Exhibit 99.1
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THE POTOMAC EDISON COMPANY
TO
JPMORGAN CHASE BANK, N.A.,
Corporate Trustee
AND
XXXXXX X. XXXXX,
Individual Trustee
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ONE HUNDRED AND FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 15, 2005
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FIRST MORTGAGE BONDS
5 1/8% SERIES DUE 2015
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ONE HUNDRED AND FIFTH SUPPLEMENTAL INDENTURE, dated as of August 15,
2005, between THE POTOMAC EDISON COMPANY, a corporation organized and existing
under the laws of the State of Maryland and the Commonwealth of Virginia
(hereinafter called the "Company"), party of the first part, and JPMORGAN CHASE
BANK, N.A., a national banking association incorporated and existing under the
laws of the United States of America (ultimate successor to Chemical Bank &
Trust Company), as trustee under the Indenture, dated as of October 1, 1944,
hereinafter mentioned (the "Corporate Trustee"), party of the second part, and
Xxxxxx X. Xxxxx, as individual trustee under the aforesaid Indenture
(hereinafter called the "Individual Trustee"), party of the third part (said
Corporate Trustee and Individual Trustee being hereinafter sometimes
collectively called the Trustees");
The Company has heretofore executed and delivered to the Corporate
Trustee its Indenture (hereinafter sometimes called the "Original Indenture"),
dated as of October 1, 1944, which Original Indenture has been supplemented by
indentures supplemental thereto, numbered First through One Hundred and Fourth,
respectively.
The amendments to the Original Indenture contained in Paragraph (B) of
Section 1 of Part V of the Fifteenth Supplemental Indenture have become
effective.
The Company, pursuant to Section 1 of Article II of the Original
Indenture, as heretofore supplemented, has redesignated the Bonds outstanding
thereunder as "First Mortgage Bonds."
First Mortgage Bonds ("Bonds") are presently outstanding under the
Original Indenture, as heretofore supplemented, as follows:
Series Principal Amount
7.75% Series Due 2025............................. $65,000,000
7.625% Series Due 2025............................ $80,000,000
5.35% Series Due 2014............................. $175,000,000
Under the Original Indenture, as heretofore supplemented, any new
series of Bonds may at any time be established by the Board of Directors of the
Company and certain terms and provisions thereof may be described by an
appropriate supplemental indenture.
Under the Original Indenture, as heretofore supplemented, the Company
and the Trustees may enter into a supplemental indenture for the purpose of
modifying any of the provisions of the Original Indenture, as previously
supplemented, provided such modification does not impair any of the rights of
the then holders of outstanding Bonds or of the Trustees.
The Company proposes to create under the Original Indenture, as
heretofore supplemented and as supplemented hereby, a new series of Bonds to be
designated First Mortgage Bonds, 5 1/8% Series Due 2015 (the "Bonds of 2015
Series"). The Company is issuing the Bonds of 2015 Series to fund the
redemption of its outstanding First Mortgage Bonds, 7.75% Series due 2025 and
7.625% Series due 2025. Maryland Recordation Tax was paid to the Comptroller of
the Treasury of the State of Maryland as evidenced by recording information
found on the 90th and 91st Supplemental Indentures.
All conditions and requirements necessary to authorize the execution
and delivery of this Supplemental Indenture and to make it a valid, binding and
legal instrument have been met, performed and fulfilled.
Now, Therefore, This Supplemental Indenture Witnesseth:
That, in consideration of the premises and of the mutual covenants
herein contained and of the acceptance of this trust by the Trustees, and of
other valuable considerations, the receipt and sufficiency is hereby
acknowledged, it is hereby covenanted, declared, and agreed by and between the
parties hereto, for the benefit of those who shall hold the Bonds of 2015
Series, or any of them, issued or to be issued under the Original Indenture, as
follows:
PART I
Description of Bonds of 2015 Series
SECTION 1. The Bonds of 2015 Series shall, subject to the provisions
of Section 1 of Article II of the Original Indenture, be designated as "First
Mortgage Bonds, 5 1/8% Series Due 2015" of the Company and shall be executed,
authenticated and delivered in accordance with the provisions of, and, except
as hereinafter provided, shall in all respects be subject to all of the terms,
conditions and covenants of the Original Indenture as supplemented, including
by this Supplemental Indenture. The signatures of the officers executing the
Bonds of 2015 Series on behalf of the Company and attesting to the facsimile of
its corporate seal thereon may be by facsimile.
The Bonds of 2015 Series shall be registered Bonds without coupons of
the denominations of $1,000 and any multiple of $1,000, appropriately numbered.
The Bonds of 2015 Series shall be issued in global form, the depository
therefor shall be The Depository Trust Company ("DTC"), such Bonds shall be
registered in the name of Cede & Co. or any other nominee of DTC designated by
DTC, and such Bonds shall be held by the Corporate Trustee as custodian for DTC
and shall be exchangeable for certificated Bonds only in the circumstances set
forth in the Form of Bond set forth in Section 2 of this Part I. The Bonds of
2015 Series shall mature on August 15, 2015, and shall bear interest at the
rate of 5 1/8% per annum, payable semi-annually on the fifteenth day of February
and the fifteenth day of August in each year commencing February 15, 2006 (each
such February 15 and August 15 hereinafter called an "Interest Payment Date").
Under certain circumstances set forth in the Registration Rights Agreement
referred to in the Form of Bond set forth in Section 2 of this Part I, the
Bonds of 2015 Series may bear Additional Interest (as defined in such Form of
Bond). If any Interest Payment Date falls on a day that is not a Business Day
(as defined herein), the Interest Payment Date will be the next succeeding
Business Day (and without any interest or payment in respect of any such
delay). Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. The Bonds of 2015 Series shall be payable as to principal
and interest in any coin or currency of the United States of America which at
the time of payment is legal tender for public and private debts, and shall be
payable (as well the interest as the principal thereof) at the agency of the
Company in the Borough of Manhattan, The City of New York. The Company shall
pay interest on overdue principal at the rate per annum borne by the Bonds of
2015 Series, and it shall pay interest on overdue installments of interest at
the rate per annum borne by the Bonds of 2015 Series to the extent lawful.
The interest so payable on any Interest Payment Date shall be paid to
the persons in whose names the Bonds of 2015 Series are registered at the close
of business on the last Business Day prior to such Interest Payment Date
(hereinafter called "Record Date"), a "Business Day" being any day that is not
a day on which banks in The City of New York are authorized by law or executive
order to close; except that (i) if Bonds of 2015 Series shall be exchanged for
certificated Bonds of 2015 Series, the Record Date shall be the close of
business on the day that is ten days prior to such Interest Payment Date
(whether or not a Business Day), and (ii) if the Company shall default in the
payment of any interest due on such Interest Payment Date, such defaulted
interest shall be paid to the persons in whose names the Bonds of 2015 Series
are registered on the date of payment of such defaulted interest.
Except as provided hereinafter and in Section 10 of Article II of the
Original Indenture, every Bond of 2015 Series shall be dated as of the date of
its authentication and delivery or, if that is an Interest Payment Date, the
next day, and shall bear interest from the Interest Payment Date next preceding
its date or August 15, 2005, whichever is later. Notwithstanding Section 6 of
Article II of the Original Indenture and except as provided in Section 10 of
such Article II, any Bond of 2015 Series authenticated and delivered by the
Corporate Trustee after the close of business on the Record Date with respect
to any Interest Payment Date and prior to such Interest Payment Date shall be
dated as of the date next following such Interest Payment Date and shall bear
interest from such Interest Payment Date, except that if the Company shall
default in the payment of any interest due on such Interest Payment Date, such
Bond shall bear interest from the next preceding Interest Payment Date to which
interest has been paid or, if no interest has been paid on such Bond, from
August 15, 2005.
SECTION 2. The Bonds of 2015 Series and the Corporate Trustee's
authentication certificate shall be substantially in the following form:
[FORM OF BOND]
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)]
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE POTOMAC
EDISON COMPANY (THE "COMPANY") THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) IN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (IV) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (V) TO THE COMPANY OR (VI)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.(2)]
THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO
ANY SUCH AMENDMENT OR SUPPLEMENT.
THE HOLDER OF THIS SECURITY IS SUBJECT TO, ENTITLED TO THE BENEFITS OF, AND
AGREES TO BE BOUND BY THE TERMS OF, A REGISTRATION RIGHTS AGREEMENT DATED AS OF
AUGUST 15, 2005, ENTERED INTO BY THE COMPANY FOR THE BENEFIT OF CERTAIN HOLDERS
OF SECURITIES FROM TIME TO TIME.
THE POTOMAC EDISON COMPANY
(Incorporated under the laws of the State of Maryland and the
Commonwealth of Virginia)
First Mortgage Bond, 5 1/8% Series Due 2015
No. R $
CUSIP No.
THE POTOMAC EDISON COMPANY, a corporation organized and existing under
the laws of the State of Maryland and the Commonwealth of Virginia (hereinafter
called the "Company", which term shall include any successor corporation as
defined in the Indenture hereinafter referred to), for value received, hereby
promises to pay to , or registered assigns, on August 15, 2015, the sum of
dollars ($) [as revised by the Schedule of Increases and Decreases in Global
Bond attached hereto],(3) in any coin or currency of the United States of
America which at the time of payment is legal tender for public and private
debts, and to pay interest thereon in like coin or currency from August 15,
2005, or from the most recent February 15 or August 15 to which interest is
paid or provided for, at the rate of five and one-eighths percent (5 1/8%) per
annum, payable semi-annually, on the fifteenth day of February and August in
each year, commencing February 15, 2006, until maturity, or, if this Bond shall
be duly called for redemption, until, but not including, the redemption date.
The Company shall pay interest on overdue principal at the rate per annum borne
by the Bonds of 2015 Series, and it shall pay interest on overdue installments
of interest at the rate per annum borne by this Bond Series to the extent
lawful. If the Company does not comply with certain of its obligations under
the Registration Rights Agreement dated as of August 15, 2005, relating to this
Bond (the "Registration Rights Agreement") (in which case the Company shall
promptly notify the Trustees thereof), this Bond shall, in accordance with
Section 5 of the Registration Rights Agreement, bear additional interest
("Additional Interest") in addition to the interest provided for in the
immediately preceding sentence. For purposes of the One Hundred and Fifth
Supplemental Indenture (as hereinafter defined) and this Bond, the term
"interest" shall be deemed to include interest provided for in the third and
second immediately preceding sentences and Additional Interest, if any. If any
Interest Payment Date (as defined in the One Hundred and Fifth Supplemental
Indenture) falls on a day that is not a Business Day (as defined in the One
Hundred and Fifth Supplemental Indenture), the Interest Payment Date will be
the next succeeding Business Day (and without any interest or payment in
respect of any such delay). The interest so payable on any February 15 or
August 15 will, subject to certain exceptions provided in such Indenture, be
paid to the person in whose name this Bond is registered at the close of
business on the last business day prior to such February 15 or August 15;
except that (i) if this Bond shall be exchanged for certificated Bonds of this
Series, the Record Date shall be the close of business on the day that is ten
days prior to such Interest Payment Date, and (ii) if the Company shall default
in the payment of any interest due on such Interest Payment Date, such
defaulted interest shall be paid to the persons in whose names the Bonds of
2015 Series are registered on the date of payment of such defaulted interest.
Principal of, premium (if any) and interest on this Bond are payable
at the agency of the Company in the Borough of Manhattan, The City of New York.
Interest will be computed on the basis of a 360 day year consisting of twelve
(12) thirty (30) day months.
The provisions of this Bond are continued on the reverse hereof, and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Bond shall not be entitled to any benefit under the Indenture or
any indenture supplemental thereto, or become valid or obligatory for any
purpose, until JPMorgan Chase Bank, N.A., the Corporate Trustee under the
Indenture, or a successor trustee thereto under the Indenture, shall have
signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, The Potomac Edison Company has caused a facsimile
of its corporate seal and the facsimile signatures of its duly authorized
officers to be hereto affixed.
Dated:
THE POTOMAC EDISON COMPANY
By
--------------------------------
Name:
Title:
[Corporate Seal]
Attest:
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Assistant Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the Bonds, of the series designated therein, described
in the within-mentioned Indenture and the One Hundred and Fifth Supplemental
Indenture.
JPMorgan Chase Bank, N.A., as
Corporate Trustee
By
--------------------------------
Authorized Officer
[FORM OF REVERSE OF BOND]
This Bond is one of a duly authorized issue of Bonds of the Company
(herein called the "Bonds"), unlimited in aggregate principal amount, of the
series hereinafter specified, all issued and to be issued under and equally
secured by an indenture, dated as of October 1, 1944, executed by the Company
to Chemical Bank & Trust Company, as trustee (said indenture being herein
called the "Indenture"), under which Indenture, JPMorgan Chase Bank, N.A.
(herein called the "Corporate Trustee") is successor Trustee and under which
Indenture, Xxxxxx X. Xxxxx is Individual Trustee (herein called the "Individual
Trustee", the Corporate Trustee and the Individual Trustee being herein
collectively called the "Trustees"), by virtue of the Fifty-sixth Supplemental
Indenture dated as of May 31, 1974, to which Indenture and all indentures
supplemental thereto (including the One Hundred and Fifth Supplemental
Indenture hereinafter referred to) reference is hereby made for a description
of the properties mortgaged and pledged, the nature and extent of the security,
the rights of the registered owners of the Bonds and of the Trustees in respect
thereto, and the terms and conditions upon which the Bonds are, and are to be,
secured. To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any indenture supplemental
thereto, and of the rights and obligations of the Company and of the holders of
the Bonds may be made with the consent of the Company by an affirmative vote of
not less than 75% in amount of the Bonds entitled to vote then outstanding, at
a meeting of Bondholders called and held as provided in the Indenture, and by
an affirmative vote of not less than 75% in amount of the Bonds of any series
entitled to vote then outstanding and affected by such modifications or
alterations, in case one or more but less than all of the series of Bonds then
outstanding under the Indenture are so affected; provided, however, that no
such modifications or alterations shall be made which will affect the terms of
payment of the principal of, or interest on, this Bond, which are
unconditional. The Bonds may be issued in series, for various principal sums,
may mature at different times, may bear interest at different rates and may
otherwise vary as provided in the Indenture. This Bond is one of a series
designated as "First Mortgage Bonds, 5 1/8% Series Due 2015" of the Company,
issued under and secured by the Indenture and all indentures supplemental
thereto and described in an indenture supplemental thereto (herein called the
"One Hundred and Fifth Supplemental Indenture"), dated as of August 15, 2005,
executed by the Company to the Trustees.
The Bonds of this Series are subject to redemption at any time, as a
whole or in part, at the election of the Company, at a redemption price equal
to the greater of (a) 100% of the principal amount of the Bonds of this Series
to be redeemed, and (b) as determined by the Quotation Agent, the sum of the
present values of the remaining scheduled payments of principal and interest on
the Bonds of this Series to be redeemed (not including any portion of payments
of interest accrued as of the redemption date), discounted to the redemption
date on a semi-annual basis at the Adjusted Treasury Rate plus fifteen (15)
basis points, together, in each case of both (a) and (b), with accrued interest
to the redemption date.
The redemption price will be calculated assuming a 360-day year
consisting of twelve 30-day months.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Bonds of this Series that would be used, at the time of
the selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the remaining
term of the Bonds of this Series.
"Comparable Treasury Price" means, with respect to any redemption
date: (a) the average of the Reference Treasury Dealer Quotations for the
redemption date, after excluding the highest and lowest of the Reference
Treasury Dealer Quotations, or (b) if, the Corporate Trustee obtains fewer than
three Reference Treasury Dealer Quotations, the average of all Reference
Treasury Dealer Quotations so received.
"Quotation Agent" means the Reference Treasury Dealer appointed as
such by the Company.
"Reference Treasury Dealer" means (a) Credit Suisse First Boston LLC,
and its successors, unless it ceases to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), in which case the
Company shall substitute another Primary Treasury Dealer; and (b) any other
Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Corporate Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Corporate Trustee by that Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding that
redemption date.
Notice of any such redemption shall be mailed by the Company, postage
prepaid, not less than thirty and no more than sixty days prior to the date of
redemption, to the owner of this Bond at such owner's address as the same shall
appear on the transfer register of the Company. Any notice so mailed shall be
conclusively presumed to have been duly given, whether or not the owner
receives it.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Bonds of this
Series or portion of the Bonds of this Series called for redemption.
In case an Event of Default (as defined in the Indenture) shall occur,
the principal of all the Bonds at any such time outstanding under the Indenture
may be declared or may become due and payable, upon the conditions and in the
manner and with the effect provided in the Indenture. The Indenture provides
that such declaration may in certain events be waived by the holders of a
majority in principal amount of the Bonds outstanding.
[This Bond is a global Bond and will be exchangeable for certificated
Bonds of like series and terms and of differing authorized denominations in a
like aggregate principal amount, only if (i) The Depository Trust Company
("DTC") notifies the Company that it is unwilling or unable to continue as
depository or defaults in the performance of its duties as depository for the
Bonds of this Series or the Company becomes aware that DTC has ceased to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depository is not appointed by the Company within 90
days after the Company's receipt of such notice or becoming aware of such
default or cessation, (ii) the Company, in its sole discretion, determines that
this Bond shall be exchangeable for certificated Bonds, subject to the
procedures of DTC or (iii) an event of default shall have occurred and be
continuing under the Indenture. Upon any such exchange, certificated Bonds of
this Series shall be registered in the names of the beneficial owners of this
Bond, which names shall be provided by DTC's relevant Participants (as
identified by DTC) to the Trustees.](4)
This Bond is transferable by the registered owner hereof, in person or
by duly authorized attorney, on the books of the Company to be kept for that
purpose at the agency of the Company in the Borough of Manhattan, The City of
New York, upon surrender and cancellation of this Bond and on presentation of a
duly executed written instrument of transfer, and thereupon a new Bond or Bonds
of the same series, of the same aggregate principal amount and in authorized
denominations will be issued to the transferee or transferees in exchange
therefor; and this Bond, with or without others of like series, may in like
manner be exchanged for one or more new Bonds of the same series of other
authorized denominations but of the same aggregate principal amount; all upon
payment of the charges and subject to the terms and conditions set forth in the
Indenture.
No recourse shall be had for the payment of the principal of, or the
interest on, this Bond, or for any claim based hereon or on the Indenture or
any indenture supplemental thereto, against any incorporator, or against any
stockholder, director or officer, past, present or future, of the Company, as
such, or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
for amounts unpaid on stock subscriptions or by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability, whether at common law, in equity, by any
constitution, statute or otherwise, of incorporators, stockholders, directors
or officers being released by every owner hereof by the acceptance of this Bond
and as part of the consideration for the issue hereof, and being likewise
released by the terms of the Indenture.
This Bond shall be subject to certain restrictions on transfer as set
forth in the Indenture and the One Hundred and Fifth Supplemental Indenture.
Any holder of a Bond of this Series requesting the transfer or
exchange of a Rule 144A Global Bond (as defined in the One Hundred and Fifth
Supplemental Indenture) (or an interest therein) for a Regulation S Global Bond
(as defined in the One Hundred and Fifth Supplemental Indenture) (or an
interest therein) must deliver or cause to be delivered to the Trustees a duly
completed Regulation S Certificate, in the form attached as Exhibit A hereto;
provided that if the requested transfer or exchange is made by the holder of a
Bond of this Series that does not bear a Restrictive Legend (as defined in the
One Hundred and Fifth Supplemental Indenture), then no certification is
required.
Any holder of a Bond of this Series requesting the transfer or
exchange of a Regulation S Global Bond (or an interest therein) for a Rule 144A
Global Bond (or an interest therein) must deliver or cause to be delivered to
the Trustees a duly completed Rule 144A Certificate, in the form attached as
Exhibit B hereto; provided that if the requested transfer or exchange is made
by the holder of a Bond of this Series that does not bear a Restrictive Legend,
then no certification is required.
Beneficial interests in a restricted global Bond may be transferred to
persons who take delivery thereof in the form of a beneficial interest in the
same restricted global Bond in accordance with the transfer restrictions set
forth in the Restrictive Legend (as defined in the One Hundered and Fifth
Supplemental Indenture); provided, however, that prior to the expiration of the
restricted period under the Securities Act, transfers of beneficial interests
in the Regulation S Global Bond may not be made to a U.S. Person (as defined in
Regulation S) or for the account or benefit of a U.S. Person (other than an
Initial Purchaser (as defined in the One Hundered and Fifth Supplemental
Indenture)).
This Bond shall be governed by, and construed in accordance with, the
laws of the State of New York, but without giving effect to applicable
principles of conflicts of law.
[TO BE ATTACHED TO GLOBAL BONDS]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL BOND
The following increases or decreases in this Global Bond have been
made:
Signature of
authorized
Principal Amount signatory of
of this Global Corporate
Amount of decrease in Amount of increase in Bond following Trustee or
Date of Principal Amount of Principal Amount of such decrease or Securities
Exchange this Global Bond this Global Bond increase Custodian
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Regulation S Certificate(5)
_________, ____
JPMorgan Chase Bank, N.A. and
Xxxxxx X. Xxxxx, as Trustees
c/o JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Re: The Potomac Edison Company (the "Company")
5 1/8% First Mortgage Bonds due 2015 ("Bonds of 2015 Series")
Issued under the Indenture (the "Indenture") dated as of
October 1, 1944, and the One Hundred and Fifth Supplemental
Indenture dated as of August 15, 2005
-----------------------------------------------------------
Ladies and Gentlemen:
Terms are used in this Certificate as used in Regulation S
("Regulation S") under the Securities Act of 1933, as amended (the "Securities
Act"), except as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ] A. This Certificate relates to our proposed transfer of $____
principal amount of Bonds of 2015 Series issued under the
Indenture. We hereby certify as follows:
1. The offer and sale of the Bonds of 2015 Series was not
and will not be made to a person in the United States
(unless such person is excluded from the definition of
"U.S. person" pursuant to Rule 902(k)(2)(vi) or the
account held by it for which it is acting is excluded
from the definition of "U.S. person" pursuant to Rule
902(k)(2)(i) under the circumstances described in Rule
902(h)(3)) and such offer and sale was not and will
not be specifically targeted at an identifiable group
of U.S. citizens abroad.
2. Unless the circumstances described in the
parenthetical in paragraph 1 above are applicable,
either (a) at the time the buy order was originated,
the buyer was outside the United States or we and any
person acting on our behalf reasonably believed that
the buyer was outside the United States or (b) the
transaction was executed in, on or through the
facilities of a designated offshore securities market,
and neither we nor any person acting on our behalf
knows that the transaction was pre-arranged with a
buyer in the United States.
3. Neither we, any of our affiliates, nor any person
acting on our or their behalf has made any directed
selling efforts in the United States with respect to
the Bonds of 2015 Series.
4. The proposed transfer of Bonds of 2015 Series is not
part of a plan or scheme to evade the registration
requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling
concession, fee or other remuneration in respect of
the Bonds of 2015 Series, and the proposed transfer
takes place during the Restricted Period (as defined
in Regulation S), or we are an officer or director of
the Company or an initial purchaser of the offering of
the Bonds of 2015 Series, we certify that the proposed
transfer is being made in accordance with the
provisions of Rule 904(b) of Regulation S.
[ ] B. This Certificate relates to our proposed exchange of $____
principal amount of Bonds of 2015 Series issued under the
Indenture for an equal principal amount of Bonds of 2015 Series
to be held by us. We hereby certify as follows:
1. At the time the offer and sale of the Bonds of 2015
Series was made to us, either (i) we were not in the
United States or (ii) we were excluded from the
definition of "U.S. person" pursuant to Rule
902(k)(2)(vi) or the account held by us for which we
were acting was excluded from the definition of "U.S.
person" pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3); and we were
not a member of an identifiable group of U.S. citizens
abroad.
2. Unless the circumstances described in paragraph 1(ii)
above are applicable, either (a) at the time our buy
order was originated, we were outside the United
States or (b) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and we did not pre-arrange the
transaction in the United States.
3. The proposed exchange of Bonds of 2015 Series is not
part of a plan or scheme to evade the registration
requirements of the Securities Act.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF SELLER (FOR TRANSFERS) OR
OWNER (FOR EXCHANGES)]
By:
--------------------------------
Name:
Title:
Address:
Date: _________________
MEDALLION SIGNATURE GUARANTEE:
Rule 144A Certificate(6)
_________, ____
JPMorgan Chase Bank, N.A. and
Xxxxxx X. Xxxxx, as Trustees
c/o JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Re: The Potomac Edison Company (the "Company")
5 1/8% First Mortgage Bonds due 2015 ("Bonds of 2015 Series")
Issued under the Indenture (the "Indenture") dated as of
October 1, 1944, and the One Hundred and Fifth Supplemental
Indenture dated as of August 15, 2005
-----------------------------------------------------------
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of Bonds of 2015
Series issued under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of Bonds of 2015
Series issued under the Indenture for an equal principal amount
of Bonds of 2015 Series issued under the Indenture to be held by
us.
We and, if applicable, each account for which we are acting in the
aggregate owned and invested more than $100,000,000 in securities of issuers
that are not affiliated with us (or such accounts, if applicable), as of
_________, 200_, which is a date on or since the close of our most recent
fiscal year. We and, if applicable, each account for which we are acting, are a
qualified institutional buyer within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). If we are
acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Bonds of 2015 Series
to us, or such exchange, as applicable, is being made in reliance upon the
exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A. Prior to the date of this Certificate we have received such
information regarding the Company as we have requested pursuant to Rule
144A(d)(4) or have determined not to request such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR TRANSFERS)
OR OWNER (FOR EXCHANGES)]
By:
--------------------------------
Name:
Title:
Address:
Date: _________________
MEDALLION SIGNATURE GUARANTEE:
PART II
Issue of Bonds of 2015 Series
SECTION 1. The principal amount of Bonds of 2015 Series which may be
authenticated and delivered hereunder is not limited. The Company may issue
additional Bonds of 2015 Series (the "Additional Bonds"), with the same terms
and CUSIP number, without notice to or consent of holders of the Bonds of 2015
Series; provided, however, that the Company shall not issue Additional Bonds at
a price that would cause such Additional Bonds to have original issue discount
in more than a "de minimis" amount for U.S. federal income tax purposes if such
Additional Bonds were treated as a separate "issue" for such purposes.
SECTION 2. Bonds of 2015 Series for the aggregate principal amount of
One Hundred Forty-Five Million Dollars ($145,000,000), being the initial issue
of Bonds of 2015 Series, may forthwith be executed by the Company and delivered
to the Corporate Trustee and shall be authenticated by the Corporate Trustee
and delivered (either before or after the filing or recording hereof) to or
upon the order of the designated officer or officers of the Company, upon
compliance by the Company with the appropriate provisions and requirements of
Articles III and XVIII of the Original Indenture.
PART III
Redemption
SECTION 1. The Bonds of 2015 Series shall be redeemable solely as set
forth in the form of Bond of 2015 Series included in Section 2 of Part I hereof
and in accordance with Article V of the Original Indenture; provided, that
notwithstanding anything in Article V, Section 1 of the Indenture to the
contrary, any notice of redemption of Bonds of 2015 Series need not set forth
the redemption price but only the manner of calculation thereof. The Trustees
shall not be responsible for the calculation of the redemption price. The
Company shall calculate the redemption price and promptly notify the Trustees
thereof.
SECTION 2. In case the Company shall desire to exercise its right to
redeem Bonds of 2015 Series, notice of redemption shall be mailed by the
Company, postage prepaid, not less than thirty days and not more than sixty
days prior to the date of redemption, to the owners of the Bonds to be
redeemed, as a whole or in part, at their addresses as the same shall appear on
the transfer register of the Company. Any notice so mailed shall be
conclusively presumed to have been duly given, whether or not the owner
receives it. In any case, failure duly to give notice by mail, or defect in the
notice, to the owner of any such Bond shall not affect the validity of the
proceedings for the redemption of any other Bond.
PART IV
Consents
SECTION 1. The Company and holders of Bonds of 2015 Series by their
acceptance and holding thereof, hereby consent for purposes of the Indenture,
and this Supplemental Indenture, without any further action by such holder or
by the holders of any other first mortgage bonds of any series created after
the date hereof, or by the holders of any senior note or exchange note that is
secured by first mortgage bonds, as follows:
Article IX, Section 1(j) of the Indenture shall be amended by changing
the amount of the judgment contemplated in that event of default from $100,000
to $25,000,000.
The provisions in the paragraph above shall become effective on the
earliest date on which either (a) no Bonds of any of the 7.75% Series Due 2025
and 7.625% Series Due 2025 shall be outstanding, or (b) such provisions shall
have become effective upon the vote of holders of Bonds as provided in Article
XV of the Original Indenture; provided that no vote of the holders of Bonds of
2015 Series shall be required for effecting such amendments as they shall be
deemed to have voted for such amendments; and provided further that no vote of
the holders of the 5.35% Series Due 2014 (the "Bonds of 2014 Series") shall be
required as such holders were deemed to have voted pursuant to the 103rd
Supplemental Indenture, dated as of November 22, 2004.
At the reasonable request of the Company, the Trustees shall execute
and deliver any documents, instructions or instruments evidencing such deemed
consent of the Holders. The Trustees, in their capacity as such, shall take
such action under the Indenture and this Supplemental Indenture as may be
reasonably requested by the Company to give effect to any such amendment,
waiver or modification.
SECTION 2. The Company and holders of Bonds of 2015 Series by their
acceptance and holding thereof, hereby consent for purposes of the Indenture,
and this Supplemental Indenture, without any further action by such holder or
by the holders of any other first mortgage bonds of any series created after
the date hereof, or by the holders of any senior note or exchange note that is
secured by first mortgage bonds, as follows:
Article XVII, Section 9 shall be added to the Indenture to clarify
that the Indenture shall be governed by the laws of the State of New York and
shall read as follows: "This Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York, but without giving effect
to applicable principles of conflicts of law".
The provisions in the paragraph above shall become effective on the
earliest date on which either (a) no Bonds of any of the 7.75% Series Due 2025
and 7.625% Series Due 2025 shall be outstanding, or (b) such provisions shall
have become effective upon the vote of holders of Bonds as provided in Article
XV of the Original Indenture; provided that no vote of the holders of Bonds of
2015 Series shall be required for effecting such amendments as they shall be
deemed to have voted for such amendments; and provided further that no vote of
the holders of the Bonds of 2014 Series shall be required as such holders were
deemed to have voted pursuant to the 103rd Supplemental Indenture, dated as of
November 22, 2004.
At the reasonable request of the Company, the Trustees shall execute
and deliver any documents, instructions or instruments evidencing such deemed
consent of the Holders. The Trustees, in their capacity as such, shall take
such action under the Indenture and this Supplemental Indenture as may be
reasonably requested by the Company to give effect to any such amendment,
waiver or modification.
SECTION 3. Notwithstanding that the Bonds of the 1987 Series no longer
are outstanding, the covenant contained in Section 3 of Part V of the aforesaid
Twenty-Eighth Supplemental Indenture to the Original Indenture shall remain in
full force and effect and shall be binding upon the Company as long, but only
as long, as any Bonds of 2015 Series are outstanding. No vote of holders of
Bonds of 2015 Series shall be required under the proviso in said Section 3.
PART V
The Trustees
The Trustees hereby accept the trust hereby declared and provided, and
agree to perform the same upon the terms and conditions set forth in the
Original Indenture, as heretofore supplemented and as supplemented by this
Supplemental Indenture, and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or the
due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company solely.
The present address of each Trustee is: JPMorgan Chase Bank, N.A., 4
New York Plaza, 15th Floor, New York, New York 10004 and Xxxxxx X. Xxxxx, 4 New
Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
PART VI
Miscellaneous Provisions
For all purposes hereof, all terms contained in this Supplemental
Indenture shall, except as the context may otherwise require or as provided
herein, have the meanings given to such terms in Article I of the Original
Indenture. The Supplemental Indentures referred to herein are indentures
supplemental to the Original Indenture.
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
The Bonds of 2015 Series are not subject to any sinking fund.
The Bonds of 2015 Series and any related documents may be amended or
supplemented from time to time to modify the restrictions on and procedures for
resales and other transfers of the Bonds of 2015 Series to reflect any change
in applicable law or regulation (or the interpretation thereof) or in practices
relating to the resale or transfer of restricted securities generally. Holders
of the Bonds of 2015 Series are deemed by the acceptance of such Bonds of 2015
Series to have agreed to any such amendment or supplement.
Holders of Bonds of 2015 Series are entitled to the benefits of a
Registration Rights Agreement, dated as of August 15, 2005, among the Company
and the Initial Purchasers named therein (the "Registration Rights Agreement").
Bonds of 2015 Series may be exchanged pursuant to the exchange offer
contemplated by the Registration Rights Agreement for similar Bonds of 2015
Series which Bonds will be registered under the Securities Act of 1933, as
amended (the "Securities Act"), and will not bear a Restrictive Legend (as
hereinafter defined), a legend regarding the Registration Rights Agreement, the
provisions restricting transfers and resales of the Bonds of 2015 Series, the
Regulation S Certificate and the Rule 144A Certificate. The Corporate Trustee,
at the request of the Company, shall authenticate and deliver such Bonds of
2015 Series registered under the Securities Act in exchange for an equal
principal amount of outstanding Bonds of 2015 Series.
Global Bonds of 2015 Series offered and sold to Qualified
Institutional Buyers (as such term is defined under Rule 144A ("Rule 144A")
under the Securities Act) in the United States of America in reliance on Rule
000X (xxx "Xxxx 000X Xxxxxx Xxxxx") shall be issued in the form of a permanent
global Bond substantially in the form of the Bond set forth in Section 2 of
Part I hereof containing the second legend set forth thereon (the "Restrictive
Legend") and the other legends required thereby and numbered from 1 upward with
the prefix "RA", deposited with the Corporate Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Corporate Trustee as
herein provided. The aggregate principal amount of the Rule 144A Global Bonds
may from time to time be increased or decreased by adjustments made on the
records of the Corporate Trustee, as custodian for DTC or its nominee, as
hereinafter provided.
Global Bonds of 2015 Series offered and sold outside the United States
of America (the "Regulation S Global Bonds") in reliance on Regulation S (as
such term is defined under the Securities Act) shall initially be issued in the
form of a permanent global Bond substantially in the form of the Bond set forth
in Section 2 of Part I hereof containing the Restrictive Legend and the other
legends required thereby and numbered from 1 upward with the prefix "RS". The
Regulation S Global Bond will be deposited upon issuance with the Corporate
Trustee, as custodian for DTC, duly executed by the Company and authenticated
by the Corporate Trustee as herein provided. The aggregate principal amount of
the Regulation S Global Bonds may from time to time be increased or decreased
by adjustments made on the records of the Corporate Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
The transfer and exchange of beneficial interests in a global Bond
shall be effected through the depository for the Bonds, in accordance with the
applicable restrictions on transfer set forth on the Bonds, if any) and the
procedures of the depository therefor. A transferor of a beneficial interest in
a global Bond shall deliver a written order given in accordance with the
depository's procedures containing information regarding the participant
account of the depository to be credited with a beneficial interest in the
global Bond, and such account shall be credited in accordance with such
instructions with a beneficial interest in the global Bond, and the account of
the person making the transfer shall be debited by an amount equal to the
beneficial interest in the global Bond being transferred. The Trustees shall
have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under the Indenture, this
Supplemental Indenture or under applicable law with respect to any transfer of
any beneficial interest in any global Bond (including any transfers between or
among DTC participants, members or beneficial owners in any global Bond) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of the Indenture or this Supplemental Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
If the proposed transfer is a transfer of a beneficial interest in one
global Bond to a beneficial interest in another global Bond, the registrar
shall reflect on its books and records the date and an increase in the
principal amount of the global Bond to which such interest is being transferred
in an amount equal to the principal amount of the interest to be so
transferred, and the registrar shall reflect on its books and records the date
and a corresponding decrease in the principal amount of the global Bond from
which such interest is being transferred.
A global Bond may not be transferred as a whole except by the
depository to a nominee of the depository or by a nominee of the depository to
the depository or another nominee of the depository or by the depository or any
such nominee to a successor depository or a nominee of such successor
depository.
Beneficial interests in any restricted global bond may be transferred
to persons who take delivery thereof in the form of a beneficial interest in
the same restricted global bond in accordance with the transfer restrictions
set forth in the Restrictive Legend; provided, however, that prior to the
expiration of the restricted period under the Securities Act, transfers of
beneficial interests in the Regulation S Global Bond may not be made to a U.S.
Person (as defined in Regulation S) or for the account or benefit of a U.S.
Person (other than an Initial Purchaser).
Any holder of a Bond of 2015 Series requesting the transfer or
exchange of a Rule 144A Global Bond (or an interest therein) for a Regulation S
Global Bond (or an interest therein) must deliver or cause to be delivered to
the Trustees a duly completed Regulation S Certificate, in the form attached as
Exhibit A hereto; provided that if the requested transfer or exchange is made
by the holder of a Bond of 2015 Series that does not bear a Restrictive Legend,
then no certification is required.
Any holder of a Bond of 2015 Series requesting the transfer or
exchange of a Regulation S Global Bond (or an interest therein) for a Rule 144A
Global Bond (or an interest therein) must deliver or cause to be delivered to
the Trustees a duly completed Rule 144A Certificate, in the form attached as
Exhibit B hereto; provided that if the requested transfer or exchange is made
by the holder of a Bond of 2015 Series that does not bear a Restrictive Legend,
then no certification is required.
The Company shall issue a Bond of 2015 Series that is not a global
Bond and that does not bear the Restrictive Legend in replacement of a Bond of
2015 Series (that is not a global Bond) bearing the Restrictive Legend at the
request of any holder following such request if (i) the holder shall have
obtained an opinion of counsel reasonably acceptable to the Company in form and
substance reasonably satisfactory to the Company to the effect that the Bond of
2015 Series may lawfully be disposed of without registration, qualification or
legend pursuant to Rule 144(k) under the Securities Act, or (ii) the holder
sells the Bond of 2015 Series pursuant to Rule 144 under the Securities Act or
an effective registration statement.
Beneficial interests in any unrestricted global Bond may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an unrestricted global Bond.
This Supplemental Indenture and the Bonds of 2015 Series shall be
governed by, and construed in accordance with, the laws of the State of New
York, but without giving effect to applicable principles of conflicts of law.
IN WITNESS WHEREOF, The Potomac Edison Company has caused this
Supplemental Indenture to be executed on its behalf by its Chief Executive
Officer, its President or one of its Vice Presidents and its corporate seal to
be hereto affixed and said seal to be attested by its Secretary or one of its
Assistant Secretaries; and said JPMorgan Chase Bank, N.A., as Trustee as
aforesaid, in evidence of its acceptance of the trust hereby created, has
caused this Supplemental Indenture to be executed on its behalf by a
Responsible Officer of the Trustee, and its corporate seal to be hereto affixed
and said seal and this Supplemental Indenture to be attested by a Responsible
Officer of the Trustee and said Xxxxxx X. Xxxxx, as Individual Trustee as
aforesaid, in evidence of his acceptance of the trust hereby created, has
hereunto set his hand and seal, all as of the 15th day of August of two
thousand and five.
THE POTOMAC EDISON COMPANY
By /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
[SEAL]
Attested:
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Secretary
JPMORGAN CHASE BANK, N.A., As
Trustee as aforesaid
By /s/ Xxxxx Xx
---------------------------
Name: Xxxxx Xx
Title: Vice President
[SEAL]
Attested:
/s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
XXXXXX X. XXXXX, As
Individual Trustee as aforesaid
By /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: As Individual Trustee as
aforesaid
State of Pennsylvania
County of Xxxxxxxxxxxx
I, a Notary Public of the State of Pennsylvania, in and for the County
of Xxxxxxxxxxxx, do certify that on this 10th day of August in the year 2005
before me, the subscriber, personally appeared Xxxxxx X. Xxxxxxxxxx, the
President of THE POTOMAC EDISON COMPANY, a corporation, who signed the writing
above, bearing date as of the fifteenth day of August, 2005, for said
corporation, and has this day in my said County, before me, acknowledged the
said writing to be the act and deed of said corporation.
Given under my hand and notarial seal this 10th day of August, 2005.
/s/ Xxxxx X. Xxxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
State of New York
County of New York
I, a Notary Public of the State of New York, in and for the County of
New York, do certify that on this 10th day of August in the year 2005 before
me, the subscriber, personally appeared Xxxxx Xx, a Vice President of JPMORGAN
CHASE BANK, N.A., a national banking association incorporated and existing
under the laws of the United States of America, who signed the writing above,
bearing date as of the 15th day of August, 2005, for said corporation, and has
this day in my said County, before me, acknowledged the said writing to be the
act and deed of said corporation.
Given under my hand and notarial seal this 10th day of August, 2005.
/s/ Xxxxx Xxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
State of New York
County of New York
I, a Notary Public of the State of New York, in and for the County of
New York, do certify that on this 10th day of August in the year 2005 before
me, the subscriber, personally appeared XXXXXX X. XXXXX, who signed the writing
above, bearing date as of the 15th day of August, 2005, and has this day in my
said County, before me, acknowledged the said writing to be his act and deed.
Given under my hand and notarial seal this 10th day of August, 2005.
/s/ Xxxxx Xxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
Regulation S Certificate
_________, ____
JPMorgan Chase Bank, N.A. and
Xxxxxx X. Xxxxx, as Trustees
c/o JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Re: The Potomac Edison Company (the "Company")
5 1/8% First Mortgage Bonds due 2015 ("Bonds of 2015 Series")
Issued under the Indenture (the "Indenture") dated of
October 1, 1944, and the One Hundred and Fifth Supplemental
Indenture dated as of August 15, 2005
-----------------------------------------------------------
Ladies and Gentlemen:
Terms are used in this Certificate as used in Regulation S
("Regulation S") under the Securities Act of 1933, as amended (the "Securities
Act"), except as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ] A. This Certificate relates to our proposed transfer of $____
principal amount of Bonds of 2015 Series issued under the
Indenture. We hereby certify as follows:
1. The offer and sale of the Bonds of 2015 Series was not
and will not be made to a person in the United States
(unless such person is excluded from the definition of
"U.S. person" pursuant to Rule 902(k)(2)(vi) or the
account held by it for which it is acting is excluded
from the definition of "U.S. person" pursuant to Rule
902(k)(2)(i) under the circumstances described in Rule
902(h)(3)) and such offer and sale was not and will
not be specifically targeted at an identifiable group
of U.S. citizens abroad.
2. Unless the circumstances described in the
parenthetical in paragraph 1 above are applicable,
either (a) at the time the buy order was originated,
the buyer was outside the United States or we and any
person acting on our behalf reasonably believed that
the buyer was outside the United States or (b) the
transaction was executed in, on or through the
facilities of a designated offshore securities market,
and neither we nor any person acting on our behalf
knows that the transaction was pre-arranged with a
buyer in the United States.
3. Neither we, any of our affiliates, nor any person
acting on our or their behalf has made any directed
selling efforts in the United States with respect to
the Bonds of 2015 Series.
4. The proposed transfer of Bonds of 2015 Series is not
part of a plan or scheme to evade the registration
requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling
concession, fee or other remuneration in respect of
the Bonds of 2015 Series, and the proposed transfer
takes place during the Restricted Period (as defined
in Regulation S), or we are an officer or director of
the Company or an initial purchaser of the offering of
the Bonds of 2015 Series, we certify that the proposed
transfer is being made in accordance with the
provisions of Rule 904(b) of Regulation S.
[ ] B. This Certificate relates to our proposed exchange of $____
principal amount of Bonds of 2015 Series issued under the
Indenture for an equal principal amount of Bonds of 2015 Series
to be held by us. We hereby certify as follows:
1. At the time the offer and sale of the Bonds of 2015
Series was made to us, either (i) we were not in the
United States or (ii) we were excluded from the
definition of "U.S. person" pursuant to Rule
902(k)(2)(vi) or the account held by us for which we
were acting was excluded from the definition of "U.S.
person" pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3); and we were
not a member of an identifiable group of U.S. citizens
abroad.
2. Unless the circumstances described in paragraph 1(ii)
above are applicable, either (a) at the time our buy
order was originated, we were outside the United
States or (b) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and we did not pre-arrange the
transaction in the United States.
3. The proposed exchange of Bonds of 2015 Series is not
part of a plan or scheme to evade the registration
requirements of the Securities Act.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF SELLER (FOR TRANSFERS) OR
OWNER (FOR EXCHANGES)]
By:
--------------------------------
Name:
Title:
Address:
Date: _________________
MEDALLION SIGNATURE GUARANTEE:
EXHIBIT B
Rule 144A Certificate
_________, ____
JPMorgan Chase Bank, N.A. and
Xxxxxx X. Xxxxx, as Trustees
c/o JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Institutional Trust Services
Re: The Potomac Edison Company (the "Company")
5 1/8% First Mortgage Bonds due 2015 ("Bonds of 2015 Series")
Issued under the Indenture (the "Indenture") dated as of
October 1, 1944, and the One Hundred and Fifth Supplemental
Indenture dated as of August 15, 2005
-----------------------------------------------------------
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of Bonds of 2015
Series issued under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of Bonds of 2015
Series issued under the Indenture for an equal principal amount
of Bonds of 2015 Series issued under the Indenture to be held by
us.
We and, if applicable, each account for which we are acting in the
aggregate owned and invested more than $100,000,000 in securities of issuers
that are not affiliated with us (or such accounts, if applicable), as of
_________, 200_, which is a date on or since the close of our most recent
fiscal year. We and, if applicable, each account for which we are acting, are a
qualified institutional buyer within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). If we are
acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Bonds of 2015 Series
to us, or such exchange, as applicable, is being made in reliance upon the
exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A. Prior to the date of this Certificate we have received such
information regarding the Company as we have requested pursuant to Rule
144A(d)(4) or have determined not to request such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR TRANSFERS)
OR OWNER (FOR EXCHANGES)]
By:
--------------------------------
Name:
Title:
Address:
Date: _________________
MEDALLION SIGNATURE GUARANTEE:
------------------------------
(1) To be inserted on Bonds in global form only.
(2) To be inserted only in Bonds of 2015 Series that are not registered
under the Securities Act of 1933, as amended.
(3) To be inserted on Bonds in global form only.
(4) To be inserted on Bonds in global form only.
(5) To be inserted only in Bonds of 2015 Series that are not registered
under the Securities Act of 1933, as amended.
(6) To be inserted only in Bonds of 2015 Series that are not registered
under the Securities Act of 1933, as amended.
