP numbers. The Company will assign CUSIP numbers to Book-Entry
Notes as described below under Settlement Procedure B. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the Company has assigned
to Book-Entry Notes. The Trustee will notify
6
the Company at any time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Book-Entry Notes, and, if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Book-Entry Notes representing
Notes issued in book-entry form. Upon obtaining such additional CUSIP numbers,
the Company will deliver a list of such additional numbers to the Trustee and
DTC.
4. Registration. Each Book-Entry Note will be registered in the name
of Cede & Co., as nominee for DTC, on the security register maintained by the
Security Registrar under the Indenture. The beneficial owner of a Note issued in
book-entry form (i.e., an owner of a beneficial interest in a Book-Entry Note)
(or one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Note, the
"Participants") to act as agent for such beneficial owner in connection with the
book-entry system maintained by DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such Participants, a credit balance
with respect to such Note in the account of such Participants. The ownership
interest of such beneficial owner in such Note will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
5. Transfers. Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on behalf of beneficial
transferors and transferees of such Book-Entry Note.
6. Exchanges. The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the CUSIP numbers of two or
more Book-Entry Notes Outstanding on such date that represent Book-Entry Notes
having the same Fixed Rate Note Terms or Floating Rate Note Terms, as the case
may be (other than Original Issue Dates), and for which interest has been paid
to the same date; (b) a date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the next Interest Payment Date
for the related Notes issued in book-entry form, on which such Book-Entry Notes
shall be exchanged for a single replacement Book-Entry Note; and (c) a new CUSIP
number, obtained from the Company, to be assigned to such replacement Book-Entry
Note. Upon receipt of such a notice, DTC will send to its participants
(including the Trustee) a written reorganization notice to the effect that such
exchange will occur on such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau written notice setting forth
such exchange date and the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Book-Entry Notes to be exchanged will no
longer be valid. On the specified exchange date, the Trustee will exchange such
Book-Entry Notes for a single Book-Entry Note bearing the new CUSIP number and
the CUSIP numbers of the exchanged Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be cancelled and not immediately reassigned.
7. Denominations. Book-Entry Notes will be issued in
denominations of $1,000 and any larger denomination which is an integral
multiple of $1,000.
7
8. Interest. Interest payable at Maturity of a Book-Entry Note will
be payable to the Person to whom the principal of such Note is payable. DTC will
arrange for each pending deposit message described under Settlement Procedure C
below to be transmitted to Standard & Poor's, which will use the information in
the message to include certain terms of the related Book-Entry Note in the
appropriate daily bond report published by Standard & Poor's.
9. Payments of Principal and Interest.
(a) Payments of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on each
Book-Entry Note on the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and the total of such
amounts. The Company will confirm with the Trustee and DTC the amount
payable on each Book-Entry Note on such Interest Payment Date by reference
to the daily bond reports published by Standard & Poor's. On such Interest
Payment Date, the Company will pay to the Trustee in immediately available
funds, and the Trustee in turn will pay to DTC, such total amount of
interest due (other than at Maturity), at the times and in the manner set
forth below under "Manner of Payment."
(b) Notice of Interest Rates. Promptly after each Interest
Determination Date for Floating Rate Notes issued as Book-Entry Notes, the
Calculation Agent will notify each of ▇▇▇▇▇'▇ and Standard & Poor's of the
interest rates determined as of such Interest Determination Date.
(c) Payments at Maturity. On or about the first Business Day of each
month, the Trustee will deliver to the Company and DTC a written list of
principal, interest and premium, if any, to be paid on each Book-Entry
Note maturing either at Stated Maturity or on a Redemption Date or on an
Optional Repayment Date in the following month. The Trustee, the Company
and DTC will confirm the amounts of such principal and interest payments
with respect to a Book-Entry Note on or about the fifth Business Day
preceding the Maturity of such Book-Entry Note. At such Maturity, the
Company will pay to the Trustee, and the Trustee in turn will pay to DTC,
the principal amount of such Note, together with interest and premium, if
any, due at such Maturity, at the times and in the manner set forth below
under "Manner of Payment." If any Maturity of a Book-Entry Note is not a
Business Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such payment for
the period from and after such Maturity. Promptly after payment to DTC of
the principal, interest and premium, if any, due at the Maturity of such
Book-Entry Note, the Trustee will cancel and destroy such Book-Entry Note
and deliver to the Company a certificate of destruction with respect to
each cancelled Note. On the first Business Day of each month, the Trustee
will deliver a written statement indicating the total principal amount of
Outstanding Book-Entry Notes as of the next preceding Business Day.
(d) Manner of Payment. (i) The total amount of any principal,
premium, if any, and interest due on Book-Entry Notes on any Interest
Payment Date or at Maturity shall be paid by the Company to the Trustee in
funds available for use by the Trustee as of 9:30 a.m., New York
8
City time, on such date. The Company will make such payment on such
Book-Entry Notes directly to the Trustee or by instructing the Trustee to
withdraw funds from an account maintained by the Company at the Trustee.
The Company will confirm such instructions in writing to the Trustee.
Prior to 10:00 a.m., New York City time, on each Maturity date or as soon
as possible thereafter, the Trustee, upon the withdrawal of such funds
will pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of interest, principal
and premium, if any, due on a Book-Entry Note on such date. On each
Interest Payment Date, interest payments shall be made to DTC in same day
funds in accordance with existing arrangements between the Trustee and
DTC. Thereafter on such dates, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names such Notes are
recorded in the book-entry system maintained by DTC.
(ii) Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC of the principal of,
premium, if any, or interest on, the Book-Entry Notes to such
Participants.
10. Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-Entry Note
will be determined and withheld by the Participant, indirect participant in DTC
or other Person responsible for forwarding payments and materials directly to
the beneficial owner of such Book-Entry Note.
11. Settlement Procedures. Settlement Procedures with regard to each
Note in book-entry form sold by the Company through an Agent, as agent, will be
as follows:
A. The Agent will advise the Company by telephone, to be confirmed
in writing by facsimile or other acceptable means if requested, of the
following Settlement information:
1. Principal amount of the Note.
2. Fixed Rate Note:
(a) interest rate; and
(b) interest payment dates.
Floating Rate Note:
(a) initial interest rate based on
LIBOR;
(b) spread or spread multiplier, if any; (c)
interest rate reset dates; (d) interest rate
reset period; (e) interest payment dates;
9
(f) interest payment period; (g) index
maturity; (h) calculation agent; (i)
calculation date; and (j) interest
determination date.
3. Price to public of the Note.
4. Trade Date.
5. Settlement Date (Original Issue Date).
6. Maturity.
7. Redemption provisions (if any).
8. Net proceeds to the Company.
9. Agent's commission.
B. The Company will advise the Trustee by telephone (confirmed in
writing at any time on the same date) or electronic transmission of the
information set forth in the above settlement information. The Trustee
will then assign a CUSIP number to the Book-Entry Note representing such
Note and advise the Company of such number. Each such communication by the
Company shall constitute a representation and warranty by the Company to
the Trustee and the Agents that (i) such Note is then, and at the time of
issuance and sale thereof will be, duly authorized for issuance and sale
by the Company, (ii) such Note, and the Book-Entry Note representing such
Note, will conform with the terms of the Indenture and (iii) upon
authentication and delivery of such Book-Entry Note, the aggregate initial
offering price of all Notes issued under the Indenture will not exceed
$100,000,000 (except for Book-Entry Notes represented by Global Notes
authenticated and delivered in exchange for or in lieu of Global Notes
pursuant to the Indenture).
C. The Trustee will communicate to DTC and the Agent through DTC's
Participant Terminal System, a pending deposit message specifying the
following settlement information:
1. The information set forth in Settlement Procedure A.
2. Identification numbers of the participant accounts maintained by
DTC on behalf of the Trustee and the Agent.
3. Identification of the Book-Entry Note as a Fixed Rate Note or
Floating Rate Note.
10
4. Initial Interest Payment Date for such Note, number of days by
which such date succeeds the related record date for DTC purposes (which
shall be the Regular Record Date), and, if then calculable, the amount of
interest payable on such Interest Payment Date (which amount shall have
been confirmed by the Trustee).
5. CUSIP number of the Book-Entry Note representing such Note.
6. Whether such Book-Entry Note represents any other Notes issued or
to be issued in book-entry form.
In addition, the Trustee will advise ▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated or the Medium-Term Note Desk of ▇.▇. ▇▇▇▇▇▇
Securities Inc. (or other authorized representative of the Agent) by
telephone at the number stated in Section 9(a) of the CUSIP number of the
Book-Entry Note representing such Note.
D. The Company will, if applicable, complete and deliver to the
Trustee a Book-Entry Note representing such Note in a form that has been
approved by the Company, the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry Note representing
such Note.
F. DTC will credit such Note to the participant account of the
Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to the
Trustee's participant account and credit such Note to the participant
account of the Presenting Agent maintained by DTC and (ii) to debit the
settlement account of the Presenting Agent and credit the settlement
account of the Trustee maintained by DTC, in an amount equal to the price
of such Note less such Agent's commission. Any entry of such a deliver
order shall be deemed to constitute a representation and warranty by the
Trustee to DTC that (i) the Book-Entry Note representing such Note has
been executed and authenticated and (ii) the Trustee is holding such
Book-Entry Note pursuant to the Medium-Term Note Certificate Agreement
between the Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit such Note
to the Presenting Agent's participant account and credit such Note to the
participant account of the Participants maintained by DTC and (ii) to
debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent maintained by DTC, in an amount
equal to the initial public offering price of such Note.
I. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures G and H will be settled in accordance
with SDFS operating procedures in effect on the Settlement Date.
11
J. The Trustee, upon receipt of such funds, will credit to an
account of the Company maintained at the Trustee funds available for
immediate use in the amount transferred to the Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a copy of the Book-Entry Note by
first-class mail to the Company together with a statement setting forth
the principal amount of Notes outstanding as of the related Settlement
Date after giving effect to such transaction and all other offers to
purchase Notes of which the Company has advised the Trustee but which have
not yet been settled.
L. The Agent will confirm the purchase of such Note to the purchaser
either by transmitting to the Participant with respect to such Note a
confirmation order through DTC's Participant Terminal System or by mailing
a written confirmation to such purchaser.
12. Settlement Procedures Timetable.
(a) For orders of Notes accepted by the Company, Settlement
Procedures "A" through "L" set forth above shall be completed as soon as
possible but not later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A-B 11:00 a.m. on the Trade Date
C 2:00 p.m. on the Trade Date
D 3:00 p.m. on the Business Day before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H 2:00 p.m. on Settlement Date
I 4:45 p.m. on Settlement Date
▇-▇ 5:00 p.m. on Settlement Date
(b) If a sale is to be settled more than one Business Day after the
Trade Date, Settlement Procedures A, B, and C may, if necessary, be
completed at any time prior to the specified times on the first Business
Day after such sale date. In connection with a sale that is to be settled
more than one Business Day after the Trade Date, if the initial interest
rate for a Floating Rate Note is not known at the time that Settlement
Procedure A is completed, Settlement Procedures B and C shall be completed
as soon as such rates have been determined, but no later than 11:00 a.m.
and 2:00 p.m. New York City time, respectively, on the second Business Day
before the Settlement Date. Settlement Procedure I is subject to extension
in accordance with any extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating procedures in effect on the
Settlement Date.
(c) If settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee, upon receipt of notice of such rescheduling or cancellation
will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding the scheduled
Settlement Date.
12
13. Failure to Settle.
(a) If the Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Note pursuant to Settlement Procedure G, the Trustee may
deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Note to the
participant account of the Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant account contains a
principal amount of the Book-Entry Note representing such Note that is at
least equal to the principal amount to be debited. If withdrawal messages
are processed with respect to all the Notes represented by a Book-Entry
Note, the Trustee will cancel and destroy such Book-Entry Note and deliver
to the Company a certificate of destruction with respect to each cancelled
Note. The CUSIP number assigned to such Book-Entry Note shall, in
accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If withdrawal messages are processed with respect
to a portion of the Notes represented by a Book-Entry Note, the Trustee
will exchange such Book-Entry Note for two Notes, one of which shall
represent the Book-Entry Notes for which withdrawal messages are processed
and shall be cancelled immediately after issuance, and the other of which
shall represent the other Notes previously represented by the surrendered
Book-Entry Note and shall bear the CUSIP number of the surrendered
Book-Entry Note.
(b) If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial purchaser
thereof (or a person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in turn, the related
Agent may enter SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to Settlement Procedures G
and H, respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph.
If such failure shall have occurred for any reason other than default by
the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for its loss of the use of funds during the period when
the funds were credited to the account of the Company.
(c) Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect
to a Note that was to have been represented by a Book-Entry
Note also representing other Notes, the Trustee will
provide, in accordance with Settlement Procedures D and E,
for the authentication and issuance of a Book-Entry Note
representing such remaining Notes and will make appropriate
entries in its records.
13
EXHIBIT B
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate principal amount of Notes sold to
purchasers solicited by each Agent.
Term Commission Rate
---- ---------------
From 1 year but less than 18 months . . . . . . .150%
From 18 months but less than 2 years . . . . . . .200%
From 2 years but less than 3 years . . . . . . . .250%
From 3 years but less than 4 years . . . . . . . .350%
From 4 years but less than 5 years . . . . . . . .450%
From 5 years but less than 6 years . . . . . . . .500%
From 6 years but less than 7 years . . . . . . . .550%
From 7 years but less than 10 years . . . . . . . .600%
From 10 years but less than 15 years . . . . . . .625%
From 15 years but less than 20 years . . . . . . .700%
From 20 to 35 years . . . . . . . . . . . . . . . .750%
EXHIBIT C
PURCHASE AGREEMENT
, 19
-------------------- --- --
Jersey Central Power & Light Company
c/o GPU Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇, Vice President and Treasurer
Gentlemen:
The undersigned agrees to purchase the principal amount of the Notes
described in the Distribution Agreement dated July 30, 1999 (the "Distribution
Agreement") and in Schedule 1 attached hereto (capitalized terms not defined
herein shall be as defined in the Distribution Agreement).
Our obligation to purchase Notes hereunder is subject to the accuracy of
your representations and warranties contained in the Distribution Agreement on
the date hereof and on the Settlement Date and to your performance and
observance of the covenants and agreements contained in the Distribution
Agreement. Our obligation hereunder is subject to the further condition that we
shall receive (1) the opinions, dated the Settlement Date, required to be
delivered pursuant to Sections 6(f) and 6(g) of the Distribution Agreement, (2)
the certificates, dated the Settlement Date, required to be delivered pursuant
to Sections 6(i) and 6(j) of the Distribution Agreement, (3) the letter, dated
the Settlement Date, required to be delivered pursuant to Section 6(h) of the
Distribution Agreement and (4) the additional terms specified in Schedule 1
hereto.
This Agreement may be terminated by us, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries, if any,
considered as one enterprise, whether or not arising in the ordinary course of
business the effect of which shall be such as to make it,
1
in our judgment, impracticable to market the Notes or enforce contracts for the
sales of the Notes, or (ii) if there shall have occurred any material adverse
change in the financial markets in the United States or any new outbreak of
hostilities including, but not limited to, an escalation of hostilities which
existed prior to the date hereof, or other national or international calamity or
crisis the effect of which shall be such as to make it, in our judgment,
impracticable to market the Notes or enforce contracts for the sales of the
Notes, or (iii) if trading in any securities of the Company shall have been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, or (iv) if the rating assigned by any
nationally recognized securities rating agency to any debt securities of the
Company as of the date of this Agreement shall have been lowered since that date
or if any such rating agency shall have publicly announced that it has placed
any debt securities of the Company on what is commonly termed a "watch list" for
possible downgrading, or (v) if there shall have come to our attention any facts
that would cause us to believe that the Prospectus, at the time it was required
to be delivered to a purchaser of Notes, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
In the event of any termination, neither party to this Agreement will have
any liability to the other party hereto, except that, (i) if at the time of
termination, we shall own any Notes purchased pursuant to this Agreement with
the intention of reselling them, the covenants set forth in Sections 7 and 8 of
the Distribution Agreement shall remain in effect until such Notes are so resold
and (ii) the covenant set forth in Section 7(g) of the Distribution Agreement,
the provisions of Section 7(i) thereof, the indemnity and contribution
agreements set forth in Sections 9 and 10 thereof and the provisions of Sections
12 and 13 thereof shall remain in effect.
This agreement shall be governed by and construed in accordance with
the laws of New York.
[Agent]
By
-------------------------------
Accepted: , 19
--------------------- ---
Jersey Central Power & Light Company
By
--------------------------------
2
SCHEDULE 1 TO EXHIBIT C
Registration Statement No.:
333-78717
Indenture:
Indenture dated as of July 1, 1999 between the Company and United States Trust
Company of New York, as trustee, as supplemented.
Title of Purchased Notes:
Aggregate Principal Amount:
Price to Public:
Purchase Price:
----% of the principal amount of the Purchased Notes.
Date and Time of Delivery:
Method of and Specified Funds for Payment of Purchase Price:
Closing Location:
Redemption Provisions:
Maturity:
For Fixed Rate Notes:
Interest Rate:
Interest Payment Dates:
3
For Floating Rate Notes:
Initial Interest Rate:
Spread or Spread Multiplier:
Interest Rate Reset Dates:
Interest Rate Reset Period:
Interest Payment Dates:
Interest Payment Period:
Index Maturity:
Calculation Agent:
Calculation Date:
Interest Determination Dates:
Period during which additional Notes may not be sold and during which the
certificate, opinion and letter is required notwithstanding suspension pursuant
to Sections 7(m) and 8(e), respectively, of the Distribution Agreement:
Additional Documents to be Delivered:
Additional Terms:
4