Exhibit B-2(a)
GUARANTY
GUARANTY, dated as of March 30, 2001 (this "Guaranty"), of GPU, INC., a
Pennsylvania corporation (the "Parent"), in favor of the Administrative Agent,
the LC Issuer and the Lenders under the Credit Agreement referred to herein.
W I T N E S S E T H:
WHEREAS, the Parent is the direct owner of 100% of the outstanding common
stock of MYR Group, Inc., a Delaware corporation (the "Borrower");
WHEREAS, the Borrower has made and intends to make borrowings from the
Lenders pursuant to that certain $50,000,000 Credit Agreement, dated as of
November 28, 2000 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined),
among the Borrower, the Lenders named therein and Bank One, NA, as
Administrative Agent and LC Issuer thereunder;
WHEREAS, the Parent desires to enter into this Guaranty in order to
enable the Borrower to incur and maintain debt under the Credit Agreement; and
WHEREAS, the Parent understands and agrees that the Agent, the LC Issuer
and the Lenders will rely hereon in making and maintaining extensions of credit
to the Borrower;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows for the benefit of the
Administrative Agent, the LC Bank and each Lender:
SECTION 1. Guaranty. (a) The Parent hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations (whether payable at
scheduled maturity, upon acceleration, as a mandatory prepayment or otherwise)
of the Borrower now or hereafter existing under the Credit Agreement, whether
for principal, interest, fees, expenses or otherwise (such obligations being the
"Obligations"), and agrees to pay any and all expenses (including reasonable
counsel fees and expenses) incurred by the Agent, the LC Issuer and any Lender
in enforcing any rights under this Guaranty. Without limiting the generality of
the foregoing, the Parent's liability shall extend to all amounts that
constitute part of the Obligations and would be owed by the Borrower to the
Agent, the LC Issuer and the Lenders under the Credit Agreement and the other
documents entered into in connection therewith (collectively, the "Loan
Documents") but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
SECTION 2. Guaranty Absolute. The Parent guarantees that the Obligations
will be paid strictly in accordance with the terms of the Credit Agreement,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent, the LC
Issuer or any Lender, as the case may be, with respect thereto. The obligations
of the Parent under this Guaranty are independent of the Obligations, and a
separate action or actions may be brought and prosecuted against the Parent to
enforce this Guaranty, irrespective of whether any action is brought against the
Borrower or whether the Borrower is joined in any such action or actions. The
liability of the Parent under this Guaranty shall, to the fullest extent
permitted by law, be absolute, irrevocable and unconditional irrespective of,
and the Parent waives any defense based upon:
(i) any lack of validity or enforceability of the Credit Agreement
or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to departure from the Credit Agreement,
including, without limitation, any increase in the Obligations resulting
from the extension of additional credit to the Borrower;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds thereof,
to all or any of the Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Obligations or any
other assets of the Borrower;
(v) any change, restructuring or termination of the corporate
structure or existence of the Borrower; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by the Agent, the LC Issuer or any Lender upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as
though such payment had not been made.
SECTION 3. Waiver. The Parent hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Obligations and
this Guaranty and any requirement that the Agent, the LC Issuer or any Lender
protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against the Borrower or
any other Affiliate or any collateral.
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SECTION 4. Subrogation. The Parent will not exercise any rights which it
may acquire by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise, until all the Obligations and all other amounts payable
under this Guaranty shall have been paid in full and the Commitments shall have
expired or terminated. If any amount shall be paid to the Parent on account of
such subrogation rights at any time prior to the later of (x) the payment in
full of the Obligations and all other amounts payable under this Guaranty and
(y) the expiration or termination of the Commitments, such amount shall be held
in trust for the benefit of the Agent, the LC Issuer and the Lenders and shall
forthwith be paid to the Agent to be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of the Credit
Agreement and the other Loan Documents or to be held by the Agent as collateral
security for any Obligations thereafter existing. If (i) the Parent shall make
payment to the Agent, the LC Issuer and the Lenders of all or any part of the
Obligations, (ii) all the Obligations and all other amounts payable under this
Guaranty shall be paid in full and (iii) the Commitments shall have expired or
terminated, the Agent, the LC Issuer and the Lenders (as appropriate) will, at
the Parent's request, execute and deliver to the Parent appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the Parent of an interest in the Obligations
resulting from such payment by the Parent.
SECTION 5. Representations and Warranties of the Parent. The Parent
represents and warrants as follows:
(a) The Parent is a corporation duly incorporated, validly subsisting and
in good standing under the laws of Pennsylvania.
(b) The execution, delivery and performance by the Parent of this
Guaranty are within the Parent's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the Parent's charter
or by-laws or (ii) any applicable law or any material contractual restriction
binding on or affecting the Parent, and do not result in or require the creation
of any Lien upon or with respect to any of its purposes.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Parent of this Guaranty, except
for an appropriate order of the SEC under the Public Utility Holding Company Act
of 1935, as amended (the "Utility Act"), which
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order has been duly obtained, is in full force and effect, is sufficient for its
purpose and is not subject to any pending or, to the knowledge of the Parent,
threatened appeal or other proceeding seeking reconsideration or review thereof.
(d) This Guaranty is a legal, valid and binding obligation of the Parent
enforceable against the Parent in accordance with its terms.
(e) The audited consolidated balance sheet of the Parent and its
Subsidiaries as at December 31, 1999, and the related audited consolidated
statements of income and retained earnings of the Parent and its Subsidiaries
for the fiscal year then ended, together with the notes thereto, and the
unaudited consolidated balance sheet of the Parent and its Subsidiaries as at
September 30, 2000, and the related unaudited consolidated statements of income
and retained earnings of the Parent and its Subsidiaries for the nine-month
period then ended, together with the notes thereto, copies of which have been
furnished to the LC Issuer and each Lender, fairly present (subject, in the case
of such unaudited financial statements, to year-end adjustments) the financial
condition of the Parent and its Subsidiaries as at such dates and the results of
the operations of the Parent and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accountings principles
consistently applied. Except as disclosed in the Annual Report of the Parent or
any Utility Subsidiary (each, a "GPU Party") on Form 10-K for the fiscal year
ended December 31, 1999 or in any GPU Party's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 2000, copies of which have been delivered
to the Administrative Agent, since December 31, 1999, there has been no material
adverse change in such financial condition or results of operations.
(f) There has not been any failure by the Parent to file at or prior to
the time required any reports or other filings with any regulatory authority
having jurisdiction over it that would adversely affect the enforceability
against the Parent of this Guaranty.
(g) The Parent is not in default, and no condition exists which with
notice or lapse of time or both would constitute a default, under any agreement
to which the Parent is a party evidencing Indebtedness with a principal amount
equal to or in excess of $20,000,000.
(h) The Parent owns beneficially and of record, free and clear of all
Liens, directly or indirectly 100% of the common stock of each Metropolitan
Edison Company, Jersey Central Power & Light Company and Pennsylvania Electric
Company (each a "Utility Subsidiary") and of the Borrower.
(i) Except as disclosed any GPU Party's Annual Report on Form 10-K for
the fiscal year ended December 31, 1999 or in any
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such GPU Party's Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2000, copies of which have been delivered to the Agent, there is
no pending or, to any such GPU Party's knowledge, threatened action or
proceeding affecting any such GPU Party or any of its Subsidiaries before any
court, governmental agency or arbitrator that could reasonably be expected to
materially adversely affect the financial condition or operations of the Parent
or of the Parent and its Subsidiaries, taken as a whole, or could reasonably be
expected to materially adversely affect the financial condition or operations of
any Utility Subsidiary or any Utility Subsidiary and its Subsidiaries, taken as
a whole.
(j) Schedule B (Actuarial Information) to the 1999 annual report (Form
5500 Series) with respect to each Plan of the Parent, copies of which have been
filed with the Internal Revenue Service and furnished to the Agent, is complete
and accurate and fairly presents the funding status of such Plan, and since the
date of such Schedule B there has been no material adverse change in such
funding status.
(k) Neither any GPU Party nor any member of the Parent's Controlled Group
(an "ERISA Affiliate") has incurred or reasonably expects to incur any material
withdrawal liability under ERISA to any Multiemployer Plan of the Parent or any
ERISA Affiliate of the Parent.
(l) Neither the Parent nor the Borrower is an "investment company" or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 6. Affirmative Covenants of the Parent. So long as any amount in
respect of any Advance shall remain unpaid, any Lender shall have any Commitment
or any Obligation (whether contingent or otherwise) shall remain unpaid, the
Parent will or will cause each GPU Party to, unless the Required Lenders shall
otherwise consent in writing:
(a) Credit Agreement. To the extent required to prevent the occurrence of
an Event of Default, cause the Borrower to perform and observe for the benefit
of the Agent and the Lenders each and every covenant and agreement of the
Borrower set forth in Article VI of the Credit Agreement, including but not
limited to delivering to the Agent and the Lenders all financial statements and
financial and other information required to be delivered pursuant to Section 6.1
of the Credit Agreement.
(b) Payment of Taxes, Etc. Pay and discharge, and with respect to the
Utility Subsidiaries, cause the payment and discharge of, all taxes, assessments
and governmental charges or levies imposed upon any GPU Party or upon its income
or profits, or upon any properties belonging to it, prior to the date on
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which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon any properties of such GPU Party, provided it shall not be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings.
(c) Performance and Compliance with Other Agreements. Perform and comply
with, and with respect to the Utility Subsidiaries, cause the performance by and
compliance with, each of the material provisions of each material indenture,
credit agreement, contract or other agreement by which such GPU Party is bound,
non-performance or non-compliance with which would have a material adverse
effect upon such GPU Party's business or credit or materially and adversely
affect its ability to perform its obligations hereunder except material
contracts or other agreements being contested in good faith.
(d) Preservation of Corporate Existence, Conduct of Business, Etc. Except
to the extent otherwise permitted under Section 7(d), preserve and maintain, and
with respect to the Utility Subsidiaries, cause the preservation and maintenance
of, such GPU Party's corporate existence in the jurisdiction of its
incorporation, and cause the qualification and continued qualification with
respect to the Utility Subsidiaries, and qualify and continue to qualify such
GPU Party, as a foreign corporation in good standing in each jurisdiction in
which such qualification is necessary or desirable in view of its business and
operations or the ownership of such GPU Party's properties, except where the
failure to be so qualified would not materially adversely affect its financial
condition, operations, properties or business, and preserve its material rights,
franchises and privileges to conduct its business substantially as conducted on
the date hereof.
(e) Compliance with Laws, Etc. Comply with, and, with respect to the
Utility Subsidiaries, cause compliance with, the requirements of all applicable
laws, rules, regulations and orders of any governmental authority,
non-compliance with which would have a material adverse effect upon such GPU
Party's business or credit or in any way materially and adversely affect its
ability to perform its obligations hereunder except laws, rules, regulations and
orders being contested in good faith.
(f) Maintenance of Insurance. Maintain, and with respect to the Utility
Subsidiaries, cause the maintenance of, insurance in effect at all times in such
amounts as are available to such GPU Party and covering such risks as is usually
carried by companies of a similar size, engaged in similar businesses and owning
similar properties (including, without limitation, the operation and ownership
of nuclear generating facilities) in the same general geographical area in which
such GPU Party operates, either with responsible and reputable insurance
companies or associations, or, in whole or in part, by establishing reserves of
one or more insurance funds, either alone or with other corporations or
associations.
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(g) Books and Records; Inspection Rights. Keep and, with respect to the
Utility Subsidiaries, cause each of them to keep, proper books of record and
account in which entries shall be made of all financial transactions and assets
and business of such GPU Party in accordance with GAAP; and at any reasonable
time and from time to time, permit and, with respect to the Utility
Subsidiaries, cause each of them to permit, the Agent, the LC Issuer or any
Lender or any agents or representatives thereof to examine and make copies of
and abstracts from the records and books of account of, and visit the properties
of, such GPU Party and to discuss the affairs, finances and accounts of such GPU
Party with any of its officers or directors.
(h) Ownership of Utility Subsidiaries and Borrower. Maintain at all times
direct or indirect beneficial ownership, free and clear of all Liens other than
those permitted by Section 7(a)(iii), of 100% of all outstanding shares of
common stock of each Utility Subsidiary and the Borrower.
(i) Debt to Total Capitalization. Maintain at all times a ratio of
Adjusted Debt (as defined below) to Total Capitalization (as defined below) of
not more than 0.68 to 1.0. As used herein:
(i)"Adjusted Debt" means all consolidated Debt of the Parent and its
Subsidiaries, less: (A) Subordinated Debt not exceeding the aggregate principal
amount of $400,000,000 and (B) Securitization Securities not exceeding the
aggregate principal amount of $900,000,000;
(ii) "Securitization Securities" means transition bonds issued pursuant
to the New Jersey Electric Discount and Energy Competition Act or the
Pennsylvania Electricity Generation Customer Choice and Competition Act if (and
only if) no recourse may be had to the Parent or any of the GPU Parties (or to
their respective assets) for the payment of such obligations, other than for
failure to collect and pay over the rates, taxes and/or charges provided for in
such legislation to service such obligations;
(iii) "Subordinated Debt" means subordinated Debt incurred by any Utility
Subsidiary as a result of the borrowings of the proceeds of any trust-originated
or limited partnership-originated preferred securities by such Utility
Subsidiary; "Total Capitalization" means the sum of (i) consolidated Debt of the
Parent and its Subsidiaries (other than Securitization Securities excluded from
the computation of Adjusted Debt), plus (ii) the sum of the capital stock
(excluding treasury stock and capital stock subscribed for and unissued) and
surplus (including earned surplus, capital surplus, translation adjustment and
the balance of the current profit and loss account not transferred to surplus)
accounts of the Parent and its Subsidiaries appearing on a consolidated balance
sheet of the Parent and its Subsidiaries, in each case prepared as of the date
of determination in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 5(e), after eliminating all
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intercompany transactions and all amounts properly attributable to minority
interests, if any, in the stock and surplus of subsidiaries; and (v) "Debt" of
any Person shall mean (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, (e) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (d) above,
(f) liabilities in respect of unfunded vested benefits under Plans, and (g)
withdrawal liability incurred under ERISA by such Person or any of its
Affiliates to any Multiemployer Plan.
(j) Furnish to the LC Bank and each Lender, and cause each Utility
Subsidiary to furnish to the LC Issuer and each Lender:
(i) as soon as possible and in any event within three
Business Days after the occurrence of each Default applicable to
such GPU Party and each Unmatured Default applicable to such GPU
Party continuing on the date of such statement, the statement of
the chief financial officer or vice president and treasurer of
such GPU Party setting forth details of such Default or Unmatured
Default and the action which such GPU Party proposes to take with
respect thereto;
(ii) as soon as available and in any event within sixty
days after the end of each of the first three quarters of each
fiscal year of such GPU Party, a balance sheet of such GPU Party
as of the end of such quarter and statements of income and
retained earnings and cash flows of such GPU Party (in the case of
the Parent, on a consolidated and consolidating basis) for the
3-month and 12-month periods ending with the end of such quarter,
setting forth in each case in comparative form the corresponding
figures as of the end of and for the 3-month and the 12-month
periods ending on the corresponding date of the preceding fiscal
year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer or vice
president and treasurer of such GPU Party as having been prepared
in accordance with generally accepted accounting principles
consistently applied, together with a certificate of said officer
stating that said officer has no knowledge that a Default or an
Unmatured Default, in each case, applicable to such GPU Party, has
occurred and is continuing or, if a Default or an Unmatured
Default applicable to such Affiliate
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has occurred and is continuing, a statement as to the nature
thereof and the action which such GPU Party proposes to take with
respect thereto;
(iii) as soon as available and in any event within ninety
days after the end of each fiscal year of each GPU Party, a copy
of the audited balance sheet for such year for such GPU Party
including therein an audited balance sheet as of the end of such
fiscal year and audited statements of income and retained earnings
and cash flows of such GPU Party (in the case of the Parent, on a
consolidated and consolidating basis) for such fiscal year, in
each case certified (except for the consolidating financial
statements) by PriceWaterhouseCoopers LLP or other independent
public accountants of recognized standing reasonable acceptable to
the Agent as having been prepared in accordance with generally
accepted accounting principles consistently applied;
(iv) within thirty days after the filing thereof, copies of
all Annual Reports on Form 10-K (or successor form), Quarterly
Reports on Form 10-Q (or successor form), and reports on Form 8-K
(or successor form) of each GPU Party filed with the SEC;
(v) as soon as possible and in any event within three
Business Days of the occurrence of a material adverse change in
the financial condition or results of operations or prospects of
such GPU Party, the statement of the chief financial officer or
vice president and treasurer of such GPU Party setting forth the
details of such change, the anticipated effects thereof and the
action which such GPU Party proposes to take with respect thereto;
(vi) as soon as possible and in any event within three days
after any GPU Party acquires knowledge of the filing of any appeal
of, or petition seeking modification or setting aside of, any
order of the SEC under the Utility Act obtained in connection with
this Guaranty, notice of such appeal or petition together with a
copy thereof, if available;
(vii) as soon as practicable and in any event within three
Business Days after any GPU Party acquires knowledge thereof,
notice of any change in the Debt Rating or in any credit rating
used to determine the Debt Rating;
(viii) as soon as practicable and in any event within three
Business Days after any GPU Party acquires knowledge thereof,
notice of any change in the short-term debt borrowing limit
prescribed by the SEC for any
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GPU Party under the Public Utility Holding Company Act of 1935
(such GPU Party's "Short-Term Debt Limit");
(ix) together with the financial statements delivered
pursuant to paragraphs (ii) and (iii) above, a certificate of the
chief financial officer or vice president and treasurer of the
Parent setting forth in reasonable detail the calculations used in
determining compliance by each relevant GPU Party with Section
6(i) and 7(b)(viii) as of the last day of the period or periods
covered by such financial statements; and
(x) such other information respecting the business,
properties or the condition or operations, financial or otherwise,
of such GPU Party as any Lender may through to Agent from time to
time reasonably request.
SECTION 7. Negative Covenants of the Parent. So long as any amount in
respect of any Advance shall remain unpaid, any Lender shall have any Commitment
or any Obligation (whether contingent or otherwise) shall remain unpaid, the
Parent will not and will not cause any other GPU Party to, unless the Required
Lenders shall otherwise consent in writing:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any
Utility Subsidiary to create, incur, assume or suffer to exist, any mortgage,
deed of trust, pledge, lien, security interest or other charge or encumbrance,
or any other type of preferential arrangement, upon or with respect to any of
such GPU Party's properties or rights, whether now owned or hereafter acquired
(any of the foregoing being referred to herein as a "Lien"), or assign any right
to receive income, services or property, except that the foregoing restrictions
shall not apply to any such assignments in connection with the issuance of
Securitization Securities not exceeding $900,000,000 at any time outstanding or
to Liens:
(i) existing on the date hereof;
(ii) created to secure any Indebtedness of a GPU Party
under any agreement or other document listed on Schedule I hereto
and any extensions, renewals or refinancing of any such
Indebtedness, provided that, in connection with any such
extension, renewal or refinancing, the principal amount of such
Indebtedness shall not be increased; provided, further, however,
that no Lien created to secure any such Indebtedness shall extend
to or cover property of any type which is excluded therefrom on
the date hereof;
(iii) for taxes, assessments or governmental charges or
levies on property of such GPU Party if the same shall not at the
time be delinquent or thereafter
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can be paid without penalty, or are being contested in good faith
and by appropriate proceedings;
(iv) imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary
course of business;
(v) arising out of pledges or deposits (A) under worker's
compensation laws, unemployment insurance, or other social
security, or similar legislation, or (B) to secure the performance
of bids, tenders, contracts (other than contracts for the payment
of money), leases, surety or similar bonds or other similar
obligations, in each case under this clause (B) made in the
ordinary course of business in an amount not to exceed $15,000,000
in the aggregate for all GPU Parties at any one time outstanding;
(vi) arising out of purchase money mortgages or other Liens
on property acquired by such GPU Party in the ordinary course of
business to secure the purchase price of such property or to
secure Indebtedness incurred solely for the purpose of financing
the acquisition of any such property to be subject to such Liens,
or Liens existing on any such property at the time of acquisition,
or extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided that no such Lien shall
extend to or cover any property other than the property being
acquired, and no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced;
(vii) affecting the fuel used in the power generating
operations of any GPU Party;
(viii) constituting attachment, judgment and other similar
Liens arising in connection with court proceedings, provided that
the execution or other enforcement of such Liens is effectively
stayed and the claims secured thereby are being actively contested
in good faith by proper proceedings or the payment of which is
covered in full (subject to customary deductible amounts) by
insurance maintained with responsible and reputable insurance
companies or associations and such applicable insurance company or
association has acknowledged its liability therefor in writing;
(ix) constituting easements, restrictions and other similar
encumbrances arising in the ordinary course of business, which in
the aggregate do not materially adversely affect such GPU Party's
use of its properties; or
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(x) in addition to the foregoing, securing amounts not to
exceed in the aggregate $75,000,000 for each GPU Party at any one
time outstanding.
(b) Indebtedness. Create, incur, assume or suffer to exist, or permit any
Utility Subsidiary to create, incur, assume or suffer to exist, any
Indebtedness, except:
(i) Indebtedness of any Utility Subsidiary directly secured
by Liens permitted by Section 7(a)(ii)-(vii);
(ii) Indebtedness of a GPU Party under any arrangement with
any commercial bank pursuant to which such commercial bank has
agreed (whether or not such agreement shall constitute a committed
facility or shall otherwise be legally enforceable) to make
unsecured loans or extend credit on an unsecured basis to one or
more such GPU Parties up to a specified amount either on a demand
basis or for periods of not in excess of 270 days or any similar
financing arrangement commonly known as a "line of credit" (any
such arrangement an "External Line"), commercial paper and other
forms of unsecured short-term indebtedness, such commercial paper
and such other unsecured short-term indebtedness having a stated
maturity not in excess of 270 days from the date of issuance;
provided, however, that the aggregate principal amount of all
Indebtedness under External Lines of such GPU Party, such
unsecured commercial paper of such GPU Party and such other
unsecured short-term indebtedness of such GPU Party in each case
at any one time outstanding, shall not exceed at any time (A) in
the case of a GPU Party other than the Parent, such GPU Party's
Short-Term Debt Limit, and (B) in the case of the Parent, the
lesser of the Parent's Short-Term Debt Limit and $250,000,000;
(iii) Indebtedness of the Parent which is expressly and
effectively subordinated to the Indebtedness hereunder and,
without limiting the generality of the foregoing, which provides
that, unless and until the Indebtedness hereunder shall have been
paid in full, no payments of any kind, whether for principal,
interest, premium, fees, expenses or otherwise, shall be made in
the event of a Default described in Section 7.6, 7.7 or 7.8 of the
Credit Agreement;
(iv) Indebtedness of any Utility Subsidiary arising from
the purchase in the ordinary course of its business as conducted
on the date hereof of fuel, supplies, equipment, services,
electric energy and capacity with respect to which no assertion
that such
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Indebtedness is delinquent in payment has been made and
outstanding for more than 60 days, unless such GPU Party is
contesting such assertion in good faith and by appropriate
proceedings;
(v) Indebtedness with respect to unfunded vested benefits
under Plans or withdrawal liability incurred under ERISA by any
GPU Party or any of its ERISA Affiliates to any Multiemployer Plan
of such Affiliate;
(vi) Indebtedness of any Utility Subsidiary with respect to
capital lease obligations;
(vii) Indebtedness of any Utility Subsidiary with respect
to obligations arising under arrangements for the lease of nuclear
fuel and materials;
(viii) any unsecured Indebtedness not to exceed until the
date of the merger of the Parent with and into First Energy Corp.,
an Ohio corporation, (A) in the case of the Parent (on an
unconsolidated basis), the aggregate amount of $2,000,000,000 and
(B) in the case of each Utility Subsidiary, the aggregate amount
of $200,000,000 at any one time outstanding;
(ix) Debt of a GPU Party (A) in respect of Securitization
Securities in amounts not in excess of $900,000,000 at any time
outstanding or Subordinated Debt in amounts not in excess of
$400,000,000 at any time outstanding and (B) under any of those
agreements and other documents listed on Schedule I hereto (or
under any indenture in which the Debt is secured by first mortgage
bonds referenced on Schedule I), as such agreements and other
documents may be amended or supplemented from time to time, and
any extensions, renewal or refinancings of any such Debt,
provided, that in connection with any such extension, renewal or
refinancing, the principal amount of such Debt shall not be
increased; and
(x) other unsecured Debt not in excess of the amount
otherwise permitted under Section 6(i).
(c) Assumptions, Guaranties, Etc. of Indebtedness of Other Persons.
Assume, guarantee, endorse or otherwise become directly or contingently liable,
or permit the Utility Subsidiaries to assume, guarantee, endorse or otherwise
become directly or indirectly liable (including, without limitation, in any
case, liable by way of agreement, contingent or otherwise, to purchase, to
provide funds for payment, to supply funds to or otherwise invest in the debtor
or otherwise to assure the creditor against loss) in connection with any
obligation or Indebtedness of any other Person, except:
13
(i) guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business;
(ii) obligations to pay insurance premiums;
(iii) guaranties existing on the date hereof to the extent
permitted pursuant to Section 7(b)(viii);
(iv) guaranties by any Utility Subsidiary of obligations of
any Subsidiary of such Utility Subsidiary to the extent permitted
pursuant to Section 7(b)(viii);
(v) indemnifications of any GPU Party or GPU Services, Inc.
or GPU Nuclear, Inc. for the benefit of suppliers and contractors
of property or services to any GPU Party (other than the Parent)
with respect to nuclear material and facilities;
(vi) guaranties or indemnifications by any GPU Party issued
in the ordinary course of business of such GPU Party (and not
covering the payment or performance of any GPU Party's
indebtedness for borrowed money) such as self-insurance guaranties
and those issued in favor of surety companies issuing indemnity
bonds, third party vendors or customers to promote conservation of
energy or cogeneration, stock transfer agents, lessors or vendors
of equipment, supplies or services; and
(vii) guaranties by the Parent of obligations of any GPU
Party (only for so long as such GPU Party is a Subsidiary of
Parent) to the extent permitted pursuant to Section 7(b)(viii).
(d) Mergers, Etc. Merge or consolidate with any Person (other than the
merger of the Parent with and into First Energy Corp., an Ohio corporation),
unless:
(i) the surviving or resulting entity is a GPU Party that
agrees to be bound hereby pursuant to a writing in form and
substance reasonably acceptable to the Agent;
(ii) immediately after giving effect thereto no Default or
Unmatured Default applicable to the surviving or resulting Person
shall have occurred and be continuing; and
(iii) the senior unsecured debt of the surviving or
resulting Person shall be rated at least BBB- by S&P and at least
Baa3 by Xxxxx'x.
14
(e) Sale of Assets, Etc. From the date hereof until the Facility
Termination Date, the Parent will not, and will not permit or cause any GPU
Party to, sell, transfer, lease, assign or otherwise convey or dispose of 25% or
more of its assets (whether now owned or hereafter acquired), in any single or
series of transactions, whether or not related, except for (i) dispositions of
current assets in the ordinary course of business as conducted on the date
hereof, (ii) dispositions of assets not exceeding 5% of such GPU Party's assets
in connection with sale-leaseback transactions relating to such assets, (iii)
conveyances of assets from one GPU Party to another and (iv) dispositions of any
generating and related assets of any GPU Party listed on Schedule II hereto,
provided that before and after giving effect to any such disposition, no Default
under Section 7.2 of the Credit Agreement shall have occurred and be continuing.
(f) Constituent Documents, Etc. The Parent will not, and will not permit
or cause any GPU Party to, change in any material respect, the nature of its
business, charter, certificate of incorporation or other similar document,
accounting policies or accounting practices (except as required or permitted by
the Financial Accounting Standards Board or generally accepted accounting
principles and except as contemplated in connection with the merger of the
Parent with and into First Energy Corp.) (it being agreed that such portion of
any change to a charter, certificate of incorporation or other similar document
that provides for the issuance of equity shall not be deemed material) or cease
to engage principally in the business of the transmission and distribution of
electric power.
SECTION 8. Waivers. (a) The Parent hereby waives any failure or delay on
the part of the Agent, the LC Issuer or any Lender in asserting or enforcing any
of its rights or in making any claims or demands hereunder. The Borrower, the
Agent, the LC Issuer or any Lender may at any time, without the Parent's
consent, without notice to the Parent and without affecting or impairing the
Borrower's, the Agent's, the LC Issuer's or such Lender's rights or the Parent's
obligations hereunder, do any of the following with respect to any Loan Document
to which it is a party: (i) make changes, modifications, amendments or
alterations thereto, by operation of law or otherwise, including, without
limitation (in the case of the Credit Agreement and the Notes), any increase in
the Commitments or the rate of interest payable with respect to Advances or any
change in the method of calculating the rate of interest payable with respect
thereto, (ii) grant renewals and extensions of time, for payment or otherwise,
(iii) accept new or additional documents, instruments or agreements relating to
or in substitution thereof, or (iv) otherwise handle the enforcement of their
respective rights and remedies in accordance with their business judgment.
(b) If the Parent shall at any time or from time to time fail to perform
or comply with any of its obligations contained herein and if for any reason any
Agent, the LC Issuer or any
15
Lender shall have failed to receive when due and payable (whether at
stated maturity, by acceleration, or otherwise) the payment of all or any part
of principal of, or interest on, or any other amount payable by the Borrower in
respect of any Obligations owing to such Agent, the LC Issuer or such Lender (as
the case may be), then in each case, to the fullest extent permitted by law, (i)
it shall be assumed conclusively without necessity of proof that such failure by
the Parent was the sole and direct cause of such Agent's, the LC Issuer's or
such Lender's (as the case may be) failure to receive such payment when due
irrespective of any other contributing or intervening cause whatsoever, and (ii)
the Parent further irrevocably waives any right or defense that the Parent may
have to cause such Agent, the LC Issuer or any Lender (as the case may be) to
prove the cause or amount of any damages or to mitigate the same.
(c) The Parent irrevocably waives, to the fullest extent permitted by law
and for the benefit of, and as a separate undertaking with, the Agent, the LC
Issuer and each Lender, any defense to the performance of this Guaranty that may
be available to the Parent as a consequence of this Guaranty's being rejected or
otherwise not assumed by the Borrower or any trustee or similar official for the
Borrower or for any substantial part of the property of the Borrower, or as a
consequence of this Guaranty's being otherwise terminated or modified, in any
bankruptcy or insolvency proceeding, whether such rejection, non-assumption,
termination or modification shall have been by reason of this Guaranty's being
held to be an executory contract or by reason of any other circumstance. If,
notwithstanding the foregoing, this Guaranty shall be rejected or otherwise not
assumed, or terminated or modified, the Parent agrees, to the fullest extent
permitted by law, for the benefit of, and as a separate undertaking with, the
Agent, the LC Issuer and each Lender, that the Parent will be unconditionally
liable to pay to the Agent, the LC Issuer and each Lender (as the case may be)
an amount equal to each payment that would otherwise be payable by the Parent
under or in connection with this Guaranty if this Guaranty were not so rejected
or otherwise not assumed or terminated or modified.
SECTION 9. Amendments, Etc. Subject to the provisions of Section 12.1 of
the Credit Agreement, no amendment or waiver of any provision of this Guaranty,
nor consent to any departure therefrom, shall in any event be effective unless
the same shall be in writing and signed by both parties and consented to by the
Required Lenders.
SECTION 10. Notices. All notices and other communications provided for
hereunder shall be in writing (including telecopy transmission) and (except when
particular means are specified) mailed, faxed or delivered, if to the Parent or
the Borrower, at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000,
Attention: Vice President and Treasurer, telecopy: 000-000-0000; if to any
Lender, to the address specified for notice pursuant to the
16
Credit Agreement; and if to the Agent, at its address specified for notice
pursuant to the Credit Agreement; or, as to each party, at such other address as
shall be designated by such party in a written notice to the other parties. All
such notices and communications shall, when mailed or telecopied, be effective
when deposited in the mails or transmitted, respectively.
SECTION 11. Costs, Expenses and Taxes. (a) The Parent agrees to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution, delivery, modification and amendment of this Guaranty, and all costs
and expenses, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Guaranty. The Parent also agrees to
indemnify the Agent, the LC Issuer and each Lender from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against any Agent, the LC Bank or any
Lender (as the case may be) in any way relating to or arising out of this
Guaranty or any action taken or omitted by the Agent, the LC Issuer or any
Lender hereunder, except for such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of the Person seeking such
indemnity.
(b) Any and all payments made by the Parent shall be made free and clear
of and without deduction for any and all current or future United States
Federal, state and local taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect to such payments, but only to the
extent reasonably attributable to such payments, excluding (i) income taxes
imposed on the net income of the Agent, the LC Issuer or any Lender and (ii)
franchise taxes imposed on the net income of the Agent, the LC Issuer or any
Lender, in each case by the jurisdiction under the laws of which the Agent, the
LC Issuer or such Lender is organized or doing business through offices or
branches located therein, or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "Taxes"). If the Parent shall be
required to deduct any Taxes from or in respect of any sum payable hereunder to
the Agent, the LC Issuer or any Lender, (i) the sum payable shall be increased
by the amount (an "additional amount") necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 11), the Agent, the LC Issuer or such Lender (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Parent shall make such deductions and (iii) the
Parent shall pay the full amount deducted to the relevant governmental authority
in accordance with applicable law.
17
(c) In addition, the Parent shall pay to the relevant governmental
authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty ("Other
Taxes").
(d) The Parent shall indemnify the Agent, the LC Issuer and each Lender
(as the case may be) for the full amount of Taxes and Other Taxes with respect
to payments paid by such person, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant United States
governmental authority. A certificate setting forth and containing an
explanation in reasonable detail of the manner in which such amount shall have
been determined and the amount of such payment or liability prepared by a
Lender, the LC Issuer or the Agent on their behalf, absent manifest error, shall
be final, conclusive and binding for all purposes. Such indemnification shall be
made within 30 days after the date the Agent, the LC Issuer or the Lender, as
the case may be, makes written demand therefor.
(e) If the Agent, the LC Issuer or a Lender shall become aware that it is
entitled to claim a refund from a United States governmental authority in
respect of Taxes or Other Taxes as to which it has been indemnified by the
Parent, or with respect to which the Parent has paid additional amounts,
pursuant to this Section 11, it shall promptly notify the Parent of the
availability of such refund claim and shall, within 30 days after receipt of a
request by the Parent, make a claim to such United States governmental authority
for such refund at the Parent's expense. If the Agent, the LC Issuer or a Lender
receives a refund (including pursuant to a claim for refund made pursuant to the
preceding sentence) in respect of any Taxes or Other Taxes as to which it has
been indemnified by the Parent or with respect to which the Parent had paid
additional amounts pursuant to this Section 11, it shall within 30 days from the
date of such receipt pay over such refund to the Parent (but only to the extent
of indemnity payments made, or additional amounts paid, by the Parent under this
Section 11 with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses and without interest (other than interest paid
by the relevant United States governmental authority with respect to such
refund); provided, however, that the Parent, upon the request of the Agent, the
LC Issuer or such Lender, agrees to repay the amount paid over to the Parent
(plus penalties, interest or other charges) to the Agent, the LC Issuer or such
Lender (as the case may be) in the event the Agent, the LC Issuer or such Lender
(as the case may be) is required to repay such refund to such United States
governmental authority.
18
(f) As soon as practicable, but in any event within 30 days, after the
date of any payment of Taxes or Other Taxes by the Parent to the relevant United
States governmental authority, the Parent will deliver to the Administrative
Agent, at its address referred to in Section 10, the original or a certified
copy of a receipt issued by such United States governmental authority evidencing
payment thereof.
(g) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 11 shall
survive the payment in full of the Obligations.
(h) Each of the Administrative Agent, the LC Issuer and each Lender that
is organized under the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia (a "Non-U.S. Payee") shall deliver to
the Parent and the Agent two copies of either United States Internal Revenue
Service Form W-BEN, Forms W-ECI or Form W-8IMY, properly completed and duly
executed by such Non-U.S. Payee claiming complete exemption from, or reduced
rate of, United States Federal withholding tax on payments by the Parent under
this Guaranty. Such forms shall be delivered by each Non-U.S. Payee on or before
the date it becomes a party to the Credit Agreement (or, in the case of any
Lender that becomes a party to the Credit Agreement pursuant to an Assignment
and Acceptance (a "Transferee"), on or prior to the effective date of such
Assignment and Acceptance) and on or before the date, if any, such Non-U.S.
Payee changes its Applicable Lending Office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S. Payee shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Payee. Notwithstanding any other provision of this
Section 11, a Non-U.S. Payee shall not be required to deliver any form pursuant
to this Section 11 that such Non-U.S. Payee is not legally able to deliver.
(i) The Parent shall not be required to indemnify any Non-U.S. Payee, or
to pay any additional amounts to any Non-U.S. Payee, in respect of United States
Federal, state or local withholding tax pursuant to paragraph (a) or (c) above
to the extent that (i) the obligation to withhold amounts with respect to United
States Federal, state or local withholding tax existed on the date such Non-U.S.
Payee became a party to the Credit Agreement (or, in the case of a Transferee,
on the effective date of the Assignment and Acceptance pursuant to which such
Transferee becomes a Lender) or, with respect to payments to a New Lending
Office, the date such Non-U.S. Payee designated such New Lending Office with
respect to an Extension of Credit; provided, however, that this clause (i) shall
not apply to any Lender that becomes a Lender or New Lending Office that becomes
a New Lending Office as a result of an assignment or designation made at the
request of the Parent; and provided further, however, that this clause (i) shall
not apply to the extent the indemnity
19
payment or additional amounts any Lender, the Agent, the LC Issuer or any Lender
through a New Lending Office would be entitled to receive (without regard to
this clause (i)) do not exceed the indemnity payment or additional amounts that
the person making the assignment or transfer to such Lender, the Agent, the LC
Issuer or such Lender making the designation of such New Lending Office would
have been entitled to receive in the absence of such assignment, transfer or
designation or (ii) the obligation to pay such additional amounts or such
indemnity payments would not have arisen but for a failure by such Non-U.S.
Payee to comply with the provisions of paragraph (h) above and (j) below.
(j) Any of the Agent, the LC Issuer or any Lender claiming any indemnity
payment or additional amounts payable pursuant to this Section 11 shall use
reasonable efforts (consistent with legal and regulatory restrictions) to file
any certificate or document reasonably requested in writing by the Parent or to
change the jurisdiction of its Applicable Lending Office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the good faith determination of the Agent, the LC Issuer or such Lender
(as the case may be), be otherwise disadvantageous to such person.
(k) Nothing contained in this Section 11 shall require the Agent, the LC
Issuer or any Lender to make available to the Parent any of its tax returns (or
any other information) that it deems to be confidential or proprietary.
SECTION 12. Continuing Guaranty; Assignment under Credit Agreement. This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect,
until the later of (x) the payment in full of the Obligations and all other
amounts payable under this Guaranty and (y) the expiration or termination of the
Commitments, (ii) be binding upon the Parent, its successors and assigns, and
(iii) inure to the benefit of, and be enforceable by, the Agent, the LC Issuer
and the Lenders and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (iii), any Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement in accordance with Section 12.1 of the Credit
Agreement and the transferee shall thereupon become vested with all the benefits
in respect thereof granted to such Bank herein or otherwise, subject, however,
to the provisions of Article X (concerning the Agent) of the Credit Agreement.
The Parent may not assign its rights and obligations hereunder other than to a
GPU Party as a result of a merger or consolidation of the Parent permitted under
Section 7(d) hereof.
SECTION 13. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to conflict of law principles.
20
SECTION 14. Remedies. The remedies herein provided shall be cumulative
and non-exclusive and shall be in addition to any other rights and remedies the
Borrower may have under this Guaranty.
SECTION 15. Jurisdiction; Venue; Waiver of Jury Trial; Right of Setoff.
(a) The Parent hereby irrevocably and unconditionally submits to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to the Loan
Documents, or for recognition or enforcement of any judgment, and hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. The Parent agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Subject to the foregoing and to paragraph (b) below, nothing in
any Loan Document shall affect any right that any party thereto may otherwise
have to bring any action or proceeding relating to any Loan Document against any
other party thereto in the courts of any jurisdiction.
(b) The Parent hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or thereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to any Loan Document in any New York State or Federal
court. The Parent hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) THE PARENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ALL LITIGATION BASED ON THE
LOAN DOCUMENTS, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THE LOAN
DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF THE PARENT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT, THE LENDERS AND THE LC ISSUER ENTERING INTO THE LOAN
DOCUMENTS.
(d) If (i) an Event of Default shall have occurred and be continuing and
(ii) the request shall have been made or the consent granted as specified by
Section 8.1(i) of the Credit Agreement to authorize the Agent to declare the
Advances of the Borrower due and payable pursuant to the provisions of such
Section 8.1(i), each Lender and the LC Issuer is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
or the LC Issuer to or for the credit or the
21
account of the Guarantor against any of and all the obligations of the Guarantor
now or hereafter existing under this Guaranty held by such Lender or the LC
Issuer, irrespective of whether or not such Lender or the LC Issuer shall have
made any demand under this Guaranty and although such obligations may be
unmatured. The rights of each Lender and the LC Issuer under this subsection are
in addition to other rights and remedies (including other rights of setoff)
which such Lender or the LC Issuer may have.
22
IN WITNESS WHEREOF, the Parent has caused this Guaranty to be duly
executed as of the day and year first above written.
GPU, INC.
By : /s/ X.X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
23
SCHEDULE I
10. Jersey Central Power & Light Company
First Mortgage Bonds
--------------------
Indenture, dated as of March 1, 1946, to United States Trust Company of
New York, as Successor Trustee, as supplemented
Debentures
----------
Subordinated Debenture Indenture, dated as of May 1, 1999, to United
States Trust Company of New York, as Trustee
Senior Notes
------------
Senior Note Indenture, dated as of July 1, 1999, to United States Trust
Company of New York, as Trustee
11. Metropolitan Edison Company
First Mortgage Bonds
--------------------
Indenture, dated November 1, 1994, to United States Trust Company of
New York, as Successor Trustee, as supplemented
Debentures
----------
Subordinated Debenture Indenture, dated as of May 1, 1999, to United
States Trust Company of New York, as Trustee
Senior Notes
------------
Senior Note Indenture, dated as of April 1, 1999, to United States
Trust Company of New York, as Trustee
12. Pennsylvania Electric Company
First Mortgage Bonds
--------------------
Mortgage and Deed of Trust, dated as of June 1, 1942, to United States
Trust Company of New York, as Successor Trustee, as supplemented
Debentures
----------
Subordinated Debenture Indenture, dated as of July 1, 1994, to United
States Trust Company of New York, as Trustee
Senior Notes
------------
Senior Note Indenture dated as of April 1, 1999, to United States Trust
Company of New York, as Trustee
24
SCHEDULE II
GENERATING FACILITY
Pumped Storage
--------------
Yards Creek Station, a 400 MW pumped storage facility located in
northwestern New Jersey on a 1,373-acre site. JCP&L owns a 50% undivided
ownership interest in the station.
25
