EXHIBIT 4.1
FIRSTENERGY SOLUTIONS CORP.
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
Indenture
(For Unsecured Debt Securities)
Dated as of August 1, 2009
TABLE OF CONTENTS
1
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PARTIES
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1
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RECITALS OF THE COMPANY
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1
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Article One Definitions and Other Provisions of General Application
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1
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Section 101.
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Definitions
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1
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Section 102.
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Compliance Certificates and Opinions
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8
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Section 103.
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Form of Documents Delivered to Trustee
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8
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Section 104.
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Acts of Holders
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9
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Section 105.
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Notices, etc. to Trustee and Company
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10
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Section 106.
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Notice to Holders of Securities: Waiver
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11
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Section 107.
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Conflict with Trust Indenture Act
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12
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Section 108.
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Effect of Headings and Table of Contents
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12
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Section 109.
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Successors and Assigns
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12
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Section 110.
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Severability Clause
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12
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Section 111.
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Benefits of Indenture
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12
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Section 112.
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Governing Law
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12
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Section 113.
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Legal Holidays
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12
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Section 114.
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Waiver of Jury Trial
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12
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Section 115.
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Force Majeure
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13
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Article Two Security Forms
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13
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Section 201.
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Forms Generally
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13
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Section 202.
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Form of Trustees Certificate of Authentication
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13
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Section 203.
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Securities in Global Form
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14
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Article Three The Securities
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14
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Section 301.
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Amount Unlimited: Issuable in Series
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14
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Section 302.
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Denominations
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18
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Section 303.
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Execution, Authentication, Delivery and Dating
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18
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Section 304.
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Temporary Securities
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20
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Section 305.
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Registration, Registration of Transfer and Exchange
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21
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Section 306.
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Mutilated, Destroyed, Lost and Stolen Securities
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23
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Section 307.
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Payment of Interest, Interest Rights Preserved
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24
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Section 308.
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Persons Deemed Owners
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25
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Section 309.
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Cancellation by Security Registrar
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25
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1
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Note: This table of contents shall not, for any
purpose, be deemed to be part of the Indenture.
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i
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Section 310.
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Computation of Interest
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25
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Section 311.
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Payment to Be in Proper Currency
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25
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Section 312.
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Extension of Interest Payment
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26
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Article Four Redemption of Securities
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26
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Section 401.
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Applicability of Article
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26
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Section 402.
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Election to Redeem: Notice to Trustee
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26
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Section 403.
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Selection of Securities to Be Redeemed
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26
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Section 404.
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Notice of Redemption
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27
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Section 405.
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Securities Payable on Redemption Date
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28
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Section 406.
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Securities Redeemed in Part
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28
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Article Five Sinking Funds
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29
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Section 501.
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Applicability of Article
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29
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Section 502.
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Satisfaction of Sinking Fund Payments with Securities
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29
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Section 503.
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Redemption of Securities for Sinking Fund
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29
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Article Six Covenants
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30
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Section 601.
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Payment of Principal, Premium and Interest
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30
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Section 602.
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Maintenance of Office or Agency
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30
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Section 603.
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Money for Securities Payments to Be Held in Trust
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31
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Section 604.
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Corporate Existence
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32
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Section 605.
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Maintenance of Properties
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32
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Section 606.
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Annual Officers Certificate as to Compliance
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32
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Section 607.
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Waiver of Certain Covenants
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33
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Article Seven Satisfaction and Discharge
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33
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Section 701.
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Satisfaction and Discharge of Securities
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33
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Section 702.
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Satisfaction and Discharge of Indenture
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35
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Section 703.
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Application of Trust Money
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36
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Article Eight Events of Default; Remedies
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37
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Section 801.
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Events of Default
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37
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Section 802.
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Acceleration of Maturity; Rescission and Annulment
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38
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Section 803.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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39
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Section 804.
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Trustee May File Proofs of Claim
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39
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Section 805.
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Trustee May Enforce Claims Without Possession of Securities
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40
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Section 806.
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Application of Money Collected
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40
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Section 807.
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Limitation on Suits
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41
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Section 808.
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Unconditional Right of Holders to Receive Principal, Premium and Interest
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41
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Section 809.
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Restoration of Rights and Remedies
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41
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Section 810.
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Rights and Remedies Cumulative
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42
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ii
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Section 811.
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Delay or Omission Not Waiver
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42
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Section 812.
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Control by Majority Holders of Securities
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42
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Section 813.
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Waiver of Past Defaults
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42
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Section 814.
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Undertaking for Costs
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43
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Section 815.
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Waiver of Stay or Extension Laws
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43
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Article Nine The Trustee
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43
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Section 901.
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Certain Duties and Responsibilities
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43
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Section 902.
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Notice of Defaults
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44
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Section 903.
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Certain Rights of Trustee
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44
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Section 904.
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Not Responsible for Recitals or Issuance of Securities
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46
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Section 905.
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May Hold Securities
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46
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Section 906.
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Money Held in Trust
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46
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Section 907.
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Compensation and Reimbursement
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46
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Section 908.
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Disqualification; Conflicting Interests
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47
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Section 909.
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Corporate Trustee Required: Eligibility
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47
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Section 910.
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Resignation and Removal; Appointment of Successor
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48
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Section 911.
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Acceptance of Appointment by Successor
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49
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Section 912.
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Merger, Conversion, Consolidation or Succession to Business
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50
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Section 913.
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Preferential Collection of Claims Against Company
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51
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Section 914.
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Co-trustees and Separate Trustees
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51
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Section 915.
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Appointment of Authenticating Agent
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52
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Article Ten Holders Lists and Reports by Trustee and Company
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54
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Section 1001.
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Lists of Holders
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54
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Section 1002.
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Reports by Trustee and Company
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54
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Article Eleven Consolidation, Merger Conveyance or Other Transfer
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55
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Section 1101.
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Company May Consolidate, etc. Only on Certain Terms
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55
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Section 1102.
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Successor Person Substituted
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55
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Article Twelve Supplemental Indentures
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55
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Section 1201.
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Supplemental Indentures Without Consent of Holders
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55
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Section 1202.
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Supplemental Indentures With Consent of Holders
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57
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Section 1203.
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Execution of Supplemental Indentures
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58
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Section 1204.
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Effect of Supplemental Indentures
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58
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Section 1205.
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Conformity With Trust Indenture Act
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59
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Section 1206.
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Reference in Securities to Supplemental Indentures
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59
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Section 1207.
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Modification Without Supplemental Indenture
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59
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Article Thirteen Meetings of Holders; Action Without Meeting
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59
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Section 1301.
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Purposes for Which Meetings May Be Called
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59
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iii
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Section 1302.
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Call, Notice and Place of Meetings
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59
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Section 1303.
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Persons Entitled to Vote at Meetings
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60
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Section 1304.
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Quorum; Action
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60
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Section 1305.
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Attendance at Meetings, Determination of Voting Rights; Conduct and
Adjournment of Meetings
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61
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Section 1306.
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Counting Votes and Recording Action of Meetings
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62
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Section 1307.
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Action Without Meeting
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62
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Article Fourteen Immunity of Incorporators, Shareholders, Officers and Directors
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62
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Section 1401.
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Liability Solely Corporate
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62
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iv
FIRSTENERGY SOLUTIONS CORP.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of August 1, 2009
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Trust Indenture Act Section
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Indenture Section
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§310
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(a)(1)
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909
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(a)(2)
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909
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(a)(3)
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914
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(a)(4)
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Not Applicable
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(b)
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908
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910
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§311
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(a)
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913
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(b)
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913
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(c)
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913
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§312
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(a)
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1001
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(b)
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1001
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(c)
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1001
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§313
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(a)
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1002
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(b)
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1002
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(c)
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1002
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§314
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(a)
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1002
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(a)(4)
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606
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(b)
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Not Applicable
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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102
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§315
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(a)
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901
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903
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(b)
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902
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(c)
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901
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(d)
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901
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(e)
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814
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§316
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(a)
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812
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813
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(a)(1)(A)
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802
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812
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(a)(1)(B)
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813
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(a)(2)
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Not Applicable
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(b)
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808
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§317
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(a)(1)
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803
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(a)(2)
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804
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(b)
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603
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§318
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(a)
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107
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i
INDENTURE
, dated as of August 1, 2009 between
FIRSTENERGY SOLUTIONS CORP.
, a corporation duly
organized and existing under the laws of the State of Ohio (herein called the
Company
),
having its principal office at 341 White Pond Drive, Akron, Ohio 44320, and
THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.
, a banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the
Trustee
).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the
Securities
), in an unlimited aggregate principal amount
to be issued in one or more series as contemplated herein; and all acts necessary to make this
Indenture a valid and legally binding agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires, capitalized terms used herein shall have the meanings assigned to them
in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101.
Definitions
. For all purposes of this Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term generally accepted accounting principles with
respect to any computation required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
and delivery of this Indenture;
provided
,
however
, that in determining
generally accepted accounting principles applicable to the Company, the Company shall, to the
extent required,
conform to any order, rule or regulation of any administrative agency, regulatory
authority or other governmental body having jurisdiction over the Company;
(d) any reference herein to an Article or Section refers to an Article or Section, as
the case may be, of this Indenture; and
(e) the words herein, hereof and hereunder and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that Article.
Act
, when used with respect to any Holder of a Security, has the meaning specified
in Section 104.
Affiliate
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, control when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or through one or
more intermediaries, whether through the ownership of voting securities, by contract or otherwise;
and the terms controlling and controlled have meanings correlative to the foregoing.
Agent
means any party authorized to make calculations of amounts due under a note
for interest or principal or any other financial institution that is authorized to record amounts
with respect to any series of Securities.
Authenticating Agent
means any Person (other than the Company or an Affiliate of the
Company) authorized by the Trustee pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities or Tranche thereof.
Authorized Executive Officer
means the Chairman of the Board, the Chief Executive
Officer, the Vice Chairman of the Board, the President, any Vice President (whether or not his or
her title includes a modifier such as Executive, Senior or the like), the Treasurer, any
Assistant Treasurer, the Corporate Secretary, any Assistant Corporate Secretary or any other
officer or agent of the Company designated in an Officers Certificate delivered to the Trustee to
be an Authorized Executive Officer.
Board of Directors
means either the board of directors of the Company or any
committee thereof duly authorized to act in respect of matters relating to this Indenture.
Board Resolution
means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.
Business Day
, when used with respect to a Place of Payment or any other particular
location specified in the Securities or this Indenture, means any day, other than a Saturday or
Sunday, which is not a day on which the Corporate Trust Office of the Trustee or banking
2
institutions or trust companies in such Place of Payment or other location are generally authorized
or required by law, regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
Commission
means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the date of execution and
delivery of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, performing such duties at such time.
Company
means the Person named as the
Company
in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter
Company
shall mean such successor Person.
Company Request
or
Company Order
means a written request or order signed
in the name of the Company by an Authorized Executive Officer and delivered to the Trustee.
Corporate Trust Office
means an office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the date of execution and
delivery of this instrument is located at 1660 West 2nd Street, Cleveland, Ohio 44113, Attention:
Global Corporate Trust.
Corporation
means a corporation, association, company, limited liability company,
partnership, joint stock company or business or statutory trust.
Defaulted Interest
has the meaning specified in Section 307.
Depositary
means, with respect to the Securities of any series issuable or issued in
the form of a Global Security, the Person designated as Depositary by the Company pursuant to
Section 301 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Depositary shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such Person, Depositary as
used with respect to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
Discount Security
means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802.
Dollar
or
$
means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the payment of public and
private debts.
Eligible Obligations
means:
(a) with respect to Securities denominated in Dollars, Government Obligations; or
3
(b) with respect to Securities denominated in a currency other than Dollars or in a composite
currency, such other obligations or instruments as shall be specified with respect to such
Securities, as contemplated by Section 301.
Event of Default
has the meaning specified in Section 801.
Exchange Act
means the Securities Exchange Act of 1934, as amended, as in force at
the date as of which this Indenture was executed; provided, however, that in the event the
Securities Exchange Act of 1934 is amended after such date, Exchange Act means, to the extent
required by any such amendment, the Securities Exchange Act of 1934 as so amended.
Global Securities
means Securities in global form.
Governmental Authority
means the government of the United States or of any State or
Territory thereof or of the District of Columbia or of any county, municipality or other political
subdivision of any of the foregoing, or any department, agency, authority or other instrumentality
of any of the foregoing.
Government Obligations
means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States and entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or other instruments which evidence a direct ownership
interest in obligations described in clause (a) above or in any specific interest or principal
payments due in respect thereof;
provided
,
however
, that the custodian of such
obligations or specific interest or principal payments shall be a bank or trust company (which may
include the Trustee or any Paying Agent) subject to Federal or state supervision or examination
with a combined capital and surplus of at least $50,000,000; and
provided
,
further
,
that except as may be otherwise required by law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific payments and shall not be permitted to
make any deduction therefrom.
Holder
means a Person in whose name a Security is registered in the Security
Register.
Indenture
means this instrument as originally executed and delivered and as it may
from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of a particular
series of Securities established as contemplated by Section 301.
Interest
, with respect to a Discount Security only, means interest, if any, borne by
such Security at a Stated Interest Rate.
Interest Payment Date
, when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
4
Maturity
, when used with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated Maturity, by declaration of acceleration,
upon redemption, tender for purchase, or otherwise.
Officers Certificate
means a certificate signed by an Authorized Executive Officer
and delivered to the Trustee.
Opinion of Counsel
means a written opinion of counsel, who may be counsel for the
Company, or other counsel acceptable to the Trustee.
Outstanding
, when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance with Section 701; and
(c) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether or not the Holders of the requisite
principal amount of the Securities Outstanding under this Indenture, or the Outstanding Securities
of any series or Tranche, have given any request, demand, authorization, direction, notice, consent
or waiver hereunder or whether or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor (unless the Company, such Affiliate or
such obligor owns all Securities Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded;
provided
,
however
, that Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgees right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor; and
(y) the principal amount of a Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof that would
5
be due and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802;
provided
,
further
, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate amount of principal thereof theretofore paid.
Patriot Act
means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended, and
signed into law October 26, 2001.
Paying Agent
means any Person, including the Company, authorized by the Company to
pay the principal of, and premium, if any, or interest, if any, on any Securities on behalf of the
Company.
Periodic Offering
means an offering of Securities of a series from time to time any
or all of the specific terms of which Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities thereof and the redemption provisions,
if any, with respect thereto, are to be determined by the Company or its agents upon the issuance
of such Securities.
Person
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Place of Payment
, when used with respect to the Securities of any series, or any
Tranche thereof, means the place or places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
Predecessor Security
of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date
, when used with respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.
Redemption Price
, when used with respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.
Registered Security
means any Security established pursuant to Section 201 which is
registered in the Security Register.
6
Regular Record Date
for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as contemplated by Section 301.
Required Currency
has the meaning specified in Section 311.
Responsible Officer
, when used with respect to the Trustee, means any Vice
President, Assistant Vice President, any Assistant Treasurer or other officer of the Trustee within
the Corporate Trust Division Corporate Finance Unit of the Trustee (or any successor such
division or unit) in each case located at the Corporate Trust Office of the Trustee who has direct
responsibility for the administration of this Indenture, and for the purposes of Sections 901(c)(2)
and 902 shall also include any other officer of the Trustee to whom a matter arising under this
Indenture has been referred by such Corporate Trust Office
because of his or her knowledge of and familiarity with the
particular subject.
Securities
has the meaning stated in the first recital of this Indenture and more
particularly means any securities authenticated and delivered under this Indenture.
Security Register
and
Security Registrar
have the respective meanings
specified in Section 305.
Special Record Date
for the payment of any Defaulted Interest on the Securities of
any series means a date fixed by the Trustee pursuant to Section 307.
Stated Interest Rate
means a rate (whether fixed or variable) at which an obligation
by its terms is stated to bear simple interest. Any calculation or other determination to be made
under this Indenture by reference to the Stated Interest Rate on a Security shall be made without
regard to the effective interest cost to the Company of such Security and without regard to the
Stated Interest Rate on, or the effective cost to the Company of, any other indebtedness in respect
of which the Companys obligations are evidenced or secured in whole or in part by such Security.
Stated Maturity
, when used with respect to any obligation or any installment of
principal thereof or interest thereon, means the date on which the principal of such obligation or
such installment of principal or interest is stated to be due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase or extension).
Tranche
means a group of Securities which (a) are of the same series and (b) have
identical terms except as to principal amount and/or date of issuance.
Trust Indenture Act
means, as of any time, the Trust Indenture Act of 1939, or any
successor statute, as in effect at such time.
Trustee
means the Person named as the
Trustee
in the first paragraph of
this Indenture until a successor Trustee shall have become such with respect to one or more series
of Securities pursuant to the applicable provisions of this Indenture, and thereafter
Trustee
shall mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person,
Trustee
as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
7
United States
means the United States of America, its Territories, its possessions
and other areas subject to its political jurisdiction.
Section 102.
Compliance Certificates and Opinions
. Except as otherwise expressly provided in this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall,
if requested by the Trustee, furnish to the Trustee an Officers Certificate stating that, or
stating in the opinion of the signer thereof that, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that each Person signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person has made such
examination or investigation as is necessary to enable such Person to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person, such condition or covenant
has been complied with.
Section 103.
Form of Documents Delivered to Trustee
. In any case where several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such officers certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care
8
should know, that the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Officers
Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with respect to the document or
instrument for which it is substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or instrument indicates that action has been taken
by or at the request of the Company which could not have been taken had the original document or
instrument not contained such error or omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full force and effect, except to the
extent that such action was a result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the authority of such defective document
or instrument shall nevertheless be the valid obligations of the Company entitled to the benefits
of this Indenture equally and ratably with all other Outstanding Securities, except as aforesaid.
Section 104.
Acts of Holders
. (a) Any request, demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
Act
of
the Holders signing such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or of the holding by
any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 901) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section. The record of any meeting of Holders shall be proved in the manner provided in
Section 1306.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof
9
or may be proved in
any other manner which the Trustee and the Company deem sufficient. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause (y) of the first proviso
to the definition of Outstanding) and serial numbers of Securities held by any Person, and the date
of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, election, waiver or other
Act of a Holder shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered to the Trustee with
respect to the requisite percentage of principal amount of Securities for the action contemplated
by such instruments, any such instrument executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated and delivered after any
Act of Holders may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, fix in advance a record date
for the determination of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders of record at the
close of business on the record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of the Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of the record date.
Section 105.
Notices, etc. to Trustee and Company
. Any request, demand, authorization, direction, notice, consent, election, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the Company, or the Company by the
Trustee or by any Holder, shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an officer or other responsible
employee of the addressee at
10
the applicable location set forth below or at such other location as
such party may from time to time designate by written notice, or transmitted by facsimile
transmission or other direct written electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time designate by written notice,
or transmitted by certified or registered mail, charges prepaid, to the applicable address set
forth below or to such other address as either party hereto may from time to time designate by
written notice:
If to the Trustee, to:
The Bank of New York Mellon Trust Company, N.A.
1660 West 2nd Street
Cleveland, Ohio 44113
Attention: Global Corporate Trust
Telephone: (216) 622-6524
Telecopy: (216) 621-1441
If to the Company, to:
FirstEnergy Solutions Corp.
341 White Pond Drive
Akron, Ohio 44320
Attention: Treasurer
Telephone: (330) 384-5889
Telecopy: (330) 384-3772
Any communication contemplated herein shall be deemed to have been made, given, furnished and filed
if personally delivered, on the date of delivery, if transmitted by facsimile transmission or other
direct written electronic means, on the date of receipt, and if transmitted by certified or
registered mail, on the date of receipt.
Section 106.
Notice to Holders of Securities: Waiver
. Except as otherwise expressly provided herein, where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first class postage prepaid, to each Holder affected by such
event, at the address of such Holder as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of
such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice to Holders by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the Person entitled to
receive such notice, either before or after the event otherwise to be specified therein, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
11
Section 107.
Conflict with Trust Indenture Act
. If any provision of this Indenture limits, qualifies or conflicts with another provision hereof
which is required or deemed to be included in this Indenture by, or is otherwise governed by, any
of the provisions of the Trust Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities.
Section 108.
Effect of Headings and Table of Contents
. The Article and Section headings in this Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 109.
Successors and Assigns
. All covenants and agreements in this Indenture by the Company and Trustee shall bind their
respective successors and assigns, whether so expressed or not.
Section 110.
Severability Clause
. In case any provision in this Indenture or the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111.
Benefits of Indenture
. Nothing in this Indenture or the Securities, express or implied, shall give to any Person, other
than the parties hereto, their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law
. This Indenture and the Securities shall be governed by and construed in accordance with the laws
of the State of New York (including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute) except to the extent that the Trust Indenture Act
shall be applicable.
Section 113.
Legal Holidays
. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or Officers Certificate which
establishes the terms of the Securities of such series or Tranche, which specifically states that
such provision shall apply in lieu of this Section) payment of interest or principal and premium,
if any, need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment, with the same force and effect, and in the same
amount, as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, as
the case may be, and, if such payment is made or duly provided for on such Business Day, no
interest (or Interest, as applicable) shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
Section 114.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
12
Section 115.
Force Majeure
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE TWO
SECURITY FORMS
Section 201.
Forms Generally
. The definitive Securities of each series shall be in substantially the form or forms thereof
established in the indenture supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officers Certificate pursuant to such supplemental indenture or
Board Resolution, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of such Securities. If the
form or forms of Securities of any series are established in a Board Resolution or in an Officers
Certificate pursuant to a Board Resolution, such Board
Resolution and Officers Certificate, if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
Securities of each series shall be issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution thereof.
Section 202.
Form of Trustees Certificate of Authentication
. The Trustees certificate of authentication shall be in substantially the form set forth below:
This is one of the Securities of the series designated therein referred to in the within
mentioned Indenture.
Dated:
13
Section 203.
Securities in Global Form
. If any Security of a series is issuable in global form, such Security may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities represented thereby may from time
to time be increased or reduced to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such manner as shall be specified in such
Security. Any instructions by the Company with respect to a Security in global form, after its
initial issuance, shall be in writing but need not comply with Section 102.
Any Security issued in global form shall bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
ARTICLE THREE
THE SECURITIES
Section 301.
Amount Unlimited: Issuable in Series
. The aggregate principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The
Securities may be issued in one or more series,
and one or more Tranches of any series.
Subject to the last paragraph of this
Section, prior to the authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board Resolution, or in an
Officers Certificate pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall distinguish the Securities of such
series from Securities of all other series);
14
(b) any limit upon the aggregate principal amount of the Securities of such series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be payable on any Interest Payment Date, if other than
the Persons in whose names such Securities (or one or more Predecessor Securities) are registered
at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of such series, or any Tranche
thereof, is payable or any formulary or other method or other means by which such date or dates
shall be determined, by reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption, prepayment, acceleration,
purchase or extension);
(e) the rate or rates at which the Securities of such series, or any Tranche thereof, shall
bear interest, if any (including the rate or rates at which overdue principal shall
bear interest, if different from the rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or other method or other means by which
such rate or rates shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on such Securities on any Interest Payment Date; the
right of the Company, if any, to extend the interest payment periods and the duration of any such
extension as contemplated by Section 312; and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by which (1) the principal of and premium, if any,
and interest, if any, on Securities of such series, or any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche thereof, may be effected and (4) notices and
demands to or upon the Company in respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and any Paying Agent or Paying Agents for
such series or Tranche; and if such is the case, that the principal of such Securities shall be
payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on which, the price or prices at
which and the terms and conditions upon which the Securities of such series, or any Tranche
thereof, may be redeemed, in whole or in part, at the option of the Company and any restrictions on
such redemptions, including but not limited to a restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche thereof, resulting in delisting of such Securities
from any securities exchange;
15
(h) the obligation or obligations, if any, of the Company to redeem or purchase the Securities
of such series, or any Tranche thereof, pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the period or periods within which or the date
or dates on which, the price or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite currencies, in which payment of the
principal of and premium, if any, and interest, if any, on the Securities of such series, or any
Tranche thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the Securities are stated to be payable,
the period or periods within which and the terms and conditions upon which, such election may be
made;
(l) if the principal of or premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable, or are to be payable at the election of the
Company or a Holder thereof, in securities or other property, the type and amount of such
securities or other property, or the formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if any, or interest, if any,
on the Securities of such series, or any Tranche thereof, may be determined with reference to an
index or other fact or event ascertainable outside of this Indenture, the manner in which such
amounts shall be determined to the extent not established pursuant to clause (e) of this paragraph;
(n) if other than the entire principal amount thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in Section 801, with respect to the
Securities of such series, and any covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of such series, or any Tranche
thereof, may be converted into or exchanged for shares of capital stock or other securities of the
Company or any other Person;
16
(q) the obligations or instruments, if any, which shall be considered to be Eligible
Obligations in respect of the Securities of such series, or any Tranche thereof, denominated in a
currency other than Dollars or in a composite currency, and any additional or alternative
provisions for the reinstatement of the Companys indebtedness in respect of such Securities after
the satisfaction and discharge thereof as provided in Sections 701 and 702;
(r) if the Securities of such series, or any Tranche thereof, are to be issued in global form,
(i) any limitations on the rights of the Holder or Holders of such Securities to transfer or
exchange the same or to obtain the registration of transfer thereof, (ii) any limitations on the
rights of the Holder or Holders thereof to obtain certificates therefor in definitive form in lieu
of temporary form, (iii) the Depositary for such Global Security and (iv) any and all other matters
incidental to such Securities;
(s) to the extent not established pursuant to clause (r) of this paragraph, any limitations on
the rights of the Holders of the Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer thereof; and if a service charge
will be made for the registration of transfer or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(t) any exceptions to Section 113, or variation in the definition of Business Day, with
respect to the Securities of such series, or any Tranche thereof;
(u) any collateral security, assurance or guarantee for the Securities of such series;
(v) any rights or duties of another Person to assume the obligations of the Company with
respect to the Securities of such series (whether as joint obligor, primary obligor, secondary
obligor or substitute obligor) and any rights or duties to discharge and release any obligor with
respect to the Securities of such series or the Indenture to the extent related to such series; and
(w) any other terms of the Securities of such series, or any Tranche thereof, not inconsistent
with the provisions of this Indenture, including, without limitation, any terms required for or
appropriate to (i) establishing one or more series of medium-term notes to be issued in a Periodic
Offering or (ii) providing for the remarketing of the Securities of such series.
With respect to Securities of a series subject to a Periodic Offering, the indenture
supplemental hereto or the Board Resolution which establishes such series, or the Officers
Certificate pursuant to such supplemental indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of such series and provide either that the
specific terms of Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by the clause (b) of Section 303.
Unless otherwise provided with respect to a series of Securities as contemplated in Section
301(b), the aggregate principal amount of a series of securities may be increased and
17
additional
Securities of such series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302.
Denominations
. Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, or any Tranche thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303.
Execution, Authentication, Delivery and Dating
. Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, or any Tranche thereof, the Securities shall be executed on behalf of the Company by an
Authorized Executive Officer and may have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized Executive Officer of the Company. The
signature of any or all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at the time of
execution Authorized Executive Officers or the Secretary or an Assistant Secretary of the Company
shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a series, for original issue, at one
time or from time to time in accordance with the Company Order referred to below, upon receipt by
the Trustee of
(a) the instrument or instruments establishing the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of such Securities and, to the
extent that the terms of such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officers Certificate pursuant to a
supplemental indenture or Board Resolution, all as contemplated by Sections 201 and 301, either (i)
establishing such terms or (ii) in the case of Securities of a series subject to a Periodic
Offering, specifying procedures, acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or electronic instructions from the Company or any
agent or agents thereof, which oral instructions are to be promptly confirmed electronically or in
writing), in either case in accordance with the instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on behalf of the Company by an Authorized
Executive Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly authorized by the Company and
have been established in conformity with the provisions of this Indenture;
18
(ii) the terms of such Securities have been duly authorized by the Company and have
been established in conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and delivered by the Trustee and issued and
delivered by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued under this Indenture and will constitute
valid and binding obligations of the Company enforceable against the Company in accordance
with their terms and entitled to the benefits provided by this Indenture, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors rights generally, by general
equitable principles (regardless of whether considered in a proceeding in equity or at law)
and by an implied covenant of good faith, fair dealing and reasonableness;
provided
,
however
, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be provided with such Opinion of Counsel only once at or prior
to the time of the first authentication of such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may opine that:
(x) when the terms of such Securities shall have been established pursuant to a Company
Order or Orders or pursuant to such procedures (acceptable to the Trustee) as may be
specified from time to time by a Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered pursuant to clause (a) above, such
terms will have been duly authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) such Securities, when authenticated and delivered by the Trustee in accordance with
this Indenture and the Company Order or Orders or specified procedures referred to in
paragraph (x) above and issued and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly issued under this
Indenture and will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the benefits provided by
this Indenture, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors
rights generally, by general equitable principles (regardless of whether considered in a
proceeding in equity or at law) and by an implied covenant of good faith, fair dealing and
reasonableness.
With respect to Securities of a series subject to a Periodic Offering, the Trustee may
conclusively rely, as to the authorization by the Company of any of such Securities, the form,
terms thereof and the legality, validity, binding effect and enforceability thereof, and compliance
of the authentication and delivery thereof with the terms and conditions of this Indenture, upon
the Opinion of Counsel and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first authentication of Securities of such
series unless and until such opinion or other documents have been superseded or revoked or
19
expire
by their terms. In connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that the Companys
instructions to authenticate and deliver such Securities do not violate any applicable law or any
applicable rule, regulation or order of any Governmental Authority having jurisdiction over the
Company.
If the form or terms of the Securities of any series have been established by or pursuant to a
Board Resolution or an Officers Certificate as permitted by Sections 201 or 301, the Trustee shall
not be required to authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will materially or adversely affect the Trustees own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Depositary designated pursuant to Section 301 for a Global Security in registered form
must, at the time of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or regulation.
Unless otherwise specified as contemplated by Section 301 with respect to any series of
Securities, or any Tranche thereof, each Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with respect to any series of
Securities, no Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee or an Authenticating Agent by
manual signature, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder to the Company, or any Person acting on its behalf, but shall
never have been issued and sold by the Company, and the Company shall deliver such Security to the
Security Registrar for cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits hereof.
Section 304.
Temporary Securities
. Pending the preparation of definitive Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities in lieu of which
they are issued, with such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their execution of such
Securities; provided, however, that temporary Securities need not recite specific redemption,
sinking fund, conversion or exchange provisions.
20
Unless otherwise specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, after the preparation of definitive Securities of such series
or Tranche, the temporary Securities of such series or Tranche shall be exchangeable, without
charge to the Holder thereof, for definitive Securities of such series or Tranche upon surrender of
such temporary Securities at the office or agency of the Company maintained pursuant to Section 602
in a Place of Payment for such Securities. Upon such surrender of temporary Securities for such
exchange, the Company shall, except as aforesaid, execute and the Trustee shall authenticate and
deliver in exchange therefor definitive Securities of the same series and Tranche of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of the same series and
Tranche and of like tenor authenticated and delivered hereunder.
Section 305.
Registration, Registration of Transfer and Exchange
. The Company shall cause to be kept in each office designated pursuant to Section 602, with
respect to the Securities of each series, a register (all registers kept in accordance with this
Section being collectively referred to as the
Security Register
) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for the registration of
Securities of such series, or any Tranche thereof, and the registration of transfer thereof. The
Company shall designate one Person to maintain the Security Register for the Securities of each
series on a consolidated basis, and such Person is referred to herein, with respect to such series,
as the
Security Registrar
. Anything herein to the contrary notwithstanding, the Company
may designate one or more of its offices as an office in which a register with respect to the
Securities of one or more series shall be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such series. The Security Register shall be open
for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, upon surrender for registration of transfer of any Security of
such series or Tranche at the office or agency of the Company maintained pursuant to Section 602 in
a Place of Payment for such series or Tranche, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, any Security of such series or Tranche may be exchanged at the
option of the Holder, for one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
21
All Securities delivered upon any registration of transfer or exchange of Securities shall be
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Notwithstanding any other provision of this Indenture, unless and until it is exchanged in
whole or in part for Registered Securities in definitive form, a Global Security representing all
or a portion of the Registered Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary of such series or a nominee of such successor Depositary.
If at any time the Depositary for Securities of a series in registered form notifies the
Company that it is unwilling or unable to continue as Depositary for the Securities of such series
or if at any time the Depositary for the Securities of such series shall no longer be eligible
under Section 303, the Company shall appoint a successor Depositary with respect to the Securities
for such series. If (i) a successor Depositary for the Securities of such series is not appointed
by the Company within 90 days after the Company receives such notice or becomes aware of such
ineligibility, or (ii) an Event of Default under Section 801 hereof has occurred and is continuing
with respect to the Securities of such series and the Holders of at least 25% in principal amount
of the Outstanding Securities of such series so requests, the Companys election pursuant to
Section 301 shall no longer be effective with respect to the Securities for such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will authenticate and deliver Securities of
such series in definitive form in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 301 with respect to a series of Securities in
registered form, the Depositary for such series of Securities may surrender a Global Security for
such series of Securities in exchange in whole or in part for Securities of such series of like
tenor and terms and in definitive form or such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and, upon receipt of the Company Order, the
Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by
such Depositary a new Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal amount equal to and in
exchange for such Persons beneficial interest in the Global Security; and (ii) to such Depositary
a new Global Security of like tenor and terms in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the aggregate principal amount
of Securities delivered to Holders hereof.
Upon the exchange of a Global Security for Securities in definitive form representing the
aggregate principal amount of such Global Security, such Global Security shall be cancelled by the
Trustee. Registered Securities issued in exchange for Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Registered Securities to the
persons in whose names such Securities are so registered.
22
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company, the Trustee or the Security Registrar) be duly endorsed or shall be
accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee or
the Security Registrar, as the case may be, duly executed by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with respect to Securities of any
series, or any Tranche thereof, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to provide for the registration of transfer of
or the exchange of (a) Securities of any series, or any Tranche thereof, during a period of 15 days
immediately preceding the date notice is to be given identifying the serial numbers of the
Securities of such series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security being redeemed in
part.
Section 306.
Mutilated, Destroyed, Lost and Stolen Securities
. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction
of the ownership of and the destruction, loss or theft of any Security and (b) such security or
indemnity as may be reasonably required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee that such Security is
held by a Person purporting to be the owner of such Security, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a
new Security of the same series and Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone other than the Holder of such new Security, and any such new Security shall be
23
entitled to
all the benefits of this Indenture equally and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 307.
Payment of Interest, Interest Rights Preserved
. Unless otherwise specified as contemplated by Section 301 with respect to the Securities of any
series, or any Tranche thereof, interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein called
Defaulted Interest
) shall forthwith cease to be payable to the Holder on the related
Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a date (herein called a
Special Record Date
) for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company, of such Special Record Date and, in the name and at the
expense of the Company, shall promptly cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of business on such Special
Record Date.
(b) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
24
payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
Section 308.
Persons Deemed Owners
. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the absolute owner of such Security for the purpose of receiving payment of principal
of and premium, if any, and (subject to Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 309.
Cancellation by Security Registrar
. All Securities surrendered for payment, redemption, registration of transfer or exchange shall,
if surrendered to any Person other than the Security Registrar, be delivered to the Security
Registrar and, if not theretofore canceled, shall be promptly canceled by the Security Registrar.
The Company may at any time deliver to the Security Registrar for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever or which the Company shall not have issued and sold, and all Securities so delivered
shall be promptly canceled by the Security Registrar. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Security Registrar shall be
disposed of in accordance with the customary practices of the Security Registrar at the time in
effect, and the Security Registrar shall not be required to destroy any such certificates. The
Security Registrar shall upon request promptly deliver a certificate of disposition to the Trustee
and the Company unless, by a Company Order, similarly delivered, the Company shall direct that
canceled Securities be returned to it. The Security Registrar shall promptly deliver evidence of
any cancellation of a Security in accordance with this Section 309 to the Trustee and the Company.
Section 310.
Computation of Interest
. Except as otherwise specified as contemplated by Section 301 for Securities of any series, or
any Tranche thereof, interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months and for any period shorter than a full month, on
the basis of the actual number of days elapsed in such period.
Section 311.
Payment to Be in Proper Currency
. In the case of the Securities of any series, or any Tranche thereof, denominated in any currency
other than Dollars or in a composite currency (the
Required Currency
), except as
otherwise specified with respect to such Securities as contemplated by Section 301, the obligation
of the Company to make any payment of the principal thereof, or the premium or interest thereon,
shall not be discharged or satisfied by any tender by the Company, or recovery by the Trustee, in
any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the Trustee timely holding the full amount of the Required Currency then due and
payable. If any such tender or
25
recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without limitation the
risks of delay and exchange rate fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full amount of Required Currency then
due and payable, and in no circumstances shall the Trustee be liable therefor except in the case of
its negligence or willful misconduct.
Section 312.
Extension of Interest Payment
. The Company shall have the right at any time, so long as the Company is not in default in the
payment of interest on the Securities of any series hereunder, to extend interest payment periods
on all Securities of one or more series, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be specified as contemplated by Section 301
with respect to such Securities.
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401.
Applicability of Article
. Securities of any series, or any Tranche thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche) in accordance with this
Article.
Section 402.
Election to Redeem: Notice to Trustee
. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or
an Officers Certificate. Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of such Securities to be redeemed. In
the case of any redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers Certificate evidencing
compliance with such restriction or condition.
Section 403.
Selection of Securities to Be Redeemed
. If less than all the Securities of any series, or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for redemption, by such method as shall
be provided for any particular series, or, in the absence of any such provision, by such method as
the Trustee shall deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of such series or Tranche
or any integral multiple thereof) of the principal amount of Securities of such series or Tranche
of a denomination larger than the minimum authorized denomination for Securities of such series or
Tranche; provided, however, that if, as indicated in an Officers Certificate, the Company shall
have offered to purchase all or any principal amount of the Securities then Outstanding of any
26
series, or any Tranche thereof, and less than all of such Securities as to which such offer was
made shall have been tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such Securities which
have not been so tendered.
The Trustee shall promptly notify the Company and the Security Registrar in writing of the
Securities selected for redemption and, in the case of any Securities selected to be redeemed in
part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 404.
Notice of Redemption
. Except as otherwise specified as contemplated by Section 301 for Securities of any series,
notice of redemption shall be given in the manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, all
notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or Tranche are to be redeemed, the
identification of the particular Securities to be redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price, together with accrued interest, if any,
to the Redemption Date, will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any, unless it shall have been specified as contemplated
by Section 301 with respect to such Securities that such surrender shall not be required,
(f) whether the redemption is at the election of the Company, or is for a sinking or other
fund, if such is the case,
(g) the CUSIP, ISIN, or other similar number or numbers, if any, assigned to such Securities;
provided, however, that such notice may state that no representation is made as to the correctness
of any or all of such numbers, in which case none of the Company, the Trustee or any agent of the
Company or the Trustee shall have any liability in respect of the use of any such number on such
notices, and the redemption of such Securities shall not be affected by any defect in or omission
of such numbers, and
27
(h) such other matters as the Company shall deem desirable or appropriate.
Unless otherwise specified with respect to any Securities in accordance with Section 301, with
respect to any notice of redemption of Securities at the election of the Company, unless, upon
giving of such notice, such Securities shall be deemed to have been paid in accordance with Section
701, such notice may, if so provided in the Officers Certificate or Board Resolution delivered to
the Trustee pursuant to Section 402, state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the Redemption Price on such Securities and that if such
money shall not have been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Securities. In the event that such notice of redemption
contains such a condition and such money is not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption was not required to
be made. A failure by the Company to provide such moneys or make provision for the payment thereof
shall not constitute an Event of Default under this Indenture. The Paying Agent or Agents for the
Securities otherwise to have been redeemed shall thereupon promptly return to the Holders thereof
any of such Securities which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of the Company, and any
notice of non-satisfaction of a condition for redemption as aforesaid, shall be given by the
Company or, at the Companys request, by the Security Registrar in the name and at the expense of
the Company. Notice of mandatory redemption of Securities shall be given by the Security Registrar
in the name and at the expense of the Company.
Section 405.
Securities Payable on Redemption Date
. Notice of redemption having been given as aforesaid, and the conditions, if any, set forth in
such notice having been satisfied, the Securities or portions thereof so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption, the Company shall
default in the payment of the Redemption Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or portion thereof shall be
paid by the Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date;
provided
,
however
, that no such surrender shall be a condition to
such payment if so specified as contemplated by Section 301 with respect to such Security; and
provided
,
further
, that except as otherwise specified as contemplated by Section
301 with respect to such Security, any installment of interest on any Security the Stated Maturity
of which installment is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security and subject to the provisions
of Section 307.
Section 406.
Securities Redeemed in Part
. Upon the surrender of any Security which is to be redeemed only in part at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in
28
writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a
new Security or Securities of the same series and Tranche, of any authorized denomination requested
by such Holder and of like tenor and in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
Section 501.
Applicability of Article
. The provisions of this Article shall be applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series, or any Tranche thereof, is herein referred to as a mandatory sinking fund payment, and
any payment in excess of such minimum amount provided for by the terms of Securities of any series,
or any Tranche thereof, is herein referred to as an optional sinking fund payment. If provided
for by the terms of Securities of any series, or any Tranche thereof, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 502. Each sinking fund
payment shall be applied to the redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such Securities.
Section 502.
Satisfaction of Sinking Fund Payments with Securities
. The Company (a) may deliver to the Trustee Outstanding Securities (other than any previously
called for redemption) of a series or Tranche in respect of which a mandatory sinking fund payment
is to be made and (b) may apply as a credit Securities of such series or Tranche which have been
redeemed either at the election of the Company pursuant to the terms of such Securities, at the
election of the Holder thereof if applicable, or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of such mandatory sinking fund payment with respect to the Securities of such series;
provided
,
however
, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been previously so applied.
Securities so applied shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation of the sinking fund
and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 503.
Redemption of Securities for Sinking Fund
. Not less than 45 days prior to each mandatory sinking fund payment date for the Securities of
any series, or any Tranche thereof, the Company shall deliver to the Trustee an Officers
Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment for such series or
Tranche;
29
(b) the amount, if any, of the optional sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which is to be satisfied by
the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series or Tranche pursuant to Section 502 and stating
the basis for such credit and that such Securities have not previously been so credited, and the
Company shall also deliver to the Trustee any Securities to be so delivered.
If the Company shall have not delivered such Officers Certificate and, to the extent
applicable, all such Securities, the next succeeding sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount of the mandatory sinking fund payment. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section
403 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 404. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
Section 601.
Payment of Principal, Premium and Interest
. The Company shall pay the principal of and premium, if any, and interest, if any, on the
Securities of each series in accordance with the terms of such Securities and this Indenture.
Section 602.
Maintenance of Office or Agency
. The Company shall maintain in each Place of Payment for the Securities of each series, or any
Tranche thereof, an office or agency where payment of such Securities shall be made, where the
registration of transfer or exchange of such Securities may be effected and where notices and
demands to or upon the Company in respect of such Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 106. If at any time the Company shall fail to maintain any such
required office or agency in respect of Securities of any series, or any Tranche thereof, or shall
fail to furnish the Trustee with the address thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or more other offices or agencies with
respect to the Securities of one or more series, or any Tranche thereof, for any or all of the
30
foregoing purposes and may from time to time rescind such designations;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301 with respect to
the Securities of such series or Tranche, no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for such purposes in each
Place of Payment for such Securities in accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or agency required by this Section
may be maintained at an office of the Company, in which event the Company shall perform all
functions to be performed at such office or agency.
Section 603.
Money for Securities Payments to Be Held in Trust
. If the Company shall at any time act as its own Paying Agent with respect to the Securities of
any series, or any Tranche thereof, it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on any of such Securities, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the principal and premium or
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided. The Company shall promptly notify the Trustee in
writing of any failure by the Company (or
any other obligor on such Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the Securities of any series, or
any Tranche thereof, it shall, on or before each due date of the principal of and premium, if any,
and interest, if any, on such Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such sums to be held in
trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company shall promptly notify
the Trustee in
writing of any failure by
it so to act.
The Company shall cause each Paying Agent for the Securities of any series, or any Tranche
thereof, other than the Company or the Trustee, to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of and premium, if any, or
interest, if any, on such Securities in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any other obligor upon such
Securities) to make any payment of principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying
31
Agent and furnish to
the Trustee such information as it possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying
Agent and, if so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of and premium, if any, or interest, if any, on any Security
and remaining unclaimed for two years after such principal and premium, if any, or interest has
become due and payable shall be paid to the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon such payment or discharge, the Holder of
such Security shall, as an unsecured general creditor and not as a Holder of an Outstanding
Security, look only to the Company for payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company cause to be mailed, on one occasion only,
notice to such Holder that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
Section 604.
Corporate Existence
. Subject to the rights of the Company under Article Eleven, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 605.
Maintenance of Properties
. The Company shall cause (or, with respect to property owned in common with others, make
reasonable effort to cause) all its properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and shall cause (or, with respect
to property owned in common with others, make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as, in the judgment of
the Company, may be necessary so that the business carried on in connection therewith may be
properly conducted;
provided
however
, that nothing in this Section shall prevent
the Company from discontinuing, or causing the discontinuance of, the operation and
maintenance of any of its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business.
Section 606.
Annual Officers Certificate as to Compliance
. Not later than May 1 in each year, commencing May 1, 2010 the Company shall deliver to the
Trustee an Officers Certificate which need not comply with Section 102, executed by the principal
executive officer, the principal financial officer or the principal accounting officer of the
Company, as to such officers knowledge of the Companys compliance with all conditions and
covenants under this Indenture, such compliance to be determined without regard to any period of
grace or
32
requirement of notice under this Indenture, and making any other statements as may be
required by the provisions of Section 314(a)(4) of the Trust Indenture Act.
Section 607.
Waiver of Certain Covenants
. The Company may omit in any particular instance to comply with any term, provision or condition
set forth in (a) Section 602 or any additional covenant or restriction specified with respect to
the Securities of any series, or any Tranche thereof, as contemplated by Section 301, if before the
time for such compliance the Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision or condition and (b) Section 604, 605 or Article Eleven if before the time for such
compliance the Holders of a majority in principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
Section 701.
Satisfaction and Discharge of Securities
. Any Security or Securities, or any portion of the principal amount thereof, shall be deemed to
have been paid for all purposes of this Indenture, and the entire indebtedness of the Company in
respect thereof shall be deemed to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such Securities or portions
thereof, Eligible Obligations, which shall not contain provisions permitting the redemption or
other prepayment thereof at the option of the issuer thereof, the principal of and
the interest on which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by the Trustee or such Paying
Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due and to become due
on such Securities or portions thereof on or prior to Maturity;
provided
,
however
,
that in the case of the provision for payment or redemption of less than all the Securities of any
series or Tranche, such Securities or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice requisite to the validity of such
redemption
33
shall have been given or irrevocable authority shall have been given by the Company to
the Trustee to give such notice, under arrangements satisfactory to the Trustee; and
provided
,
further
, that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to the Maturity of such Securities, a
Company Order stating that the money and Eligible Obligations deposited in accordance with
this Section shall be held in trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited, an Opinion of Counsel that the
obligations so deposited constitute Eligible Obligations and do not contain provisions
permitting the redemption or other prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of nationally recognized standing, selected by
the Company, to the effect that the requirements set forth in clause (b) above have been
satisfied; and
(z) if such deposit shall have been made prior to the Maturity of such Securities, (i)
an Officers Certificate stating the Companys intention that, upon delivery of such
Officers Certificate, its indebtedness in respect of such Securities or portions thereof
will have been satisfied and discharged as contemplated in this Section, and (ii) an Opinion
of Counsel to the effect that, as a result of a change in law occurring or a ruling of the
United States Internal Revenue Service issued after the date of issuance of such Securities,
the Holders of such Securities, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax purposes as a result of
the satisfaction and discharge of the Companys indebtedness in respect thereof and will be
subject to United States federal income tax on the same amounts, at the same times and in
the same manner as if such satisfaction and discharge had not been effected.
Upon the deposit of money or Eligible Obligations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y) and (z) above, the Trustee shall, upon
receipt of a Company Request, acknowledge in writing that the Security or Securities or portions
thereof with respect to which such deposit was made are deemed to have been paid for all purposes
of this Indenture and that the entire indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section. In the event that all of the conditions
set forth in the preceding paragraph shall have been satisfied in respect of any Securities or
portions thereof except that, for any reason, the Officers Certificate and Opinion of
Counsel specified in clause (z) shall not have been delivered, such Securities or portions
thereof shall nevertheless be deemed to have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of the Company under Article Six (except the
covenants contained in Sections 602 and 603) or any other covenants made in respect of such
Securities or portions thereof as contemplated by Section 301, but the indebtedness of the Company
in respect of such Securities or portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose, and the Holders of such Securities or portions
thereof shall continue to be entitled to look to the Company for payment of the indebtedness
represented thereby; and, upon Company Request, the Trustee shall
34
acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities of any series, or any Tranche
thereof, is to be provided for in the manner and with the effect provided in this Section, the
Security Registrar shall select such Securities, or portions of principal amount thereof, in the
manner specified by Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have been paid for purposes of this
Indenture, and, if such is the case, in respect of which the Companys indebtedness shall have been
satisfied and discharged, all as provided in this Section do not mature and are not to be redeemed
within the 60 day period commencing with the date of the deposit of moneys or Eligible Obligations,
as aforesaid, the Company shall, as promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid for purposes of this
Indenture, as aforesaid, the obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907, 909
and 915 and this Article Seven shall survive such satisfaction and discharge.
The Company shall pay, and shall indemnify the Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this Section against, any tax, fee or other
charge imposed on or assessed against such Eligible Obligations or the principal or interest
received in respect of such Eligible Obligations, including, but not limited to, any such tax
payable by any entity deemed, for tax purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time after a Security would be
deemed to have been paid for purposes of this Indenture, and, if such is the case, the Companys
indebtedness in respect thereof would be deemed to have been satisfied or discharged, pursuant to
this Section (without regard to the provisions of this paragraph), the Trustee or any Paying Agent,
as the case may be, shall be required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and discharge of the Companys
indebtedness in respect thereof shall retroactively be deemed
not to have been effected, and such Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Companys indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 603.
Section 702.
Satisfaction and Discharge of Indenture
. This Indenture shall upon Company Request, accompanied by an Officers Certificate and an
Opinion of Counsel in compliance with Section 102 of this Indenture, cease to be of further effect
(except as hereinafter expressly provided), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
35
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
provided
,
however
, that if, in accordance with the last paragraph of Section 701,
any Security, previously deemed to have been paid for purposes of this Indenture, shall be deemed
retroactively not to have been so paid, this Indenture shall thereupon be deemed retroactively not
to have been satisfied and discharged, as aforesaid, and to remain in full force and effect, and
the Company shall execute and deliver such instruments as the Trustee shall reasonably request to
evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as aforesaid, the obligations
of the Company and the Trustee under Sections 304, 305, 306, 404, 503 (as to notice of redemption),
602, 603, 907, 909 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this Section, the Trustee
shall assign, transfer and turn over to the Company, subject to the lien provided by Section 907,
any and all money, securities and other property then held by the Trustee for the benefit of the
Holders of the Securities other than money and Eligible Obligations held by the Trustee pursuant to
Section 703.
Section 703.
Application of Trust Money
. Neither the Eligible Obligations nor the money deposited pursuant to Section 701, nor the
principal or interest payments on any such Eligible Obligations, shall be withdrawn or used for any
purpose other than, and shall be held in trust for, the payment of the principal of and premium, if
any, and interest, if any, on the Securities or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the provisions of Section 603;
provided
,
however
, that, so long as there shall not have occurred and be continuing
an Event of Default, any cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent practicable and upon Company
Request, be invested in Eligible Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such amounts as shall be sufficient,
together with any other moneys and the principal of and interest on any other Eligible Obligations
then held by the Trustee, to pay when due the principal of and premium, if any, and interest, if
any, due and to
become due on such Securities or portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as received, free and
clear of any trust, lien or pledge under this Indenture except the lien provided by Section 907;
and
provided
,
further
, that, so long as there shall not have occurred and be
continuing an Event of Default, any moneys held in accordance with this Section on the Maturity of
all such Securities in excess of the amount required to pay the principal of and premium, if any,
and interest, if any, then due on such Securities shall be paid over to the Company free and clear
of any trust, lien or pledge under this Indenture except the lien provided by Section 907; and
provided
,
further
, that if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant to this Section shall be held until such
Event of Default shall have been waived or cured.
36
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801.
Events of Default
.
Event of Default
, wherever used herein with respect to Securities of any series, means
any one of the following events:
(a) failure to pay interest, if any, on any Security of such series within 30 days after the
same becomes due and payable;
provided
,
however
, that a valid extension of the
interest payment period by the Company as contemplated in Section 312 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on any Security of such series at its
Maturity; or
(c) failure to perform or breach of any covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than such series) for a
period of 90 days after there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
Notice of Default
hereunder, unless the Trustee, or the Trustee and the Holders of a principal amount of Securities
of such series not less than the principal amount of Securities the Holders of which gave such
notice, as the case may be, shall agree in writing to an extension of such period prior to its
expiration;
provided
,
however
, that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of (1) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition by one or
more Persons other than the Company seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order for relief or any such other decree or order shall have
remained unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in a case or proceeding
37
under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts generally as they
become due, or the authorization of such action by the Board of Directors; or
(f) any other Event of Default with respect to Securities of such series as shall have been
specified in the terms thereof as contemplated by Section 301(o).
Section 802.
Acceleration of Maturity; Rescission and Annulment
. If an Event of Default due to the default in payment of principal of, or interest on, any series
of Securities or due to the default in the performance or breach of any other covenant or warranty
of the Company applicable to the Securities of such series but not applicable to all Outstanding
Securities shall have occurred and be continuing, either the Trustee or the Holders of not less
than 33% in principal amount of the Securities of such series may then declare the principal amount
(or, if any of the Securities of such series are Discount Securities, such portion of the principal
amount as may be specified in the terms thereof as contemplated by Section 301) of all Securities
of such series and interest accrued thereon to be due and payable immediately. If an Event of
Default due to default in the performance of any other of the covenants or agreements herein
applicable to all Outstanding Securities or an Event of Default specified in Section 801 (d) or (e)
shall have occurred and be continuing, either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding (considered as one class), and not the Holders
of the Securities of any one of such series, may declare the principal of all Securities and
interest accrued thereon to be due and payable immediately. As a consequence of each such
declaration (herein referred to as a declaration of acceleration) with respect to Securities of any
series, the principal amount (or portion thereof in the case of Discount Securities) of such
Securities and interest accrued thereon shall become due and payable immediately.
At any time after such a declaration of acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for payment of the money due shall have been
obtained by the Trustee as hereinafter in this Article provided, the Event or Events of Default
giving rise to such declaration of acceleration shall, without further act, be deemed to have been
waived, and such declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of such series which have
become due otherwise than by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities;
38
(3) to the extent that payment of such interest is lawful, interest upon overdue
interest, if any, at the rate or rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Securities of such series, other than
the nonpayment of the principal of Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any right consequent
thereon.
Section 803.
Collection of Indebtedness and Suits for Enforcement by Trustee
. If an Event of Default described in clause (a) or (b) of Section 801 shall have occurred and be
continuing, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of the Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law, interest on any overdue principal
and interest, at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series under the Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 804.
Trustee May File Proofs of Claim
. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of the Securities and to file such other
39
papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due to the Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 805.
Trustee May Enforce Claims Without Possession of Securities
. All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which
such judgment has been recovered.
Section 806.
Application of Money Collected
. Any money or other property collected by the Trustee pursuant to this Article and any money or
other property distributable in respect of the Companys obligations under this Indenture after an
Event of Default shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect of which or for the benefit of
which such money shall have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
(a) First, to the payment of all amounts due the Trustee (including any predecessor Trustee)
under Section 907;
(b) Second, to the payment of the amounts then due and unpaid upon the Securities for
principal of and premium, if any, and interest, if any, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium, if any, and interest, if
any, respectively; and
(c) Third, to the payment of the remainder, if any, to the Company or as a court of competent
jurisdiction may direct.
40
Section 807.
Limitation on Suits
. No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder shall have previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall have occurred and be continuing,
considered as one class, shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee indemnity reasonably satisfactory
to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such proceeding; and
(e) no direction inconsistent with such written request shall have been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 808.
Unconditional Right of Holders to Receive Principal, Premium and Interest
. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal of and premium, if
any, and (subject to Sections 307 and 312) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 809.
Restoration of Rights and Remedies
. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, and Trustee and such Holder shall be
restored severally and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and such Holder shall continue as though no such proceeding had been
instituted.
41
Section 810.
Rights and Remedies Cumulative
. Except as otherwise provided in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 811.
Delay or Omission Not Waiver
. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 812.
Control by Majority Holders of Securities
. If an Event of Default shall have occurred and be continuing in respect of a series of
Securities, the Holders of a majority in principal amount of the Outstanding Securities of a series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect
to the Securities of such series;
provided
,
however
, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of Securities, the
Holders of a majority in aggregate principal amount of the Outstanding Securities of all such
series, considered as one class, shall have the right to make such direction, and not the Holders
of the Securities of any one of such series; and
provided
,
further
, that (a) such
direction shall not be in conflict with any rule of law or with this Indenture, and could not
involve the Trustee in personal liability in circumstances where indemnity would not, in the
Trustees sole discretion, be adequate, and (b) the Trustee may take any other action, deemed
proper by the Trustee, which is not inconsistent with any such direction.
Section 813.
Waiver of Past Defaults
. The Holders of not less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and all Events of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
42
Section 814.
Undertaking for Costs
. The Company and the Trustee agree, and each Holder by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit may be brought, considered as one class, or
to any suit instituted by any Holder for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
Section 815.
Waiver of Stay or Extension Laws
. The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
Section 901.
Certain Duties and Responsibilities
.
(a) Except
during the continuance of an Event of Default, the duties of the
Trustee shall be determined by the express
provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and any
responsibilities specified
with respect to an indenture trustee in the Trust Indenture Act and no implied covenants or
obligations shall be read into this Indenture against the Trustee. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term default is hereby defined as an Event of Default
which has occurred and is continuing.
(b) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Notwithstanding anything contained in this Indenture to the contrary, the duties and
responsibilities of the Trustee under this Indenture shall be subject to the protections,
exculpations and limitations on liability afforded to an indenture trustee under the provisions of
43
the Trust Indenture Act. The same protections, exculpations and limitations on liability afforded
to the Trustee will apply equally to any Agent, acting in its capacity as such, with respect to any
series of Securities. For the purposes of Sections 315(b) and 315(d)(2) of the Trust Indenture Act,
the term responsible officer is hereby defined as a Responsible Officer and the chairman or vice
chairman of the board of directors, the chairman or vice chairman of the executive committee of the
board of directors, the president, any vice president, the secretary, any assistant secretary, the
treasurer any assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller of the Trustee, or any other
officer of the Trustee customarily performing functions similar to those performed by a Responsible
Officer or any of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 902.
Notice of Defaults
. The Trustee shall give notice of any default hereunder known to the Trustee with respect to the
Securities of any series to the Holders of Securities of such series in the manner and to the
extent required to do so by the Trust Indenture Act, unless such default shall have been cured or
waived;
provided
,
however
, that in the case of any default of the character
specified in Section 801(c), no such notice to Holders shall be given until at least 45 days after
the occurrence thereof. For the purpose of this Section and clause (h) of Section 903, the term
default means any event which is, or after notice or lapse of time, or both, would become, an
Event of Default.
Section 903.
Certain Rights of Trustee
. Subject to the provisions of Section 901 and to the applicable provisions of the Trust Indenture
Act:
(a) before
the Trustee acts or refrains from acting, it may require an
Officers Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to
take in good faith reliance on such Officers Certificate or
Opinion of Counsel. The
Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, Officers Certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers Certificate or
Opinion of Counsel;
44
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any Holder pursuant to this Indenture, unless
such Holder shall have offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall (subject to applicable legal requirements) be
entitled to examine, during normal business hours, the books, records and premises of the Company,
personally or by agent or attorney at the expense of the Company and shall incur no liability of
any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default (as defined in Section 902)
or Event of Default, as the case may be, with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge that such default or Event of Default, as the case may be, exists and constitutes a
default or Event of Default under this Indenture or (2) written notice of such default or Event of
Default, as the case may be, shall have been given in the manner provided in Section 105 hereof to
the Trustee by the Company, any other obligor on such Securities or by any Holder of such
Securities and such notice refers to such Securities and this Indenture;
(i) the parties hereto acknowledge in accordance with Section 326 of the Patriot Act, the
Trustee, like all financial institutions and in order to help fight the funding of terrorism and
money laundering, is required to obtain, verify and record information that indentifies each person
or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with all such information as it may
reasonably request in order to satisfy the requirements or its obligations under such act;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder; and
45
(k) the Trustee shall not be liable for any action it takes or omits to take in good faith
which it reasonably believes to be authorized or within its rights or
powers,
provided that the Trustees conduct does not constitute
negligence or willful misconduct. In no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has
been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 904.
Not Responsible for Recitals or Issuance of Securities
. The recitals contained herein and in the Securities (except the Trustees certificates of
authentication) shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the
Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company
of Securities or the proceeds thereof.
Section 905.
May Hold Securities
. Each of the Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 908 and 913, may otherwise deal with the Company
with the same rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 906.
Money Held in Trust
. Money held by the Trustee in trust hereunder need not be segregated from other funds, except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
Section 907.
Compensation and Reimbursement
. The Company shall:
(a) pay to the Trustee from time to time such compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as the Company and the Trustee shall agree in
writing;
(b) except as otherwise expressly provided herein, reimburse the Trustee upon its request for
reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the extent that any such expense,
disbursement or advance may be attributable to the Trustees own
negligence, willful misconduct or
bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and against, any loss, liability,
claim, damage or expense incurred by it arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of its duties hereunder,
including the reasonable costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense shall be determined to have been caused by its own gross
negligence, willful misconduct or bad faith.
46
As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, other than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703).
In addition to and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 801(d) or Section 801(e), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
Trustee
for purposes of this Section shall include any predecessor Trustee;
provided
,
however
, that the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.
The provisions of this Section 907 shall survive the discharge of the Companys obligation in
respect of any Securities, including under Article Seven, the termination of this Indenture for any
reason and the resignation or removal of any Trustee.
Section 908.
Disqualification; Conflicting Interests
. If the Trustee shall have or acquire any conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting interest or resign to the extent, in the
manner and with the effect, and subject to the conditions, provided in the Trust Indenture Act and
this Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to the fullest
extent permitted thereby, the Trustee, in its capacity as trustee in respect of the Securities of
any series, shall not be deemed to have a conflicting interest arising from its capacity as trustee
in respect of the Securities of any other series. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last paragraph of Section
310(b) of the Trust Indenture Act.
Section 909.
Corporate Trustee Required: Eligibility
. There shall at all times be a Trustee hereunder which shall be
(a) a Corporation organized and doing business under the laws of the United States, any State
or Territory thereof or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule, regulation or order upon
application, a Corporation or other Person organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or examination applicable to
United States institutional trustees, and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
47
examining authority, then
for the purposes of this Section, the combined capital and surplus of such Corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 910.
Resignation and Removal; Appointment of Successor
. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant
to this Article shall become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may at the expense of the Company
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the removed Trustee may at the expense of the Company petition
any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after written request therefor by
the Company or by any Holder who has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the Trustee with respect
to all Securities or (y) subject to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause (other than as contemplated in clause
48
(y) in
Subsection (d) of this Section), with respect to the Securities of one or more series, the Company
shall promptly appoint a successor Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 911. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 911, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
required by Section 911, any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) So long as no event which is, or after notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
pursuant to Subsection (e) of this Section, if the Company shall have delivered to the Trustee (i)
a Board Resolution appointing a successor Trustee, effective as of a date specified therein, and
(ii) an instrument of acceptance of such appointment, effective as of such date, by such successor
Trustee in accordance with Section 911, the Trustee shall be deemed to have resigned as
contemplated in Subsection (b) of this Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to Subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911, all as of such date, and all other
provisions of this Section and Section 911 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act promptly, the successor trustee at the
expense of the Company) shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series-and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate trust office.
Section 911.
Acceptance of Appointment by Successor
. (a) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of all series, every such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act,
49
deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject nevertheless to its lien
provided for in Section 907.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee, upon payment of all sums owed to it, shall
duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, subject nevertheless to its lien provided for in
Section 907.
(c) Upon request of any such successor Trustee, the Company shall execute any instruments
which fully vest in and confirm to such successor Trustee all such rights, powers and trusts
referred to in Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
Section 912.
Merger, Conversion, Consolidation or Succession to Business
. Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any
50
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 913.
Preferential Collection of Claims Against Company
. If the Trustee shall be or become a creditor of the Company or any other obligor upon the
Securities (other than by reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term cash transaction means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon demand;
(b) the term self-liquidating paper means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 914.
Co-trustees and Separate Trustees
. At any time or times, for the purpose of meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have power to appoint, and, upon the written
request of the Trustee or of the Holders of at least 33% in principal amount of the Securities then
Outstanding, the Company shall for such purpose join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the Company does not
join in such appointment within 15 days after the receipt by it of a request so to do, or if an
Event of Default shall have occurred and be continuing, the Trustee alone shall have power to make
such appointment.
Should any written instrument or instruments from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:
51
(a) the Securities shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed by it, with the concurrence
of the Company, may accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, if an Event of Default shall have occurred and be continuing,
the Trustee shall have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee hereunder shall be personally liable by reason of any
act or omission of the Trustee, or any other such trustee hereunder; and the Trustee shall not be
personally liable by reason of any act or omission of any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to have been delivered to each
such co-trustee and separate trustee.
Section 915.
Appointment of Authenticating Agent
. The Trustee may appoint an Authenticating Agent or Agents with respect to the Securities of one
or more series, or Tranche thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche issued upon original issuance and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustees certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States, any State or territory thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or
State authority. If such
52
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any Corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or more series shall be made pursuant
to this Section, the Securities of such series may have endorsed thereon, in addition to the
Trustees certificate of authentication, an alternate certificate of authentication substantially
in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
53
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By
|
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As Authenticating Agent
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By
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Authorized Signatory
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If all of the Securities of a series may not be originally issued at one time, and if the
Trustee does not have an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such procedures as shall be acceptable to the
Trustee, an Authenticating Agent having an office in a Place of Payment designated by the Company
with respect to such series of Securities.
ARTICLE TEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 1001.
Lists of Holders
. Semiannually, not later than January 1 and July 1 in each year, commencing January 1, 2010
and at such other times as the Trustee may request in writing, the Company shall furnish or cause
to be furnished to the Trustee information as to the names and addresses of the Holders, and the
Trustee shall preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it, all to such extent, if
any, and in such manner as shall be required by the Trust Indenture Act;
provided
,
however
, that no such list need be furnished so long as the Trustee shall be the Security
Registrar.
Section 1002.
Reports by Trustee and Company
. Not later than June 15 in each year, commencing with the year 2010, the Trustee shall transmit
to the Holders, the Commission and each securities exchange upon which any Securities are listed, a
report, dated as of the next preceding May 15, with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders, the Commission and
each securities exchange upon which any Securities are listed, and the Company shall file with the
Trustee (within 30 days after filing with the Commission in the case of reports which pursuant to
the Trust Indenture Act must be filed with the Commission and furnished to the Trustee) and
transmit to the Holders, such other information, reports and other documents, if any, at such times
and in such manner, as shall be required by the Trust Indenture Act. The Company shall notify the
Trustee of the listing or delisting of any Securities on any securities exchange. Delivery of such
reports, information and documents filed with the Commission pursuant to the Exchange Act, to the
Trustee is for informational purposes only, and the Trustees receipt of such shall not constitute
notice or constructive notice of any information contained therein, including the Companys
54
compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE ELEVEN
CONSOLIDATION, MERGER CONVEYANCE OR OTHER TRANSFER
Section 1101.
Company May Consolidate, etc. Only on Certain Terms
. The Company shall not consolidate with or merge into any other Person, or convey or otherwise
transfer or lease its properties and assets substantially as an entirety to any Person, unless
(a) the Person formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and premium, if any, and interest, if
any, on all Outstanding Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transactions have been complied with.
Section 1102.
Successor Person Substituted
. Upon any consolidation by the Company with or merger by the Company into any other Person or any
conveyance, or other transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 1101, the successor Person formed by
such consolidation or into which the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of and released from all obligations and covenants under this Indenture
and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201.
Supplemental Indentures Without Consent of Holders
. Without the consent of any Holders, the Company and the Trustee, at any time and from time to
time, may
55
enter into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities, all as provided in Article
Eleven; or
(b) to add one or more covenants of the Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add any new provision to this
Indenture;
provided
,
however
, that if such change, elimination or addition shall
adversely affect the interests of the Holders of Securities of any series or Tranche Outstanding on
the date of such indenture supplemental hereto in any material respect, such change, elimination or
addition shall become effective with respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for all but not part of the Securities; or
(f) to establish the form or terms of Securities of any series or Tranche as contemplated by
Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment hereunder by a separate or
successor Trustee or co-trustee with respect to the Securities of one or more series and to add to
or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(h) to provide for the procedures required to permit the Company to utilize, at its option, a
noncertificated system of registration for all, or any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of and premium, if any, and
interest, if any, on all or any series of Securities, or any Tranche thereof, shall be payable, (2)
all or any series of Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other changes to the
provisions hereof or to add other provisions with respect to matters or questions
56
arising under
this Indenture, provided that such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture Act as in effect at
the date of the execution and delivery of this Indenture or at any time thereafter shall be amended
and
(x) if any such amendment shall require one or more changes to any provisions hereof or
the inclusion herein of any additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference or otherwise, this Indenture
shall be deemed to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to effect or evidence such changes or additional
provisions; or
(y) if any such amendment shall permit one or more changes to, or the elimination of,
any provisions hereof which, at the date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be contained herein, the Company and
the Trustee may, without the consent of any Holders, enter into an indenture supplemental
hereto to effect such change or elimination herein.
Section 1202.
Supplemental Indentures With Consent of Holders
. With the consent of the Holders of a majority in aggregate principal amount of the Securities of
a series then Outstanding under this Indenture by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture or modifying in any
manner the rights of the Holders of Securities of such series under the Indenture;
provided
,
however
, that if there shall be Securities of more than one series
Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of
the Holders of Securities of any such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each such series so directly affected,
considered as one class,
shall be required; and
provided
,
further
, that if the Securities of any series
shall have been issued in more than one Tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one class, shall be
required; and
provided
,
further
, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
(or the amount of any installment of interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption thereof, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802, or change the coin or currency (or other
property), in which any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the Stated
57
Maturity of
any Security (or, in the case of redemption, on or after the Redemption Date), without, in any such
case, the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, or
any Tranche thereof, the consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting, without, in any such case, the consent of the
Holders of each Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche thereof, except to increase the percentages in
principal amount referred to in this Section or such other Sections or to provide that other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby;
provided
,
however
, that this clause shall
not be deemed to require the consent of any Holder with respect to changes in the references to
the Trustee and concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b), 914 and 1201(h).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or one or more Tranches thereof, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof. A waiver by a Holder of such Holders right to consent under this Section
shall be deemed to be a consent of such Holder.
Section 1203.
Execution of Supplemental Indentures
. In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be provided with, and (subject to Section 901) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustees own rights, duties, immunities or
liabilities under this Indenture or otherwise.
Section 1204.
Effect of Supplemental Indentures
. Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and delivery thereof,
any such restatement shall supersede this Indenture as theretofore in effect for all purposes.
58
Section 1205.
Conformity With Trust Indenture Act
. Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 1206.
Reference in Securities to Supplemental Indentures
. Securities of any series, or any Tranche thereof, authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any series, or any
Tranche thereof, so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series or Tranche.
Section 1207.
Modification Without Supplemental Indenture
. If the terms of any particular series of Securities shall have been established in a Board
Resolution or an Officers Certificate as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officers Certificate, as the case may be,
delivered to, and accepted by, the Trustee;
provided
,
however
, that such
supplemental Board Resolution or Officers Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or Officers Certificate shall be deemed to be a supplemental
indenture for purposes of Sections 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 1301.
Purposes for Which Meetings May Be Called
. A meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, may be called at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities of such series or
Tranches.
Section 1302.
Call, Notice and Place of Meetings
. (a) The Trustee may at any time call a meeting or a telephone conference of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof, for any purpose
specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine, or, with the approval of the Company, at any
other place. Notice of every such meeting, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
59
(b) If the Trustee shall have been requested to call a meeting of the Holders of Securities of
one or more, or all, series, or any Tranche or Tranches thereof, by the Company or by the Holders
of 33% in aggregate principal amount of all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of
such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in Subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, shall be valid without notice if the Holders of all Outstanding Securities of
such series or Tranches are present in person or by proxy and if representatives of the Company and
the Trustee are present, or if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or any Tranche or Tranches thereof, or by
such of them as are not present at the meeting in person or by proxy, and by the Company and the
Trustee.
Section 1303.
Persons Entitled to Vote at Meetings
. To be entitled to vote at any meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series or Tranches, or (b) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such series or Tranches by
such Holder or Holders. The only Persons who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any representatives of the Company
and its counsel.
Section 1304.
Quorum; Action
. The Persons entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of the series and Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a quorum for a meeting of Holders
of Securities of such series and Tranches;
provided
,
however
, that if any action is
to be taken at such meeting which this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In the absence of a quorum within one hour of
the time appointed for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series and Tranches, be dissolved. In any other case the meeting may be
adjourned for such period as may be determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting
60
adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than 10 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the Outstanding Securities
of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of
the series and Tranches with respect to which such meeting shall have been called, considered as
one class;
provided
,
however
, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of Securities duly held in
accordance with this Section shall be binding on all the Holders of Securities of the series and
Tranches with respect to which such meeting shall have been held, whether or not present or
represented at the meeting.
Section 1305.
Attendance at Meetings, Determination of Voting Rights; Conduct and
Adjournment of Meetings
. (a) Attendance at meetings of Holders of Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain in effect and be binding upon any future
Holder of the Securities with respect to which it was given unless and until specifically revoked
by the Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders of Securities in regard
to proof of the holding of such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders as provided in
Section 1302(b), in which case the Company or the Holders of Securities of the series and Tranches
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
61
Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote for each $1 principal
amount of Securities held or represented by him;
provided
,
however
, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without further notice.
Section 1306.
Counting Votes and Recording Action of Meetings
. The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on
which shall be subscribed the signatures of the Holders or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities, of the series and
Tranches with respect to which the meeting shall have been called, held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all votes cast at the meeting. A record
of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was given as provided in
Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 1307.
Action Without Meeting
. In lieu of a vote of Holders at a meeting as hereinbefore contemplated in this Article, any
request, demand, authorization, direction, notice, consent, waiver or other action may be made,
given or taken by Holders by written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 1401.
Liability Solely Corporate
. No recourse shall be had for the payment of the principal of or premium, if any, or interest, if
any, on any Securities, or any part thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any
62
incorporator, shareholder, officer or director, as such, past,
present or future of the Company or of any predecessor or successor Corporation (either directly or
through the Company or a predecessor or successor Corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any incorporator, shareholder, officer or director, past, present or future,
of the Company or of any predecessor or successor Corporation, either directly or indirectly
through the Company or any predecessor or successor Corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the issuance of the Securities.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
63
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
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FIRSTENERGY SOLUTIONS CORP.
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By:
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/s/ Kelley
E. Mendenhall
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Name:
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Kelley E. Mendenhall
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Title:
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Assistant Treasurer
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. as
Trustee
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By:
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/s/ Biagio S. Impala
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Name:
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Biagio S. Impala
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Title:
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Vice President
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64
EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRSTENERGY SOLUTIONS CORP.
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
TRUSTEE
TO
INDENTURE
Dated as of August 1, 2009
Dated as of August 1, 2009
4.80% Senior Notes due 2015
6.05% Senior Notes due 2021
6.80% Senior Notes due 2039
The FIRST SUPPLEMENTAL INDENTURE
, dated as of August 1, 2009 (the
First Supplemental
Indenture
) between
FIRSTENERGY SOLUTIONS CORP.
, a corporation duly organized and existing
under the laws of the State of Ohio (herein called the
Company
), having its principal
office at 341 White Pond Drive, Akron, Ohio 44320, and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.
, a banking association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the
Trustee
) under the Indenture dated as of August 1,
2009 between the Company and the Trustee (hereinafter called the
Original Indenture
and
as hereby supplemented, the
Indenture
).
RECITALS OF THE COMPANY
WHEREAS, the Company entered into the Original Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of indebtedness (therein called the
Securities
), in an unlimited aggregate principal amount to be issued in one or more
series as contemplated therein;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the
establishment of three new series of its Securities to be known as its 4.80% Senior Notes due 2015
(the
2015 Notes
), 6.05% Senior Notes due 2021 (the
2021 Notes
) and 6.80% Senior
Notes due 2039 (the
2039 Notes
, and together with the 2015 Notes and the 2021 Notes, the
Senior Notes
), respectively, the form and substance of such Senior Notes and the terms,
provisions and conditions thereof to be set forth as provided in the Original Indenture and this First
Supplemental Indenture;
WHEREAS, pursuant to the terms of the Guaranties (as defined below), the payment of each of
the Senior Notes is unconditionally and jointly and severally guaranteed by the Companys wholly
owned subsidiaries, FirstEnergy Generation Corp. (
FGCO
) and FirstEnergy Nuclear
Generation Corp. (
NGC
);
WHEREAS, the Company desires and has requested the Trustee to join with it in the execution
and delivery of this First Supplemental Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument, in accordance with its terms, and to make the
Senior Notes, when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company have been satisfied;
NOW THEREFORE, in consideration of the premises and in further consideration of the sum of One
Dollar in lawful money of the United States of America paid to the Company by the Trustee at or
before the execution and delivery of this First Supplemental Indenture, the receipt whereof is
hereby acknowledged, and of other good and valuable consideration, it is agreed by and between the
Company and the Trustee, for the equal and proportionate benefit of all holders of the Senior
Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101.
Definitions
. Each capitalized term used but not defined in
this First Supplemental Indenture shall have the meaning assigned to such term in the Original
Indenture.
For all purposes of this First Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP (as defined below); provided, however, that in determining GAAP applicable to
the Company, the Company shall, to the extent required, conform to any order, rule or regulation of
any administrative agency, regulatory authority or other governmental body having jurisdiction over
the Company;
(d) any reference herein to an Article or Section refers to an Article or Section, as
the case may be, of this First Supplemental Indenture; and
(e) the words herein, hereof and hereunder and other words of similar import refer to
this First Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision.
Section 102.
Certain Definitions
. The following definitions are hereby added to the
definitions contained in Section 101 of the Original Indenture, but only with respect to the Senior
Notes issued in accordance with the provisions hereof:
Additional Interest
has the meaning ascribed to such term in the Registration Rights
Agreement.
Additional 2015 Notes
means any Senior Notes issued under this First Supplemental
Indenture in addition to the Initial 2015 Notes or Exchange 2015 Notes having the same terms in all
respects as the Initial 2015 Notes or Exchange 2015 Notes, as the case may be.
Additional 2021 Notes
means any Senior Notes issued under this First Supplemental
Indenture in addition to the Initial 2021 Notes or Exchange 2021 Notes having the same terms in all
respects as the Initial 2021 Notes or Exchange 2021 Notes, as the case may be.
Additional 2039 Notes
means any Senior Notes issued under this First Supplemental
Indenture in addition to the Initial 2039 Notes or Exchange 2039 Notes having the same terms in all
respects as the Initial 2039 Notes or Exchange 2039 Notes, as the case may be.
Additional Notes
means collectively, the Additional 2015 Notes, the Additional 2021
Notes and the Additional 2039 Notes.
Applicable Procedures
means, with respect to any transfer or exchange of or for
beneficial interests in any Global Security, the rules and procedures of the Depositary that apply
to such transfer or exchange.
2
Change of Control
means the occurrence of any one of the following:
(a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company taken as a whole, or the assets of either of the
Guarantor Subsidiaries, in each case, taken as a whole, to any Person (including any person (as
that term is used in Section 13(d)(3) of the Exchange Act)) other than to FirstEnergy or one of its
Majority-Owned Subsidiaries;
(b) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any Person (including any person (as that term is used
in Section 13(d)(3) of the Exchange Act)) becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding
Voting Stock of FirstEnergy, measured by voting power rather than number of shares or any Person
(other than FirstEnergy or any Majority-Owned Subsidiary of FirstEnergy) becomes the beneficial
owner (as so defined) directly or indirectly, of more than 50% of the outstanding Voting Stock of
the Company, measured by voting power rather than number of shares;
(c) the Company, FirstEnergy or the Guarantor Subsidiaries consolidate with, or merge with or
into, any Person, or any Person consolidates with, or merges with or into, the Company, FirstEnergy
or the Guarantor Subsidiaries, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company, FirstEnergy or the Guarantor Subsidiaries, or such other
Person is converted into or exchanged for cash, securities or other property, other than any such
transaction where the shares of the Voting Stock of the Company, FirstEnergy or the Guarantor
Subsidiaries outstanding immediately prior to such transaction constitute, or are converted into or
exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving
effect to such transaction; or
(d) the first day on which the majority of the members of the board of directors of
FirstEnergy ceases to be Continuing Directors.
Change of Control Offer
has the meaning set forth in Section 301 hereto.
Change of Control Offer Period
has the meaning set forth in Section 302 hereto.
Change of Control Payment Date
has the meaning set forth in Section 302 hereto.
Change of Control Purchase Price
has the meaning set forth in Section 301 hereto.
Change of Control Triggering Event
means the Senior Notes cease to be rated
Investment Grade by at least two of the three Rating Agencies on any date during the Trigger
Period. Unless at least two of the three Rating Agencies are providing a rating for the Senior
Notes at the commencement of any Trigger Period, the Senior Notes will be deemed to have ceased to
be rated Investment Grade by at least two of the three Rating Agencies during that Trigger Period.
Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have
occurred in connection with any particular Change of Control unless and until such Change of
Control has actually been consummated.
3
Continuing Director
means, as of any date of determination, any member of the board
of directors of FirstEnergy, who:
(a) was a member of such board of directors on the date of the issuance of the Senior Notes;
or
(b) was nominated for election or elected to such board of directors with the approval of a
majority of the Continuing Directors who were members of the board of directors at the time of such
nomination or election.
Debt
means any indebtedness of any Person for borrowed money evidenced by bonds,
debentures, notes or similar instruments. Debt does not include, among other things:
(a) indebtedness of a Person under any installment sale or conditional sale agreement or any
other agreement relating to indebtedness for the deferred purchase price of property or services;
(b) trade accounts payable incurred in the ordinary course of business (including obligations
under agreements relating to the purchase and sale of any commodity, including power purchase or
sale agreements and any commodity hedges or derivatives regardless of whether any such transaction
is a financial or physical transaction) or other obligations of a Person in the ordinary course
of business;
(c) obligations under leases that shall have been or should be, in accordance with GAAP,
recorded as capital leases in respect of which a Person is liable as lessee; or
(d) liabilities secured by any Lien on any property owned by a Person if and to the extent the
Person has not assumed or otherwise become liable for the payment thereof.
Exchange 2015 Notes
means the 2015 Notes (the terms of which are identical to the
Initial 2015 Notes except that the Exchange 2015 Notes shall be registered under the Securities
Act, and shall not contain the restrictive legend on the face of the Initial 2015 Notes), to be
issued in exchange for the Initial 2015 Notes pursuant to the registered Exchange Offer.
Exchange 2021 Notes
means the 2021 Notes (the terms of which are identical to the
Initial 2021 Notes except that the Exchange 2021 Notes shall be registered under the Securities
Act, and shall not contain the restrictive legend on the face of the Initial 2021 Notes), to be
issued in exchange for the Initial 2021 Notes pursuant to the registered Exchange Offer.
Exchange 2039 Notes
means the 2039 Notes (the terms of which are identical to the
Initial 2039 Notes except that the Exchange 2039 Notes shall be registered under the Securities
Act, and shall not contain the restrictive legend on the face of the Initial 2039 Notes), to be
issued in exchange for the Initial 2039 Notes pursuant to the registered Exchange Offer.
Exchange Notes
means collectively, the Exchange 2015 Notes, the Exchange 2021 Notes
and the Exchange 2039 Notes.
4
Exchange Offer
means the offer by the Company to each holder of the Initial Notes to
exchange the aggregate principal amount of Initial Notes held by such holder for an equal aggregate
principal amount of Exchange Notes of the same series, all in accordance with the terms and
conditions of the Registration Rights Agreement.
FirstEnergy
means FirstEnergy Corp., an Ohio corporation and the parent of the
Company.
FGCO
means FirstEnergy Generation Corp., an Ohio corporation and a subsidiary of the
Company.
FGCO Guaranty
means that certain Guaranty, dated as of March 26, 2007, executed and
delivered by FGCO in favor of the Guaranteed Parties as defined therein and acknowledged by the
Company and as evidenced by the affirmation of guaranty to be executed substantially in the form of
Exhibit D.
FGCO Mortgage
means the Open-End Mortgage, General Mortgage Indenture and Deed of
Trust, dated as of June 19, 2008, by and between FGCO and The Bank of New York Mellon Trust
Company, N.A., as trustee (formerly known as The Bank of New York Trust Company, N.A.), as amended
and supplemented.
Fitch
means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
GAAP
means generally accepted accounting principles applicable to the type of
business in which the Company and the Guarantor Subsidiaries are engaged in effect as of the Issue
Date.
Guaranties
means the FGCO Guaranty and the NGC Guaranty.
Guarantor Subsidiaries
means FGCO and NGC.
Initial 2015 Notes
means the $400,000,000 aggregate principal amount of 2015 Notes
issued on the Issue Date and delivered under this First Supplemental Indenture.
Initial 2021 Notes
means the $600,000,000 aggregate principal amount of 2021 Notes
issued on the Issue Date and delivered under this First Supplemental Indenture.
Initial 2039 Notes
means the $500,000,000 aggregate principal amount of 2039 Notes
issued on the Issue Date and delivered under this First Supplemental Indenture.
Initial Notes
means collectively, the Initial 2015 Notes, the Initial 2021 Notes and
the Initial 2039 Notes.
Investment Grade
means a rating of Baa3 or better by Moodys (or its equivalent
under any successor rating category of Moodys); a rating of BBB- or better by S&P (or its
equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch (or
its equivalent under any successor rating category of Fitch).
5
Issue Date
means August 7, 2009, the date of the original issuance of the Initial
Notes.
Lien
has the meaning ascribed to it in Section 401.
Majority-Owned Subsidiary
means, with respect to any Person, any corporation or
other entity of which securities or other ownership interests having ordinary voting power to elect
a majority of the Board of Directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person, or one or more Majority-Owned Subsidiaries, or by such
Person and one or more of its Majority-Owned Subsidiaries.
Moodys
means Moodys Investors Service, Inc., a subsidiary of Moodys Corporation,
and its successors.
NGC
means FirstEnergy Nuclear Generation Corp., an Ohio corporation and a subsidiary
of the Company.
NGC Guaranty
means that certain Guaranty, dated as of March 26, 2007, executed and
delivered by NGC in favor of the Guaranteed Parties as defined therein and acknowledged by the
Company, and as evidenced by the affirmation of guaranty to be executed substantially in the form
of Exhibit D.
NGC Mortgage
means the Open-End Mortgage, General Mortgage Indenture and Deed of
Trust, dated as of June 1, 2009, by and between NGC and The Bank of New York Mellon Trust Company,
N.A., as trustee, as amended and supplemented.
Property
means (i) any interest in real property owned by the Company or the
Guarantor Subsidiaries, (ii) any asset owned by the Company or the Guarantor Subsidiaries that is
depreciable in accordance with GAAP and (iii) in the case of the Company, the capital stock of the
Guarantor Subsidiaries. Property does not include, among other things: contracts, leases, and
other agreements; contract rights, bills, notes and other instruments; revenues, income and
earnings, accounts, accounts receivable and unbilled revenues, claims, credits, demands and
judgments; governmental and other licenses, permits, franchises, consents and allowances; or
intellectual property rights and other general intangibles.
Senior Notes
means the Initial Notes, the Exchange Notes and any Additional Notes
issued on or after the Issue Date in accordance with Section 201 treated as a single class of
Securities, as amended or supplemented from time to time in accordance with the terms hereof, that
are issued pursuant to this First Supplemental Indenture.
S&P
means Standard & Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors.
Rating Agency
means each of Moodys, S&P and Fitch;
provided
, that if any of
Moodys, S&P and Fitch ceases to provide rating services to issuers or investors, the Company may
appoint a replacement for such Rating Agency that is reasonably acceptable to the Trustee under
this First Supplemental Indenture.
6
Registration Rights Agreement
means the Registration Rights Agreement, dated the
Issue Date between the Company and Morgan Stanley & Co. Incorporated, Barclays Capital Inc., Credit
Suisse Securities (USA) LLC and RBS Securities Inc., as representatives of the initial purchasers
named in Schedule I to the Registration Rights Agreement.
Tangible Assets
means the amount shown as total assets on the Companys consolidated
balance sheet, less the following: (i) intangible assets including, but without limitation, such
items as goodwill, trademarks, trade names, patents, and unamortized debt discount and expense on
the Companys consolidated balance sheet and (ii) appropriate adjustments, if any, related to
minority interests. Such amounts shall be determined in accordance with GAAP.
Trigger Period
means the period commencing 60 days prior to the first public
announcement by the Company or FirstEnergy of any Change of Control (or pending Change of Control)
and ending 60 days following consummation of such Change of Control (which Trigger Period will be
extended following consummation of a Change of Control for so long as any of the Rating Agencies
has publicly announced that it is considering a possible ratings change).
Voting Stock
of any specified Person as of any date means the capital stock of such
Person that is at the time entitled to vote generally in the election of the board of directors of
such Person.
ARTICLE TWO
THE SENIOR NOTES
Section 201.
Designation and Issuance of Senior Notes
.
(a) There is hereby created a series of Securities designated, as hereinbefore recited, as the
Companys 4.80% Senior Notes due 2015. In accordance with the provisions of the Indenture, the
Trustee, will upon receipt of a Company Order, authenticate (i) the Initial 2015 Notes, (ii) the
Exchange 2015 Notes and (iii) Additional 2015 Notes from time to time as permitted under the
Indenture.
(b) There is hereby created a series of Securities designated, as hereinbefore recited, as the
Companys 6.05% Senior Notes due 2021. In accordance with the provisions of the Indenture, the
Trustee, will upon receipt of a Company Order, authenticate (i) the Initial 2021 Notes, (ii) the
Exchange 2021 Notes and (iii) Additional 2021 Notes from time to time as permitted under the
Indenture.
(c) There is hereby created a series of Securities designated, as hereinbefore recited, as the
Companys 6.80% Senior Notes due 2039. In accordance with the provisions of the Indenture, the
Trustee, will upon receipt of a Company Order, authenticate (i) the Initial 2039 Notes, (ii) the
Exchange 2039 Notes and (iii) Additional 2039 Notes from time to time as permitted under the
Indenture.
(d) The Senior Notes shall be issuable initially in the form of one or more Global Securities
and shall bear the legends set forth in Exhibits A, B and C,
respectively, and the Affirmation of Guaranty set forth in Exhibit D
shall be affixed to the Senior Notes. The
7
aggregate principal amount of Senior Notes which may be authenticated and delivered under this
First Supplemental Indenture is unlimited.
(e) The
Company initially appoints The Depository Trust Company (the
DTC) to act as Depository with respect to the Global
Securities.
(f) The
Company initially appoints the Trustee to act as Security Registrar
and Paying Agent with respect to The Global Securities, and the
Trustee hereby agrees so to initially act.
Section 202.
Form, Date, Maturity, Interest Rate and Interest Payment Dates of Senior
Notes
.
(a) The 2015 Notes shall be payable in the amount, on the dates and in the manner provided for
in the form of the 2015 Notes attached hereto as Exhibit A, and such provisions are incorporated at
this place as though set forth in their entirety. The interest rate and the Stated Maturity of the
2015 Notes shall be as set forth in the form of the 2015 Note. The Initial 2015 Notes shall be
entitled to Additional Interest accruing during the periods described in the Registration Rights
Agreement. All references in the Indenture and the Initial 2015 Notes to interest shall be
deemed to include any Additional Interest.
(b) The 2021 Notes shall be payable in the amount, on the dates and in the manner provided for
in the form of the 2021 Notes attached hereto as Exhibit B, and such provisions are incorporated at
this place as though set forth in their entirety. The interest rate and the Stated Maturity of the
2021 Notes shall be as set forth in the form of the 2021 Note. The Initial 2021 Notes shall be
entitled to Additional Interest accruing during the periods described in the Registration Rights
Agreement. All references in the Indenture and the Initial 2021 Notes to interest shall be
deemed to include any Additional Interest.
(c) The 2039 Notes shall be payable in the amount, on the dates and in the manner provided for
in the form of the 2039 Notes attached hereto as Exhibit C, and such provisions are incorporated at
this place as though set forth in their entirety. The interest rate and the Stated Maturity of the
2039 Notes shall be as set forth in the form of the Initial 2039 Note. The Initial 2039 Notes
shall be entitled to Additional Interest accruing during the periods described in the Registration
Rights Agreement. All references in the Indenture and the Initial 2039 Notes to interest shall
be deemed to include any Additional Interest.
Section 203.
Optional Redemption of Senior Notes
.
(a) The 2015 Notes shall be redeemable at the option of the Company, at the times and in the
manner provided for in the form of the 2015 Notes attached hereto as Exhibit A, and such provisions
are incorporated at this place as though set forth in their entirety.
(b) The 2021 Notes shall be redeemable at the option of the Company, at the times and in the
manner provided for in the form of the 2021 Notes attached hereto as Exhibit B, and such provisions
are incorporated at this place as though set forth in their entirety.
(c) The 2039 Notes shall be redeemable at the option of the Company, at the times and in the
manner provided for in the form of the 2039 Notes attached hereto as Exhibit C, and such provisions
are incorporated at this place as though set forth in their entirety.
Section 204.
Issuances of Additional Notes
.
The Company shall be entitled, upon delivery of an Officers Certificate, Opinion of Counsel
and Company Order, to issue Additional Notes under this First Supplemental Indenture
8
which shall have identical terms as the Initial Notes issued on the Issue Date, other than
with respect to the date of issuance and issue price. The Initial Notes issued on the Issue Date,
the Exchange Notes and any Additional Notes issued shall be treated as a single class for all
purposes under this First Supplemental Indenture. The period
of the resale and transfer restrictions applicable to the Senior Notes
in reliance on Rule 144A under the Securities Act will be
automatically extended to the last day of the period of any resale or
transfer restrictions on any such Additional Notes.
With respect to any Additional Notes, the Company shall set forth in a Board Resolution and an
Officers Certificate, a copy of each of which shall be delivered to the Trustee, the following
information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this First Supplemental Indenture; and
(b) the issue price, the issue date and the CUSIP number of such Additional Notes.
Section 205.
Guaranties
. Pursuant to the terms of the FGCO Guaranty
and the NGC Guaranty, the payment of each of the Senior Notes is
unconditionally and jointly and severally guaranteed by the
Companys wholly owned subsidiaries, FGCO and NGC, as evidenced
by the affirmation of guaranty to be executed substantially in the
form of Exhibit D and affixed to each of the Senior Notes.
ARTICLE THREE
REPURCHASE OF SENIOR NOTES UPON CHANGE OF CONTROL
Section 301.
Offer to Redeem Upon Change of Control Triggering Event
. Upon the
occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to
redeem the Senior Notes pursuant to Section 203 of the First Supplemental Indenture, each holder of
Senior Notes will have the right to require the Company to purchase all or a portion of such
holders Senior Notes pursuant to the offer described below (the
Change of Control
Offer
), at a purchase price equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase, subject to the
rights of holders of Senior Notes on the relevant record date to receive interest due on the
relevant interest payment date (the
Change of Control Purchase Price
).
Section 302.
Redemption Procedures
.
(a) Within 30 days following the Change of Control Triggering Event, or at the option of the
Company, prior to the Change of Control Triggering Event but after the public announcement of the
of the pending Change of Control, if the Company has not sent a redemption notice for all the
Senior Notes in connection with an optional redemption permitted by this First Supplemental
Indenture, the Company shall mail a notice to each registered Holder, with a copy to the Trustee,
briefly describing the transaction or transactions that constitute the Change of Control Triggering
Event and offering to repurchase Senior Notes on the date specified in such notice, which date shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the
Change
of Control Payment Date
). The notice, if mailed prior to the date of consummation of
the Change of Control, will state that the Change of Control Offer is conditioned on the Change of
Control being consummated on or prior to the Change of Control Payment Date. The Change of Control
Offer shall remain open for at least 30 days following its commencement (the
Change of Control
Offer Period
). Upon expiration of the Change of Control Offer Period, the Company shall
promptly purchase all Senior Notes properly tendered in response to the Change of Control Offer.
(b) On or before the Change of Control Payment Date, the Company will (i) accept for payment
Senior Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent cash sufficient to pay the Change of Control
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Purchase Price of all Senior Notes so tendered and (iii) deliver to the Trustee Senior Notes so accepted
together with an Officers Certificate listing the Senior Notes or portions thereof being purchased
by the Company. The Paying Agent promptly will pay the Holders of Senior Notes so accepted an
amount equal to the Change of Control Purchase Price, for such Senior Notes, and the Trustee promptly will
authenticate and mail, or cause to be transferred by book-entry, to each Holder new Senior Notes
equal in principal amount to any unpurchased portion of the Senior Notes surrendered, if any;
provided that each such new Senior Note shall be in a principal amount of $2,000 and integral
multiples of $1,000 in excess of $2,000. Any Senior Notes so accepted for payment shall cease to
accrue interest on and after the Change of Control Payment Date. Any Senior Notes not so accepted
will be delivered promptly by the Company to the Holder thereof. The Company publicly will announce
the results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) Any Change of Control Offer will be made in compliance with any and all applicable laws,
rules and regulations, including, if applicable, Regulation 14E under the Exchange Act and the
rules thereunder and any and all other applicable United States Federal and state securities laws.
To the extent that the provisions of any securities laws or regulations conflict with the
provisions of this Section 302, the Companys compliance or compliance by FirstEnergy, as the case
may be, with such laws and regulations shall not in and of itself cause a breach of their
obligations under this Section 302.
(d) This Section 302 shall be applicable, except as described in this Section 302, following a
Change of Control Triggering Event notwithstanding any optional redemption rights of the Company
that may be set forth in this First Supplemental Indenture.
(e) Notwithstanding the foregoing, the Company shall not be required to make a Change of
Control Offer upon a Change of Control Triggering Event if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the requirements set
forth herein applicable to a Change of Control Offer made by the Company and purchases all Senior
Notes properly tendered and not withdrawn under the Change of Control Offer.
ARTICLE FOUR
ADDITIONAL COVENANTS APPLICABLE TO THE SENIOR NOTES
Section 401.
Limitation on Liens
. So long as any Senior Notes of any series are
Outstanding, the Company may not, nor permit any of the Guarantor Subsidiaries to, issue, assume,
guarantee or permit to exist any Debt that is secured by any mortgage, security, interest, pledge
or lien (
Lien
) of or upon the Property of the Company or upon the Property of the
Guarantor Subsidiaries, in each case, whether owned at the Issue Date or subsequently acquired,
without in any such case effectively securing the Senior Notes (together with, if the Company shall
so determine, any of the Companys other indebtedness ranking equally with the Senior Notes)
equally and ratably with such Debt (but only so long as such Debt is so secured);
provided,
however
, that the foregoing restriction shall not apply to:
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(a) Liens on any property existing at the time of its acquisition (which Liens may also extend
to subsequent repairs, alterations and improvements to that Property);
(b) Liens on property of a corporation existing at the time such corporation is merged into or
consolidated with, or at the time the corporation sells, leases or otherwise disposes of its
properties (or of a division thereof) as or substantially as an entirety to, the Company;
(c) Liens on Property to secure the costs of acquisition, construction, development or
substantial repair, alteration or improvement of such Property or to secure Debt incurred to
provide funds for any of such purposes or for reimbursement of funds previously expended for any of
such purposes, provided such Liens are created or assumed contemporaneously with, or within
eighteen (18) months after, the acquisition or the completion of such substantial repair or
alteration, construction, development or substantial improvement;
(d) Liens in favor of any State of the United States or any department, agency or
instrumentality or political subdivision of any State, or for the benefit of holders of securities
issued by any such entity (or providers of credit enhancement with respect to such securities), to
secure any Debt (including, without limitation, obligations of the Company or the Guarantor
Subsidiaries with respect to industrial development, pollution control or similar revenue bonds)
incurred for the purpose of financing or refinancing all or any part of the purchase price or the
cost of substantially repairing or altering, constructing, developing or substantially improving
property which at the time of such purchase, repair, alteration, construction, development or
improvement was owned or operated by the Company or any of the Guarantor Subsidiaries;
(e) Liens securing Debt outstanding as of the Issue Date;
(f) Liens securing Debt issued and outstanding from time to time under the FGCO Mortgage or
under the NGC Mortgage;
(g) Liens to secure pledges or deposits made in the ordinary course of business in connection
with bids, tenders or contracts (other than payment of Debt) or to secure guarantees, statutory or
regulatory obligations or surety or performance bonds each made in the ordinary course of business;
(h) Liens on Property which is the subject of a lease agreement designating the Company or
either of the Guarantor Subsidiaries as lessee and all of its right, title and interest in such
Property and such lease agreement, whether or not such lease agreement is intended as security;
(i) Liens for taxes, assessments, governmental charges and levies to the extent not past due;
pledges or deposits to secure performance or obligations under workmens compensation laws or
similar legislation, and statutory obligations of the Company or Guarantor Subsidiaries; Liens
imposed by law, such as materialmens, mechanics, carriers, workmens and repairmens Liens,
Liens created by or resulting from legal proceedings being contested in good faith, and other
similar Liens arising in the ordinary course of business securing obligations which are not overdue
or which have been fully bonded and are being contested in good faith;
(j) Liens in favor of the Company or any Guarantor Subsidiaries;
11
(k) Liens in favor of the Trustee related to Section 907 of the Original Indenture; or
(l) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in clauses (a) through (k),
provided,
however
, that the principal amount of Debt secured thereby and not otherwise authorized by clauses
(a) through (k), shall not exceed the principal amount of Debt, plus any premium or fee payable in
connection with any such extension, renewal or replacement, so secured at the time of the
extension, renewal or replacement.
Notwithstanding the provisions above, the Company may, and may permit each of the Guarantor
Subsidiaries to, issue, assume or guarantee Debt secured by Liens which would otherwise be subject
to the restrictions of this Section 401 up to an aggregate principal amount which, together with
the principal amount of all other Debt of the Company secured by Liens (other than Liens permitted
by clauses (a) through (l) above), does not exceed the greater of $1,500,000,000 or fifteen percent
(15%) of Tangible Assets.
If the Company shall issue, assume or guarantee any Debt secured by any Lien and if this
Section 401 requires that the Outstanding Senior Notes be secured equally and ratably with such
Debt, the Company will promptly execute, at its expense, any instruments necessary to so equally
and ratably secure the Outstanding Senior Notes and deliver the same to the Trustee along with:
(i)
An Officers Certificate stating that the covenant of the Company contained in this
Section 401 has been complied with; and
(ii) An Opinion of Counsel to the effect that the Company has complied with the
covenant contained in this Section 401, and that any instruments executed by the Company in
the performance of such covenant comply with the requirements of such covenant.
In the event that the Company shall hereafter secure Outstanding Senior Notes equally and
ratably with any other obligation or indebtedness pursuant to the provisions of this Section 401,
the Company will, upon the request of the Trustee, enter into an indenture or agreement
supplemental hereto and take such other action, if any, as the Trustee may reasonably request to
enable it to enforce effectively the rights of the holders of Outstanding Senior Notes so secured,
equally and ratably with such other obligation or indebtedness.
For the avoidance of doubt, it is understood and agreed that, notwithstanding the inclusion in
any of clauses (a) through (k) in the first paragraph of this Section 401 above of a reference to
any type of obligation of any Person that in the ordinary course or under customary usage would not
be considered Debt as such term is herein defined, the inclusion of such reference in any of such
clauses shall not create any implication that such type of obligation is intended to be considered
Debt for any purpose hereunder.
Section 402.
Maintenance of Ownership
. So long as any Senior Notes are outstanding, the
Company may not sell, transfer, convey or otherwise dispose of any of the capital stock of either
of the Guarantor Subsidiaries to any Person other than the Company, its subsidiaries or
FirstEnergy.
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ARTICLE FIVE
EXTENSION OF CERTAIN EVENTS OF DEFAULT
TO THE GUARANTOR SUBSIDIARIES
Section 501.
Guarantor Subsidiaries
. Any reference to the Company in Section 801(d)
and (e) of the Original Indenture shall, for the purposes of the Senior Notes, be a reference to
the Company or one or both of the Guarantor Subsidiaries and the reference to the Board of
Directors in said Section 801(e) shall be a reference to the Board of Directors of the Company or
one or both of the Guarantor Subsidiaries.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 601.
Ratification
. The Original Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed. This First Supplemental
Indenture shall be deemed part of the Original Indenture in the manner and to the extent provided
herein and therein.
Section 602.
Governing Law
. This First Supplemental Indenture and the Senior Notes
shall be governed by and construed in accordance with the laws of the State of New York (including
without limitation Section 5-1401 of the New York General Obligations Law or any successor to such
statute) except to the extent that the Trust Indenture Act shall be applicable.
Section 603.
Severability Clause
. In case any provision in this First Supplemental
Indenture or the Senior Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 604.
Conflict with Trust Indenture Act
. If any provision of this First
Supplemental Indenture limits, qualifies or conflicts with another provision hereof which is
required or deemed to be included in this First Supplemental Indenture by, or is otherwise governed
by, any of the provisions of the Trust Indenture Act, such other provision shall control; and if
any provision hereof otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control unless otherwise provided as contemplated by Section 301 of the Original Indenture
with respect to any series of Senior Notes.
Section 605.
No Additional Rights
. Nothing in this First Supplemental Indenture is
intended to or shall provide any rights to any parties other than those expressly contemplated by
this First Supplemental Indenture.
Section 606.
Successors and Assigns
. All covenants and agreements in this First
Supplemental Indenture by the Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
Section 607.
Effective Date
. This First Supplemental Indenture shall become effective
upon the execution and delivery by the parties hereto.
13
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed and attested, on the date or dates indicated in the acknowledgments and as of the day
and year first above written.
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FIRSTENERGY SOLUTIONS CORP.
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By:
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/s/
Kelley E. Mendenhall
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Name:
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Kelley E. Mendenhall
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Title:
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Assistant Treasurer
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as
Trustee
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By:
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/s/
Biagio S. Impala
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Name:
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Biagio S. Impala
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Title:
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Vice President
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15
EXHIBIT A
[FORM OF 2015 SENIOR NOTE]
CUSIP NUMBER [ ]
ISIN NUMBER [ ]
(Face of Senior Note)
FIRSTENERGY SOLUTIONS CORP.
4.80% SENIOR NOTES DUE 2015
No. ___
$[ ]
FIRSTENERGY SOLUTIONS CORP., an Ohio corporation (the Company), for value received, hereby
promises to pay to CEDE & CO. or registered assigns, the principal sum of [ ] Dollars, or such
greater or lesser amount as may from time to time be endorsed on the Schedule of Increases and
Decreases of Interests in the Global Securities attached hereto (but in no event may such amount
exceed the aggregate principal amount of Senior Notes authenticated pursuant to Section 303 of the
Indenture referred to below and then outstanding pursuant to Section 201 of the First Supplemental
Indenture) on the Stated Maturity specified below.
Original Issue Date: August 7, 2009
Stated Maturity: February 15, 2015
Interest Rate: 4.80%
Interest Payment Dates: February 15 and August 15, commencing February 15, 2010
Record Dates: The Business Day immediately preceding each Interest Payment Date so long as this
Senior Note is issued in book-entry only form, otherwise the fifteenth calendar day next preceding
each Interest Payment Date.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name by the
manual or facsimile signature of an Authorized Executive Officer and attested by the manual or
facsimile signature of another Authorized Executive Officer.
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FIRSTENERGY SOLUTIONS CORP.
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By:
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Name:
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Title:
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ATTEST:
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By:
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Name:
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Title:
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[FORM OF TRUSTEES AUTHENTICATION CERTIFICATE]
This is one of the Senior Notes of the series herein designated therein referred to in the
within-mentioned Indenture.
Dated:
, 20__
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
By:
Authorized Signatory
(Back of Senior Note)
FIRSTENERGY SOLUTIONS CORP.
4.80% SENIOR NOTES DUE 2015
[GLOBAL NOTE LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[TRANSFER RESTRICTION LEGEND]
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.
[144A LEGEND][REG S LEGEND (REPLACING TEMPORARY REG S LEGEND)]
NEITHER THIS SECURITY NOR ANY BENEFICIAL INTEREST HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT). EACH HOLDER HEREOF, AND EACH OWNER OF A
BENEFICIAL INTEREST HEREIN BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF FIRSTENERGY
SOLUTIONS CORP. (THE COMPANY) THAT THIS SECURITY MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (RULE 144), (3) SO LONG
AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE
144A), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH
RULE 903 OR 904 OR REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (5) IN ACCORDANCE WITH
ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
[TEMPORARY REG S LEGEND]
THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT) (OTHER THAN A DISTRIBUTOR, AS SUCH TERM IS DEFINED UNDER RULE 902(d) UNDER THE
SECURITIES ACT).
NEITHER THIS SECURITY NOR ANY BENEFICIAL INTEREST HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT. EACH HOLDER HEREOF, AND EACH OWNER OF A BENEFICIAL INTEREST HEREIN BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF FIRSTENERGY SOLUTIONS CORP. (THE COMPANY) THAT THIS
SECURITY MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE
COMPANY, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (RULE 144), (3) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE
WITH RULE 903 OR 904 OR REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) IN ACCORDANCE
WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF
THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
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Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated. The Securities are general obligations of the Company as
described in the Indenture. This Senior Note is entitled to the benefits of the FGCO Guaranty and
the NGC Guaranty on the terms set forth in the Indenture.
1.
Interest
. FIRSTENERGY SOLUTIONS CORP., an Ohio corporation (the
Company
)
promises to pay interest from the Original Issue Date specified above or from the most recent
Interest Payment Date to which Interest has been paid or duly provided for, semi-annually in
arrears on the Interest Payment Dates specified above in each year, commencing on February 15,
2010, and at Maturity, at the Interest Rate per annum specified above, until the principal hereof
is paid or made available for payment. No interest shall accrue at Maturity, so long as the
principal amount of this Senior Note is paid at Maturity. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date (except for interest payable on the
Stated Maturity specified above, or, if applicable, upon redemption or acceleration) will, as
provided in the Indenture (as defined below), be paid to the Person in whose name this Senior Note
is registered at the close of business on the Regular Record Date specified above (whether or not a
Business Day) next preceding such Interest Payment Date; and provided, that interest payable on the
Stated Maturity specified above or, if applicable, upon redemption or acceleration, shall be
payable to the Person to whom principal shall be payable on such Maturity. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Senior Note is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders not more than fifteen days or fewer than ten days prior to such Special Record
Date. Payment of principal of, interest and premium, if any, on this Senior Note shall be payable
pursuant to Section 601 of the Indenture.
No reference herein to the Indenture and no provision of this Senior Note or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest, if any, on this Senior Note at the times,
place, and rate, in the coin or currency, and in the manner, herein prescribed.
As used herein, Business Day shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State of New York, or in
the city where the Global Corporate Trust Office of the Trustee is located, are obligated or
authorized by law or executive order to close.
2.
Method of Payment
. Payment of the principal of and premium, if any, on this
Senior Note and interest hereon at the Stated Maturity shall be made upon presentation of this
Senior Note at the Global Corporate Trust Office of our designated agent, The Bank of New York
Mellon Trust Company, N.A., located at 1660 West 2nd Street, Cleveland, Ohio, 44113, or at such
other office or agency as may be designated for such purpose by the Company from time to time.
Payment of interest, if any, on this Senior Note (other than interest at the Stated Maturity) shall
be made by check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register, except that (a) if such Person shall be a securities depositary, such
payment may be made by such other means in lieu of check as shall be agreed upon by the Company,
the Trustee or other Paying Agent and such Person and (b) if such Person is a Holder of $10,000,000
or more in aggregate principal amount of Senior Notes of this series such payment may be in
immediately available funds by wire transfer to such account as may have been designated in writing
by the Person entitled thereto as set forth herein in time for the Paying Agent to make such
payments in accordance with its normal procedures. Any such designation for wire transfer purposes
shall be made by filing the appropriate information with our designated agent, The Bank of New York
Mellon Trust Company, N.A., at its Global Corporate Trust Office, located at 1660 West 2nd Street,
1
Cleveland, Ohio, 44113, not less than fifteen calendar days prior to the applicable payment
date and, unless revoked by written notice to the Trustee received on or prior to the Regular
Record Date immediately preceding the applicable Interest Payment Date, shall remain in effect with
respect to any further interest payments (other than interest payments at Maturity) with respect to
this Senior Note payable to such Holder. Payment of the principal of and premium, if any, and
interest, if any, on this Senior Note, as aforesaid, shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the payment of public
and private debts.
If any Interest Payment Date, any Redemption Date, or the Stated Maturity shall not be a
Business Day (as hereinafter defined), payment of the amounts due on this Senior Note on such date
may be made on the next succeeding Business Day; and, if such payment is made or duly provided for
on such next succeeding Business Day, no interest shall accrue on such amounts for the period from
and after such Interest Payment Date, Redemption Date, or Stated Maturity, as the case may be, to
such Business Day.
3.
Paying Agent and Security Registrar
. Initially, The Bank of New York Mellon Trust
Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Security Registrar.
The Company may change any Paying Agent or Security Registrar without notice to any Holder. The
Company or any of its subsidiaries may act in any such capacity;
provided
that if the Company or
such subsidiary is acting as Paying Agent, the Company or such subsidiary shall segregate all funds
held by it as Paying Agent and hold them in a separate trust fund for the benefit of the Holders.
4.
Registration of Transfer and Exchange
. As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Senior Note is registrable in the
Security Register, upon surrender of this Senior Note for registration of transfer at the office of
our designated agent, The Bank of New York Mellon Trust Company, N.A., located at 1660 West 2nd
Street, Cleveland, Ohio, 44113, or such other office or agency as may be designated by the Company
from time to time, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior Notes of this series of
authorized denominations and of like tenor and aggregate principal amount, will be issued to the
designated transferee or transferees.
The Company shall not be required to execute and the Security Registrar shall not be required
to register the transfer of or exchange of (a) Senior Notes of this series during a period of 15
days immediately preceding the date notice is given identifying the serial numbers of the Senior
Notes of this series called for redemption or (b) any Senior Note so selected for redemption in
whole or in part, except the unredeemed portion of any Senior Note being redeemed in part.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Senior Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Senior
Note is registered as the absolute owner hereof for all purposes, whether or not this Senior Note
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
5.
Indenture
. This Senior Note is a global security in respect of a duly authorized
issue of 4.80% Senior Notes due 2015 (the 2015 Notes, which term includes any global note
representing such Senior Notes) of the Company, issued and issuable in one or more series under
the Indenture and First Supplemental Indenture, both dated as of August 1, 2009 (such Indentures as
originally executed and
2
delivered and as supplemented or amended from time to time thereafter, together with any
constituent instruments establishing the terms of particular securities, being herein called the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., under which
The Bank of New York Mellon Trust Company, N.A. is trustee (herein called the Trustee, which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the respective rights,
limitations of rights, duties, and immunities of the Company, the Trustee, and the Holders of the
Senior Notes thereunder and of the terms and conditions upon which the Senior Notes are, and are to
be, authenticated and delivered. The acceptance of this Senior Note shall be deemed to constitute
the consent and agreement by the Holder hereof to all of the terms and provisions of the Indenture.
This Senior Note is one of the series designated above.
6.
Optional Redemption
.
This Senior Note is redeemable, at any time in whole or from time to time in part, at the
Companys option, on at least 30 days, but not more than 60 days, prior notice mailed to the
registered address of each holder of the Senior Notes. The Redemption Price will be equal to the
greater of: (1) 100% of the principal amount of the Senior Notes to be redeemed, and (2) as
determined by the Independent Investment Banker (as defined below), the sum of the present values
of the Remaining Scheduled Payments (as defined below) discounted to the Redemption Date, on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to
the sum of the Adjusted Treasury Rate (as defined below) plus 35 basis points. In each case,
accrued and unpaid interest will be payable to the Redemption Date.
Adjusted Treasury Rate means, with respect to any Redemption Date:
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the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated H.15(519) or any successor publication which
is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption Treasury Constant Maturities,
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Adjusted Treasury Rate shall be interpolated
or extrapolated from these yields on a straight line basis, rounding to the
nearest month); or
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if the release (or any successor release) is not published
during the week preceding the calculation date or does not contain these
yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for the Redemption Date. The Adjusted
Treasury Rate will be calculated on the third Business Day preceding the
Redemption Date.
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Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Senior
Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such securities (Remaining Life).
3
Comparable Treasury Price means (1) the average of three Reference Treasury Dealer
Quotations for the Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than three Reference
Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Company.
Reference Treasury Dealer means (i) each of Morgan Stanley & Co. Incorporated, Barclays
Capital Inc., Credit Suisse Securities (USA) LLC and RBS Securities Inc. and their respective
successors; provided, however, that if any of the foregoing cease to be a primary U.S. Government
securities dealer in the United States (a Primary Treasury Dealer), the Company shall substitute
therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Independent Investment Banker after consultation with the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent Investment Banker, 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 Independent Investment Banker at 5:00 p.m., New York
City time, on the third Business Day preceding the Redemption Date.
Remaining Scheduled Payments means the remaining scheduled payments of principal of and
interest on this Senior Note that would be due after the related Redemption Date but for such
redemption. If such Redemption Date is not an Interest Payment Date with respect to this Senior
Note, the amount of the next succeeding scheduled interest payment on this Senior Note will be
reduced by the amount of interest accrued on this Senior Note to such Redemption Date.
On and after the Redemption Date, interest will cease to accrue on this Senior Note or any
portion of the Senior Note called for redemption (unless the Company defaults in the payment of the
Redemption Price and accrued interest. On or before the Redemption Date, the Company will deposit
with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest on the
Senior Note to be redeemed on such date. If less than all the Senior Notes of any series are to be
redeemed, the Senior Notes to be redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate.
7.
Mandatory Redemption
.
The Company shall not be required to make mandatory redemption or sinking fund payments with
respect to the Senior Notes.
8.
Notice of Redemption
. Notice of redemption shall be given by mail to Holders of
Senior Notes, not less than 30 days nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. As provided in the Indenture, notice of redemption at the
election of the Company as aforesaid may state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents of money sufficient to pay the principal of and premium, if
any, and interest, if any, on this Senior Note on or prior to the date fixed for such redemption; a
notice of redemption so conditioned shall be of no force or effect if such money is not so received
and, in such event, the Company shall not be required to redeem this Senior Note.
4
In the event of redemption of this Senior Note in part only, a new Senior Note or Senior Notes
of this series, of like tenor, representing the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
9.
Repurchase at Option of Holder
. If a Change of Control Triggering Event occurs,
each Holder of Senior Notes will have the right to require the Company to repurchase all or any
part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes
pursuant to an offer (a Change of Control Offer) on the terms set forth in the Indenture. In the
Change of Control Offer, the Company shall offer payment (a Change of Control Purchase Price) in
cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the date of repurchase (the Change of
Control Payment Date, which date will be no earlier than the date of such Change of Control). No
later than 30 days following any Change of Control Triggering Event, the Company shall mail a
notice to each Holder stating that a Change of Control Triggering Event has occurred and offering
to repurchase Senior Notes on the Change of Control Payment Date specified in such notice, which
date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by the Indenture and described in such notice. Holders of
Senior Notes electing to have Senior Notes purchased pursuant to a Change of Control Offer will be
required to surrender their Senior Notes, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Senior Note completed, to the Paying Agent at the address specified
in the notice, or transfer their Senior Notes to the Paying Agent by book-entry transfer pursuant
to the applicable procedures of the Paying Agent, prior to the close of business on the third
Business Day prior to the Change of Control Payment Date.
10.
Restrictions on Transfer
. Each Holder shall be deemed to understand that the
offer and sale of this Senior Note has not been registered under the Securities Act and that this
Senior Note may not be offered or sold except as permitted in the following sentence. Each Holder
shall be deemed to agree, on its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that if such Holder sells any Senior Notes, such Holder will do so only (A) to
the Company, (B) pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), (C) so long as such Senior Note is eligible for resale pursuant to
Rule 144A under the Securities Act (Rule 144A) to a person whom it reasonably believes is a
qualified institutional buyer within the meaning of Rule 144A that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, (D) in an offshore transaction in
accordance with Rule 903 or 904 of Regulation S under the Securities Act, (E) in accordance with
another applicable exemption from the registration requirements of the Securities Act (and based
upon an Opinion of Counsel acceptable to the Company), or (F) 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 each Holder is further deemed to agree to provide to
any person purchasing any Securities from it a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
Each Holder shall be deemed to understand that, on any proposed resale of any Senior Notes
pursuant to the exemption from registration under Rule 144 under the Securities Act, any Holder
making any such proposed resale will be required to furnish to the Trustee and Company such
certifications, legal opinions, and other information as the Trustee and Company may reasonably
require to confirm that the proposed sale complies with the foregoing restrictions.
11.
Denominations, Transfer, Exchange
. The Senior Notes of this series are issuable
only as registered Senior Notes, without coupons, and in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set
5
forth, Senior Notes of this series are exchangeable for a like aggregate principal amount of
Senior Notes of the same series and tranche, of any authorized denominations, as requested by the
Holder surrendering the same, and of like tenor upon surrender of the Senior Note or Senior Notes
to be exchanged at the Corporate Trust Administration Office of our designated agent, The Bank of
New York Mellon Trust Company, N.A., located at 1660 West 2nd Street, Cleveland, Ohio, 44113, or
such other office or agency as may be designated by the Company from time to time.
12.
Amendment, Supplement and Waiver
. The Indenture permits, with certain exceptions
as therein provided, the Trustee to enter into one or more supplemental indentures for the purpose
of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the
Indenture with the consent of the Holders of a majority in aggregate principal amount of the Senior
Notes of all series then outstanding under the Indenture; provided, however, that if there shall be
Senior Notes of more than one series outstanding under the Indenture and if a proposed
supplemental indenture shall directly affect the rights of the Holders of Senior Notes of any such
series, then the consent of the Holders of only a majority in aggregate principal amount of the
outstanding Senior Notes of all series so directly affected, considered as one class, shall be
required; and provided, further, that if the Senior Notes of any series shall have been issued in
more than one tranche and if the proposed supplemental indenture shall directly affect the rights
of the Holders of Senior Notes of one or more, but less than all, of such tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the outstanding Senior
Notes of all tranches so directly affected, considered as one class, shall be required; and
provided, further, that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of Senior Notes. The Indenture
also contains provisions permitting the Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding, on behalf of the Holders of all Senior Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Senior Note and of any
Senior Note issued upon the registration of transfer hereof or in exchange therefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Senior Note.
13.
Defaults and Remedies
. If an Event of Default with respect to the Senior Notes
of this series shall occur and be continuing, the principal of this Senior Note may be declared due
and payable in the manner and with the effect provided in the Indenture.
14.
No Recourse Against Others
. As provided in the Indenture, no recourse shall be
had for the payment of the principal of or premium, if any, or interest, if any, on any Senior
Notes, or any part thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant, or agreement under the
Indenture, against, and no personal liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer, or director, as such, past, present, or future of the Company
or of any predecessor or successor corporation (either directly or through the Company, or a
predecessor or successor corporation), whether by virtue of any constitutional provision, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that the Indenture and this Senior Note are solely corporate obligations and
that any such personal liability is hereby expressly waived and released as a condition of, and as
part of the consideration for, the execution of the Indenture and the issuance of this Senior Note.
15.
Authentication
. Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual signature, this Senior Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
6
16.
Additional Rights of Holders
. Pursuant to the Registration Rights Agreement
dated August 7, 2009 between the Company and Morgan Stanley & Co. Incorporated, Barclays Capital
Inc., Credit Suisse Securities (USA) LLC and RBS Securities Inc., as representatives of the initial
purchasers (the Registration Rights Agreement), the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Senior Note shall have the right to exchange
this Senior Note for the Companys 4.80% Exchange Senior Note due 2015 (the 2015 Exchange Note),
at such time as such 2015 Exchange Note shall have been registered under the Securities Act, in
like principal amount and having terms identical in all material respects to this Senior Note
(except that such 2015 Exchange Note will not contain terms with respect to registration rights,
the payment of additional interest, and other provisions restricting transfers and resales,
including this paragraph). The Holders of this Senior Note shall be entitled to receive certain
additional interest payments at the rate per annum of 0.25% in the event such exchange offer is not
consummated within 210 days after the Closing Date (as defined in the Registration Rights
Agreement) and upon certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
17.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Senior Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Senior Notes or as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:
FirstEnergy Solutions Corp.
c/o FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308-1890
Attention: Shareholder Services
(800) 736-3402
18.
Discharge and Defeasance
. As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Senior Note or any portion of the principal amount
hereof will be deemed to have been paid for all purposes of the Indenture and to be no longer
outstanding thereunder, and, at the election of the Company, the Companys entire indebtedness in
respect thereof will be satisfied and discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust, money in an amount which will be
sufficient and/or Eligible Obligations, the principal of and interest on which when due, without
any regard to reinvestment thereof, will provide moneys which, together with moneys so deposited,
will be sufficient to pay when due the principal of and premium, if any, and interest, if any, on
this Senior Note when due.
19.
Merger, Consolidation
. The Indenture contains terms, provisions, and conditions
relating to the consolidation or merger of the Company with or into, and the conveyance or other
transfer, or lease, of assets to, another Person, to the assumption by such other Person, in
certain circumstances, of all of the obligations of the Company under the Indenture and on the
Senior Notes and to the release and discharge of the Company in certain circumstances, from such
obligations.
20.
Governing Law
. The Indenture, the Supplemental Indenture and the Senior Notes
shall be governed by and construed in accordance with the laws of the State of New York.
7
CERTIFICATE OF TRANSFER
4.80% SENIOR NOTE DUE 2015
FOR VALUE RECEIVED
, the undersigned sells, assigns, and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten:
$
principal amount of or beneficial interests* in the within Senior Note of the Company and
does hereby irrevocably constitute and appoint to transfer the said principal amount of or
beneficial interests in said Senior Note on the books of the within-named Company, with full
power of substitution in the premises.
The undersigned certifies that said principal amount of or beneficial interests in said
Senior Note are being resold, pledged, or otherwise transferred as follows: (check one)
o
to the Company;
o
pursuant to an exemption from registration provided by Rule 144 under the Securities Act
(if available);
o
to a Person whom the undersigned reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act of 1933, as amended (the Securities
Act) purchasing for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge, or other transfer is being made in reliance on
Rule 144A;
o
in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the
Securities Act;
o
as otherwise permitted by the non-registration legend appearing on this Senior Note; or
o
as otherwise agreed by the Company, confirmed in writing to the Trustee, as follows:
[describe]
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Dated:
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Signature:
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Print name:
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NOTICE.
The signature to this assignment must correspond with the name as written upon the
face of the Senior Note in every particular without alteration or enlargement or any change
whatsoever.
SIGNATURE GUARANTEE.
Signatures must be guaranteed by an eligible guarantor institution
meeting the requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (STAMP) or such other
signature guarantee program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
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*
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transfers of beneficial interests in this security may be made only
to another global security of the same series or as otherwise permitted by
applicable securities laws.
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8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company pursuant to Section 302
of the First Supplemental Indenture, check the box below:
o
Section 302
If you want to elect to have only part of the Senior Note purchased by the Company pursuant to
Section 302 of the First Supplemental Indenture, state the amount you elect to have purchased:
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$
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face
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of this Senior Note)
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Tax Identification No.:
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Signature Guarantee
1
:
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1
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
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9
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS
IN THE GLOBAL SECURITIES
The following increases or decreases in this Global Security have been made:
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Amount of
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decrease
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Principal Amount
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in Principal
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Amount of increase
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of this Global
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Amount of
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in Principal Amount
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Security following
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Signature of
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Date of
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this Global
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of
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such decrease
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authorized officer of
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Exchange
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Security
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this Global Security
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(or increase)
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Trustee
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10
AFFIRMATION OF GUARANTY
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the Holder of the Senior Notes to which this affirmation is attached and the Trustee are
Guaranteed Parties (as defined in the Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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AFFIRMATION OF GUARANTY
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the Holder of the Senior Notes to which this affirmation is attached and the Trustee are
Guaranteed Parties (as defined in the Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY NUCLEAR GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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EXHIBIT B
[FORM OF 2021 SENIOR NOTE]
CUSIP NUMBER [ ]
ISIN NUMBER [ ]
(Face of Senior Note)
FIRSTENERGY SOLUTIONS CORP.
6.05% SENIOR NOTES DUE 2021
No. __
$[ ]
FIRSTENERGY SOLUTIONS CORP., an Ohio corporation(the Company), for value received, hereby
promises to pay to CEDE & CO. or registered assigns, the principal sum of [ ] Dollars, or such
greater or lesser amount as may from time to time be endorsed on the Schedule of Increases and
Decreases of Interests in the Global Securities attached hereto (but in no event may such amount
exceed the aggregate principal amount of Senior Notes authenticated pursuant to Section 303 of the
Indenture referred to below and then outstanding pursuant to Section 201 of the First Supplemental
Indenture) on the Stated Maturity specified below.
Original Issue Date: August 7, 2009
Stated Maturity: August 15, 2021
Interest Rate: 6.05%
Interest Payment Dates: February 15 and August 15, commencing February 15, 2010
Record Dates: The Business Day immediately preceding each Interest Payment Date so long as this
Senior Note is issued in book-entry only form, otherwise the fifteenth calendar day next preceding
each Interest Payment Date.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name by the
manual or facsimile signature of an Authorized Executive Officer and attested by the manual or
facsimile signature of another Authorized Executive Officer.
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FIRSTENERGY SOLUTIONS CORP.
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By:
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Name:
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Title:
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ATTEST:
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By:
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Name:
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Title:
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[FORM OF TRUSTEES AUTHENTICATION CERTIFICATE]
This is one of the Senior Notes of the series herein designated therein referred to in the
within-mentioned Indenture.
Dated:
, 20__
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
(Back of Senior Note)
FIRSTENERGY SOLUTIONS CORP.
6.05% SENIOR NOTES DUE 2021
[GLOBAL NOTE LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[TRANSFER RESTRICTION LEGEND]
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.
[144A LEGEND][REG S LEGEND (REPLACING TEMPORARY REG S LEGEND)]
NEITHER THIS SECURITY NOR ANY BENEFICIAL INTEREST HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT). EACH HOLDER HEREOF, AND EACH OWNER OF A
BENEFICIAL INTEREST HEREIN BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF FIRSTENERGY
SOLUTIONS CORP. (THE COMPANY) THAT THIS SECURITY MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (RULE 144), (3) SO LONG
AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE
144A), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH
RULE 903 OR 904 OR REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (5) IN ACCORDANCE WITH
ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
[TEMPORARY REG S LEGEND]
THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT) (OTHER THAN A DISTRIBUTOR, AS SUCH TERM IS DEFINED UNDER RULE 902(d) UNDER THE
SECURITIES ACT).
NEITHER THIS SECURITY NOR ANY BENEFICIAL INTEREST HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT. EACH HOLDER HEREOF, AND EACH OWNER OF A BENEFICIAL INTEREST HEREIN BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF FIRSTENERGY SOLUTIONS CORP. (THE COMPANY) THAT THIS
SECURITY MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE
COMPANY, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (RULE 144), (3) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE
WITH RULE 903 OR 904 OR REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) IN ACCORDANCE
WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF
THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated. The Securities are general obligations of the Company as
described in the Indenture. This Senior Note is entitled to the benefits of the FGCO Guaranty and
the NGC Guaranty on the terms set forth in the Indenture.
1.
Interest
. FIRSTENERGY SOLUTIONS CORP., an Ohio corporation (the
Company
)
promises to pay interest from the Original Issue Date specified above or from the most recent
Interest Payment Date to which Interest has been paid or duly provided for, semi-annually in
arrears on the Interest Payment Dates specified above in each year, commencing on February 15,
2010, and at Maturity, at the Interest Rate per annum specified above, until the principal hereof
is paid or made available for payment. No interest shall accrue at Maturity, so long as the
principal amount of this Senior Note is paid at Maturity. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date (except for interest payable on the
Stated Maturity specified above, or, if applicable, upon redemption or acceleration) will, as
provided in the Indenture (as defined below), be paid to the Person in whose name this Senior Note
is registered at the close of business on the Regular Record Date specified above (whether or not a
Business Day) next preceding such Interest Payment Date; and provided, that interest payable on the
Stated Maturity specified above or, if applicable, upon redemption or acceleration, shall be
payable to the Person to whom principal shall be payable on such Maturity. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Senior Note is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders not more than fifteen days or fewer than ten days prior to such Special Record
Date. Payment of principal of, interest and premium, if any, on this Senior Note shall be payable
pursuant to Section 601 of the Indenture.
No reference herein to the Indenture and no provision of this Senior Note or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest, if any, on this Senior Note at the times,
place, and rate, in the coin or currency, and in the manner, herein prescribed.
As used herein, Business Day shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State of New York, or in
the city where the Global Corporate Trust Office of the Trustee is located, are obligated or
authorized by law or executive order to close.
2.
Method of Payment
. Payment of the principal of and premium, if any, on this
Senior Note and interest hereon at the Stated Maturity shall be made upon presentation of this
Senior Note at the Global Corporate Trust Office of our designated agent, The Bank of New York
Mellon Trust Company, N.A., located at 1660 West 2nd Street, Cleveland, Ohio, 44113, or at such
other office or agency as may be designated for such purpose by the Company from time to time.
Payment of interest, if any, on this Senior Note (other than interest at the Stated Maturity) shall
be made by check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register, except that (a) if such Person shall be a securities depositary, such
payment may be made by such other means in lieu of check as shall be agreed upon by the Company,
the Trustee or other Paying Agent and such Person and (b) if such Person is a Holder of $10,000,000
or more in aggregate principal amount of Senior Notes of this series such payment may be in
immediately available funds by wire transfer to such account as may have been designated in writing
by the Person entitled thereto as set forth herein in time for the Paying Agent to make such
payments in accordance with its normal procedures. Any such designation for wire transfer purposes
shall be made by filing the appropriate information with our designated agent, The Bank of New York
Mellon Trust Company, N.A., at its Global Corporate Trust Office, located at 1660 West 2nd Street,
1
Cleveland, Ohio, 44113, not less than fifteen calendar days prior to the applicable payment
date and, unless revoked by written notice to the Trustee received on or prior to the Regular
Record Date immediately preceding the applicable Interest Payment Date, shall remain in effect with
respect to any further interest payments (other than interest payments at Maturity) with respect to
this Senior Note payable to such Holder. Payment of the principal of and premium, if any, and
interest, if any, on this Senior Note, as aforesaid, shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the payment of public
and private debts.
If any Interest Payment Date, any Redemption Date, or the Stated Maturity shall not be a
Business Day (as hereinafter defined), payment of the amounts due on this Senior Note on such date
may be made on the next succeeding Business Day; and, if such payment is made or duly provided for
on such next succeeding Business Day, no interest shall accrue on such amounts for the period from
and after such Interest Payment Date, Redemption Date, or Stated Maturity, as the case may be, to
such Business Day.
3.
Paying Agent and Security Registrar
. Initially, The Bank of New York Mellon Trust
Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Security Registrar.
The Company may change any Paying Agent or Security Registrar without notice to any Holder. The
Company or any of its subsidiaries may act in any such capacity;
provided
that if the Company or
such subsidiary is acting as Paying Agent, the Company or such subsidiary shall segregate all funds
held by it as Paying Agent and hold them in a separate trust fund for the benefit of the Holders.
4.
Registration of Transfer and Exchange
. As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Senior Note is registrable in the
Security Register, upon surrender of this Senior Note for registration of transfer at the office of
our designated agent, The Bank of New York Mellon Trust Company, N.A., located at 1660 West 2nd
Street, Cleveland, Ohio, 44113, or such other office or agency as may be designated by the Company
from time to time, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior Notes of this series of
authorized denominations and of like tenor and aggregate principal amount, will be issued to the
designated transferee or transferees.
The Company shall not be required to execute and the Security Registrar shall not be required
to register the transfer of or exchange of (a) Senior Notes of this series during a period of 15
days immediately preceding the date notice is given identifying the serial numbers of the Senior
Notes of this series called for redemption or (b) any Senior Note so selected for redemption in
whole or in part, except the unredeemed portion of any Senior Note being redeemed in part.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Senior Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Senior
Note is registered as the absolute owner hereof for all purposes, whether or not this Senior Note
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
5.
Indenture
. This Senior Note is a global security in respect of a duly authorized
issue of 6.05% Senior Notes due 2021 (the 2021 Notes, which term includes any global note
representing such Senior Notes) of the Company, issued and issuable in one or more series under
the Indenture and First Supplemental Indenture, both dated as of August 1, 2009 (such Indentures as
originally executed and
2
delivered and as supplemented or amended from time to time thereafter, together with any
constituent instruments establishing the terms of particular securities, being herein called the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., under which
The Bank of New York Mellon Trust Company, N.A. is trustee (herein called the Trustee, which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the respective rights,
limitations of rights, duties, and immunities of the Company, the Trustee, and the Holders of the
Senior Notes thereunder and of the terms and conditions upon which the Senior Notes are, and are to
be, authenticated and delivered. The acceptance of this Senior Note shall be deemed to constitute
the consent and agreement by the Holder hereof to all of the terms and provisions of the Indenture.
This Senior Note is one of the series designated above.
6.
Optional Redemption
.
This Senior Note is redeemable, at any time in whole or from time to time in part, at the
Companys option, on at least 30 days, but not more than 60 days, prior notice mailed to the
registered address of each holder of the Senior Notes. The Redemption Price will be equal to the
greater of: (1) 100% of the principal amount of the Senior Notes to be redeemed, and (2) as
determined by the Independent Investment Banker (as defined below), the sum of the present values
of the Remaining Scheduled Payments (as defined below) discounted to the Redemption Date, on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to
the sum of the Adjusted Treasury Rate (as defined below) plus 40 basis points. In each case,
accrued and unpaid interest will be payable to the Redemption Date.
Adjusted Treasury Rate means, with respect to any Redemption Date:
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the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated H.15(519) or any successor publication which
is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption Treasury Constant Maturities,
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Adjusted Treasury Rate shall be interpolated
or extrapolated from these yields on a straight line basis, rounding to the
nearest month); or
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if the release (or any successor release) is not published
during the week preceding the calculation date or does not contain these
yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for the Redemption Date. The Adjusted
Treasury Rate will be calculated on the third Business Day preceding the
Redemption Date.
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Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Senior
Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such securities (Remaining Life).
3
Comparable Treasury Price means (1) the average of three Reference Treasury Dealer
Quotations for the Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than three Reference
Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Company.
Reference Treasury Dealer means (i) each of Morgan Stanley & Co. Incorporated, Barclays
Capital Inc., Credit Suisse Securities (USA) LLC and RBS Securities Inc. and their respective
successors; provided, however, that if any of the foregoing cease to be a primary U.S. Government
securities dealer in the United States (a Primary Treasury Dealer), the Company shall substitute
therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Independent Investment Banker after consultation with the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent Investment Banker, 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 Independent Investment Banker at 5:00 p.m., New York
City time, on the third Business Day preceding the Redemption Date.
Remaining Scheduled Payments means the remaining scheduled payments of principal of and
interest on this Senior Note that would be due after the related Redemption Date but for such
redemption. If such Redemption Date is not an Interest Payment Date with respect to this Senior
Note, the amount of the next succeeding scheduled interest payment on this Senior Note will be
reduced by the amount of interest accrued on this Senior Note to such Redemption Date.
On and after the Redemption Date, interest will cease to accrue on this Senior Note or any
portion of the Senior Note called for redemption (unless the Company defaults in the payment of the
Redemption Price and accrued interest. On or before the Redemption Date, the Company will deposit
with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest on the
Senior Note to be redeemed on such date. If less than all the Senior Notes of any series are to be
redeemed, the Senior Notes to be redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate.
7.
Mandatory Redemption
.
The Company shall not be required to make mandatory redemption or sinking fund payments with
respect to the Senior Notes.
8.
Notice of Redemption
. Notice of redemption shall be given by mail to Holders of
Senior Notes, not less than 30 days nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. As provided in the Indenture, notice of redemption at the
election of the Company as aforesaid may state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents of money sufficient to pay the principal of and premium, if
any, and interest, if any, on this Senior Note on or prior to the date fixed for such redemption; a
notice of redemption so conditioned shall be of no force or effect if such money is not so received
and, in such event, the Company shall not be required to redeem this Senior Note.
4
In the event of redemption of this Senior Note in part only, a new Senior Note or Senior Notes
of this series, of like tenor, representing the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
9.
Repurchase at Option of Holder
. If a Change of Control Triggering Event occurs, each
Holder of Senior Notes will have the right to require the Company to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes
pursuant to an offer (a Change of Control Offer) on the terms set forth in the Indenture. In the
Change of Control Offer, the Company shall offer payment (a Change of Control Purchase Price) in
cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the date of repurchase (the Change of
Control Payment Date, which date will be no earlier than the date of such Change of Control). No
later than 30 days following any Change of Control Triggering Event, the Company shall mail a
notice to each Holder stating that a Change of Control Triggering Event has occurred and offering
to repurchase Senior Notes on the Change of Control Payment Date specified in such notice, which
date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by the Indenture and described in such notice. Holders of
Senior Notes electing to have Senior Notes purchased pursuant to a Change of Control Offer will be
required to surrender their Senior Notes, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Senior Note completed, to the Paying Agent at the address specified
in the notice, or transfer their Senior Notes to the Paying Agent by book-entry transfer pursuant
to the applicable procedures of the Paying Agent, prior to the close of business on the third
Business Day prior to the Change of Control Payment Date.
10.
Restrictions on Transfer
. Each Holder shall be deemed to understand that the
offer and sale of this Senior Note has not been registered under the Securities Act and that this
Senior Note may not be offered or sold except as permitted in the following sentence. Each Holder
shall be deemed to agree, on its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that if such Holder sells any Senior Notes, such Holder will do so only (A) to
the Company, (B) pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), (C) so long as such Senior Note is eligible for resale pursuant to
Rule 144A under the Securities Act (Rule 144A) to a person whom it reasonably believes is a
qualified institutional buyer within the meaning of Rule 144A that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, (D) in an offshore transaction in
accordance with Rule 903 or 904 of Regulation S under the Securities Act, (E) in accordance with
another applicable exemption from the registration requirements of the Securities Act (and based
upon an Opinion of Counsel acceptable to the Company), or (F) 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 each Holder is further deemed to agree to provide to
any person purchasing any Securities from it a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
Each Holder shall be deemed to understand that, on any proposed resale of any Senior Notes
pursuant to the exemption from registration under Rule 144 under the Securities Act, any Holder
making any such proposed resale will be required to furnish to the Trustee and Company such
certifications, legal opinions, and other information as the Trustee and Company may reasonably
require to confirm that the proposed sale complies with the foregoing restrictions.
11.
Denominations, Transfer, Exchange
. The Senior Notes of this series are issuable
only as registered Senior Notes, without coupons, and in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set
5
forth, Senior Notes of this series are exchangeable for a like aggregate principal amount of
Senior Notes of the same series and tranche, of any authorized denominations, as requested by the
Holder surrendering the same, and of like tenor upon surrender of the Senior Note or Senior Notes
to be exchanged at the Corporate Trust Administration Office of our designated agent, The Bank of
New York Mellon Trust Company, N.A., located at 1660 West 2nd Street, Cleveland, Ohio, 44113, or
such other office or agency as may be designated by the Company from time to time.
12.
Amendment, Supplement and Waiver
. The Indenture permits, with certain exceptions
as therein provided, the Trustee to enter into one or more supplemental indentures for the purpose
of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the
Indenture with the consent of the Holders of a majority in aggregate principal amount of the Senior
Notes of all series then outstanding under the Indenture; provided, however, that if there shall be
Senior Notes of more than one series outstanding under the Indenture and if a proposed
supplemental indenture shall directly affect the rights of the Holders of Senior Notes of any such
series, then the consent of the Holders of only a majority in aggregate principal amount of the
outstanding Senior Notes of all series so directly affected, considered as one class, shall be
required; and provided, further, that if the Senior Notes of any series shall have been issued in
more than one tranche and if the proposed supplemental indenture shall directly affect the rights
of the Holders of Senior Notes of one or more, but less than all, of such tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the outstanding Senior
Notes of all tranches so directly affected, considered as one class, shall be required; and
provided, further, that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of Senior Notes. The Indenture
also contains provisions permitting the Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding, on behalf of the Holders of all Senior Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Senior Note and of any
Senior Note issued upon the registration of transfer hereof or in exchange therefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Senior Note.
13.
Defaults and Remedies
. If an Event of Default with respect to the Senior Notes
of this series shall occur and be continuing, the principal of this Senior Note may be declared due
and payable in the manner and with the effect provided in the Indenture.
14.
No Recourse Against Others
. As provided in the Indenture, no recourse shall be
had for the payment of the principal of or premium, if any, or interest, if any, on any Senior
Notes, or any part thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant, or agreement under the
Indenture, against, and no personal liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer or director, as such, past, present, or future of the Company or
of any predecessor or successor corporation (either directly or through the Company, or a
predecessor or successor corporation), whether by virtue of any constitutional provision, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that the Indenture and this Senior Note are solely corporate obligations and
that any such personal liability is hereby expressly waived and released as a condition of, and as
part of the consideration for, the execution of the Indenture and the issuance of this Senior Note.
15.
Authentication
. Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual signature, this Senior Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
6
16.
Additional Rights of Holders
. Pursuant to the Registration Rights Agreement
dated August 7, 2009 between the Company and Morgan Stanley & Co. Incorporated, Barclays Capital
Inc., Credit Suisse Securities (USA) LLC and RBS Securities Inc., as representatives of the initial
purchasers (the Registration Rights Agreement), the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Senior Note shall have the right to exchange
this Senior Note for the Companys 6.05% Exchange Senior Note due 2021 (the 2021 Exchange Note),
at such time as such 2021 Exchange Note shall have been registered under the Securities Act, in
like principal amount and having terms identical in all material respects to this Senior Note
(except that such 2021 Exchange Note will not contain terms with respect to registration rights,
the payment of additional interest, and other provisions restricting transfers and resales,
including this paragraph). The Holders of this Senior Note shall be entitled to receive certain
additional interest payments at the rate per annum of 0.25% in the event such exchange offer is not
consummated within 210 days after the Closing Date (as defined in the Registration Rights
Agreement) and upon certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
17.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Senior Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Senior Notes or as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:
FirstEnergy Solutions Corp.
c/o FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308-1890
Attention: Shareholder Services
(800) 736-3402
18.
Discharge and Defeasance
. As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Senior Note or any portion of the principal amount
hereof will be deemed to have been paid for all purposes of the Indenture and to be no longer
outstanding thereunder, and, at the election of the Company, the Companys entire indebtedness in
respect thereof will be satisfied and discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust, money in an amount which will be
sufficient and/or Eligible Obligations, the principal of and interest on which when due, without
any regard to reinvestment thereof, will provide moneys which, together with moneys so deposited,
will be sufficient to pay when due the principal of and premium, if any, and interest, if any, on
this Senior Note when due.
19.
Merger, Consolidation
. The Indenture contains terms, provisions, and conditions
relating to the consolidation or merger of the Company with or into, and the conveyance or other
transfer, or lease, of assets to, another Person, to the assumption by such other Person, in
certain circumstances, of all of the obligations of the Company under the Indenture and on the
Senior Notes and to the release and discharge of the Company in certain circumstances, from such
obligations.
20.
Governing Law
. The Indenture, the Supplemental Indenture and the Senior Notes
shall be governed by and construed in accordance with the laws of the State of New York.
7
CERTIFICATE OF TRANSFER
6.05% SENIOR NOTE DUE 2021
FOR VALUE RECEIVED
, the undersigned sells, assigns, and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten:
principal amount of or beneficial interests* in the within Senior Note of the Company and
does hereby irrevocably constitute and appoint
to transfer the said principal amount of or
beneficial interests in said Senior Note on the books of the within-named Company, with full
power of substitution in the premises.
The undersigned certifies that said principal amount of or beneficial interests in said
Senior Note are being resold, pledged, or otherwise transferred as follows: (check one)
o
to the Company;
o
pursuant to an exemption from registration provided by Rule 144 under the Securities Act
(if available);
o
to a Person whom the undersigned reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act of 1933, as amended (the Securities
Act) purchasing for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge, or other transfer is being made in reliance on
Rule 144A;
o
in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the
Securities Act;
o
as otherwise permitted by the non-registration legend appearing on this Senior Note; or
o
as otherwise agreed by the Company, confirmed in writing to the Trustee, as follows:
[describe]
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Dated:
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Signature:
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Print name:
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NOTICE.
The signature to this assignment must correspond with the name as written upon the
face of the Senior Note in every particular without alteration or enlargement or any change
whatsoever.
SIGNATURE GUARANTEE.
Signatures must be guaranteed by an eligible guarantor institution
meeting the requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (STAMP) or such other
signature guarantee program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
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*
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transfers of beneficial interests in this security may be made only
to another global security of the same series or as otherwise permitted by
applicable securities laws.
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8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company pursuant to Section 302
of the First Supplemental Indenture, check the box below:
o
Section 302
If you want to elect to have only part of the Senior Note purchased by the Company pursuant to
Section 302 of the First Supplemental Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature:
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(Sign exactly as your name appears on the face
of this Senior Note)
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Tax Identification No.:
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Signature Guarantee
1
:
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1
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
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9
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS
IN THE GLOBAL SECURITIES
The following increases or decreases in this Global Security have been made:
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Amount of
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decrease
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Principal Amount
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in Principal
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Amount of increase
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of this Global
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Amount of
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in Principal Amount
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Security following
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Signature of
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Date of
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this Global
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of
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such decrease
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authorized officer of
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Exchange
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Security
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this Global Security
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(or increase)
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Trustee
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10
AFFIRMATION OF GUARANTY
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the Holder of the Senior Notes to which this affirmation is attached and the Trustee are
Guaranteed Parties (as defined in the Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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AFFIRMATION OF GUARANTY
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the Holder of the Senior Notes to which this affirmation is attached and the Trustee are
Guaranteed Parties (as defined in the Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY NUCLEAR GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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EXHIBIT C
[FORM OF 2039 SENIOR NOTE]
CUSIP NUMBER [ ]
ISIN NUMBER [ ]
(Face of Senior Note)
FIRSTENERGY SOLUTIONS CORP.
6.80% SENIOR NOTES DUE 2039
No. __
$[ ]
FIRSTENERGY SOLUTIONS CORP., an Ohio corporation (the Company), for value received, hereby
promises to pay to CEDE & CO. or registered assigns, the principal sum of [ ] Dollars, or such
greater or lesser amount as may from time to time be endorsed on the Schedule of Increases and
Decreases of Interests in the Global Securities attached hereto (but in no event may such amount
exceed the aggregate principal amount of Senior Notes authenticated pursuant to Section 303 of the
Indenture referred to below and then outstanding pursuant to Section 201 of the First Supplemental
Indenture) on the Stated Maturity specified below.
Original Issue Date: August 7, 2009
Stated Maturity: August 15, 2039
Interest Rate: 6.80%
Interest Payment Dates: February 15 and August 15, commencing February 15, 2010
Record Dates: The Business Day immediately preceding each Interest Payment Date so long as this
Senior Note is issued in book-entry only form, otherwise the fifteenth calendar day next preceding
each Interest Payment Date.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name by the
manual or facsimile signature of an Authorized Executive Officer and attested by the manual or
facsimile signature of another Authorized Executive Officer.
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FIRSTENERGY SOLUTIONS CORP.
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By:
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Name:
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Title:
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[FORM OF TRUSTEES AUTHENTICATION CERTIFICATE]
This is one of the Senior Notes of the series herein designated therein referred to in the
within-mentioned Indenture.
Dated:
, 20___
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
(Back of Senior Note)
FIRSTENERGY SOLUTIONS CORP.
6.80% SENIOR NOTES DUE 2039
[GLOBAL NOTE LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[TRANSFER RESTRICTION LEGEND]
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.
[144A LEGEND][REG S LEGEND (REPLACING TEMPORARY REG S LEGEND)]
NEITHER THIS SECURITY NOR ANY BENEFICIAL INTEREST HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT). EACH HOLDER HEREOF, AND EACH OWNER OF A
BENEFICIAL INTEREST HEREIN BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF FIRSTENERGY
SOLUTIONS CORP. (THE COMPANY) THAT THIS SECURITY MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (RULE 144), (3) SO LONG
AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE
144A), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH
RULE 903 OR 904 OR REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (5) IN ACCORDANCE WITH
ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
[TEMPORARY REG S LEGEND]
THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT) (OTHER THAN A DISTRIBUTOR, AS SUCH TERM IS DEFINED UNDER RULE 902(d) UNDER THE
SECURITIES ACT).
NEITHER THIS SECURITY NOR ANY BENEFICIAL INTEREST HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT. EACH HOLDER HEREOF, AND EACH OWNER OF A BENEFICIAL INTEREST HEREIN BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF FIRSTENERGY SOLUTIONS CORP. (THE COMPANY) THAT THIS
SECURITY MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE
COMPANY, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (RULE 144), (3) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE
WITH RULE 903 OR 904 OR REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) IN ACCORDANCE
WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF
THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated. The Securities are general obligations of the Company as
described in the Indenture. This Senior Note is entitled to the benefits of the FGCO Guaranty and
the NGC Guaranty on the terms set forth in the Indenture.
1.
Interest
. FIRSTENERGY SOLUTIONS CORP., an Ohio corporation (the
Company
)
promises to pay interest from the Original Issue Date specified above or from the most recent
Interest Payment Date to which Interest has been paid or duly provided for, semi-annually in
arrears on the Interest Payment Dates specified above in each year, commencing on February 15,
2010, and at Maturity, at the Interest Rate per annum specified above, until the principal hereof
is paid or made available for payment. No interest shall accrue at Maturity, so long as the
principal amount of this Senior Note is paid at Maturity. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date (except for interest payable on the
Stated Maturity specified above, or, if applicable, upon redemption or acceleration) will, as
provided in the Indenture (as defined below), be paid to the Person in whose name this Senior Note
is registered at the close of business on the Regular Record Date specified above (whether or not a
Business Day) next preceding such Interest Payment Date; and provided, that interest payable on the
Stated Maturity specified above or, if applicable, upon redemption or acceleration, shall be
payable to the Person to whom principal shall be payable on such Maturity. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Senior Note is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders not more than fifteen days or fewer than ten days prior to such Special Record
Date. Payment of principal of, interest and premium, if any, on this Senior Note shall be payable
pursuant to Section 601 of the Indenture.
No reference herein to the Indenture and no provision of this Senior Note or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest, if any, on this Senior Note at the times,
place, and rate, in the coin or currency, and in the manner, herein prescribed.
As used herein, Business Day shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State of New York, or in
the city where the Global Corporate Trust Office of the Trustee is located, are obligated or
authorized by law or executive order to close.
2.
Method of Payment
. Payment of the principal of and premium, if any, on this
Senior Note and interest hereon at the Stated Maturity shall be made upon presentation of this
Senior Note at the Global Corporate Trust Office of our designated agent, The Bank of New York
Mellon Trust Company, N.A., located at 1660 West 2nd Street, Cleveland, Ohio, 44113, or at such
other office or agency as may be designated for such purpose by the Company from time to time.
Payment of interest, if any, on this Senior Note (other than interest at the Stated Maturity) shall
be made by check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register, except that (a) if such Person shall be a securities depositary, such
payment may be made by such other means in lieu of check as shall be agreed upon by the Company,
the Trustee or other Paying Agent and such Person and (b) if such Person is a Holder of $10,000,000
or more in aggregate principal amount of Senior Notes of this series such payment may be in
immediately available funds by wire transfer to such account as may have been designated in writing
by the Person entitled thereto as set forth herein in time for the Paying Agent to make such
payments in accordance with its normal procedures. Any such designation for wire transfer purposes
shall be made by filing the appropriate information with our designated agent, The Bank of New York
Mellon Trust Company, N.A., at its Global Corporate Trust Office, located at 1660 West 2nd Street,
1
Cleveland, Ohio, 44113, not less than fifteen calendar days prior to the applicable payment
date and, unless revoked by written notice to the Trustee received on or prior to the Regular
Record Date immediately preceding the applicable Interest Payment Date, shall remain in effect with
respect to any further interest payments (other than interest payments at Maturity) with respect to
this Senior Note payable to such Holder. Payment of the principal of and premium, if any, and
interest, if any, on this Senior Note, as aforesaid, shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the payment of public
and private debts.
If any Interest Payment Date, any Redemption Date, or the Stated Maturity shall not be a
Business Day (as hereinafter defined), payment of the amounts due on this Senior Note on such date
may be made on the next succeeding Business Day; and, if such payment is made or duly provided for
on such next succeeding Business Day, no interest shall accrue on such amounts for the period from
and after such Interest Payment Date, Redemption Date, or Stated Maturity, as the case may be, to
such Business Day.
3.
Paying Agent and Security Registrar
. Initially, The Bank of New York Mellon Trust
Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Security Registrar.
The Company may change any Paying Agent or Security Registrar without notice to any Holder. The
Company or any of its subsidiaries may act in any such capacity;
provided
that if the Company or
such subsidiary is acting as Paying Agent, the Company or such subsidiary shall segregate all funds
held by it as Paying Agent and hold them in a separate trust fund for the benefit of the Holders.
4.
Registration of Transfer and Exchange
. As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Senior Note is registrable in the
Security Register, upon surrender of this Senior Note for registration of transfer at the office of
our designated agent, The Bank of New York Mellon Trust Company, N.A., located at 1660 West 2nd
Street, Cleveland, Ohio, 44113, or such other office or agency as may be designated by the Company
from time to time, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior Notes of this series of
authorized denominations and of like tenor and aggregate principal amount, will be issued to the
designated transferee or transferees.
The Company shall not be required to execute and the Security Registrar shall not be required
to register the transfer of or exchange of (a) Senior Notes of this series during a period of 15
days immediately preceding the date notice is given identifying the serial numbers of the Senior
Notes of this series called for redemption or (b) any Senior Note so selected for redemption in
whole or in part, except the unredeemed portion of any Senior Note being redeemed in part.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Senior Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Senior
Note is registered as the absolute owner hereof for all purposes, whether or not this Senior Note
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
5.
Indenture
. This Senior Note is a global security in respect of a duly authorized
issue of 6.80% Senior Notes due 2039 (the 2039 Notes, which term includes any global note
representing such Senior Notes) of the Company, issued and issuable in one or more series under
the Indenture and First Supplemental Indenture, both dated as of August 1, 2009 (such Indentures as
originally executed and
2
delivered and as supplemented or amended from time to time thereafter, together with any
constituent instruments establishing the terms of particular securities, being herein called the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., under which
The Bank of New York Mellon Trust Company, N.A. is trustee (herein called the Trustee, which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the respective rights,
limitations of rights, duties, and immunities of the Company, the Trustee, and the Holders of the
Senior Notes thereunder and of the terms and conditions upon which the Senior Notes are, and are to
be, authenticated and delivered. The acceptance of this Senior Note shall be deemed to constitute
the consent and agreement by the Holder hereof to all of the terms and provisions of the Indenture.
This Senior Note is one of the series designated above.
6.
Optional Redemption
.
This Senior Note is redeemable, at any time in whole or from time to time in part, at the
Companys option, on at least 30 days, but not more than 60 days, prior notice mailed to the
registered address of each holder of the Senior Notes. The Redemption Price will be equal to the
greater of: (1) 100% of the principal amount of the Senior Notes to be redeemed, and (2) as
determined by the Independent Investment Banker (as defined below), the sum of the present values
of the Remaining Scheduled Payments (as defined below) discounted to the Redemption Date, on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to
the sum of the Adjusted Treasury Rate (as defined below) plus 40 basis points. In each case,
accrued and unpaid interest will be payable to the Redemption Date.
Adjusted Treasury Rate means, with respect to any Redemption Date:
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the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated H.15(519) or any successor publication which
is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption Treasury Constant Maturities,
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Adjusted Treasury Rate shall be interpolated
or extrapolated from these yields on a straight line basis, rounding to the
nearest month); or
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if the release (or any successor release) is not published
during the week preceding the calculation date or does not contain these
yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for the Redemption Date. The Adjusted
Treasury Rate will be calculated on the third Business Day preceding the
Redemption Date.
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Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Senior
Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such securities (Remaining Life).
3
Comparable Treasury Price means (1) the average of three Reference Treasury Dealer
Quotations for the Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than three Reference
Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Company.
Reference Treasury Dealer means (i) each of Morgan Stanley & Co. Incorporated, Barclays
Capital Inc., Credit Suisse Securities (USA) LLC and RBS Securities Inc. and their respective
successors; provided, however, that if any of the foregoing cease to be a primary U.S. Government
securities dealer in the United States (a Primary Treasury Dealer), the Company shall substitute
therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Independent Investment Banker after consultation with the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent Investment Banker, 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 Independent Investment Banker at 5:00 p.m., New York
City time, on the third Business Day preceding the Redemption Date.
Remaining Scheduled Payments means the remaining scheduled payments of principal of and
interest on this Senior Note that would be due after the related Redemption Date but for such
redemption. If such Redemption Date is not an Interest Payment Date with respect to this Senior
Note, the amount of the next succeeding scheduled interest payment on this Senior Note will be
reduced by the amount of interest accrued on this Senior Note to such Redemption Date.
On and after the Redemption Date, interest will cease to accrue on this Senior Note or any
portion of the Senior Note called for redemption (unless the Company defaults in the payment of the
Redemption Price and accrued interest. On or before the Redemption Date, the Company will deposit
with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest on the
Senior Note to be redeemed on such date. If less than all the Senior Notes of any series are to be
redeemed, the Senior Notes to be redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate.
7.
Mandatory Redemption
.
The Company shall not be required to make mandatory redemption or sinking fund payments with
respect to the Senior Notes.
8.
Notice of Redemption
. Notice of redemption shall be given by mail to Holders of
Senior Notes, not less than 30 days nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. As provided in the Indenture, notice of redemption at the
election of the Company as aforesaid may state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents of money sufficient to pay the principal of and premium, if
any, and interest, if any, on this Senior Note on or prior to the date fixed for such redemption; a
notice of redemption so conditioned shall be of no force or effect if such money is not so received
and, in such event, the Company shall not be required to redeem this Senior Note.
4
In the event of redemption of this Senior Note in part only, a new Senior Note or Senior Notes
of this series, of like tenor, representing the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
9.
Repurchase at Option of Holder
. If a Change of Control Triggering Event occurs,
each Holder of Senior Notes will have the right to require the Company to repurchase all or any
part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes
pursuant to an offer (a Change of Control Offer) on the terms set forth in the Indenture. In the
Change of Control Offer, the Company shall offer payment (a Change of Control Purchase Price) in
cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the date of repurchase (the Change of
Control Payment Date, which date will be no earlier than the date of such Change of Control). No
later than 30 days following any Change of Control Triggering Event, the Company shall mail a
notice to each Holder stating that a Change of Control Triggering Event has occurred and offering
to repurchase Senior Notes on the Change of Control Payment Date specified in such notice, which
date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by the Indenture and described in such notice. Holders of
Senior Notes electing to have Senior Notes purchased pursuant to a Change of Control Offer will be
required to surrender their Senior Notes, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Senior Note completed, to the Paying Agent at the address specified
in the notice, or transfer their Senior Notes to the Paying Agent by book-entry transfer pursuant
to the applicable procedures of the Paying Agent, prior to the close of business on the third
Business Day prior to the Change of Control Payment Date.
10.
Restrictions on Transfer
. Each Holder shall be deemed to understand that the
offer and sale of this Senior Note has not been registered under the Securities Act and that this
Senior Note may not be offered or sold except as permitted in the following sentence. Each Holder
shall be deemed to agree, on its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that if such Holder sells any Senior Notes, such Holder will do so only (A) to
the Company, (B) pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), (C) so long as such Senior Note is eligible for resale pursuant to
Rule 144A under the Securities Act (Rule 144A) to a person whom it reasonably believes is a
qualified institutional buyer within the meaning of Rule 144A that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, (D) in an offshore transaction in
accordance with Rule 903 or 904 of Regulation S under the Securities Act, (E) in accordance with
another applicable exemption from the registration requirements of the Securities Act (and based
upon an Opinion of Counsel acceptable to the Company), or (F) 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 each Holder is further deemed to agree to provide to
any person purchasing any Securities from it a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
Each Holder shall be deemed to understand that, on any proposed resale of any Senior Notes
pursuant to the exemption from registration under Rule 144 under the Securities Act, any Holder
making any such proposed resale will be required to furnish to the Trustee and Company such
certifications, legal opinions, and other information as the Trustee and Company may reasonably
require to confirm that the proposed sale complies with the foregoing restrictions.
11.
Denominations, Transfer, Exchange
. The Senior Notes of this series are issuable
only as registered Senior Notes, without coupons, and in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Senior Notes of this series are exchangeable for a like aggregate
principal amount of Senior Notes
5
of the same series and tranche, of any authorized denominations, as requested by the Holder
surrendering the same, and of like tenor upon surrender of the Senior Note or Senior Notes to be
exchanged at the Corporate Trust Administration Office of our designated agent, The Bank of New
York Mellon Trust Company, N.A., located at 1660 West 2nd Street, Cleveland, Ohio, 44113, or such
other office or agency as may be designated by the Company from time to time.
12.
Amendment, Supplement and Waiver
. The Indenture permits, with certain exceptions
as therein provided, the Trustee to enter into one or more supplemental indentures for the purpose
of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the
Indenture with the consent of the Holders of a majority in aggregate principal amount of the Senior
Notes of all series then outstanding under the Indenture; provided, however, that if there shall be
Senior Notes of more than one series outstanding under the Indenture and if a proposed
supplemental indenture shall directly affect the rights of the Holders of Senior Notes of any such
series, then the consent of the Holders of only a majority in aggregate principal amount of the
outstanding Senior Notes of all series so directly affected, considered as one class, shall be
required; and provided, further, that if the Senior Notes of any series shall have been issued in
more than one tranche and if the proposed supplemental indenture shall directly affect the rights
of the Holders of Senior Notes of one or more, but less than all, of such tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the outstanding Senior
Notes of all tranches so directly affected, considered as one class, shall be required; and
provided, further, that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of Senior Notes. The Indenture
also contains provisions permitting the Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding, on behalf of the Holders of all Senior Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Senior Note and of any
Senior Note issued upon the registration of transfer hereof or in exchange therefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Senior Note.
13.
Defaults and Remedies
. If an Event of Default with respect to the Senior Notes
of this series shall occur and be continuing, the principal of this Senior Note may be declared due
and payable in the manner and with the effect provided in the Indenture.
14.
No Recourse Against Others
. As provided in the Indenture, no recourse shall be
had for the payment of the principal of or premium, if any, or interest, if any, on any Senior
Notes, or any part thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant, or agreement under the
Indenture, against, and no personal liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer, or director, as such, past, present, or future of the Company
or of any predecessor or successor corporation (either directly or through the Company, or a
predecessor or successor corporation), whether by virtue of any constitutional provision, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that the Indenture and this Senior Note are solely corporate obligations and
that any such personal liability is hereby expressly waived and released as a condition of, and as
part of the consideration for, the execution of the Indenture and the issuance of this Senior Note.
15.
Authentication
. Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual signature, this Senior Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
6
16.
Additional Rights of Holders
. Pursuant to the Registration Rights Agreement
dated August 7, 2009 between the Company and Morgan Stanley & Co. Incorporated, Barclays Capital
Inc., Credit Suisse Securities (USA) LLC and RBS Securities Inc., as representatives of the initial
purchasers (the Registration Rights Agreement), the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Senior Note shall have the right to exchange
this Senior Note for the Companys 6.80% Exchange Senior Note due 2039 (the 2039 Exchange Note),
at such time as such 2039 Exchange Note shall have been registered under the Securities Act, in
like principal amount and having terms identical in all material respects to this Senior Note
(except that such 2039 Exchange Note will not contain terms with respect to registration rights,
the payment of additional interest, and other provisions restricting transfers and resales,
including this paragraph). The Holders of this Senior Note shall be entitled to receive certain
additional interest payments at the rate per annum of 0.25% in the event such exchange offer is not
consummated within 210 days after the Closing Date (as defined in the Registration Rights
Agreement) and upon certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
17.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Senior Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Senior Notes or as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:
FirstEnergy Solutions Corp.
c/o FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308-1890
Attention: Shareholder Services
(800) 736-3402
18.
Discharge and Defeasance
. As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Senior Note or any portion of the principal amount
hereof will be deemed to have been paid for all purposes of the Indenture and to be no longer
outstanding thereunder, and, at the election of the Company, the Companys entire indebtedness in
respect thereof will be satisfied and discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust, money in an amount which will be
sufficient and/or Eligible Obligations, the principal of and interest on which when due, without
any regard to reinvestment thereof, will provide moneys which, together with moneys so deposited,
will be sufficient to pay when due the principal of and premium, if any, and interest, if any, on
this Senior Note when due.
19.
Merger, Consolidation
. The Indenture contains terms, provisions, and conditions
relating to the consolidation or merger of the Company with or into, and the conveyance or other
transfer, or lease, of assets to, another Person, to the assumption by such other Person, in
certain circumstances, of all of the obligations of the Company under the Indenture and on the
Senior Notes and to the release and discharge of the Company in certain circumstances, from such
obligations.
20.
Governing Law
. The Indenture, the Supplemental Indenture, and the Senior Notes
shall be governed by and construed in accordance with the laws of the State of New York.
7
CERTIFICATE OF TRANSFER
6.80% SENIOR NOTE DUE 2039
FOR VALUE RECEIVED
, the undersigned sells, assigns, and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten:
$
principal amount of or beneficial interests* in the within Senior Note of the Company and
does hereby irrevocably constitute and appoint to transfer the said principal amount of or
beneficial interests in said Senior Note on the books of the within-named Company, with full
power of substitution in the premises.
The undersigned certifies that said principal amount of or beneficial interests in said
Senior Note are being resold, pledged, or otherwise transferred as follows: (check one)
o
to the Company;
o
pursuant to an exemption from registration provided by Rule 144 under the Securities Act
(if available);
o
to a Person whom the undersigned reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act of 1933, as amended (the Securities
Act) purchasing for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge, or other transfer is being made in reliance on
Rule 144A;
o
in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the
Securities Act;
o
as otherwise permitted by the non-registration legend appearing on this Senior Note; or
o
as otherwise agreed by the Company, confirmed in writing to the Trustee, as follows:
[describe]
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Dated:
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Signature:
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Print name:
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NOTICE.
The signature to this assignment must correspond with the name as written upon the
face of the Senior Note in every particular without alteration or enlargement or any change
whatsoever.
SIGNATURE GUARANTEE.
Signatures must be guaranteed by an eligible guarantor institution
meeting the requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (STAMP) or such other
signature guarantee program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
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*
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transfers of beneficial interests in this security may be made only
to another global security of the same series or as otherwise permitted by
applicable securities laws.
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8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the Company pursuant to Section 302
of the First Supplemental Indenture, check the box below:
o
Section 302
If you want to elect to have only part of the Senior Note purchased by the Company pursuant to
Section 302 of the First Supplemental Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature:
(Sign exactly as your name appears on the face
of this Senior Note)
Tax Identification No.:
Signature Guarantee
1
:
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1
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
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9
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS
IN THE GLOBAL SECURITIES
The following increases or decreases in this Global Security have been made:
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Amount of
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decrease
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Principal Amount
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in Principal
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Amount of increase
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of this Global
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Amount of
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in Principal Amount
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Security following
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Signature of
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Date of
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this Global
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of
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such decrease
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authorized officer of
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Exchange
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Security
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this Global Security
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(or increase)
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Trustee
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AFFIRMATION OF GUARANTY
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the Holder of the Senior Notes to which this affirmation is attached and the Trustee are
Guaranteed Parties (as defined in the Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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AFFIRMATION OF GUARANTY
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the Holder of the Senior Notes to which this affirmation is attached and the Trustee are
Guaranteed Parties (as defined in the Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY NUCLEAR GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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EXHIBIT D
[FORM OF AFFIRMATION OF GUARANTY]
Reference is hereby made to that certain Guaranty, dated as of March 26, 2007 (the
Guaranty
), executed and delivered by the undersigned in favor of the Guaranteed Parties
as defined therein and acknowledged by FirstEnergy Solutions Corp. (the
Company
).
The undersigned hereby affirms:
(i) that the Senior Notes of the Company constitute FES Indebtedness (as defined in the
Guaranty) and are Guaranteed Obligations (as defined in the Guaranty); and
(ii) the
Holder of the Senior Notes to which this affirmation is attached and the Trustee are Guaranteed Parties (as defined in the
Guaranty); and
(iii) its obligations under the Guaranty to the Guaranteed Parties thereunder in respect of
the due and punctual payment of the principal of, premium and Additional Interest, if any, and
interest on, such Senior Notes, whether at maturity, by acceleration, redemption or otherwise.
Capitalized terms not defined herein have the meaning set forth in the First Supplemental
Indenture.
IN WITNESS WHEREOF, the
undersigned has executed this Affirmation as of this 7th day of
August, 2009.
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FIRSTENERGY [NUCLEAR] GENERATION CORP.
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By:
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Name:
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James F. Pearson
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Title:
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Vice President and Treasurer
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EXHIBIT 10.1
Registration Rights Agreement
Dated as of August 7, 2009
among
FirstEnergy Solutions Corp.,
(an Ohio corporation)
as Issuer
and
Morgan Stanley & Co. Incorporated
Barclays Capital Inc.
Credit Suisse Securities (USA) LLC
RBS Securities Inc.
as Representatives of the Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the
Agreement
) is made and entered into this
7th
day of August, 2009, by and between FirstEnergy Solutions Corp., an Ohio corporation
(the
Issuer
) and Morgan Stanley & Co. Incorporated (
Morgan Stanley
), Barclays
Capital Inc. (
Barclays
), Credit Suisse Securities (USA) LLC (
Credit Suisse
) and
RBS Securities Inc. (
RBS
), as Representatives (defined below) of the Initial Purchasers
(defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August 4, 2009 (the
Purchase Agreement
), between the Issuer and Morgan Stanley, Barclays, Credit Suisse and
RBS as Representatives of the Initial Purchasers, which provides for the sale by the Issuer to the
Initial Purchasers of $400,000,000 aggregate principal amount of 4.80% Senior Notes due 2015 (the
2015 Notes
), $600,000,000 aggregate principal amount of 6.05% Senior Notes due 2021 (the
2021 Notes
), and $500,000,000 aggregate principal amount of 6.80% Senior Notes due 2039
(the
2039 Notes
and together with the 2015 Notes and the 2021 Notes, the
Notes
). In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Issuer has agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1.
Definitions
.
1.1 As used in this Agreement, the following capitalized defined terms shall have the
following meanings:
1933 Act
shall mean the Securities Act of 1933, as amended from time to time.
1934 Act
shall mean the Securities Exchange Act of 1934, as amended from time
to time.
2015 Exchange Notes
shall mean, collectively, the Issuers 4.80% Exchange
Senior Notes due 2015 containing terms identical to the 2015 Notes in all material respects
(except in each case for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of 2015 Notes in exchange for
Registrable Notes of such series pursuant to the Exchange Offer.
2015 Notes
shall mean the Companys $400,000,000 aggregate principal amount
of 4.80% Senior Notes due 2015.
2021 Exchange Notes
shall mean, collectively, the Issuers 6.05% Exchange
Senior Notes due 2021 containing terms identical to the 2021 Notes in all material respects
(except in each case for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of 2021 Notes in exchange for
Registrable Notes of such series pursuant to the Exchange Offer.
2021 Notes
shall mean the Companys $600,000,000 aggregate principal amount
of 6.05% Senior Notes due 2021.
2039 Exchange Notes
shall mean, collectively, the Issuers 6.80% Exchange
Senior Notes due 2039 containing terms identical to the 2039 Notes in all material respects
(except in each case for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of 2039 Notes in exchange for
Registrable Notes of such series pursuant to the Exchange Offer.
2039 Notes
shall mean the Companys $500,000,000 aggregate principal amount
of 6.80% Senior Notes due 2039.
Affiliate
shall have the meaning given to that term in Rule 405 under the
1933 Act or any successor rule thereunder.
Barclays
shall have the meaning set forth in the preamble to this Agreement.
Closing Date
shall mean the Closing Time as defined in the Purchase
Agreement.
Credit Suisse
shall have the meaning set forth in the preamble to this
Agreement.
Depositary
shall mean The Depository Trust Company, or any other depositary
appointed by the Issuer,
provided
, however, that such depositary must have an
address in the Borough of Manhattan, in The City of New York and,
provided
further
, that if the Notes are not held in book-entry form, references herein to the
Depositary shall be deemed to refer to the Holders.
Exchange Notes
shall mean collectively, the 2015 Exchange Notes, the 2021
Exchange Notes and the 2039 Exchange Notes.
Exchange Offer
shall mean the exchange offer by the Issuer of Exchange Notes
for Registrable Notes pursuant to Section 2.1 hereof.
Exchange Offer Registration
shall mean a registration under the 1933 Act
effected pursuant to Section 2.1 hereof.
Exchange Offer Registration Statement
shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by reference therein.
Exchange Period
shall have the meaning set forth in Section 2.1 hereof.
2
First Supplemental Indenture
shall mean the First Supplemental Indenture,
dated as of August 1, 2009, between the Issuer and The Bank of New York Mellon Trust
Company, N.A., as trustee, supplementing the Indenture.
Holder
shall mean any beneficial owner from time to time of Registrable Notes
(including any of the Initial Purchasers, for so long as it owns any Registrable Notes).
Indenture
shall mean the Indenture, dated as of August 1, 2009, between the
Issuer and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented by
the First Supplemental Indenture, and as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
Initial Purchasers
shall mean the initial purchasers named in Schedule 1 to
the Purchase Agreement.
Issuer
shall have the meaning set forth in the preamble to this Agreement and
shall also include the Issuers successors.
Majority Holders
shall mean the Holders of a majority of the aggregate
principal amount of Outstanding (as defined in the Indenture) Registrable Notes; provided
that whenever the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuer or any Affiliate (as
defined in the Indenture) of the Issuer shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage amount.
Morgan Stanley
shall have the meaning set forth in the preamble to this
Agreement.
Notes
shall have the meaning set forth in the preamble to this Agreement.
Participating Broker-Dealer
shall mean each of Morgan Stanley, Barclays,
Credit Suisse and RBS and any other broker-dealer which makes a market in the Notes and
exchanges Registrable Notes in the Exchange Offer for Exchange Notes.
Person
shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus
shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including any such prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Notes covered by a Shelf
Registration Statement, and by all other amendments and supplements to a prospectus,
including pre-effective and post-effective amendments, and in each case including all
documents incorporated by reference therein.
3
Purchase Agreement
shall have the meaning set forth in the preamble to this
Agreement.
RBS
shall have the meaning set forth in the preamble to this Agreement.
Registrable Notes
shall mean the Notes of any Holder;
provided
,
however
, that such Notes shall cease to be Registrable Notes when (i) a Registration
Statement with respect to such Notes shall have been declared or otherwise become effective
under the 1933 Act and such Notes shall have been disposed of pursuant to such Registration
Statement, (ii) such Notes are eligible for resale to the public pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A under the 1933 Act) under the 1933
Act, (iii) such Notes shall have ceased to be outstanding or (iv) the Exchange Offer is
consummated (except in the case of Notes purchased from the Issuer that continue to be held
by any Initial Purchaser).
Registration Expenses
shall mean any and all expenses incident to performance
of or compliance by the Issuer with this Agreement, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all SEC, stock exchange or
Financial Industry Regulatory Authority (formerly known as National Association of
Securities Dealers, Inc. (the
FINRA
)) registration and filing fees, including, if
applicable, the reasonable fees and expenses of any qualified independent underwriter (and
its counsel) that is required to be retained by any Holder of Registrable Notes in
accordance with the rules and regulations of the FINRA, (ii) all reasonable fees and
expenses incurred in connection with compliance with state securities or blue sky laws and
compliance with the rules of the FINRA (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky qualification of any of
the Exchange Notes or Registrable Notes and any filings with the FINRA), (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the Registrable Notes on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Issuer and of the independent public accountants of the
Issuer, including the expenses of any special audits or cold comfort letters required by
or incident to such performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable fees and expenses
of counsel to the Initial Purchasers in connection therewith, and (ix) any reasonable fees
and disbursements of the underwriters customarily required to be paid by issuers or sellers
of securities and the reasonable fees and expenses of any special experts retained by the
Issuer in connection with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder, it being understood that in no event shall the Issuer be
liable for the fees and expenses of more than one counsel (in addition to any local counsel)
in connection with registration pursuant to either Section 2.1 or Section 2.2 hereof.
4
Registration Statement
shall mean any registration statement of the Issuer
which covers any of the Exchange Notes or Registrable Notes pursuant to the provisions of
this Agreement, and all amendments and supplements to any such Registration Statement,
including pre-effective and post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by reference therein.
Representatives
shall mean each of Morgan Stanley, Barclays, Credit Suisse
and RBS in its capacity as Representatives of the Initial Purchasers.
SEC
shall mean the United States Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed by the
United States Securities and Exchange Commission.
Shelf Registration
shall mean a registration effected pursuant to Section 2.2
hereof.
Shelf Registration Statement
shall mean a shelf registration statement of
the Issuer pursuant to the provisions of Section 2.2 of this Agreement which covers all of
the Registrable Notes on an appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all documents incorporated by
reference therein.
Trustee
shall mean the trustee with respect to the Notes under the Indenture.
2.
Registration Under the 1933 Act
.
2.1
Exchange Offer
. The Issuer shall (A) prepare and, as soon as practicable
following the Closing Date, file with the SEC an Exchange Offer Registration Statement with respect
to a proposed Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Notes, a like principal amount of Exchange Notes, (B) use its reasonable best efforts
to cause the Exchange Offer Registration Statement to be declared effective under the 1933 Act not
later than 180 calendar days following the Closing Date, (C) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective until the closing of the Exchange Offer
and (D) use its reasonable best efforts to cause the Exchange Offer to be consummated within 210
calendar days following the Closing Date. The Exchange Notes will be issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Notes for Exchange Notes (assuming that such Holder
(a) is not an Affiliate of the Issuer within the meaning of Rule 405 under the 1933 Act, (b) is not
a broker-dealer tendering Registrable Notes acquired directly from the Issuer for its own account,
(c) acquired the Exchange Notes in the ordinary course of such Holders business and (d) has no
arrangements or understandings with any person to participate in the Exchange Offer for the purpose
of distributing the Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or
5
restrictions under the 1933 Act and without material restrictions under the securities laws of
a majority of the several states of the United States.
In connection with the Exchange Offer, the Issuer shall:
(a) mail to the Depositary a copy of the Prospectus forming part of the Exchange Offer
Registration Statement together with an appropriate letter of transmittal and related
documents;
(b) use its reasonable best efforts to keep the Exchange Offer open for acceptance for
a period of not less than 20 business days after the date notice thereof is mailed to the
Depositary (or longer if required by applicable law) (such period referred to herein as the
Exchange Period
);
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Notes at any time prior to 5:00
p.m. (Eastern Time) on the last business day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Registrable Notes delivered
for exchange, and a statement that such Holder is withdrawing his election to have such
Notes exchanged;
(e) notify the Depositary that any Registrable Notes not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as
provided herein); and
(f) otherwise comply in all respects with all applicable laws relating to the Exchange
Offer.
As soon as practicable after the close of the Exchange Offer, the Issuer shall:
(i) accept for exchange all Registrable Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of transmittal which shall be
an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Registrable Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver the respective
Exchange Notes to each Holder of Registrable Notes so accepted for exchange in a
principal amount equal to the principal amount of the Registrable Notes of such
Holder so accepted for exchange.
The Issuer shall use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained therein,
6
in order to permit such Prospectus to be lawfully delivered by all Participating
Broker-Dealers subject to the prospectus delivery requirements of the 1933 Act for such period of
time as such Participating Broker-Dealers must comply with such requirements in order to resell the
Exchange Notes; provided, however, that (i) such period shall end on the earlier of 90 days after
the consummation of the Exchange Offer and the date on which all Participating Broker-Dealers have
sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(k)
below) and (ii) the Issuer shall make such Prospectus, and any amendment or supplement thereto,
available to any such Participating Broker-Dealer for use in connection with any resale of any
Exchange Notes for a period ending on the earlier of 90 days after the consummation of the Exchange
Offer and the date on which all Participating Broker-Dealers have sold all Exchange Notes held by
them (unless such period is extended pursuant to Section 3(k) below).
Interest on the Exchange Notes will accrue from the most recent interest payment date to which
interest has been paid on the respective Registrable Notes surrendered in exchange therefor or, if
no interest has been paid on such Registrable Notes, from the Closing Date. The Exchange Offer
shall not be subject to any conditions, other than (i) that the Exchange Offer, or the making of
any exchange by a Holder, does not violate applicable law or any applicable interpretation of the
staff of the SEC, (ii) the due tendering of Registrable Notes in accordance with the Exchange
Offer, (iii) that each Holder of Registrable Notes exchanged in the Exchange Offer shall have
represented (x) that all Exchange Notes to be received by it shall be acquired in the ordinary
course of its business (y) that it is not an Affiliate of the Issuer and (z) that at the time of
the consummation of the Exchange Offer it shall have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange
Notes and shall have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been
instituted or threatened in any court or by or before any governmental agency with respect to the
Exchange Offer which, in the judgment of the Issuer, would reasonably be expected to impair the
ability of the Issuer to proceed with the Exchange Offer. The Issuer shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender
of Registrable Notes in the Exchange Offer. Each Holder of Registrable Notes who wishes to
exchange such Registrable Notes for Exchange Notes in the Exchange Offer will be required to make
certain customary representations in connection therewith, including representations that (i) all
Exchange Notes to be received by it were acquired in the ordinary course of its business, (ii) it
is not an Affiliate of the Issuer and (iii) at the time of the consummation of the Exchange Offer
it shall have no arrangement or understanding with any person to participate in the distribution
(within the meaning of the 1933 Act) of the Exchange Notes and shall have made such other
representations as may be reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act
available. Each Holder hereby acknowledges and agrees that any Participating Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of the Exchange Notes:
(1) could not under SEC policy as in effect on the date of this Agreement rely on the position of
the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the SECs letter to Shearman &
Sterling dated July 2, 1993, and similar
7
no-action letters (including any no-action letter obtained based on the representation in
clause (i) above), and (2) must comply with the registration and prospectus delivery requirements
of the 1933 Act in connection with the secondary resale transaction and that such a secondary
resale transaction should be covered by an effective registration statement containing the selling
security holder information required by Items 507 and 508, as applicable, of Regulation S-K, the
SEC standard instructions for filing forms under the 1933 Act, if the resales are of Exchange Notes
obtained by such Holder in exchange for Notes acquired by such Holder directly from the Issuer or
an affiliate of the Issuer.
2.2
Shelf Registration
. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Issuer is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any other
reason (A) the Exchange Offer Registration Statement is not declared effective within 180 calendar
days following the Closing Date or (B) the Exchange Offer is not consummated within 210 calendar
days after the Closing Date (provided that the Issuer is not then actively pursuing such
effectiveness or consummation, as the case may be), (iii) upon the written request of the Initial
Purchasers with respect to any Registrable Notes which they acquired directly from the Issuer,
(iv) upon the written request of any Holder that either (A) is not permitted pursuant to applicable
law, SEC rules and regulations or applicable interpretations thereof by the staff of the SEC to
participate in the Exchange Offer or (B) participates in the Exchange Offer and does not receive
fully tradable Exchange Notes pursuant to the Exchange Offer, or (v) if the Issuer so elects, then
in case of each of clauses (i) through (v) the Issuer shall, at its cost:
(a) as promptly as practicable, file with the SEC, and thereafter shall use its
reasonable best efforts to cause to be declared or otherwise become effective as promptly as
practicable but no later than 180 calendar days after the Closing Date, a Shelf Registration
Statement relating to the offer and sale of the Registrable Notes by the Holders from time
to time in accordance with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf Registration Statement;
(b) use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming a part thereof to be usable
by Holders for a period ending on the earliest of (i) two years from the Closing Date,
(ii) the date on which the Registrable Notes become eligible for resale without volume
limitations pursuant to Rule 144 under the 1933 Act, or (iii) for such shorter period that
will terminate when all Registrable Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be outstanding or
otherwise to be Registrable Notes; and
(c) notwithstanding any other provisions hereof, use its reasonable best efforts to
ensure that (i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading and (iii) any
8
Prospectus forming a part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not misleading.
The Issuer further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Depositary copies of any such
supplement or amendment as promptly as reasonably practicable after its being used or filed with
the SEC.
No Holder of Registrable Notes shall be entitled to include any of its Registrable Notes in
any Shelf Registration Statement pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Issuer in writing, within 15 days after receipt of a request therefor, such
information as the Issuer may, after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf Registration Statement
or Prospectus included therein. Each Holder as to which any Shelf Registration is being effected
agrees promptly to furnish to the Issuer all information with respect to such Holder necessary to
make the information previously furnished to the Issuer by such Holder not materially misleading.
2.3
Expenses
. The Issuer shall pay all Registration Expenses in connection with the
registration pursuant to Section 2.1 or 2.2 hereof. Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such
Holders Registrable Notes pursuant to the Shelf Registration Statement.
2.4
Effectiveness
.
(a) The Issuer will be deemed not to have used its reasonable best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if the Issuer voluntarily
takes any action that would, or omits to take any action which omission would, result in any
such Registration Statement not being declared or otherwise becoming effective or in the
Holders of Registrable Notes covered thereby not being able to exchange or offer and sell
such Registrable Notes during that period as and to the extent contemplated hereby, unless
such action is required by applicable law.
(b) Neither an Exchange Offer Registration Statement pursuant to Section 2.1 hereof nor
a Shelf Registration Statement pursuant to Section 2.2 hereof will be deemed to have become
effective unless it has been declared effective by the SEC or otherwise become effective
under the 1933 Act; provided, however, that if, after it has been declared or otherwise
become effective, the offering of Registrable Notes pursuant to a Shelf Registration
Statement is interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of
9
such interference until the offering of Registrable Notes pursuant to such Registration
Statement may legally resume.
2.5
Additional Interest
. The Notes will provide that if the Exchange Offer is not
consummated and the Shelf Registration Statement is not declared or does not otherwise become
effective on or prior to the date that is 210 calendar days after the Closing Date, the interest
rate on the Notes will be increased by 0.25% per annum commencing on the date that is 210 calendar
days after the Closing Date, until the Exchange Offer is consummated or the Shelf Registration
Statement is declared effective by the SEC or has otherwise become effective; provided, that in the
case of a Shelf Registration Statement, if the Issuer is unable to cause such Shelf Registration
Statement to become effective because Holders of Registrable Notes have not provided information
with respect to themselves as required by law to be included therein pursuant to the Issuers
request as provided herein, such 0.25% increase in the interest rate shall be payable only to
Holders that have furnished such information required by law to be included therein to the Issuer
pursuant to its request hereunder from but excluding the date such information is provided to the
Issuer to but excluding the date the Shelf Registration Statement is declared effective by the SEC
or otherwise became effective (such increased interest, the
Additional Interest
).
2.6
Specific Enforcement
. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with
its obligations under Sections 2.1 and 2.2 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required to specifically
enforce the Issuers obligations under Sections 2.1 and 2.2 hereof.
3.
Registration Procedures
.
In connection with the obligations of the Issuer with respect to Registration Statements
pursuant to Sections 2.1 and 2.2 hereof, the Issuer shall:
(a) prepare and file with the SEC a Registration Statement, within the relevant time
period specified in Section 2 hereof, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Issuer, (ii) shall in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders thereof, (iii) shall
comply as to form in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and (iv) shall comply in all respects with
the requirements of Regulation S-T under the 1933 Act, and use its best efforts to cause
such Registration Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such Registration
Statement effective for the applicable period, and cause each Prospectus to be supplemented
by any required prospectus supplement, and as so
10
supplemented to be filed pursuant to Rule 424 under the 1933 Act and comply with the
provisions of the 1933 Act applicable to them with respect to the disposition of all
securities covered by each Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify the Depositary, at least five (5)
business days prior to filing, that a Shelf Registration Statement with respect to the
Registrable Notes is being filed and advise the Depositary that the distribution of
Registrable Notes will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to the Depositary and to each
underwriter of an underwritten offering of Registrable Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as the Depositary or underwriter may reasonably
request, including financial statements and schedules and, if the Depositary so requests,
all exhibits, in order to facilitate the public sale or other disposition of the Registrable
Notes; and (iii) hereby consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes in connection with the offering
and sale of the Registrable Notes covered by the Prospectus or any amendment or supplement
thereto;
(d) use its best efforts to register or qualify the Registrable Notes under all
applicable state securities or blue sky laws of such jurisdictions as any Holder of
Registrable Notes covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Notes shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC or has otherwise
become effective under the 1933 Act, and do any and all other acts and things which may be
reasonably necessary or advisable to enable each such Holder and underwriter to consummate
the disposition in each such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that the Issuer shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction where it is not then
so subject;
(e) notify promptly each Holder of Registrable Notes under a Shelf Registration or any
Participating Broker-Dealer who has notified the Issuer that it is utilizing the Exchange
Offer Registration Statement as provided in Section 3(f) hereof, and, if requested by such
Holder or Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and
11
the closing of any sale of Registrable Notes covered thereby, the representations and
warranties of the Issuer contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be true and correct in
all material respects, (v) of the happening of any event or the discovery of any facts
during the period a Shelf Registration Statement is effective or an Exchange Offer
Registration Statement is being utilized pursuant to Section 2.1 above which makes any
statement made in such Registration Statement or related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading, and (vi) of the receipt
by the Issuer of any notification with respect to the suspension of the qualification of the
Registrable Notes or the Exchange Notes, as the case may be, for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
(f) in the case of the Exchange Offer Registration Statement (i) include in the
Prospectus contained in the Exchange Offer Registration Statement a section entitled Plan
of Distribution which section shall be reasonably acceptable to the Initial Purchasers or
another representative of the Participating Broker-Dealers and shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with respect to
the potential underwriter status of any broker-dealer that holds Registrable Notes
acquired for its own account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule 13d-3 under the 1934
Act) of Exchange Notes to be received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchasers and their
counsel, represent the prevailing views of the staff of the SEC, including a statement that
any such broker-dealer who receives Exchange Notes for Registrable Notes pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such Exchange Notes,
(ii) furnish to each Participating Broker-Dealer who has delivered to the Issuer the notice
referred to in Section 3(e) hereof, without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto, by any person subject
to the prospectus delivery requirement of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
if the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a result
of market-making activities or other trading activities, it
will deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of Exchange Notes
12
received in respect of such Registrable Notes pursuant to
the Exchange Offer; and
(y) a statement to the effect that by a broker-dealer making the acknowledgment described in
clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Notes, the broker-dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act;
(g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers
and (ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable
Notes, copies of any comment letters received from the SEC or any other request by the SEC
or any state securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;
(i) in the case of a Shelf Registration, furnish to the Depositary, and each
underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference and exhibits thereto, unless
requested);
(j) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Notes to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold and not bearing any restrictive legends, and
enable such Registrable Notes to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the underwriters, if
any, may reasonably request at least three (3) business days prior to the closing of any
sale of Registrable Notes;
(k) in the case of a Shelf Registration, upon the occurrence of any event or the
discovery of any facts, each as contemplated by Sections 3(e)(ii), 3(e)(iv), 3(e)(v) and
3(e)(vi) hereof, or in the case of an Exchange Offer Registration Statement, upon the
occurrence of any event or the discovery of facts, each as contemplated by Sections
3(e)(ii), 3(e)(v) and 3(e)(vi) hereof, use its best efforts to prepare a supplement or
post-effective amendment to the Registration Statement or the Prospectus or any document
incorporated therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and notify each Holder to
suspend use of the Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus until such time as
such Holder has received from the Issuer an amended or supplemented Prospectus correcting
such misstatement or omission;
13
(l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchasers on behalf
of such Holders, and make representatives of the Issuer as shall be reasonably requested by
the Holders of Registrable Notes, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Notes or Registrable Notes, as the case may
be, not later than the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable Notes, as the case may
be, in a form eligible for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as
amended (the
TIA
), in connection with the registration of the Exchange Notes or
Registrable Notes, as the case may be, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA, and (iii) execute, and use its best efforts to
cause the Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Notes and in such connection whether or not
an underwriting agreement is entered into and whether or not the registration is an
underwritten registration:
(i) make such representations and warranties to the Holders of such Registrable
Notes and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them;
(ii) obtain opinions of counsel to the Issuer and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and the holders of a majority in principal
amount of the Registrable Notes being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) if requested by any selling Holder of Registrable Notes or underwriter,
obtain cold comfort letters and updates thereof from the independent registered
public accounting firm of the Issuer who have certified the financial statements of
the Issuer and any other entity included or incorporated by reference in the
Registration Statement addressed to the such underwriters, if any,
14
and use reasonable efforts to have such letter addressed to the selling Holders
of Registrable Notes (to the extent consistent with SAS 72), such letters to be in
customary form and covering matters of the type customarily covered in cold
comfort letters to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an agent of
the Holders providing for, among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of Registrable Notes, which
agreement shall be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Sections 4 and 5 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to said
Sections or, at the request of any underwriters, in the form customarily provided to
such underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably requested and
as are customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Notes being sold and the managing underwriters,
if any.
The above shall be done at (i) the effectiveness of such Registration Statement (and each
post-effective amendment thereof) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration, make available for inspection by
representatives of the Holders of the Registrable Notes and any underwriters participating
in any disposition pursuant to a Shelf Registration Statement and any counsel or accountant
retained by such Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Issuer reasonably requested by any such persons
and use its reasonable best efforts to cause the respective officers, directors, employees,
and any other agents of the Issuer to supply all information reasonably requested by any
such representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Issuer available for discussion
of such documents as shall be reasonably requested by the Initial Purchasers;
(q)
(i) in the case of an Exchange Offer Registration Statement, within a
reasonable time prior to the filing of any Exchange Offer Registration Statement,
any Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to such Prospectus, provide copies
of such document to the Initial Purchasers and make such changes in any such
document prior to the filing thereof as the Initial Purchasers may reasonably
15
request and, except as otherwise required by applicable law, not file any such
document in a form to which the Initial Purchasers on behalf of the Holders of
Registrable Notes shall reasonably object; and
(ii) in the case of a Shelf Registration, within a reasonable time prior to
filing any Shelf Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Depositary, to the Initial
Purchasers, to counsel on behalf of the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any, make such
changes in any such document prior to the filing thereof as the Initial Purchasers,
the counsel to the Holders or the underwriter or underwriters reasonably request and
not file any such document in a form to which the Majority Holders or the Initial
Purchasers on behalf of the Holders of Registrable Notes or any underwriter may
reasonably object and make the representatives of the Issuer available for
discussion of such document as shall be reasonably requested by the Holders of
Registrable Notes, the Initial Purchasers on behalf of such Holders, or any
underwriter;
(r) in the case of a Shelf Registration, use its reasonable best efforts to cause all
Registrable Notes to be listed on any securities exchange on which similar securities issued
by the Issuer are then listed if requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable Notes, if any;
(s) in the case of a Shelf Registration, use its reasonable best efforts to cause the
Registrable Notes to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Notes, if any;
(t) otherwise comply with all applicable rules and regulations of the SEC and make
available to security holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be made with the FINRA and, in the
case of a Shelf Registration, in the performance of any due diligence investigation by any
underwriter and its counsel (including any qualified independent underwriter that is
required to be retained in accordance with the rules and regulations of the FINRA); and
(v) in the case of any Exchange Offer Registration Statement, upon consummation of an
Exchange Offer,
(A) obtain a customary opinion of counsel to the Issuer addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the Exchange Offer, and
which includes an opinion that (i) the Issuer has duly authorized, executed and
16
delivered the Exchange Notes and the Indenture and (ii) each of the Exchange Notes and
the Indenture constitute legal, valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms (with customary exceptions); and
(B) deliver to the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if requested by the Initial Purchasers or such other
representative of the Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers (i) an opinion of counsel or opinions of counsel substantially in the form
attached hereto as Exhibit A and (ii) an officers certificate substantially in the form
customarily delivered in a public offering of debt securities.
In the case of a Shelf Registration Statement, the Issuer may (as a condition to such Holders
participation in the Shelf Registration) require each Holder of Registrable Notes to furnish to the
Issuer such information regarding the Holder and the proposed distribution by such Holder of such
Registrable Notes as the Issuer may from time to time reasonably request in writing for use in
connection with any Shelf Registration Statement or Prospectus included therein, including, without
limitation, information specified in Item 507 of Regulation S-K under the 1933 Act. Each Holder as
to which any Shelf Registration is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed with respect to such Holder in order to make any information
with respect to such Holder previously furnished to the Issuer by such Holder not materially
misleading.
In the case of a Shelf Registration Statement or an Exchange Offer Registration Statement,
each Holder agrees that, upon receipt of any notice directly or indirectly from the Issuer of the
happening of any event or the discovery of any facts, each of the kind described in Section 3(e)(v)
hereof, such Holder will forthwith discontinue disposition of Registrable Notes pursuant to a
Registration Statement until such Holders receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof, and, if so directed by the Issuer, such Holder will
deliver to the Issuer (at such Holders expense) all copies in such Holders possession, other than
permanent file copies then in such Holders possession, of the Prospectus covering such Registrable
Notes current at the time of receipt of such notice.
If any of the Registrable Notes covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the underwriter or underwriters and manager or managers that will manage
such offering will be selected by the Majority Holders of such Registrable Notes included in such
offering and shall be acceptable to the Issuer. No Holder of Registrable Notes may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell such Holders
Registrable Notes on the basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents required under the
terms of such underwriting agreement.
4.
Indemnification
.
4.1
Indemnification by the Issuer
. The Issuer agrees to indemnify and hold harmless
each Initial Purchaser, its directors and officers, each Holder, each Participating Broker-Dealer,
each Person who participates as an underwriter (any such Person being an
17
Underwriter
) and each Person, if any, who controls any Holder or Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any and
all losses, claims, damages and liabilities that arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any Registration Statement
pursuant to which Exchange Notes or Registrable Notes were registered under the 1933 Act or any
related Prospectus or any related Issuer Free Writing Prospectus (as that term is defined in Rule
433(h)(1) under the 1933 Act), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each Initial Purchaser and each controlling person, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage or liability, except insofar as such losses, claims, damages or
liabilities arise out of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission or are based upon information furnished in writing to the Issuer by
any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with respect to such
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be,
specifically for inclusion therein.
4.2
Indemnification by the Holders, Initial Purchasers, Participating Broker-Dealers and
Underwriters
. Each Holder, each Initial Purchaser, each Participating Broker-Dealer and each
Underwriter severally, but not jointly, agrees to indemnify and hold harmless the Issuer, each
other Initial Purchaser, each other Participating Broker-Dealer, each other Underwriter and each
other selling Holder, and each of their respective directors and officers, and each Person, if any,
who controls the Issuer, any Initial Purchaser, any Participating Broker-Dealer, any Underwriter,
or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity contained in Section 4.1 hereof, but only
with reference to written information relating to such Holder, Initial Purchaser, Participating
Broker-Dealer or Underwriter furnished in writing to the Issuer by such Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter specifically for inclusion in the Shelf Registration
Statement or such Prospectus; provided, however, that no such Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Holder, Initial Purchaser, Participating Broker-Dealer
or Underwriter from the sale of Registrable Notes pursuant to such Shelf Registration Statement.
This indemnity agreement will be in addition to any liability which such Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter may otherwise have.
4.3
Actions Against Parties; Notification.
Promptly after receipt by an indemnified
party under Section 4.1 or 4.2 hereof of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under
Section 4.1 or 4.2 hereof, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party (i) will not relieve it from any liability
under Section 4.1 or 4.2 hereof unless and to the extent such failure results in the loss by the
indemnifying party of substantial rights and defenses and (ii) will not, in any event relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in Section 4.1 or 4.2 hereof. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and
18
the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded upon
advice of counsel that there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying party. It is
understood that the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate
counsel for all such indemnified parties. Such counsel shall be designated in writing by the
Representatives in the case of parties indemnified pursuant to the second preceding paragraph, and
by the Issuer in the case of parties indemnified pursuant to the first preceding paragraph.
4.4
Settlement Without Consent
. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason of such settlement or
judgment. An indemnifying party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or
proceeding and (ii) does not include any statement as to, or any admission of, fault, culpability
or failure to act by or on behalf of any indemnified party.
5.
Contribution
. In the event that the indemnity provided for in Section 4.1 or
4.2 hereof is held by a court to be unavailable, in whole or in part, to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall have several and
not joint obligation to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively
Losses
) to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the offering of the
Notes, the Exchange Notes or the Registrable Notes and the Registration Statement which resulted in
such Losses. If the allocation provided by the immediately preceding sentence is held by a court
to be unavailable for any reason, the indemnifying party and the indemnified party shall contribute
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party on the one hand and of such indemnified party on the
other hand in connection with the statements or omissions that resulted in such Losses, as well as
any other relevant equitable considerations. Benefits received by the Issuer shall be deemed to be
equal to the sum of (x) the total net proceeds from the offering (before deducting expenses) and
(y) the total amount of Additional Interest (as defined in Section 2.5 hereof) which the Issuer was
not required to pay as a result of registering the securities covered by the Registration Statement
which resulted in the Losses. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total discounts and commissions, and benefits received by any other Holders shall be
deemed to be equal to the value of receiving Notes, Exchange Notes or Registrable Notes, as
applicable, registered under the 1933 Act. Benefits received by any
19
Participating Broker-Dealer shall be deemed to be equal to the total commissions relating to
the market-making and exchange of Registrable Notes for Exchange Notes. Benefits received by any
Underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the indemnifying party on the
one hand or by the indemnified party on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding the provisions of this Section 5, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the total price at
which the Notes underwritten by it and distributed by it to the public were offered to the public
exceeds the amounts of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission; nor shall any
Participating Broker-Dealer be required to contribute any amount in excess of the amount by which
the total price at which the Notes exchanged for Exchange Notes by it were offered to the public
exceeds the amounts of any damages which such Participating Broker-Dealer has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission; nor, shall any Underwriter in the case of a Shelf Registration Statement be required to
contribute any amount in excess of the amount by which the total price at which the Notes
underwritten by it exceeds the amounts of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. The parties agree that it would not be just and equitable if contribution were determined
by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any
other method of allocation that does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this Section 5, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each person, if any, who controls a Holder, an Initial
Purchaser, a Participating Broker-Dealer or an Underwriter, in each case, within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, shall have the same rights to
contribution as such Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter, as the
case may be, and each officer of the Issuer who shall have signed the Registration Statement, each
director of the Issuer and each person, if any, who controls the Issuer within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Issuer.
6.
Miscellaneous
.
6.1
Rule 144 and Rule 144A
. For so long as the Issuer is not subject to the reporting
requirements of Section 13 or 15 of the 1934 Act, the Issuer covenants that it will upon the
request of any Holder of Registrable Notes (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such information to
a prospective purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933 Act,
and (c) take such further action that is reasonable in the circumstances, in each case, to the
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extent required from time to time to enable such Holder to sell its Registrable Notes without
registration under the 1933 Act within the limitation of the exemptions provided by (i) Rule 144
under the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A under the 1933
Act, as such Rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable Notes, the Issuer will
deliver to such Holder a written statement as to whether it has complied with such requirements.
The Issuer agrees to comply with the information obligations to the extent that they are required
by applicable law or regulation.
If the Issuer becomes subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Issuer covenants that it will file the reports required to be filed by it under the 1933
Act and Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, unless it ceases to be so required to file such reports, in which case it will comply
with the covenants in the immediately preceding paragraph.
6.2
No Inconsistent Agreements
. The Issuer has not entered into and the Issuer will
not after the date of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the Holders of the Issuers other issued and outstanding securities under any
such agreements.
6.3
Amendments and Waivers
. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers of consents
to departures from the provisions hereof may not be given unless the Issuer has obtained the
written consent of (i) Majority Holders and (ii) Participating Broker-Dealers holding a majority in
aggregate principal amount of the Exchange Notes held by all Participating Broker-Dealers, in each
case to the extent affected by such amendment, modification, supplement, waiver or departure.
6.4
Notices
. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex, facsimile
transmission, or any courier guaranteeing overnight delivery (a) if to the Depositary, at 55 Water
Street, New York, New York 10041 or if The Depository Trust Company is no longer the Depositary, at
the most current address given by the Depositary to the Issuer by means of a notice given in
accordance with the provisions of this Section 6.4; (b) if to a Holder, at the most current address
given by such Holder to the Issuer by means of a notice given in accordance with the provisions of
this Section 6.4, which address initially is the address set forth in the Purchase Agreement with
respect to the Initial Purchasers; and (c) if to the Issuer, initially at the Issuers address set
forth in the Purchase Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two (2) business days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
transmitted by facsimile; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.
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Copies of all such notices, demands or other communications shall be concurrently delivered by
the person giving the same to the Trustee under the Indenture, at the address specified in the
Indenture.
6.5
Successor and Assigns
. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including without
limitation and without the need for an express assignment, subsequent Holders and Participating
Broker-Dealers; provided that nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Notes in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the terms of this
Agreement, and by taking any holding such Registrable Notes such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such person shall be entitled to receive the benefits hereof.
6.6
Third Party Beneficiaries
. The Initial Purchasers (even if the Initial Purchasers
are not Holders of Registrable Notes) shall be third party beneficiaries to the agreements made
hereunder between the Issuer, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder. Each Holder of Registrable
Notes shall be a third party beneficiary to the agreements made hereunder between the Issuer, on
the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or advisable to protect
its rights hereunder.
6.7
Counterparts
. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
6.8
Headings
. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
6.9
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
6.10
Severability
. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
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FIRSTENERGY SOLUTIONS CORP.
as Issuer
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By:
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/s/
James F. Pearson
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Name:
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James F. Pearson
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Title:
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Vice President & Treasurer
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Signature Page to Registration Rights Agreement relating to
FirstEnergy Solutions Corp.s Senior Notes due 2015, 2021 and 2039
Confirmed and accepted as
of the date first above written:
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MORGAN STANLEY & CO. INCORPORATED
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By:
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/s/ Yurij Slyz
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Name: Yurij Slyz
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Title: Vice President
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BARCLAYS CAPITAL INC.
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By:
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/s/ Pamela Kendall
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Name: Pamela Kendall
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Title: Director
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CREDIT SUISSE SECURITIES (USA) LLC
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By:
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/s/ John Cogan
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Name: John Cogan
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Title: Managing Director
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RBS SECURITIES INC.
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By:
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/s/ Okwudiri Onyedum
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Name: Okwudiri Onyedum
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Title: Senior Vice President
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Acting as Representatives of the Initial Purchasers
Signature Page to Registration Rights Agreement relating to
FirstEnergy Solutions Corp.s Senior Notes due 2015, 2021 and 2039
Exhibit A
Form of Opinion of Counsel
We are of the opinion that the Exchange Offer Registration Statement and the Prospectus (other
than the financial statements, financial schedules and other financial and accounting data
contained or incorporated by reference therein or omitted therefrom and the Form(s) T-1, as to
which we express no view), appeared on its face to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the rules and regulations promulgated under such
provisions.
In addition, we have participated in conferences and conversations with representatives of the
Issuer, representatives of the independent public accountants of the Issuer, and representatives of
the Initial Purchasers, during which conferences and conversations the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus and have not made any
independent check or verification thereof, during the course of such participation, no information
came to our attention that caused us to believe that the Registration Statement or any amendment
thereto, at the time the Registration Statement or any such amendment became effective, contained
an untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein not misleading, or that the Prospectus or any amendment or supplement
thereto, at the time the Prospectus was issued, at the time any such amended or supplemented
Prospectus was issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading; it
being understood that we express no belief with respect to the financial statements, financial
schedules and other financial and accounting data contained or incorporated by reference in the
Registration Statement and the Prospectus.