EXECUTED IN 50 COUNTERPARTS OF
WHICH THIS IS COUNTERPART NO.
PENNSYLVANIA ELECTRIC COMPANY
AND
UNITED STATES TRUST COMPANY OF NEW YORK, SUCCESSOR TRUSTEE
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SUPPLEMENTAL INDENTURE
(First Mortgage Bonds, Senior Note Series due 2002)
--------------------
Dated as of May 1, 2001
TABLE OF CONTENTS
PAGE
Parties................................................................ 1
Recitals............................................................... 1
Granting Clauses....................................................... 4
Excepted Property...................................................... 6
Habendum............................................................... 6
Subject Clause......................................................... 6
Grant in Trust......................................................... 6
ARTICLE I SENIOR NOTE SERIES BONDS.................................... 7
SECTION 1.01. Creation of Senior Note Series Bonds................. 7
SECTION 1.02. Dating of Senior Note Series Bonds................... 7
SECTION 1.03. Payment of Principal and Interest.................... 7
SECTION 1.04. Registration of Senior Note Series Bonds............. 8
SECTION 1.05. Transferability and Assignability of Senior
Note Series Bonds................................... 8
SECTION 1.06. Redemption of Senior Note Series Bonds............... 8
SECTION 1.07. Release Date and Surrender........................... 8
ARTICLE II FORM OF THE SENIOR NOTE SERIES BONDS....................... 10
SECTION 2.01. Form of Senior Note Series Bonds..................... 10
ARTICLE III MISCELLANEOUS............................................. 15
SECTION 3.01. Covenants of the Company............................. 15
SECTION 3.02. Indemnification of Trustee........................... 15
SECTION 3.03. Table of Contents and Titles of Articles not Part.... 16
SECTION 3.04. Original Indenture Confirmed as Amended
and Supplemented..................................... 16
SECTION 3.05. Execution in Counterparts............................ 16
Names and Addresses of debtor and secured party....................... 15
Testimonium........................................................... 16
Signatures and seals.................................................. 16
Acknowledgments....................................................... 18
Certificate of Residence.............................................. 19
Schedule A........................................................... A-1
SUPPLEMENTAL INDENTURE, dated as of May 1, 2001, made and entered into by and
between PENNSYLVANIA ELECTRIC COMPANY, a corporation of the Commonwealth of
Pennsylvania (hereinafter sometimes called the "Company"), party of the first
part, and UNITED STATES TRUST COMPANY OF NEW YORK, a company organized under the
laws of the State of New York (hereinafter sometimes called the "Trustee"), as
successor trustee under the Mortgage and Deed of Trust hereinafter referred to,
party of the second part.
WHEREAS, the Company heretofore executed and delivered its Mortgage and
Deed of Trust (hereinafter called the "Original Indenture"), dated as of the
first day of January, 1942, to Bankers Trust Company, as trustee, to secure the
First Mortgage Bonds of the Company, unlimited in aggregate principal amount and
issuable in series, from time to time, in the manner and subject to the
conditions set forth in the Mortgage (as hereinafter defined) and by said
Original Indenture granted and conveyed unto the Trustee, upon the trusts, uses
and purposes specifically therein set forth, certain real estate, franchises and
other property therein described, including property acquired after the date
thereof, except as therein otherwise provided; and
WHEREAS, indentures supplemental to and amendatory of the Original
Indenture have been executed and delivered by the Company and the Trustee,
namely, Supplemental Indentures dated March 7, 1942, April 28, 1943, August 20,
1943, August 30, 1943, August 31, 1943, April 26, 1944, April 19, 1945, October
25, 1945, as of June 1, 1946, as of November 1, 1949, as of October 1, 1951, as
of August 1, 1952, as of June 1, 1953, as of March 1, 1954, as of April 30,
1956, as of May 1, 1956, as of March 1, 1958, as of August 1, 1959, as of May 1,
1960, as of May 1, 1961, October 1, 1964, November 1, 1966, as of June 1, 1967,
as of August 1, 1968, as of May 1, 1969, as of April 1, 1970, as of December 1,
1971, as of July 1, 1973, as of June 1, 1974, as of December 1, 1974, as of
August 1, 1975, as of December 1, 1975, as of April 1, 1976, as of June 1, 1976,
as of July 1, 1976, as of November 1, 1976, as of November 30, 1977, as of
December 1, 1977, as of June 1, 1978, as of June 1, 1979, as of September 1,
1984, as of December 1, 1985, as of December 1, 1986, as of May 1, 1989, as of
December 1, 1990, as of March 1, 1992, as of June 1, 1993, as of November 1,
1995 and as of August 15, 1996, respectively; and the Original Indenture as
supplemented and amended by said Supplemental Indentures and by this
Supplemental Indenture is hereinafter referred to as the "Mortgage"; and
WHEREAS, the Original Indenture, certain of said Supplemental Indentures
and an Instrument of Resignation, Appointment and Acceptance dated as of October
27, 1995 among the Company, Bankers Trust Company and United States Trust
Company of New York have been duly recorded in mortgage books in the respective
Offices of the Recorders of Deeds in and for the Counties of Pennsylvania in
which this Supplemental Indenture is to be recorded, and in the mortgage records
of Garrett County, Maryland; and
WHEREAS, the Mortgage provides for the issuance of bonds thereunder in one
or more series, the form of each series of bonds and of the coupons to be
attached to the coupon bonds, if any, of each series to be substantially in the
forms set forth therein with such omissions, variations and insertions as are
authorized or permitted by the Mortgage and determined and specified by the
Board of Directors of the Company; and
WHEREAS, the Company has entered into an Indenture dated as of April 1,
1999 (the "Original Senior Note Indenture") with United States Trust Company of
New York, as trustee (the "Senior Note Trustee"), as heretofore amended and
supplemented by Supplemental Indenture No. 1, dated as of May 1, 2001 (the
"First Supplemental Senior Note Indenture"; the Original Senior Note Indenture
as supplemented and amended by the First Supplemental Senior Note Indenture is
hereinafter referred to as the "Senior Note Indenture"), providing for the
issuance of notes thereunder (the "Senior Notes") from time to time, and
pursuant to the Senior Note Indenture the Company has agreed, under certain
circumstances, to deliver to the Senior Note Trustee, as security for the Senior
Notes outstanding from time to time under the Senior Notes Indenture, a new
series of bonds issued under the Mortgage; and
WHEREAS, for such purposes the Company desires to issue a new series of
bonds and by appropriate corporate action in conformity with the terms of the
Mortgage has duly determined to create a separate series of bonds, which shall
be designated as "First Mortgage Bonds, Senior Note Series due 2002"
(hereinafter sometimes referred to as the "Senior Note Series Bonds"), which
said Senior Note Series Bonds are to be substantially in the form set forth in
Article II hereof with the insertion of numbers, denominations, dated dates,
maturities, redemption prices and interest rates as determined in accordance
with the terms of the Mortgage; and
WHEREAS, the Senior Note Series Bonds shall be issued and delivered to
United States Trust Company of New York, as escrow agent (the "Escrow Agent"),
pursuant to an Escrow Agreement, dated as of May 1, 2001, among the Company, The
Chase Manhattan Bank, as Administrative Agent, and the Escrow Agent, for
subsequent delivery, in the event certain conditions are satisfied, to the
Senior Note Trustee, in connection with the execution and delivery of the First
Supplemental Senior Note Indenture; and
WHEREAS, all acts and things prescribed by law and by the charter and
by-laws of the Company necessary to make the Senior Note Series Bonds, when
executed by the Company and authenticated by the Trustee, as in the Mortgage
provided, valid, binding and legal obligations of the Company, entitled in all
respects to the security of the Mortgage, have been performed or will have been
performed prior to execution of such Senior Note Series Bonds by the Company and
authentication thereof by the Trustee; and
WHEREAS, provision is made in Sections 5.11 and 17.01 of the Original
Indenture for such further instruments and indentures supplemental to the
Original Indenture as may be necessary or proper (a) to carry out more
effectually the purposes of the Original Indenture; (b) expressly to subject to
the lien of the Original Indenture any property acquired after the date of the
2
Original Indenture and intended to be covered thereby, with the same force and
effect as though included in the granting clauses thereof; (c) to set forth the
terms and provisions of any series of bonds to be issued and the forms of the
bonds and coupons, if any, of such series; (d) to add such further covenants,
restrictions or conditions for the protection of the mortgaged and pledged
property and the holders of bonds as the Board of Directors of the Company and
the Trustee shall consider to be for the protection of the holders of bonds; and
(e) to cure any ambiguity of the Original Indenture which shall not adversely
affect the interests of the holders of the bonds; and
WHEREAS, the Company has acquired additional property; and it is desired
to add certain further covenants, restrictions and conditions for the protection
of the mortgaged and pledged property and the holders of bonds which the Board
of Directors of the Company and the Trustee consider to be for the protection of
the holders of bonds; and the Company desires to issue the Senior Note Series
Bonds; and the Company and the Trustee deem it advisable to enter into this
Supplemental Indenture for the purposes of carrying out the purposes of the
Original Indenture, of expressly subjecting additional property to the lien of
the Mortgage, of setting forth the terms and provisions of the Senior Note
Series Bonds, and the form of the Senior Note Series Bonds, and of setting forth
such further covenants, restrictions and conditions; and
WHEREAS, it was intended by the execution and delivery of the Original
Indenture and the aforesaid Supplemental Indentures to subject to the lien of
the Original Indenture, and to grant to the Trustee a security interest in, all
of the property, real, personal and mixed, then owned by the Company or
thereafter acquired by the Company, as and to the extent set forth therein,
subject to the provisions thereof, except such property as was therein expressly
excepted and excluded from the lien and operation thereof; and it is the
intention of the parties hereto, by the execution and delivery of this
Supplemental Indenture, to provide the Trustee with further assurances by also
creating in favor of the Trustee a security interest, pursuant to the provisions
of the Uniform Commercial Code, in such of the aforesaid property as may by law
be subjected to such a security interest, except such thereof as is expressly
excepted and excluded as aforesaid or herein; and
WHEREAS, the execution and delivery of this Supplemental Indenture have
been duly authorized by the Board of Directors of the Company at a meeting duly
called and held according to law, and all conditions and requirements necessary
to make this Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms, for the purposes herein expressed, and the execution
and delivery hereof, in the form and terms hereof, have been in all respects
duly authorized;
NOW, THEREFORE, in order further to secure the payment of the principal
and interest of all bonds issued and to be issued under the Original Indenture
and any indenture supplemental thereto, including this Supplemental Indenture,
according to their tenor, purport and effect and the performance and observance
of all the covenants and conditions in said bonds and the Original Indenture and
indentures supplemental thereto, including this Supplemental Indenture,
contained, and for and in consideration of the premises and of the sum of One
3
Dollar ($1.00), lawful money of the United States of America, to the Company
duly paid by the Trustee at or before the unsealing and delivery hereof, and
other valuable consideration, the receipt whereof is hereby acknowledged, and
intending to be legally bound hereby, the Company has executed and delivered
this Supplemental Indenture, and hath granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed, and
granted a security interest therein, and by these presents doth grant, bargain,
sell, release, convey, assign, transfer, mortgage, pledge, set over and confirm,
and grant a security interest therein, subject to the provisions of the
Mortgage, unto United States Trust Company of New York, as Trustee, and to its
successors in the trust and to its and their assigns forever, all the properties
of the Company described or mentioned below, that is to say:
All property, real, personal and mixed, tangible and intangible, owned by
the Company on the date of the execution hereof or which may be hereafter
acquired by it (except such property as is in the Original Indenture or in any
indenture supplemental thereto, including this Supplemental Indenture, expressly
excepted from the lien and operation of the Original Indenture).
The property covered by this Supplemental Indenture shall include
particularly, among other property, without prejudice to the generality of the
language hereinbefore or hereinafter contained, the following described
property:
All the electric generating stations, station sites, stations, electric
reserve generating stations, substations, substation sites, steam plants, hot
water plants, hydro-electric stations, hydro-electric station sites, electric
transmission lines, electric distribution systems, steam distribution systems,
hot water distribution systems, regulator stations, regulator station sites,
office buildings, storeroom buildings, warehouse buildings, boiler houses,
plants, plant sites, service plants, coal, other mineral land mining rights and
privileges, coal storage yards, pole yards, electric works, power houses,
generators, turbines, boilers, engines, furnaces, dynamos, buildings,
structures, transformers, meters, towers, poles, tower lines, cables, pole
lines, tanks, storage holders, regulators, pipes, pipe-lines, mains, pipe
fittings, valves, drips, connections, tunnels, conduits, gates, motors, wires,
switch racks, switches, brackets, insulators, and all equipment, improvements,
machinery, appliances, devices, appurtenances, supplies and miscellaneous
property for generating, producing, transforming, converting, storing and
distributing electric energy, steam and hot water, together with all furniture
and fixtures located in the aforesaid buildings, and all land on which the same
or any part thereof are situated;
And all of the real estate, leases, leaseholds (except the last day of the
term of each lease and leasehold), and lands owned by the Company, including
land located on or adjacent to any river, stream or other water, together with
all flowage rights, flooding rights, water rights, riparian rights, dams and dam
sites and rights, flumes, canals, races, raceways, head works and diversion
works;
And all of the municipal and other franchises, licenses, consents,
ordinances, permits, privileges, rights, servitudes, easements and rights-of-way
and other rights in or relating to real estate or the occupancy of the same,
owned by the Company;
4
And all of the other property, real, personal or mixed, owned by the
Company, forming a part of any of the foregoing property or used or enjoyed or
capable of being used or enjoyed in connection therewith or in anywise
appertaining thereto, whether developed or undeveloped, or partially developed,
or whether now equipped and operating or not and wherever situated, and all of
the Company's right, title and interest in and to the land on which the same or
any part thereof are situated or adjacent thereto;
And all rights for or relating to the construction, maintenance or
operation of any of the foregoing property through, over, under or upon any
public streets or highways or other lands, public or private;
And (except as in the Original Indenture or in any indenture supplemental
thereto, including this Supplemental Indenture, expressly excepted) all the
right, title and interest of the Company presently held or hereafter acquired in
and to all other property of any of the foregoing kinds or any other kind or
nature appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described;
And all the items of the kinds hereinabove mentioned including those
thereof now owned by the Company and those thereof hereafter acquired by the
Company;
Without limitation of the generality of the foregoing, all of the parcels
of land and interests in land situate as set forth in Schedule A, attached
hereto and hereby made a part hereof, and buildings and improvements thereon
erected, owned by the Company, and whether used or not used in connection with
the Company's operations, all of which real estate was conveyed to the Company
or its predecessors in title as set forth by the conveyances set forth in said
Schedule A to which conveyances reference is made for a more particular
description;
Also all other land and the buildings and improvements thereon erected
hereafter acquired;
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder or remainders and
(subject to the provisions of Section 9.01 of the Original Indenture) 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
aforesaid property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that all the property, rights and
franchises hereafter acquired by the Company (except any in the Original
Indenture or in any indenture supplemental thereto, including this Supplemental
Indenture, expressly excepted) shall (subject to the provisions of Section 9.01
of the Original Indenture), to the extent permitted by law, be as fully embraced
within this Supplemental Indenture as if such property, rights and franchises
were now owned by the Company and/or specifically described herein and conveyed
hereby;
5
PROVIDED THAT, in addition to the reservations and exceptions herein
elsewhere contained, any property hereinbefore mentioned which has been released
by the Trustee from the lien of the Mortgage or disposed of by the Company in
accordance with the provisions of the Mortgage prior to the date of the
execution and delivery of this Supplemental Indenture, and the following, are
not and are not intended to be granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed hereunder or to
have a security interest created therein, and are hereby expressly excepted from
this Supplemental Indenture and from the lien and operation of the Mortgage,
viz.: (1) cash and shares of stock and certificates or evidence of interest
therein and obligations (including bonds, notes and other securities) not in the
Original Indenture or in any indenture supplemental thereto, including this
Supplemental Indenture, specifically pledged or covenanted so to be or deposited
or delivered hereunder or under any other supplemental indenture; (2) any goods,
wares, merchandise, equipment, materials or supplies held or acquired for the
purpose of sale or resale in the usual course of business or for consumption in
the operation of any properties of the Company, and automobiles and trucks; and
(3) all judgments, contracts, accounts and chooses in action, the proceeds of
which the Company is not obligated as in the Original Indenture provided to
deposit with the Trustee hereunder; provided, however, that the property and
rights expressly excepted from this Supplemental Indenture in the above
subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so
excepted, in the event that the Trustee or a receiver or trustee shall take
possession of the mortgaged and pledged property in the manner provided in
Article X of the Original Indenture, by reason of the occurrence of a completed
default, as defined in said Article X of the Original Indenture;
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed, or in which a security interest has been
granted, by the Company as aforesaid, or intended so to be, unto the Trustee and
its successors in the trust created in the Original Indenture and its and their
assigns forever;
SUBJECT, HOWEVER, to the reservations, exceptions, conditions, limitations
and restrictions contained in the several deeds, servitudes, franchises and
contracts or other instruments through which the Company acquired and/or claims
title to and/or enjoys the use of the properties mentioned above; and subject
also to such servitudes, easements, rights and privileges in, over, on, and/or
through said properties as have been granted to other persons prior to the date
of the execution and delivery of this Supplemental Indenture; and subject also
to encumbrances of the character in the Original Indenture defined as "excepted
encumbrances" insofar as the same may attach to any of the property embraced
herein;
IN TRUST NEVERTHELESS upon the terms, trusts, uses and purposes
specifically set forth in the Mortgage;
AND IT IS HEREBY FURTHER COVENANTED AND AGREED, and the Company and the
Trustee have mutually agreed, in consideration of the premises, as follows:
6
ARTICLE I
SENIOR NOTE SERIES BONDS
SECTION 1.01. Creation of Senior Note Series Bonds. The Company hereby
------------------------------------
creates a series of bonds to be issued under and secured by the Mortgage, to be
designated and to be distinguished from bonds of all other series by the title
"First Mortgage Bonds, Senior Note Series due 2002." The aggregate principal
amount of the Senior Note Series Bonds which may be initially authenticated and
delivered shall be limited to Four Hundred Twenty Million Dollars
($420,000,000), shall mature on February 1, 2002 and shall be issued only as a
single registered bond without coupons. The serial numbers of bonds of the
Senior Note Series Bonds shall be such as may be approved by any officer of the
Company, the execution thereof by any such officer either manually or by
facsimile signature to be conclusive evidence of such approval. Senior Note
Series Bonds shall bear interest at a rate of 6% per annum, payable upon the
maturity or the redemption thereof. Except as provided in Sections 2.03, 2.04,
2.05, 8.03 and 17.04 of the Original Indenture, no Senior Note Series Bonds
shall be authenticated and delivered after such initial issue.
SECTION 1.02. Dating of Senior Note Series Bonds. Each Senior Note Series
----------------------------------
Bond shall be dated the date of its authentication.
SECTION 1.03. Payment of Principal and Interest. The principal of and
-----------------------------------
interest on any Senior Note Series Bond shall be payable, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and shall be payable
at the office or agency of the Company in the Borough of Manhattan, The City of
New York. Interest on the Senior Note Series Bonds shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
The obligation of the Company to pay the principal of and accrued interest
on the Senior Note Series Bonds at or after maturity or redemption (x) shall be
deemed to have been satisfied and discharged in full in the event that all
amounts then due in respect of the Senior Notes shall have been paid or (y)
shall be deemed to remain unsatisfied in an amount equal to the aggregate amount
then due in respect of the Senior Notes and remaining unpaid (not in excess,
however, of the amount otherwise then due in respect of principal of and accrued
interest on the Senior Note Series Bonds);
The Trustee may at anytime and all times conclusively assume that the
obligation of the Company to make payments with respect to the principal of and
interest on the Senior Note Series Bonds, so far as such payments at the time
have become due, has been fully satisfied and discharged unless and until the
Trustee shall have received a written notice from the Senior Note Trustee signed
by one of its officers stating (i) that timely payment of, or interest on, the
Senior Notes has not been so made, (ii) that the Company is in arrears as to the
payments required to be made by it to the Senior Note Trustee pursuant to the
Senior Note Indenture, and (iii) the amount of the arrearage.
7
SECTION 1.04. Registration of Senior Note Series Bonds. Each Senior Note
----------------------------------------
Series Bond is to be issued to and registered in the name of United States Trust
Company of New York, as the Senior Note Trustee, or a successor trustee thereto,
under the Senior Note Indenture to secure any and all obligations of the Company
under the Senior Notes from time to time outstanding under the Senior Note
Indenture.
SECTION 1.05. Transferability and Assignability of Senior Note Series
----------------------------------------------------------
Bonds. Except (i) as required to effect an assignment to a successor Trustee
- -----
under the Senior Note Indenture, (ii) pursuant to Section 4.03 of the First
Supplemental Indenture, or (iii) in compliance with a final order of a court of
competent jurisdiction in connection with any bankruptcy or reorganization
proceeding of the Company, the Senior Note Series Bonds are not transferable.
The Senior Note Series Bonds shall be exchangeable for other registered bonds of
the same series and for the same aggregate principal amount, in the manner and
upon the conditions prescribed in the Mortgage, upon the surrender of such bonds
at the office or agency of the Company in the Borough of Manhattan, The City of
New York. The Company covenants and agrees that, notwithstanding Section 2.03 of
the Original Indenture, it will not charge any sum for or in connection with any
exchange or transfer of any Senior Note Series Bond, but may require the payment
of a sum sufficient to cover any tax or taxes or other governmental charges
incident to any exchange, transfer or registration thereof.
SECTION 1.06. Redemption of Senior Note Series Bonds. (a) Senior Note
----------------------------------------
Series Bonds shall not be redeemable except the Senior Note Series Bonds shall
be immediately redeemable at a redemption price of 100% of the principal amount
thereof, plus interest accrued to the redemption date, in whole, upon a written
demand for redemption by the Senior Note Trustee stating that the principal of
all Senior Notes then outstanding under the Senior Note Indenture have been
declared to be immediately due and payable pursuant to the provisions of the
first sentence of Section 7.01(a) thereof.
Senior Note Series Bonds are not redeemable by the operation of the
improvement fund or the maintenance and replacement provisions of the Mortgage
or with the proceeds of released property.
SECTION 1.07. Release Date and Surrender. As provided in Section 4.06 of
--------------------------
the First Supplemental Indenture, from and after the Release Date, the
obligations of the Company with respect to the principal of, and interest on the
Senior Note Series Bonds shall be deemed to be satisfied and discharged, the
Senior Note Series Bonds shall cease to secure in any manner any Senior Notes
theretofore or subsequently issued under the Senior Note Indenture, and,
pursuant to Section 4.03 of the First Supplemental Indenture, the Senior Note
Trustee shall forthwith deliver the Senior Note Series Bonds to the Company for
cancellation.
Upon the surrender for cancellation, at any time, of Senior Note Series
Bonds by the Senior Note Trustee or the Escrow Agent to the Trustee, the Senior
Note Series Bonds so surrendered shall be deemed to be satisfied and discharged
and the obligations of the Company thereunder shall be terminated, and such
Senior Note Series Bonds shall be cancelled by the Trustee and delivered to the
Company.
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ARTICLE II
FORM OF THE SENIOR NOTE SERIES BONDS
SECTION 2.01. Form of Senior Note Series Bonds. The form of the Senior
---------------------------------
Note Series Bonds and the Trustee's authentication certificate to be endorsed
thereon shall be substantially as follows, the maturity date or dates,
denominations, redemption prices and interest rates thereof to be appropriately
inserted.
[FORM OF SENIOR NOTE SERIES BONDS]
PENNSYLVANIA ELECTRIC COMPANY
FIRST MORTGAGE BOND, SENIOR NOTE SERIES DUE 2002
$ No.
PENNSYLVANIA ELECTRIC COMPANY, a corporation of the Commonwealth of
Pennsylvania (hereinafter called the "Company"), for value received, hereby
promises to pay to United States Trust Company of New York, as trustee under an
Indenture, dated as of April 1, 1999 hereinafter referred to, or registered
assigns, _______________ Dollars on February 1, 2002, unless this Bond shall
have been duly called for previous redemption in whole and payment of the
redemption price shall have been duly made or provided for, 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 shall
be legal tender for the payment of public and private debts, and to pay to the
registered holder hereof interest thereon, at said office or agency, in like
coin or currency, at maturity and upon redemption, at the rate or rates per
annum provided for in Section 1.01 of the Supplemental Indenture amending and
supplementing the Mortgage, dated as of May 1, 2001 between the Company and the
Trustee (the "Supplemental Indenture").
This bond is one of an issue of bonds of the Company (hereinafter referred
to as the "bonds"), not limited in principal amount, issuable in series, which
different series may mature at different times, may bear interest at different
rates, and may otherwise vary as in the Mortgage hereinafter mentioned provided,
and is one of a series known as its First Mortgage Bonds, Senior Note Series due
2002 (herein called the "Senior Note Series Bonds"), all bonds of all series
issued and to be issued under and equally and ratably secured (except insofar as
any sinking fund or analogous fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may afford additional security
for the bonds of any particular series) by a Mortgage and Deed of Trust (herein,
together with any indentures supplemental thereto, called the "Mortgage") dated
as of January 1, 1942, executed by the Company to UNITED STATES TRUST COMPANY OF
9
NEW YORK, as successor Trustee to BANKERS TRUST COMPANY (herein called the
"Trustee"), to which reference is made for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights and
limitations of rights of the holders of the bonds and of the Company in respect
thereof, the rights, duties and immunities of the Trustee, and the terms and
conditions upon which the bonds are, and are to be, issued and secured. The
Senior Note Series Bonds are described in the Supplemental Indenture.
Interest on this bond shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Under an Indenture dated as of April 1, 1999, as heretofore supplemented
by the Supplemental Indenture No. 1, dated as of May 1, 2001 (the "First
Supplemental Senior Note Indenture") (hereinafter sometimes referred to as the
"Senior Note Indenture"), between the Company and United States Trust Company of
New York, as trustee (hereinafter sometimes called the "Senior Note Trustee"),
providing for the issuance of notes thereunder (the "Senior Notes") from time to
time, the Company has agreed, under certain circumstances to deliver this bond
to the Senior Note Trustee to secure equally and ratably any and all obligations
of the Company under the Senior Notes from time to time outstanding under the
Senior Note Indenture.
As provided in Section 4.06 of the First Supplemental Senior Note
Indenture, from and after the Release Date (as defined in the Senior Note
Indenture), the obligations of the Company with respect to this bond shall be
deemed to be satisfied and discharged, this bond shall cease to secure in any
manner any senior notes outstanding under the Senior Note Indenture, and,
pursuant to Section 4.03 of the First Supplemental Senior Note Indenture, the
Senior Note Trustee shall forthwith deliver this bond to the Company for
cancellation.
The obligation of the Company to pay the principal of and accrued interest
on the bonds of this series at or after maturity or redemption (x) shall be
deemed to have been satisfied and discharged in full in the event that all
amounts then due in respect of the Senior Notes shall have been paid or (y)
shall be deemed to remain unsatisfied in an amount equal to the aggregate amount
then due in respect of the Senior Notes and remaining unpaid interest (not in
excess, however, of the amount otherwise then due in respect of principal of and
accrued interest on the bonds of the series).
The Trustee may at anytime and all times conclusively assume that the
obligation of the Company to make payments with respect to the principal of and
interest on the Senior Note Series Bonds, so far as such payments at the time
have become due, has been fully satisfied and discharged unless and until the
Trustee shall have received a written notice from the Senior Note Trustee signed
by one of its officers stating (i) that timely payment of, or premium or
interest on, the Senior Notes, has not been made, (ii) that the Company is in
arrears as to the payments required to be made by it to the Senior Note Trustee
pursuant to the Senior Note Indenture, and (iii) the amount of the arrearage.
10
The Mortgage 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 as
provided in the Mortgage) evidenced as in the Mortgage provided, 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 bonds at the time outstanding of the series affected (determined
as provided in the Mortgage) evidenced as in the Mortgage provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Mortgage or modifying in any manner the
rights of the holders of the bonds and coupons thereunto appertaining; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any bonds, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, 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. Any
such consent by the registered holder of this bond (unless effectively revoked
as provided in the Mortgage) shall be conclusive and binding upon such holder
and upon all future holders of this bond, irrespective of whether or not any
notation of such waiver or consent is made upon this bond.
No reference herein to the Mortgage and no provision of this bond or of
the Mortgage shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this bond at
the time and place and at the rate and in the coin or currency herein
prescribed.
The Senior Note Series Bonds are issuable only in fully registered form
and shall be issued only as one single bond.
The Senior Note Series Bonds shall be redeemable as provided in the
Supplemental Indenture.
The Mortgage provides that if the Company shall deposit with the Trustee
in trust for the purpose funds sufficient to pay the principal of all of the
bonds of any series, or such of the bonds of any series as have been or are to
be called for redemption, and premium, if any, thereon, and all interest payable
on such bonds to the date on which they become due and payable, at maturity or
upon redemption or otherwise, and complies with the other provisions of the
Mortgage in respect thereof, then from the date of such deposit such bonds shall
no longer be entitled to any lien or benefit under the Mortgage.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a completed default as in
the Mortgage provided.
This bond is not transferable except (i) as required to effect an
assignment to a successor Trustee under the Senior Note Indenture, (ii) pursuant
to Section 4.03 of the First Supplemental Senior Note Indenture, or (iii) in
11
compliance with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. This bond shall
be exchangeable for other registered bonds of the same series and for the same
aggregate principal amount, in the manner and upon the conditions prescribed in
the Mortgage, upon the surrender of such bonds at the office or agency of the
Company in the Borough of Manhattan, the City of New York. However,
notwithstanding the provisions of Section 2.05 of the Mortgage, no charge shall
be made upon any registration of transfer or exchange of bonds of said series
other than for any tax or taxes or other governmental charge required to be paid
by the Company. The Company and the Trustee, any paying agent and any bond
registrar may deem and treat the person in whose name this bond is registered as
the absolute owner hereof, whether or not this bond shall be overdue, for the
purpose of receiving payment and for all other purposes and neither the Company
nor the Trustee nor any paying agent nor any bond registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of 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, against any incorporator or any past,
present or future subscriber to the capital stock, stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or constitution or by the enforcement of any assessment or
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.
This bond shall not become valid or obligatory for any purpose until
UNITED STATES TRUST COMPANY OF NEW YORK, the Trustee under the Mortgage, or its
successor thereunder, shall have signed the certificate of authentication
endorsed hereon.
IN WITNESS WHEREOF, PENNSYLVANIA ELECTRIC COMPANY has caused this bond to
be signed in its name by the manual or facsimile signature of its President or
one of its Vice Presidents and its corporate seal, or a facsimile thereof, to be
affixed hereto and attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries.
Dated:
PENNSYLVANIA ELECTRIC COMPANY
By
---------------------------------
(Vice) President
Attest:
- -----------------------
(Assistant) Secretary
12
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated, provided
for in the within-mentioned Mortgage.
UNITED STATES TRUST COMPANY OF NEW YORK
By: ____________________________________
Authorized Officer
[END OF FORM OF SENIOR NOTE SERIES BOND]
13
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Covenants of the Company. The Company covenants and agrees
------------------------
that, so long as any of the Senior Note Series Bonds shall be secured by the
lien of the Mortgage, the following provisions of the following aforesaid
Supplemental Indentures shall be effective, and the Company will observe and
perform each and all of the conditions and of its covenants and agreements
therein set forth, as if the Senior Note Series Bonds were specified therein:
(a) Section 1 of Article II of the Supplemental Indenture dated as of
November 1, 1949, as amended by paragraph (a) of Section 2.01 of Article II of
the Supplemental Indenture dated as of August 1, 1959.
(b) Section 2 of Article II of the Supplemental Indenture dated as of
November 1, 1949.
(c) Section 1 of Article III of the Supplemental Indenture dated as of
October 1, 1951.
(d) Section 2 of Article II of the supplemental Indenture dated as of June
1, 1953. Subsection (D) thereof as heretofore amended is hereby further amended
to read as follows:
"(D) the provisions of this Section shall be effective
only so long as any of the Senior Note Series Bonds shall be outstanding,
and may be waived by the holders of not less than 75% in aggregate
principal amount of all bonds specifically entitled to the benefit of the
covenants set forth in this Section (which need not include 75% in
principal amount of the then outstanding Senior Note Series Bonds or any
other series of bonds specifically entitled to the benefit of such
covenants), outstanding at the time of such acquisition, by a consent
given in writing or given at a meeting of the holders of the Senior Notes
Bank Bonds and such other bonds, if any, held pursuant to the applicable
provisions of Article XVI of the Original Indenture. Moreover, none of the
provisions of subsection (B) of this Section shall be applicable to any
acquisition of property ordered, approved or permitted by the Securities
and Exchange Commission under the provisions of the Public Utility Holding
Company Act of 1935 as then in force, or by any successor regulatory body
of the United States of America having jurisdiction in the premises."
(e) Section 2 of Article II of the Supplemental Indenture dated as of May
1, 1956.
14
SECTION 3.02. Indemnification of Trustee. The Trustee shall be entitled to
--------------------------
rely conclusively on each notice delivered to it by the Senior Note Trustee or
the Company pursuant to the terms of this Supplemental Indenture for all
purposes under the Mortgage. The Trustee shall have no duty or responsibility to
the Company or to the holder or holders of the Senior Note Series Bonds from
time to time to verify independently the information contained in any such
notice or with respect to the determinations or calculations of interest which
may from time to time or at any given time be due on the Senior Note Series
Bonds.
SECTION 3.03. Table of Contents and titles of Articles not Part. The table
-------------------------------------------------
of contents and the titles of the Articles of this Supplemental Indenture shall
not be deemed to be any part thereof.
SECTION 3.04. Original Indenture Confirmed as Amended and Supplemented. As
--------------------------------------------------------
amended and supplemented by the aforesaid indentures supplemental thereto and by
this Supplemental Indenture, the Original Indenture is in all respects ratified
and confirmed and the Original Indenture and the aforesaid indentures
supplemental thereto and this Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
SECTION 3.05. Execution in Counterparts. 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.
The debtor and its mailing address are Pennsylvania Electric Company, 2800
Pottsville Pike, Reading, Pennsylvania 19605. The secured party and an address
of the secured party from which information concerning the security interest may
be obtained are United States Trust Company of New York, Trustee, 114 West 47th
Street, New York, New York 10036.
15
IN WITNESS WHEREOF, PENNSYLVANIA ELECTRIC COMPANY, party of the first
part, has caused this instrument to be signed in its name and behalf by its
President or a Vice President, and its corporate seal to be hereunto affixed and
attested by its Secretary or an Assistant Secretary, and UNITED STATES TRUST
COMPANY OF NEW YORK, party of the second part, has caused this instrument to be
signed in its name and behalf by a President or a Vice President and its
corporate seal to be hereunto affixed and attested by an Assistant Vice
President or an Assistant Secretary, all as of the day and year first above
written.
ATTEST: PENNSYLVANIA ELECTRIC COMPANY
By:
- ------------------- --------------------------------
M.E. Gramlich T.G. Howson
Assistant Secretary Vice President
Signed, sealed and delivered by said [CORPORATE SEAL]
Pennsylvania Electric
Company in the presence of:
- -------------------------------------
- -------------------------------------
16
ATTEST: UNITED STATES TRUST COMPANY OF
NEW YORK
________________________________ By:___________________________
Kevin Fox Louis P. Young
Assistant Secretary Vice President
Signed, sealed and delivered by said [CORPORATE SEAL]
United States TrustCompany
of New York in the presence of:
- -------------------------------------
- -------------------------------------
17
STATE OF NEW JERSEY :
ss.:
COUNTY OF MORRIS :
On this 26th day of April, 2001, before me, Barbara E. Jost, a Notary
Public for the State and County aforesaid, the undersigned officer, personally
appeared T.G. Howson, who acknowledged himself to be a Vice President of
Pennsylvania Electric Company, a corporation, and that he as such Vice
President, being authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing the name of the corporation by himself as
Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------------
Barbara E. Jost
Notary Public of New Jersey
My Commission Expires August 12, 2001
[NOTARIAL SEAL]
18
STATE OF NEW YORK :
: ss:
COUNTY OF NEW YORK :
On this 26th day of April, 2001, before me, Christine C. Collins, a Notary
Public for 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 he as such Vice
President, being authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing the name of the corporation by himself as
Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Christine C. Collins
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
Certificate filed in New York County
Commission Expires March 30, 2002
[NOTARIAL SEAL]
19
CERTIFICATE OF RESIDENCE
United States Trust Company of New York, Mortgagee and Trustee within
named, hereby certifies that its precise residence is 114 West 47th Street, in
the Borough of Manhattan, in the City of New York, in the State of New York.
UNITED STATES TRUST COMPANY
OF NEW YORK
By:___________________________
Vice President
20
SCHEDULE A
----------
I. Greengarden Substation to EGS Line
ALL that certain piece or parcel of land situated in the Township of
Millcreek, County of Erie and Commonwealth of Pennsylvania, being part of the
South Gore Tract and being more particularly bounded and described as follows,
to-wit:
BEGINNING at the northeasterly corner of the piece, at a point in the
southerly line of West Grandview Boulevard (60 foot Right-of-Way), said point
being located South 63 degrees, 22 minutes, 57 seconds West, a distance of 150
feet from a concrete monument located at the northwesterly corner of Lot 21 of
Wyngate Subdivision No. 1 as recorded in Erie County Court House Map Book 7,
page 29, said corner also being the northwesterly corner of lands of Karen J.
Ziegler.
THENCE South 26 degrees, 50 minutes, 50 seconds East, passing over an iron
pipe at a distance of 310 feet, a total distance of 593 feet to a rebar survey
point, and the southwesterly corner of said lands of Karen J. Zeigler;
THENCE North 62 degrees, 49 minutes, 41 seconds East along the southerly
line of said lands of Karen J. Zeigler, a distance of 150 feet to an iron pipe;
THENCE South 26 degrees, 50 minutes, 50 seconds East along the westerly
line of Wyngate Subdivision Nos. 2, 3 and 4 as recorded in Erie County Court
House Map Books 7, 7, 8, pages 50, 112 and 39 respectively, passing over an iron
survey point at a distance of 318.64 feet, a total distance of 603.69 feet to a
point;
THENCE South 64 degrees, 13 minutes, 37 seconds West along the northerly
line of lands of David F. Bayer and Kathleen Banko a distance of 184.48 feet to
a rebar survey point;
THENCE North 26 degrees, 09 minutes, 17 seconds West along the easterly
line of Interstate Route 0079 a distance of 1192.55 feet to a rebar survey point
in the southerly line of West Grandview Boulevard;
THENCE North 63 degrees, 22 minutes, 57 seconds East along the southerly
line of West Grandview Boulevard, a distance of 20.03 feet to an iron pipe and
the place of beginning.
Containing 122, 769 square feet or 2.818 acres of land therein, net
measure.
The description of the property referenced above was prepared pursuant to
a survey by John Bradley Laird, P.L.S.
Said property bears Erie County Tax Index No. (33) 97-665-1.
A-1
II. The Gore Junction Substation
All that certain piece or parcel of land, situate in the South Gore Tract,
Millcreek Township, Erie County, Pennsylvania, being Lot "B" on a map entitled
"Plot of Survey of the Land of Pastore/GPU Energy Subdivision", by Henry T.
Welka Associates, dated January 12, 1999 and recorded April 1, 1999 as Erie
County Map Number 1999-69, and being more particularly described as follows,
to-wit: BEGINNING at the northwesterly corner of the piece herein described, as
a Point marked by a monument found in the easterly line of Lot 79 as shown on a
map entitled "Plot of Survey for Pleasant Valley Subdivision No. 4", by Henry T.
Welka Associates, dated June 25, 1992, revised September 29, 1993 and recorded
October 26, 1993 as Erie County Map Number 1993-255, said point being South 25
Degrees 57 Minutes 52 Seconds East, a distance of 100 feet along the easterly
line of Lot 79 from a monument found at its northeasterly corner; thence North
64 Degrees 02 Minutes 08 Seconds East, along the residue of the lands of
Pennsylvania Electric Company d/b/a GPU Energy (Erie County Deed Book 854, page
123), and also along the southerly line of Lot "A" as shown on said subdivision
of Pastore/GPU Energy, in all 150.00 feet to a point; thence South 25 Degrees 57
Minutes 52 Seconds East, along the residue of the lands of Paul, Anthony and
Donald Pastore (Erie County Record Book 320, page 917 and Erie County Record
Book 451 page 1567), 95.88 feet to a point; thence South 64 Degrees 26 Minutes
11 Seconds West, along the southerly line of the South Gore Tract, 150.00 feet
to a point; thence North 25 Degrees 57 Minutes 52 Seconds West, along the
easterly line of said Lot 79, 94.83 feet to the point of beginning. Containing
14,296 square feet (0.328 acre) of land. Being currently known and designated as
part of Erie County Tax Index No. (33) 96-414-5.
A-2
I. GESG 115 KV Line - South Gore Tract No. I
ALL that certain piece or parcel of land situated in the Township of
Millcreek, County of Erie and Commonwealth of Pennsylvania, being part of the
South Gore Tract and being more particularly bounded and described as follows,
to-wit:
BEGINNING at the northeasterly corner of the piece, at a point in the
southerly line of West Grandview Boulevard (60 foot Right-of-Way), said point
being located South 63 degrees, 22 minutes, 57 seconds West, a distance of 150
feet from a concrete monument located at the northwesterly corner of Lot 21 of
Wyngate Subdivision No. 1 as recorded in Erie County Court House Map Book 7,
page 29, said corner also being the northwesterly corner of lands of Karen J.
Ziegler.
THENCE South 26 degrees, 50 minutes, 50 seconds East, passing over an iron
pipe at a distance of 310 feet, a total distance of 593 feet to a rebar survey
point, and the southwesterly corner of said lands of Karen J. Zeigler;
THENCE North 62 degrees, 49 minutes, 41 seconds East along the southerly
line of said lands of Karen J. Zeigler, a distance of 150 feet to an iron pipe;
THENCE South 26 degrees, 50 minutes, 50 seconds East along the westerly
line of Wyngate Subdivision Nos. 2, 3 and 4 as recorded in Erie County Court
House Map Books 7, 7, 8, pages 50, 112 and 39 respectively, passing over an iron
survey point at a distance of 318.64 feet, a total distance of 603.69 feet to a
point;
THENCE South 64 degrees, 13 minutes, 37 seconds West along the northerly
line of lands of David F. Bayer and Kathleen Banko a distance of 184.48 feet to
a rebar survey point;
THENCE North 26 degrees, 09 minutes, 17 seconds West along the easterly
line of Interstate Route 0079 a distance of 1192.55 feet to a rebar survey point
in the southerly line of West Grandview Boulevard;
THENCE North 63 degrees, 22 minutes, 57 seconds East along the southerly
line of West Grandview Boulevard, a distance of 20.03 feet to an iron pipe and
the place of beginning.
Containing 122, 769 square feet or 2.818 acres of land therein, net
measure.
The description of the property referenced above was prepared pursuant to
a survey by John Bradley Laird, P.L.S.
Said property bears Erie County Tax Index No. (33) 97-665-1.
A-3
II. GESG 115 KV Line - South Gore Tract No. II
All that certain piece or parcel of land, situate in the South Gore Tract,
Millcreek Township, Erie County, Pennsylvania, being Lot "B" on a map entitled
"Plot of Survey of the Land of Pastore/GPU Energy Subdivision", by Henry T.
Welka Associates, dated January 12, 1999 and recorded April 1, 1999 as Erie
County Map Number 1999-69, and being more particularly described as follows,
to-wit: BEGINNING at the northwesterly corner of the piece herein described, as
a Point marked by a monument found in the easterly line of Lot 79 as shown on a
map entitled "Plot of Survey for Pleasant Valley Subdivision No. 4", by Henry T.
Welka Associates, dated June 25, 1992, revised September 29, 1993 and recorded
October 26, 1993 as Erie County Map Number 1993-255, said point being South 25
Degrees 57 Minutes 52 Seconds East, a distance of 100 feet along the easterly
line of Lot 79 from a monument found at its northeasterly corner; thence North
64 Degrees 02 Minutes 08 Seconds East, along the residue of the lands of
Pennsylvania Electric Company d/b/a GPU Energy (Erie County Deed Book 854, page
123), and also along the southerly line of Lot "A" as shown on said subdivision
of Pastore/GPU Energy, in all 150.00 feet to a point; thence South 25 Degrees 57
Minutes 52 Seconds East, along the residue of the lands of Paul, Anthony and
Donald Pastore (Erie County Record Book 320, page 917 and Erie County Record
Book 451 page 1567), 95.88 feet to a point; thence South 64 Degrees 26 Minutes
11 Seconds West, along the southerly line of the South Gore Tract, 150.00 feet
to a point; thence North 25 Degrees 57 Minutes 52 Seconds West, along the
easterly line of said Lot 79, 94.83 feet to the point of beginning. Containing
14,296 square feet (0.328 acre) of land. Being currently known and designated as
part of Erie County Tax Index No. (33) 96-414-5.
A-4