EXHIBIT 4-B-36
METROPOLITAN EDISON COMPANY
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee.
SUPPLEMENTAL INDENTURE
Dated as of May 1, 1997
UNITED STATES TRUST COMPANY OF NEW YORK
hereby certifies that its Residence
and Post Office Address is
114 West 47th Street
New York, New York 10036-1532
UNITED STATES TRUST COMPANY OF NEW YORK
By
THIS SUPPLEMENTAL INDENTURE, made as of the 1st day of May, 1997, between
METROPOLITAN EDISON COMPANY, a corporation of the Commonwealth of Pennsylvania,
hereinafter sometimes referred to as the "Company", party of the first part, and
UNITED STATES TRUST COMPANY OF NEW YORK, a national banking association
organized and existing under the laws of the United States of America, having
its principal place of business in New York, New York, as Trustee under the
Mortgage hereinafter referred to, hereinafter sometimes referred to as the
"Trustee", party of the second part;
WHEREAS, the Company has heretofore executed and delivered to Guaranty
Trust Company of New York, as Trustee, its Indenture dated November 1, 1944
(hereinafter sometimes referred to as the "Original Indenture"), which was duly
amended and supplemented by various indentures supplemental thereto, and which
is hereby further supplemented by this Supplemental Indenture, all of which are
herein collectively referred to as the "Mortgage"; and
WHEREAS, United States Trust Company of New York is the successor
Trustee under the Mortgage; and
WHEREAS, the Company has entered into a Pollution Control Facilities Loan
Agreement (hereinafter sometimes referred to as the "Agreement") dated as of May
1, 1997 with Indiana County Industrial Development Authority (hereinafter
sometimes referred to as the "Authority"), a public instrumentality of the
Commonwealth of Pennsylvania and a body corporate and politic,
organized by the County of Indiana, Pennsylvania and duly existing under the
Pennsylvania Economic Development Financing Law (formerly known as the
Pennsylvania Industrial and Commercial Development Authority Law, as amended),
pursuant to which the proceeds of the issuance by the Authority of its Pollution
Control Revenue Bonds, 1997 Series A (Metropolitan Edison Company
Project)(hereinafter sometimes referred to as the "Authority Bonds") under a
Trust Indenture dated as of May 1, 1997 (hereinafter sometimes referred to as
the "Authority Indenture") between the Authority and United States Trust Company
of New York, as Trustee (hereinafter sometimes referred to as the "Authority
Trustee") are to be used to provide funds to pay the costs of refunding the
$13,690,000 aggregate principal amount of the Authority's Promissory Revenue
Notes (Metropolitan Edison Company Project) which provided financing for a
portion of the Company's share of a project consisting of the acquisition and
construction of certain solid waste disposal facilities (hereinafter sometimes
referred to as the "Project Facilities") at the Conemaugh Generating Station in
Indiana County, Pennsylvania which are owned as tenants-in-common by various
utilities, including the Company; and
WHEREAS, to satisfy its obligations under the Agreement, the Company
desires by this Supplemental Indenture to create, and to define, in so far as
the same is permitted by the Original Indenture, the form of and certain other
matters with respect to
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the series of bonds to be issued under the Mortgage, to be designated "First
Mortgage Bonds, 5.95% Series A due May 1, 2027" (hereinafter sometimes referred
to as the "bonds of the New Series"), and to provide for the issuance thereof
only as fully registered bonds; and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument, in accordance with
its terms, and for the purposes herein expressed, have been done, performed and
fulfilled, and the execution and delivery hereof, in the form and terms hereof,
have been in all respects duly authorized:
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That in
consideration of the premises, and of the sum of One Dollar ($1.00) to the
Company duly paid by the Trustee at or before the ensealing and delivery of
these presents, and for other valuable considerations, the receipt whereof is
hereby acknowledged, the Company hereby covenants and agrees to and with the
Trustee and its successors in the trusts under the Mortgage, as follows:
ARTICLE I.
Creation of First Mortgage Bonds,
5.95% Series A due 2027, and
Specification of Certain Matters with Respect Thereto
SECTION 1. The Company hereby creates a series of bonds, limited in
principal amount, as herein provided, to be issued under and secured by the
Mortgage, and to be designated and to be distinguished from bonds of all other
series by the title "First Mortgage Bonds, 5.95% Series A due May 1, 2027".
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SECTION 2. Bonds of the New Series for the aggregate principal amount of
Thirteen Million Six Hundred Ninety Thousand Dollars ($13,690,000) may forthwith
be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee and delivered to or upon the order of the Company
upon receipt by the Trustee of the consideration and supporting documentation
required to be delivered to the Trustee in connection with the issuance of bonds
as provided in the Mortgage.
SECTION 3. Each bond of the New Series shall be dated the date of its
authentication, and shall bear interest from the interest payment date to which
interest has been paid or duly provided for with respect to bonds of the New
Series next preceding the date of its authentication, unless its authentication
date is (i) an interest payment date to which interest has been paid, in which
case it shall bear interest from such date, (ii) prior to November 1, 1997 in
which case it shall bear interest from May 1, 1997, or (iii) after the fifteenth
day of the calendar month next preceding an interest payment date, in which
event it shall be dated and bear interest from the next interest payment date.
Unless previously redeemed or repurchased pursuant to the provisions hereof and
of the Mortgage, each bond of the New Series shall be payable on May 1, 2027, in
such coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private
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debts, and shall bear interest payable in like coin or currency at the rate of
5.95% per annum and from the respective dates specified in the form of the bonds
of the New Series, payable semi-annually on May 1 and November 1 of each year
(commencing November 1, 1997) until maturity, and at maturity at the highest
rate of interest borne by any of the bonds outstanding under the Mortgage from
such date of maturity until they shall be paid or payment thereof shall have
been duly provided for, and (to the extent that payment of such interest is
enforceable under applicable law) interest on any overdue installment of
interest shall be payable at the highest rate of interest borne by any of the
bonds outstanding under said Mortgage. Except as otherwise provided in any
agreement entered into as hereinafter provided, principal of and interest on the
bonds of the New Series shall be payable at the office or agency of the Company
in the Borough of Manhattan, The City of New York.
The Company and the Trustee may enter into a written agreement with an
institutional holder of any bond of the New Series providing, so long as such
holder or any nominee of such holder is the holder of any such bond, for payment
of principal thereof and interest thereon to be made by the Company directly to
such holder by check mailed to an address specified therefor or by bank wire or
interbank transfer of immediately available funds for credit to a bank account
specified therefor, or at such
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other address as such holder shall have designated to the Company and the
Trustee in writing for such purpose, in each case without surrender or
presentation of such bond to the Company or the Trustee or the making of any
notation thereon, except that any bond to be paid or redeemed in full shall be
surrendered at the office or agency of the Company in the Borough of Manhattan,
The City of New York for cancellation in order to receive payment, provided that
under such agreement such holder shall agree that (a) before disposing of any
such bond, such holder will make a notation thereon of all principal payments
previously made thereon and of the date to which interest thereon has been paid
and (b) such holder will indemnify the Company and the Trustee against any and
all costs, expenses and liabilities arising out of any payment of principal of
any such holder's bonds without presentment thereof to the Trustee. Any such
agreement shall also provide that the holder of the bonds shall, within three
business days of the payment of principal thereof or of interest thereon or
default therein, give to the Trustee written notice of the receipt of the
payment of such principal or interest or of a default in such payment, as the
case may be. The Company hereby authorizes the Trustee (and any paying agent for
the bonds of the New Series) to comply with each such agreement so delivered to
the Trustee, notwithstanding the provisions of the Mortgage and of the bonds of
the New Series, to place a legend on any bonds of the New Series which are
subject to any such agreement describing
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the terms thereof. The Trustee shall be entitled to presume, without any
obligation to verify independently, that the Company has made all payments
related to principal (other than payment or redemption in full or repurchase of
any bonds of the New Series) and interest on bonds of the New Series directly to
the holder thereof who has entered into such agreement unless such holder shall
otherwise notify the Trustee.
Bonds of the New Series shall be issuable only as fully registered bonds
in the denominations of $5,000 and any integral multiple thereof, and may be
exchanged, in the manner and subject to the limitations provided in the
Mortgage, for a like aggregate principal amount of bonds of the New Series of
other authorized denominations without charge except for any tax or taxes or
other governmental charges incident to such exchange.
Bonds of the New Series are subject to redemption at the option of the
Company on any date on or after May 1, 2007, in whole or in part by lot at the
applicable optional redemption price shown below as a percentage of the
principal amount, plus interest accrued to the redemption date:
Redemption Periods Optional Redemption
(both dates inclusive) Price
- ---------------------- ---------------------
May 1, 2007 through April 30, 2008 102%
May 1, 2008 through April 30, 2009 101%
May 1, 2009 and thereafter 100%
Bonds of the New Series shall be redeemable at the option of the Company
in whole, at any time prior to maturity, at 100% of the principal amount
thereof, together with accrued interest to
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the redemption date if any one or more of the following events shall have
occurred, as evidenced in each case by a certificate of the Company delivered to
the Trustee to the effect that one of such events has occurred, and describing
the same: (i) the Company shall have determined that the continued operation of
the Project Facilities is impracticable, uneconomical or undesirable for any
reason; or (ii) all or substantially all of the Project Facilities shall have
been condemned or taken by a competent authority; or (iii) the operation of the
Project Facilities shall have been enjoined or shall have been otherwise
prohibited by, or shall conflict with, any order or rule of any court of
competent jurisdiction or any federal, state or local regulatory body,
administrative agency or other governmental body having jurisdiction over the
Project Facilities.
Bonds of the New Series shall be subject to redemption as a whole, as
more fully provided in Section 8.08 of the Mortgage, at 100% of the principal
amount thereof, together with accrued interest to the redemption date, in the
event (a) that all the outstanding common stock of the Company shall be acquired
by some governmental body or instrumentality and the Company elects to redeem
all the bonds of all series, the redemption date in any such event to be not
more than one hundred twenty (120) days after the date on which all said stock
is so acquired, or (b) that all or substantially all of the mortgaged property
constituting bondable property which at the time shall be subject
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to the lien of the Mortgage as a first lien shall be released from the lien of
the Mortgage pursuant to the provisions thereof, and available moneys in the
hands of the Trustee, including any moneys deposited by the Company for the
purpose, are sufficient to redeem all the bonds of all series at the redemption
prices (together with accrued interest to the date of redemption) specified
therein applicable to the redemption thereof upon the happening of such event.
Notice with respect to any redemption of the bonds of the New Series
shall be mailed by the Company to the Authority, the Authority Trustee and the
Trustee not less than forty-five (45) days and not more than ninety (90) days
prior to the redemption date and shall specify the matters set forth in the
penultimate sentence of the first paragraph and, if applicable, the second
sentence of the third paragraph of Section 8.02 of the Original Indenture. Each
holder of bonds of the New Series by the acceptance of such bonds waives the
right to any publication of a notice of such redemption in any newspaper as
specified in Section 8.02 of the Original Indenture.
Any redemption of the bonds of the New Series may be effected out of
cash deposited pursuant to Sections 5.06, 5.07 and 5.08 or Article IX of the
Original Indenture, the premium, if any, and accrued interest in case of any
such redemption to be provided for by the Company pursuant to the provisions of
Section 8.07 of the Original Indenture.
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Bonds of the New Series are subject to mandatory redemption in whole, or, if
less than all of the Authority Bonds are then subject to mandatory redemption
pursuant to Section 6.05 of the Authority Indenture, in part in an amount equal
to the Authority Bonds then subject to redemption, upon a redemption date (which
date shall be fixed by the Company, after receipt by the Trustee and the Company
of a written demand for redemption by the Authority Trustee, in a written notice
mailed by the Company to the Trustee and to the Authority Trustee at least
forty-five (45) days prior to the date so fixed) which shall be within 120 days
(or, in the absence of a written notice mailed by the Company, as aforesaid, on
the 120th day) after a final determination by a court of competent jurisdiction
or an administrative agency, to the effect that, as a result of a failure by the
Company to perform or observe any covenant, condition or agreement on its part
to be observed or performed under the Agreement or the inaccuracy of any
representation by the Company under the Agreement, the interest payable on the
Authority Bonds is includable for Federal income tax purposes in the holder's
gross income, other than any holder of the Authority Bonds who is a substantial
user of the Project Facilities or a "related person" within the meaning of
Section 147(a) of the Internal Revenue Code of 1986, as amended (the "Code") to
the extent necessary in order to redeem the Authority Bonds so that interest
payable on the Authority Bonds remaining outstanding after such redemption of
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the Authority Bonds would not, in the opinion of recognized bond counsel, be
included in the gross income of any holders, other than a holder of an Authority
Bond who is a Asubstantial user@ of the Project Facilities or a Arelated person@
within the meaning of Section 147(a) of the Code. No determination by any court
or administrative agency shall be considered final unless the Company shall have
been given timely notice of the proceeding which resulted in such determination
and an opportunity to participate in such proceeding, either directly or through
a holder of an Authority Bond, to a degree it deems sufficient and until the
conclusion of any appellate review or rehearing sought by any party to such
proceeding or the expiration of the time for seeking such review or hearing. The
Company shall not redeem bonds of the New Series if it receives a written
cancellation of the written demand from the Authority Trustee. Any such written
demand from the Authority Trustee or a cancellation of such written demand shall
be executed on behalf of such Authority Trustee by its President or a Vice
President or a trust officer and shall be deemed received by the Trustee when
delivered at its corporate trust office in the Borough of Manhattan, The City of
New York. The Trustee may conclusively rely as to the truth of the statements
contained therein, upon any such demand or cancellation.
Bonds of the New Series are subject to mandatory repurchase by the
Company prior to maturity at 100% of the principal amount thereof, plus interest
accrued to the repurchase date, in whole,
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upon a repurchase date (which date shall be fixed by the Company in a written
notice mailed by the Company to the Trustee and to the Authority Trustee) which
shall be within ten (10) days after receipt by the Trustee and the Company of a
written demand for repurchase by the Authority Trustee, stating that the
principal of all Authority Bonds then outstanding under the Authority Indenture
has been declared to be immediately due and payable pursuant to the provisions
of Section 8.02 thereof due to an event of default under Section 8.01 A, B, or C
thereof.
SECTION 4. So long as any of the bonds of the New Series shall be
secured by the lien of the Mortgage, the term "minimum provision for
depreciation" when used for any purposes under the Mortgage and with reference
to any period of time shall mean an amount computed pursuant to the provisions
of Article I, Section 5 of the Supplemental Indenture dated March 1, 1952.
SECTION 5. So long as any of the bonds of the New Series shall be
secured by the lien of the Mortgage, clause (A)(II) of Section 1.06 of the
Original Indenture shall be deemed amended as set forth in the quotation
contained in Article I, Section 4 of the Supplemental Indenture dated May 1,
1960.
SECTION 6. So long as any of the bonds of the New Series shall be
secured by the lien of the Mortgage, the first sentence of Section 5.20 of the
Original Indenture shall be deemed amended as set forth in the quotation
contained in Article I, Section 6 of the Supplemental Indenture dated December
1, 1950.
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SECTION 7. So long as any of the bonds of the New Series shall be secured
by the lien of the Mortgage, the Company will keep and perform the covenants and
agreements set forth in Article I, Section 7 of the Supplemental Indenture dated
June 1, 1957, irrespective of whether any of the bonds of the series created by
such Supplemental Indenture shall be then outstanding.
SECTION 8. So long as any of the bonds of the New Series shall be secured
by the lien of the Mortgage, the Company will keep and perform the covenants set
forth in Article I, Section 4 of the Supplemental Indenture dated March 1, 1952,
irrespective of whether any of the bonds of the series created by such
Supplemental Indenture shall be then outstanding.
SECTION 9. The Company covenants and agrees that, notwithstanding Section
2.03 of the Original Indenture, it will not charge any sum for or in connection
with any exchange or registration of transfer of any bond of the New Series, but
may require the payment of a sum sufficient to cover any tax or taxes or other
governmental charges incident to any exchange or registration of transfer
thereof.
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ARTICLE II.
Form of the Bonds of the New Series
The form of the bonds of the New Series and the Trustee's authentication
certificate to be endorsed thereupon shall be substantially as follows, the
denominations and numbers thereof to be appropriately inserted:
[FORM OF FACE OF BONDS OF THE NEW SERIES]
METROPOLITAN EDISON COMPANY
(Incorporated under the laws
of the
Commonwealth of Pennsylvania)
FIRST MORTGAGE BOND, 5.95% SERIES A
DUE May 1, 2027
$ No.
METROPOLITAN EDISON COMPANY, a corporation of the Commonwealth of
Pennsylvania (hereinafter called the "Company"), for value received, hereby
promises to pay to
, as Trustee, or registered assigns,
DOLLARS on , , at the office or
agency of the Company in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public or private debts, and to pay interest
thereon semi-annually on May 1 and November 1 of each year (commencing November
1, 1997), at the rate of 5.95% per annum, at said office or agency in like coin
or currency, from May 1, 1997, or from the most recent interest payment date to
which interest has been paid
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or duly provided for with respect to bonds of the aforesaid series (subject to
certain exceptions provided in the Mortgage hereinafter mentioned), until this
bond shall mature, according to its terms or on prior redemption or by
declaration or otherwise, and at the highest rate of interest borne by any of
the bonds outstanding under the Mortgage hereinafter mentioned from such date of
maturity until this bond shall be paid or the payment hereof shall have been
duly provided for, and (to the extent that payment of such interest is
enforceable under applicable law) to pay interest on any overdue installment of
interest at the highest rate of interest borne by any of the bonds outstanding
under said Mortgage.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This bond shall not become valid or obligatory for any purpose until
United States Trust Company of New York, or its successor, as Trustee under the
Mortgage, shall have signed the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, METROPOLITAN EDISON COMPANY has caused this bond to
be signed in its name by its President or one of its Vice Presidents and its
corporate seal, or a facsimile thereof, to be affixed hereto and attested by its
Secretary or one of its Assistant Secretaries.
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DATED: METROPOLITAN EDISON COMPANY
By__________________________
Vice President
ATTEST:
- --------------------------
Assistant Secretary
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[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE
ON BONDS OF THE NEW SERIES]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein designated, provided
for in the within-mentioned Mortgage.
UNITED STATES TRUST COMPANY OF NEW YORK, Trustee
By ______________________
Authorized Officer
FORM OF REVERSE OF BONDS OF THE NEW SERIES]
METROPOLITAN EDISON COMPANY
(Incorporated under the laws
of the
Commonwealth of Pennsylvania)
FIRST MORTGAGE BOND, 5.95% SERIES A DUE May 1, 2027
This bond is one of an issue of bonds of the Company (herein referred to
as the "bonds"), not limited in principal amount except as in the Mortgage
hereinafter mentioned provided, issuable in series, which different series and
bonds of the same series may mature at different times, may bear interest at
different rates, and may otherwise vary as in the Mortgage hereinafter mentioned
provided, and is one of a series known as its First Mortgage Bonds, 5.95% Series
A due May 1, 2027 (herein referred to as "bonds of the New Series"), all bonds
of all series issued and to be issued under and equally and ratably
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secured (except in so far as any sinking or analogous fund, established in
accordance with the provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series) by an Indenture
dated November 1, 1944 (sometimes referred to as the "Original Indenture" and
together with all indentures supplemental thereto, called the "Mortgage"), under
which United States Trust Company of New York is successor trustee (herein
called the "Trustee"), and to which Mortgage reference is made for a description
of the property mortgaged, the nature and extent of the security, the rights of
the holders of the bonds and of the Company in respect thereof, the rights,
duties and immunities of the Trustee, and the terms and conditions upon which
the bonds are, and are to be, issued and secured.
The Mortgage contains provisions permitting the holders of not less than
seventy-five per centum (75%) in principal amount of all the bonds at the time
outstanding, determined and evidenced as provided in the Mortgage, or in case
the rights under the Mortgage of the holders of bonds of one or more, but less
than all, of the series of bonds outstanding shall be affected, then with the
consent of the holders of not less than seventy-five per centum (75%) in
principal amount of the outstanding bonds of such one or more series affected,
except that if any such action would affect the bonds of two or more series, the
holders of not less than seventy-five per centum
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(75%) in principal amount of outstanding bonds of such two or more series, which
need not include seventy-five per centum (75%) in principal amount of
outstanding bonds of each of such series, determined and evidenced as provided
in the Mortgage, on behalf of the holders of all the bonds, to waive any past
default under the Mortgage and its consequences except a completed default, as
defined in the Mortgage, in respect of the payment of the principal of or
interest on any bond or default arising from the creation of any lien ranking
prior to or equal with the lien of the Mortgage on any of the mortgaged
property, subject to the condition that, in the case the rights of the holders
of less than all of the series of bonds outstanding shall be affected, no waiver
of any past default or its consequences shall be effective unless approved by
the holders of not less than a majority of all the bonds at the time
outstanding. The Mortgage also contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than seventy-five per
centum (75%) in principal amount of all the bonds at the time outstanding,
determined and evidenced as provided in the Mortgage, or in case the rights
under the Mortgage of the holders of bonds of one or more, but less than all, of
the series of bonds outstanding shall be affected, then with the consent of the
holders of not less than seventy-five per centum (75%) in principal amount of
the outstanding bonds of such one or more series affected, except that if any
such action would affect the
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bonds of two or more series, the holders of not less than seventy-five per
centum (75%) in principal amount of outstanding bonds of such two or more
series, which need not include seventy-five per centum (75%) in principal amount
of outstanding bonds of each of such series, determined and evidenced as
provided in the Mortgage, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Mortgage or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof, without the
consent of the holder of each bond so affected, or (ii) reduce the aforesaid
percentage of bonds, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all bonds then
outstanding, or (iii) permit the creation of any lien ranking prior to or equal
with the lien of the Mortgage on any of the mortgaged property, or (iv) deprive
the holder of any outstanding bond of the lien of the Mortgage on any of the
mortgaged property. Any such waiver or consent by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be conclusive and
binding upon such holder and upon all future holders of this bond, irrespective
of whether or not any notation of such waiver or consent is made upon this bond.
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No reference herein to the Mortgage and no provision of this bond or of the
Mortgage shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this bond at the time
and place and at the rate and in the coin or currency herein prescribed.
Bonds of the New Series are issuable only in fully registered form and
in denominations of $5,000, and any integral multiple of $5,000.
In the manner and subject to the limitations provided in the Mortgage,
bonds of the New Series may be exchanged for a like aggregate principal amount
of bonds of the New Series of other authorized denominations without charge
except for any tax or taxes or governmental charges incident to such exchange.
Bonds of the New Series are subject to redemption at the option of the
Company on any date on or after May 1, 2007, in whole or in part by lot at the
applicable optional redemption price shown below as a percentage of the
principal amount, plus interest accrued to the redemption date:
Redemption Periods Optional Redemption
(both dates inclusive) Price
---------------------- --------------------
May 1, 2007 through April 30, 2008 102%
May 1, 2008 through April 30, 2009 101%
May 1, 2009 and thereafter 100%
Bonds of the New Series shall be redeemable at the option of the Company
in whole, at any time prior to maturity at 100% of the principal amount thereof,
together with accrued interest to the redemption date if any one or more of the
following events shall have occurred, as evidenced in each case by a certificate
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of the Company delivered to the Trustee to the effect that one of such events
has occurred, and describing the same: (i) the Company shall have determined
that the continued operation of certain solid waste disposal facilities (the
"Project Facilities") which are the subject of a Pollution Control Facilities
Loan Agreement (the "Agreement") dated as of May 1, 1997 entered into by the
Company with Indiana County Industrial Development Authority (the "Authority")
is impracticable, uneconomical or undesirable for any reason; or (ii) all or
substantially all of the Project Facilities shall have been condemned or taken
by a competent authority; or (iii) the operation of the Project Facilities shall
have been enjoined or shall have been otherwise prohibited by, or shall conflict
with, any order or rule of any court of competent jurisdiction or of any
federal, state or local regulatory body, administrative agency or other
governmental body having jurisdiction over the Project Facilities.
Bonds of the New Series shall be subject to redemption as a whole, as
more fully provided in Section 8.08 of the Mortgage, at 100% of the principal
amount thereof, together with accrued interest to the redemption date, in the
event (a) that all the outstanding common stock of the Company shall be acquired
by some governmental body or instrumentality and the Company elects to redeem
all the bonds of all series, the redemption date in any such event to be not
more than one hundred twenty days after the date on which all said stock is so
acquired, or (b) that all or
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substantially all of the mortgaged property (constituting bondable property as
defined in the Mortgage) which at the time shall be subject to the lien of the
Mortgage as a first lien shall be released from the lien of the Mortgage
pursuant to the provisions thereof, and available moneys in the hands of United
States Trust Company of New York, or its successor, as Trustee, including any
moneys deposited by the Company for the purpose, are sufficient to redeem all
the bonds of all series at the redemption prices (together with accrued interest
to the date of redemption) specified therein applicable to the redemption
thereof upon the happening of such event.
Notice with respect to any redemption of the bonds of the New Series
shall be mailed by the Company to the Authority, the Authority Trustee (as
defined hereinbelow) and the Trustee not less than forty-five (45) days and not
more than ninety (90) days prior to the redemption date and shall specify the
matters set forth in the penultimate sentence of the first paragraph and, if
applicable, the second sentence of the third paragraph of Section 8.02 of the
Original Indenture. Each holder of bonds of the New Series by the acceptance of
such bonds waives the right to any publication of a notice of such redemption in
any newspaper as specified in Section 8.02 of the Original Indenture.
Redemption of the bonds of the New Series may be effected, out of cash
deposited pursuant to Sections 5.06, 5.07 and 5.08, and Article IX of the
Mortgage, the premium, if any, and accrued
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interest in case of any such redemption to be paid out of cash deposited by the
Company for the purpose.
The Mortgage provides that any notice of redemption of bonds may state that
it is subject to the receipt of the redemption moneys by the Trustee before the
date fixed for redemption and such notice shall be of no effect unless such
moneys are received before such date.
The Mortgage provides that if the Company shall deposit with the Trustee
in trust for the purpose, funds sufficient to pay the principal of all of the
bonds of any series, or such of the bonds of any series as have been or are to
be called for redemption and premium, if any, thereon, and all interest payable
on such bonds (or portions) to the date on which they become due and payable at
maturity or upon redemption or otherwise, and complies with the other provisions
of the Mortgage in respect thereof, then from the date of such deposit such
bonds (or portions) shall no longer be secured by the lien of the Mortgage.
The Mortgage provides that, upon any partial redemption of a fully
registered bond, upon surrender thereof endorsed for transfer, new bonds of the
same series and of authorized denominations in principal amount equal to the
unredeemed portion of such fully registered bond will be delivered without
charge in exchange therefor.
The principal hereof may be declared or may become due prior to the express
date of the maturity hereof on the conditions, in
24
the manner and at the time set forth in the Mortgage, upon the occurrence of a
completed default as in the Mortgage provided.
Bonds of the New Series are subject to mandatory redemption in whole,
or, if less than all of the Authority's Pollution Control Revenue Bonds, 1997
Series A (Metropolitan Edison Company Project) (hereinafter sometimes referred
to as the "Authority Bonds") under a Trust Indenture dated as of May 1, 1997
(hereinafter sometimes referred to as the "Authority Indenture") between the
Authority and United States Trust Company of New York, as trustee (hereinafter
sometimes referred to as the "Authority Trustee") are then subject to mandatory
redemption pursuant to Section 6.05 of the Authority Indenture, in part in an
amount equal to the Authority Bonds then subject to redemption, upon a
redemption date (which date shall be fixed by the Company, after receipt by the
Trustee and the Company of a written demand for redemption by the Authority
Trustee, in a written notice mailed by the Company to the Trustee and to the
Authority Trustee at least forty-five (45) days prior to the date so fixed)
which shall be within 120 days (or, in the absence of a written notice mailed by
the Company, as aforesaid, on the 120th day) after a final determination by a
court of competent jurisdiction or an administrative agency, to the effect that,
as a result of a failure by the Company to perform or observe any covenant,
condition or agreement on its part to be observed or performed under the
Agreement or the inaccuracy of any
25
representation by the Company under the Agreement, the interest payable on the
Authority Bonds is includable for Federal income tax purposes in the holder's
gross income, other than any holder of the Authority Bonds who is a "substantial
user" of the Project Facilities or a "related person" within the meaning of
Section 147(a) of the Internal Revenue Code of 1986, as amended (the "Code") to
the extent necessary in order to redeem the Authority Bonds so that interest
payable on the Authority Bonds remaining outstanding after such redemption of
the Authority Bonds would not, in the opinion of recognized bond counsel, be
included in the gross income of any holders, other than a holder of an Authority
Bond who is a "substantial user" of the Project Facilities or a "related person"
within the meaning of Section 147(a) of the Code. No determination by any court
or administrative agency shall be considered final unless the Company shall have
been given timely notice of the proceeding which resulted in such determination
and an opportunity to participate in such proceeding, either directly or through
a holder of an Authority Bond, to a degree it deems sufficient and until the
conclusion of any appellate review or rehearing sought by any party to such
proceeding or the expiration of the time for seeking such review or hearing. The
Company shall not redeem bonds of the New Series if it receives a written
cancellation of the written demand from the Authority Trustee. Any such written
demand from the Authority Trustee or a cancellation of such
26
written demand shall be executed on behalf of such Authority Trustee by its
President or a Vice President or a trust officer and shall be deemed received by
the Trustee when delivered at its corporate trust office in the Borough of
Manhattan, The City of New York. The Trustee may conclusively rely as to the
truth of the statements contained therein, upon any such demand or cancellation.
Bonds of the New Series are subject to mandatory repurchase by the
Company prior to maturity at 100% of the principal amount thereof, plus interest
accrued to the repurchase date, in whole, upon a repurchase date (which date
shall be fixed by the Company in a written notice mailed by the Company to the
Trustee and to the Authority Trustee) which shall be within ten (10) days after
receipt by the Trustee and the Company of a written demand for repurchase by the
Authority Trustee, stating that the principal of all Authority Bonds then
outstanding under the Authority Indenture has been declared to be immediately
due and payable pursuant to the provisions of Section 8.02 thereof due to an
event of default under Section 8.01 A, B, or C thereof.
No recourse shall be had for the payment of the principal or interest on
this bond, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Mortgage or under or upon any obligation, covenant
or agreement contained in the Mortgage, against any incorporator, or any past,
present or future subscriber to the capital stock, stockholder,
27
officer or director, as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any predecessor or
successor corporation, under any present or future rule of law, statute or
constitution or by the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers and directors,
as such, being waived and released by the holder and owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
ARTICLE III.
Subjecting Certain Property Specifically
to the Lien of the Mortgage
AND THIS SUPPLEMENTAL INDENTURE FURTHER WITNESSETH: That in
consideration of the premises, and of the sum of One Dollar ($1.00) to the
Company duly paid by the Trustee at or before the ensealing and delivery of
these presents, Metropolitan Edison Company has granted, bargained, sold,
aliened, enfeoffed, released, conveyed, assigned, transferred, pledged, set over
and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff,
release, convey, assign, transfer, pledge, set over and confirm, unto United
States Trust Company of New York, as Trustee, and to its successors and assigns
forever, all of the following described property, to wit:
All property, real, personal and mixed, tangible and intangible, owned
by the Company, or in which it owns an
28
interest, on the date of the execution hereof, or (subject to the provisions of
Article XIII of the Mortgage) which may hereafter be acquired by it, wheresoever
situate, and necessary or appropriate to the public utility plant and business
of the Company and to its operation as a going concern, except such property as
is hereinafter expressly excepted and excluded from the lien and operation of
the Mortgage. The property covered by the lien of the Mortgage shall include
particularly, among other property, without prejudice to the generality of the
language hereinbefore or hereinafter contained, the following described
property:
FIRST.
PARCEL NUMBER ONE
ADDITION TO SUBSTATION PROPERTY
-------------------------------
ALL THAT CERTAIN tract of land in the City of Reading, County of Berks
and Commonwealth of Pennsylvania, containing approximately 11,500 square feet
and granted and conveyed unto Metropolitan Edison Company by Consolidated Rail
Corporation by deed dated October 31, 1996, and recorded in the Office for the
Recording of Deeds in and for said County in Book 2804, Page 1338.
SECOND.
Also all power houses, plants, buildings, distributing stations,
substations, transforming stations and other structures for or used for or
intended for use in connection with the
29
manufacture, generation, transmission or furnishing of electricity, and the
machinery, fixtures, fittings and equipment thereof or appurtenant thereto,
including, without limiting the generality of the foregoing, all dynamos,
engines, turbines, boilers, pumps, generators, transformers, converters,
regulators, exciters, meters, shafting and belting and all other apparatus and
appliances for generating or producing electricity, which are owned by the
Company, or in which it owns an interest, on the date of the execution hereof or
(subject to the provisions of Article XIII of the Mortgage) which may be
hereafter acquired by it, wheresoever situate, and necessary or appropriate to
the public utility plant and business of the Company and to its operation as a
going concern, except such property as is hereinafter expressly excepted and
excluded from the lien and operation of the Mortgage.
THIRD.
Also all transmission and distribution lines and systems, whether
underground, surface or overhead, for or used for or intended for use in
connection with the transmission and distribution of electricity, and the
conduits, poles, cross arms, insulators, transformers, cables, wires, meters,
fixtures, tools, supplies and all other apparatus and appliances connected
therewith or appurtenant thereto which are owned by the Company, or in which it
owns an interest, on the date of the execution hereof or (subject to the
provisions of Article XIII of the Mortgage) which may be hereafter acquired by
it.
30
FOURTH.
Also all franchises, immunities, privileges, permits, licenses,
easements and rights of way authorizing, permitting or facilitating the
erection, maintenance or operation upon, over or under any streets, avenues,
highways, alleys, lanes, walks, parks and other public places in any county,
city, borough, town, township or village, or upon, over or under any private
property of poles, towers, wires, conduits, mains, pipes or other structures or
apparatus for the transmission or distribution of electricity or otherwise
relating to the business of producing, transmitting and distributing
electricity, which are owned by the Company, or in which it owns an interest, on
the date of the execution hereof or (subject to the provisions of Article XIII
of the Mortgage) which may be hereafter acquired by it.
31
GENERAL SUBJECT CLAUSES.
SUBJECT, HOWEVER, to the reservations, mining rights, exceptions,
conditions, limitations and restrictions contained in the several deeds,
franchises and contracts or other instruments through which the Company acquired
or claims title to or enjoys the use of said properties; to statutory and
municipal requirements relating to land and buildings; to the rights of the
public and others in streets, roads and highways, opened, or laid out but
unopened, crossing or bounding any of the said parcels; to the rights of owners
abutting thereon in any stream, drain or ditch crossing or bounding any of the
said parcels; to the rights of the Commonwealth of Pennsylvania in and to any of
the lands located in any streams or rivers abutting any of the said parcels; and
to the rights of electric, gas, telephone, telegraph and pipeline companies to
maintain and operate pole lines and gas and petroleum products mains and pipes
over or through any of the said parcels or on or in the streets, roads or
highways abutting thereon as the same existed at the time of acquisition of said
parcels by the Company; and to any easements visible on the ground at the time
of such acquisition, but not evidenced by recorded agreements or grants.
32
EXCEPTED PROPERTY.
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from this Supplemental
Indenture and from the lien and operation hereof, all property of every kind and
type excepted and excluded from the Mortgage by subdivisions II (to the extent
that such real estate is still owned by the Company) and III under the heading
"Excepted Property" therein to the extent there indicated and reference is
hereby made to said Mortgage for a description thereof.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the property covered by
this Supplemental Indenture or intended so to be, or any part thereof, with the
reversion and reversions, remainder and remainders and (subject to the
provisions of Section 9.01 of the Mortgage) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the estate, right, title
and interest and claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the property covered by this
Supplemental Indenture or intended so to be and every part and parcel thereof.
TO HAVE AND TO HOLD the property covered by this Supplemental Indenture
or intended so to be to the Trustee, its successors and assigns, forever, upon
and subject to the trusts, uses, conditions, covenants and provisions of the
Mortgage.
33
ARTICLE IV.
Miscellaneous
SECTION 1. The Trustee, for itself and its successors in said trusts,
hereby accepts the conveyance, transfer and assignment of the property included
in this Supplemental Indenture upon the trusts, terms and conditions expressed
in the Mortgage.
SECTION 2. This Supplemental Indenture shall be simultaneously executed
in several counterparts, and all such counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
SECTION 3. The recitals of fact contained herein and in the bonds of the
New Series (other than the Trustee's certificate of authentication) shall be
taken as the statements of the Company and the Trustee assumes no responsibility
for the correctness of the same.
IN WITNESS WHEREOF, METROPOLITAN EDISON COMPANY, party of the first
part, has caused this instrument to be signed in its name and behalf by a Vice
President and its corporate seal to be hereunto affixed and attested by its
Secretary, and UNITED STATES TRUST COMPANY OF NEW YORK, party of the second
part, in token of its acceptance of the trust hereby created, has caused this
instrument to be signed in its name and behalf by an Assistant Vice President
and its corporate seal to be hereunto affixed and attested by its Secretary, all
as of the day and year first above written.
34
METROPOLITAN EDISON COMPANY
By
Vice President
Attest:
, Assistant Secretary
Signed, sealed and delivered by said Metropolitan Edison Company in the presence
of:
UNITED STATES TRUST COMPANY OF NEW YORK
By
Louis P. Young, Vice President
Attest:
Robert F. Lee, Assistant Secretary
Signed, sealed and delivered by said
United States Trust Company of New York
in the presence of:
COMMONWEALTH OF PENNSYLVANIA )
: ss.
COUNTY OF BERKS )
On the 19th day of May, 1997, before me, a Notary Public of the State
and County aforesaid, the undersigned officer, personally appeared , who
acknowledged himself to be a Vice President of Metropolitan Edison Company, a
corporation, and that he as such Vice President of the said corporation, being
duly authorized to do so, executed the foregoing Supplemental Indenture for the
purposes therein contained by signing the name of the corporation by himself as
Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Sworn to and subscribed before me the day and year aforesaid.
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On the 19th day of May, 1997, before me, a Notary Public of the State
and County aforesaid, the undersigned officer, personally appeared Louis P.
Young, who acknowledged himself to be a Vice President of UNITED STATES TRUST
COMPANY OF NEW YORK, a corporation, and that as such Vice President of the said
corporation, being duly authorized to do so, executed the foregoing Supplemental
Indenture for the purposes therein contained by signing the name of the
corporation by himself as Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Sworn to and subscribed before me the day and year aforesaid.