EXHIBIT
4.1
SECOND
SUPPLEMENTAL INDENTURE
__________
FIRSTENERGY
NUCLEAR GENERATION CORP.
TO
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Trustee
__________
Dated
as of June 30, 2009
__________
Providing
among other things for
First
Mortgage Bonds, Guarantee Series C of 2009 due 2033
First
Mortgage Bonds, Guarantee Series D of 2009 due 2033
First
Mortgage Bonds, Guarantee Series E of 2009 due 2033
First
Mortgage Bonds, Collateral Series H of 2009 due 2011
First
Mortgage Bonds, Collateral Series I of 2009 due 2011
First
Mortgage Bonds, Collateral Series J of 2009 due 2010
_________
Supplemental
to Open-End Mortgage, General Mortgage
Indenture
and Deed of Trust, Dated as of June 1, 2009
THIS SECOND SUPPLEMENTAL
INDENTURE
(this “
Supplemental
Indenture
”), dated as of June 30, 2009, between FIRSTENERGY NUCLEAR
GENERATION CORP., a corporation organized and existing under the laws of the
State of Ohio (hereinafter called the “
Company
”),
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association organized and existing under the laws of the United States of
America, as Trustee (hereinafter called the “
Trustee
”)
under the Open-End Mortgage, General Mortgage Indenture and Deed of Trust, dated
as of June 1, 2009 (hereinafter called the “
Original
Indenture
,” and as hereby supplemented, the “
Indenture
”)
with the Company.
W
I T N E S S E T H:
WHEREAS
, the Company has
heretofore duly executed and delivered to the Trustee the Original Indenture to
secure Bonds of the Company, issuable in series, from time to time, in the
manner and subject to the conditions set forth, and without limit as to
principal amount except as provided in the Original Indenture which Original
Indenture has been filed for record in the filing offices set forth on Schedule
1 attached hereto and incorporated herein by reference; and
WHEREAS
, the Company has
heretofore executed and delivered to the Trustee, a First Supplemental Indenture
dated as of June 15, 2009 (the “
First
Supplemental Indenture
”), and the Original Indenture, as supplemented by
the aforementioned First Supplemental Indenture and this Supplemental Indenture
and any other indentures supplemental to the Original Indenture are herein
collectively called the “
Indenture
”;
and
WHEREAS
, the Company, by
appropriate corporate action in conformity with the terms of the Indenture, has
duly determined to create six new series of Bonds under the Indenture,
consisting of (i) $20,450,000 in aggregate principal amount to be designated as
“First Mortgage Bonds, Guarantee Series C of 2009 due 2033” (hereinafter
referred to as the “
bonds of
Guarantee Series C
”), (ii) $9,100,000 in aggregate principal amount to be
designated as “First Mortgage Bonds, Guarantee Series D of 2009 due 2033”
(hereinafter referred to as the “
bonds of
Guarantee Series D
”), (iii) $62,500,000 in aggregate principal amount to
be designated as “First Mortgage Bonds, Guarantee Series E of 2009 due 2033”
(hereinafter referred to as the “
bonds of
Guarantee Series E
”), (iv) $26,257,000 in aggregate principal amount to
be designated as “First Mortgage Bonds, Collateral Series H of 2009 due 2011”
(hereinafter referred to as the “
bonds of
Collateral Series H
”), (v) $55,139,000 in aggregate principal amount to
be designated as “First Mortgage Bonds, Collateral Series I of 2009 due 2011”
(hereinafter referred to as the “
bonds of
Collateral Series I
”) and (vi) $99,876,000 in aggregate principal amount
to be designated as “First Mortgage Bonds, Collateral Series J of 2009 due 2010”
(hereinafter referred to as the “
bonds of
Collateral Series J
”, and together with the bonds of Guarantee Series C,
the bonds of Guarantee Series D, the bonds of Guarantee Series E, the bonds of
Collateral Series H, the bonds of Collateral Series I, the “
bonds of June
2009 Second Series
”), which shall bear interest at the respective rates
per annum set forth in, shall be subject to certain redemption rights and
obligations set forth in, and will otherwise be in the respective forms and have
the terms and provisions provided for in this Supplemental Indenture;
and
WHEREAS
, the bonds of
Guarantee Series C and the Trustee’s certificate of authentication to be
endorsed thereon shall be substantially in the form included in Exhibit
A
hereto; the
bonds of Guarantee Series D and the Trustee’s certificate of authentication to
be endorsed thereon shall be substantially in the form included in Exhibit B
hereto; the bonds of Guarantee Series E and the Trustee’s certificate of
authentication to be endorsed thereon shall be substantially in the form
included in Exhibit C hereto; the bonds of Collateral Series H and the Trustee’s
certificate of authentication to be endorsed thereon shall be substantially in
the form included in Exhibit D hereto; the bonds of Collateral Series I and the
Trustee’s certificate of authentication to be endorsed thereon shall be
substantially in the form included in Exhibit E hereto; and the bonds of
Collateral Series J and the Trustee’s certificate of authentication to be
endorsed thereon shall be substantially in the form included in Exhibit F
hereto; and
WHEREAS
, the Company deems it
advisable to enter into this Supplemental Indenture for the purposes of
establishing the form, terms and provisions of the bonds of Guarantee
Series C, the bonds of Guarantee Series D, the bonds of Guarantee Series E,
the bonds of Collateral Series H, the bonds of Collateral Series I, and the
bonds of Collateral Series J, as provided and contemplated by Sections 2.01(a)
and 3.01(b) of the Indenture, and the Company has requested and hereby requests
the Trustee to join in the execution of th
is Supplemental Indenture;
and
WHEREAS
, it is provided in the
Indenture, among other things, that the Company shall execute and file with the
Trustee and the Trustee, at the request of the Company, when required by the
Indenture, shall join in the execution of indentures supplemental thereto, and
which thereafter shall form a part thereof, for the purpose, among others, of
providing for the creation of any series of Bonds and specifying the form and
provisions of the Bonds of such series; and
WHEREAS
, all acts and things
have been done and performed which are necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed;
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized.
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 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
as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01
Terms Incorporated by
Reference
.
Except for the terms
defined in this Supplemental Indenture, all capitalized terms used in this
Supplemental Indenture have the respective meanings set forth in the Original
Indenture.
SECTION
1.02
Additional
Definitions
.
“
Bank”
shall mean, with respect to each of the Reimbursement Agreements, The Bank of
Nova Scotia and includes its successors and permitted assigns.
“
BCIDA
”
means the Beaver County Industrial Development Authority.
“
BCIDA 2008-A
Reimbursement Agreement
” means that certain Letter of Credit and
Reimbursement Agreement dated as of June 6, 2008 (as amended, restated,
supplemented or otherwise modified from time to time), between the Company and
the Bank pursuant to which a letter of credit was issued by the Bank in favor of
the BCIDA 2008-A Revenue Bond Trustee.
“
BCIDA 2008-A
Revenue Bond Indenture
” means the Trust Indenture dated as of June 1,
2008, between the BCIDA and the BCIDA 2008-A Revenue Bond Trustee, securing the
BCIDA 2008-A Revenue Bonds issued for the benefit of the Company.
“
BCIDA 2008-A
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.), as trustee
under the BCIDA 2008-A Revenue Bond Indenture.
“
BCIDA 2008-A
Revenue Bonds
” means the $98,900,000 aggregate principal amount of Beaver
County Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy
Nuclear Generation Corp. Project) issued by the BCIDA.
“
Bonds
of Collateral Series
”
means collectively,
the bonds of Collateral Series H, the bonds of
Collateral Series I, and the bonds of Collateral Series J.
“
Bonds
of Guarantee Series
”
means collectively,
the bonds of Guarantee Series C, the bonds of
Guarantee Series D and the bonds of Guarantee Series E.
“
Initial Interest
Accrual Date
” shall have the meaning assigned to such term in the
respective form of Bonds of Guarantee Series.
“
Interest Payment
Date
” shall have the meaning assigned to such term in the respective form
of Bonds of Collateral Series or in the respective form of Bonds of Guarantee
Series.
“
OAQDA
”
means the Ohio Air Quality Development Authority.
“
OAQDA 2008-A
Reimbursement Agreement
” means that certain Letter of Credit and
Reimbursement Agreement dated as of June 6, 2008 (as amended, restated,
supplemented or otherwise modified from time to time), between the Company and
the Bank pursuant to which a letter of credit was issued by the Bank in favor of
the OAQDA 2008-A Revenue Bond Trustee.
“
OAQDA 2008-A
Revenue Bond Indenture
” means the Trust Indenture dated as of June 1,
2008, between the OAQDA and the OAQDA 2008-A Revenue Bond Trustee, securing the
OAQDA 2008-A Revenue Bonds issued for the benefit of the Company.
“
OAQDA 2008-A
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.), as trustee
under the OAQDA 2008-A Revenue Bond Indenture.
“
OAQDA 2008-A
Revenue Bonds
” means the $26,000,000 aggregate principal amount of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy
Nuclear Generation Corp. Project) issued by the OAQDA.
“
OAQDA 2008-B
Pledge Agreement
” means the Pledge Agreement, dated June 30, 2009,
between the Company and the OAQDA 2008-B Revenue Bond Trustee pursuant to which
the Company pledges and delivers the bonds of Guarantee Series D.
“
OAQDA 2008-B
Revenue Bond Indenture
” means the Trust Indenture dated as of September
1, 2008, between the OAQDA and the OAQDA 2008-B Revenue Bond Trustee, securing
the OAQDA 2008-B Revenue Bonds issued for the benefit of the
Company.
“
OAQDA 2008-B
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A., as trustee under that certain OAQDA 2008-B Revenue Bond
Indenture.
“
OAQDA 2008-B
Revenue Bonds
” means the $9,100,000 aggregate principal amount of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-B (FirstEnergy
Nuclear Generation Corp. Project) issued by the OAQDA.
“
OAQDA 2009-A
Pledge Agreement
” means the Pledge Agreement, dated June 30, 2009,
between the Company and the OAQDA 2009-A Revenue Bond Trustee pursuant to which
the Company pledges and delivers the bonds of Guarantee Series E.
“
OAQDA 2009-A
Revenue Bond Indenture
” means the Trust Indenture dated as of April 1,
2009, between the OAQDA and the OAQDA 2009-A Revenue Bond Trustee,
securing the OAQDA 2009-A Revenue Bonds issued for the benefit of the
Company.
“
OAQDA 2009-A
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A., as trustee under that certain OAQDA 2009-A Revenue Bond
Indenture.
“
OAQDA 2009-A
Revenue Bonds
” means the $62,500,000 aggregate principal amount of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2009-A (FirstEnergy
Nuclear Generation Corp. Project) issued by the OAQDA.
“
OWDA”
means the Ohio Water Development Authority.
“
OWDA 2008-A
Reimbursement Agreement
” means that certain Letter of Credit and
Reimbursement Agreement dated as of June 6, 2008 (as amended, restated,
supplemented or otherwise modified from time to time), between the Company and
the Bank, pursuant to which a letter of credit was issued by the Bank in favor
of the OWDA 2008-A Revenue Bond Trustee.
“
OWDA 2008-A
Revenue Bond Indenture
” means the Trust Indenture dated as of June 1,
2008, between the OWDA and the OWDA 2008-A Revenue Bond Trustee, securing the
OWDA 2008-A Revenue Bonds issued for the benefit of the Company.
“
OWDA 2008-A
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.), as trustee
under the OWDA 2008-A Revenue Bond Indenture.
“
OWDA 2008-A
Revenue Bonds
” means the $54,600,000 aggregate principal amount of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy
Nuclear Generation Corp. Project) issued by the OWDA.
“
OWDA 2008-B
Pledge Agreement
” means the Pledge Agreement, dated June 30, 2009,
between the Company and the OWDA 2008-B Revenue Bond Trustee pursuant to which
the Company pledges and delivers the bonds of Guarantee Series C.
“
OWDA 2008-B
Revenue Bond Indenture
” means the Trust Indenture, dated as of September
1, 2008, between the OWDA and the OWDA 2008-B Revenue Bond Trustee, securing the
OWDA 2008-B Revenue Bonds issued for the benefit of the Company.
“
OWDA 2008-B
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A., as trustee under that certain OWDA 2008-B Revenue Bond
Indenture.
“
OWDA 2008-B
Revenue Bonds
” means the $20,450,000 aggregate principal amount of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-B (FirstEnergy
Nuclear Generation Corp. Project) issued by the OWDA.
“
Reimbursement
Agreements
” means, collectively, the BCIDA 2008-A Reimbursement
Agreement, the OAQDA 2008-A Reimbursement Agreement and the OWDA 2008-A
Reimbursement Agreement.
“
Revenue Bond
Indentures
” means, collectively, the OWDA 2008-B Revenue Bond Indenture,
the OAQDA 2008-B Revenue Bond Indenture and the OAQDA 2009-A Revenue Bond
Indenture.
“
Revenue Bond
Trustees
” means, collectively, the OWDA 2008-B Revenue Bond Trustee, the
OAQDA 2008-B Revenue Bond Trustee and the OAQDA 2009-A Revenue Bond
Trustee.
The terms “
Available
Amount
,” “
Bank
Assignee,
” “
Cancellation
Date
,”
“
Letter of
Credit
,” “
Letter of Credit
Fees
,” “
Obligations
”
and “
Reimbursement
Obligation
,” shall
have the respective meanings assigned to those terms in the respective
Reimbursement Agreements.
SECTION
1.03.
Rules of
Construction.
All references to any agreement refer to such
agreement as modified, varied, supplemented, amended or restated from time to
time by the parties thereto (including any permitted successors or assigns) in
accordance with its terms.
ARTICLE
II
BONDS
SECTION
2.01.
Designation
and Issuance of Bonds.
(a) The bonds of Guarantee Series C
shall be designated, as hereinbefore recited, as the Company’s “First Mortgage
Bonds,
Guarantee
Series C of 2009 due 2033” and, subject to the provisions of the Indenture,
shall be limited to the aggregate principal amount of Twenty Million Four
Hundred Fifty Thousand Dollars ($20,450,000). The bonds of Guarantee
Series C are to be issued and secured by the Lien of the Indenture.
(b) The
bonds of Guarantee Series D shall be designated, as hereinbefore recited, as the
Company’s “First Mortgage Bonds, Guarantee Series D of 2009 due 2033” and,
subject to the provisions of the Indenture, shall be limited to the aggregate
principal amount of Nine Million One Hundred Thousand Dollars
($9,100,000). The bonds of Guarantee Series D are to be issued and
secured by the Lien of the Indenture.
(c) The
bonds of Guarantee Series E shall be designated, as hereinbefore recited, as the
Company’s “First Mortgage Bonds, Guarantee Series E of 2009 due 2033” and,
subject to the provisions of the Indenture, shall be limited to the aggregate
principal amount of Sixty-Two Million Five Hundred Thousand Dollars
($62,500,000). The bonds of Guarantee Series E are to be issued and
secured by the Lien of the Indenture.
(d) The
bonds of Collateral Series H shall be designated, as hereinbefore recited, as
the Company’s “First Mortgage Bonds, Collateral Series H of 2009 due 2011” and,
subject to the provisions of the Indenture, shall be limited to the aggregate
principal amount of Twenty-Six Million Two Hundred Fifty-Seven Thousand Dollars
($26,257,000). The bonds of Collateral Series H are to be issued and
secured by the Lien of the Indenture.
(e) The
bonds of Collateral Series I shall be designated, as hereinbefore recited, as
the Company’s “First Mortgage Bonds, Collateral Series I of 2009 due 2011” and,
subject to the provisions of the Indenture, shall be limited to the aggregate
principal amount of Fifty-Five Million One Hundred Thirty-Nine Thousand Dollars
($55,139,000). The bonds of
Collateral
Series I are to be
issued and secured by the Lien of the Indenture.
(f) The
bonds of
Collateral
Series J shall be designated, as hereinbefore recited, as the Company’s “First
Mortgage Bonds,
Collateral
Series J of 2009
due 2010” and, subject to the provisions of the Indenture, shall be limited to
the aggregate principal amount of Ninety-Nine Million Eight Hundred Seventy-Six
Thousand Dollars ($99,876,000). The bonds of
Collateral
Series J are to be
issued and secured by the Lien of the Indenture.
SECTION
2.02.
Form, Date,
Maturity Date, Interest Rate and Interest Payment Dates of
Bonds.
(a) The definitive bonds of June 2009 Second
Series shall be in engraved, lithographed, printed or typewritten form and shall
be registered bonds without coupons, and such bonds and the Trustee’s
certificate of authentication to be endorsed thereon shall be substantially in
the
respective forms
included in Exhibits A, B, C, D, E and F hereto. The bonds of June
2009 Second Series shall be dated as provided in Section 3.03 of the
Indenture.
(b) The
bonds of Guarantee Series C shall bear interest from the Initial Interest
Accrual Date as provided in the form of the bond of Guarantee Series C, and such
provisions are incorporated at this place as though set forth in their
entirety. The interest rate and maturity date of the bonds of
Guarantee Series C shall be as set forth in the form of the bond of Guarantee
Series C.
(c) The
interest on the bonds of Guarantee Series C so payable on any Interest Payment
Date shall, subject to the exceptions provided in Section 3.07 of the Indenture,
be paid to the person in whose name such Bond is registered on such Interest
Payment Date.
(d) The
bonds of Guarantee Series D shall bear interest from the Initial Interest
Accrual Date as provided in the form of the bonds of Guarantee
Series D, and such
provisions are incorporated at this place as though set forth in their
entirety. The interest rate and maturity date of the bonds of
Guarantee
Series D
shall be as set forth in the form of the bond of Guarantee Series
D.
(e) The
interest on the bonds of Guarantee Series D so payable on any Interest Payment
Date shall, subject to the exceptions provided in Section 3.07 of the Indenture,
be paid to the person in whose name such Bond is registered on such Interest
Payment Date.
(f) The
bonds of Guarantee Series E shall bear interest from the Initial Interest
Accrual Date as provided in the form of the bonds of Guarantee
Series E, and such
provisions are incorporated at this place as though set forth in their
entirety. The interest rate and maturity date of the bonds of
Guarantee
Series E
shall be as set forth in the form of the bond of Guarantee Series
E.
(g) The
interest on the bonds of
Guarantee
Series E so payable
on any Interest Payment Date shall, subject to the exceptions provided in
Section 3.07 of the Indenture, be paid to the person in whose name such Bond is
registered on such Interest Payment Date.
(h) The
bonds of
Collateral
Series H shall bear interest as provided in the form of the bond of Collateral
Series H, and such provisions are incorporated at this place as though set forth
in their entirety. The interest rate and maturity date of the bonds
of Collateral Series H shall be as set forth in the form of the bond of
Collateral Series H.
(i) The
interest on the bonds of
Collateral
Series H so
payable on any Interest Payment Date shall, subject to the exceptions provided
in Section 3.07 of the Indenture, and to the provisions of Section 2.04 of this
Supplemental Indenture, be paid to the person in whose name such Bond is
registered on such Interest Payment Date.
(j) The
bonds of
Collateral
Series I shall bear interest as provided in the form of the bond of Collateral
Series I, and such provisions are incorporated at this place as though set forth
in their
entirety. The interest rate and maturity date of the bonds of
Collateral Series I shall be as set forth in the form of the bond of Collateral
Series I.
(k) The
interest on the bonds of
Collateral
Series I so
payable on any Interest Payment Date shall, subject to the exceptions provided
in Section 3.07 of the Indenture, and to the provisions of Section 2.04 of this
Supplemental Indenture, be paid to the person in whose name such Bond is
registered on such Interest Payment Date.
(l) The
bonds of
Collateral
Series J shall bear interest as provided in the form of the bond of Collateral
Series J, and such provisions are incorporated at this place as though set forth
in their entirety. The interest rate and maturity date of the bonds
of Collateral Series J shall be as set forth in the form of the bond of
Collateral Series J.
(m) The
interest on the bonds of
Collateral
Series J so
payable on any Interest Payment Date shall, subject to the exceptions provided
in Section 3.07 of the Indenture, and to the provisions of Section 2.04 of this
Supplemental Indenture, be paid to the person in whose name such Bond is
registered on such Interest Payment Date.
SECTION
2.03.
Bonds Issued
as Collateral Security.
The bonds of Guarantee Series C shall
be issued, delivered, and pledged to, and registered in the name of, the OWDA
2008-B Revenue Bond Trustee in order to secure and provide for, and as
collateral security for, the due and punctual payment of the principal of and
interest on the OWDA 2008-B Revenue Bonds until the Release Date (as defined in
the OWDA 2008-B Pledge Agreement). The bonds of
Guarantee
Series D shall be
issued, delivered, and pledged to, and registered in the name of, the OAQDA
2008-B Revenue Bond Trustee in order to secure and provide for, and as
collateral security for, the due and punctual payment of the principal and
interest on the OAQDA 2008-B Revenue Bonds until the Release Date (as defined in
the OAQDA 2008-B Pledge Agreement). The bonds of Guarantee Series E
shall be issued, delivered, and pledged to, and registered in the name of, the
OAQDA 2009-A Revenue Bond Trustee in order to secure and provide for, and as
collateral security for, the due and punctual payment of the principal of and
interest on the OAQDA 2009-A Revenue Bonds until the Release Date (as defined in
the OAQDA 2009-A Pledge Agreement). The bonds of
Collateral
Series H shall be
issued, delivered, and pledged to, and registered in the name of, the Bank under
the OAQDA 2008-A Reimbursement Agreement in order to secure and provide for, and
as collateral security for, the due and punctual payment of the Reimbursement
Obligations arising thereunder. The bonds of
Collateral
Series I shall be
issued, delivered, and pledged to, and registered in the name of, the Bank under
the OWDA 2008-A Reimbursement Agreement in order to secure and provide for, and
as collateral security for, the due and punctual payment of the Reimbursement
Obligations arising thereunder, interest thereon and Letter of Credit
Fees. The bonds of
Collateral
Series J shall be
issued, delivered, and pledged to, and registered in the name of, the Bank under
the BCIDA 2008-A Reimbursement Agreement in order to secure and provide for, and
as collateral security for, the due and punctual payment of the Reimbursement
Obligations arising thereunder.
SECTION
2.04.
Credit for
Payments of the Revenue Bonds and Payments under the Reimbursement
Agreements.
(a) If and when the principal of any OWDA 2008-B
Revenue Bonds is paid, then there is deemed to be paid an equal principal amount
of the bonds of
Guarantee Series C
then outstanding; provided, however, that such payment of the bonds of Guarantee
Series C is deemed to be made only when and to the extent that notice of such
payment of such OWDA 2008-B Revenue Bonds is given by the Company to the
Trustee.
(b) If
and when the principal of any OAQDA 2008-B Revenue Bond is paid, then there is
deemed to be paid an equal principal amount of the bonds of Guarantee Series D
then outstanding; provided, however, that such payment of the bonds of Guarantee
Series D is deemed to be made only when and to the extent that notice of such
payment of such OAQDA 2008-B Revenue Bonds is given by the Company to the
Trustee.
(c) If
and when the principal of any OAQDA 2009-A Revenue Bond is paid, then there is
deemed to be paid an equal principal amount of the bonds of Guarantee Series E
then outstanding; provided, however, that such payment of the bonds of Guarantee
Series E is deemed to be made only when and to the extent that notice of such
payment of such OAQDA 2009-A Revenue Bonds is given by the Company to the
Trustee.
(d)
Any payment made in respect of the Company’s obligations under the OAQDA 2008-A
Reimbursement Agreement with respect to the payment of (i) principal of or (ii)
interest on the Reimbursement Obligations or Letter of Credit Fees shall be
deemed a payment in respect of (x) principal of or (y) interest on,
respectively, the bonds of Collateral Series H, but any such payment of
principal shall not reduce the principal amount of the bonds of Collateral
Series H unless, and then only to the extent, the stated amount available to be
drawn under the Letter of Credit is irrevocably reduced concurrently with such
payment. The obligation of the Company to make payments with respect
to the principal of and interest on the bonds of Collateral Series H shall be
fully satisfied and discharged to the extent that, at any time that any such
payment shall be due, the Company shall have paid fully all the Obligations and
the Cancellation Date shall have occurred.
(e) The
Trustee may conclusively presume that the obligation of the Company to pay the
principal of, and interest on, the bonds of
Collateral
Series H, as the
same shall become due and payable, has been credited in accordance with this
Section 2.04 unless and until it shall have received a written notice (including
a telecopy or other form of written communication) from an authorized
representative of the Bank stating that payment of Reimbursement Obligations or
interest thereon or Letter of Credit Fees due under the OAQDA 2008-A
Reimbursement Agreement has become due and payable and has not been fully paid
and specifying the amount of funds required to make such payment.
(f) Any
payment made in respect of the Company’s obligations under the OWDA 2008-A
Reimbursement Agreement with respect to the payment of (i) principal of or (ii)
interest on the Reimbursement Obligations or Letter of Credit Fees shall be
deemed a payment in respect of (x) principal of or (y) interest on,
respectively, the bonds of Collateral Series I, but any such payment of
principal shall not reduce the principal amount of the bonds of Collateral
Series I unless, and then only to the extent, the stated amount available to be
drawn under the Letter of Credit is irrevocably reduced concurrently with such
payment. The obligation of the Company to make payments with respect
to the principal of and interest on the bonds of Collateral Series I shall be
fully satisfied and discharged to the extent that, at any time that any such
payment shall
be due, the Company
shall have paid fully all the Obligations and the Cancellation Date shall have
occurred.
(g) The
Trustee may conclusively presume that the obligation of the Company to pay the
principal of, and interest on, the bonds of
Collateral
Series I, as the
same shall become due and payable, has been credited in accordance with this
Section 2.04 unless and until it shall have received a written notice (including
a telecopy or other form of written communication) from an authorized
representative of the Bank stating that payment of Reimbursement Obligations or
interest thereon or Letter of Credit Fees due under the OWDA 2008-A
Reimbursement Agreement has become due and payable and has not been fully paid
and specifying the amount of funds required to make such payment.
(h) Any
payment made in respect of the Company’s obligations under the BCIDA 2008-A
Reimbursement Agreement with respect to the payment of (i) principal of or (ii)
interest on the Reimbursement Obligations or Letter of Credit Fees shall be
deemed a payment in respect of (x) principal of or (y) interest on,
respectively, the bonds of Collateral Series J, but any such payment of
principal shall not reduce the principal amount of the bonds of Collateral
Series J unless, and then only to the extent, the stated amount available to be
drawn under the Letter of Credit is irrevocably reduced concurrently with such
payment. The obligation of the Company to make payments with respect
to the principal of and interest on the bonds of Collateral Series J shall be
fully satisfied and discharged to the extent that, at any time that any such
payment shall be due, the Company shall have paid fully all the Obligations and
the Cancellation Date shall have occurred.
(i) The
Trustee may conclusively presume that the obligation of the Company to pay the
principal of, and interest on, the bonds of
Collateral
Series J, as the
same shall become due and payable, has been credited in accordance with this
Section 2.04 unless and until it shall have received a written notice (including
a telecopy or other form of written communication) from an authorized
representative of the Bank stating that payment of Reimbursement Obligations or
interest thereon or Letter of Credit Fees due under the BCIDA 2008-A
Reimbursement Agreement has become due and payable and has not been fully paid
and specifying the amount of funds required to make such payment.
SECTION
2.05.
Execution of
Bonds.
The bonds of June 2009 Second Series shall be executed
on behalf of the Company in accordance with Section 3.03 of the
Indenture.
SECTION
2.06.
Medium and
Places of Payment of Principal of, and Interest on, Bonds; Transferability and
Exchangeability.
The principal of, and the interest on, the
bonds of June 2009 Second Series shall be payable in any coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts, and such principal and interest shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio. The Corporate Trust Office of the Trustee shall serve as the
initial location of such office. Subject to the limitations provided
herein, the bonds of June 2009 Second Series shall be transferable and
exchangeable, in the manner provided in Sections 3.05 and 3.06 of the Indenture,
at said office or agency. The bonds of Guarantee Series shall not be
transferable except (i) to a successor to the respective Revenue Bond Trustee
under the
respective Revenue
Bond Indenture, (ii) in connection with the exercise of the rights and remedies
of the holder thereof consequent upon an “Event of Default” as defined in the
Indenture, or (iii) as may be necessary to comply with a final order of a court
of competent jurisdiction in connection with any bankruptcy or reorganization
proceeding of the Company. The bonds of Collateral Series shall not
be transferable except (i) to a successor to the respective Bank or Bank
Assignee under the respective Reimbursement Agreement, (ii) in connection with
the exercise of the rights and remedies of the holder thereof consequent upon an
“E
vent of
Default” as
defined in the Indenture, or (iii) as may be necessary to comply with a final
order of a court of competent jurisdiction in connection with any bankruptcy or
reorganization proceeding of the Company. No charge shall be made by
the Company to the registered owner of any bond of June 2009 Second Series for
the registration of transfer of such Bond or for the exchange thereof for Bonds
of the same series of other authorized denominations, except, in the case of any
transfer, a charge sufficient to reimburse the Company for any stamp or other
tax or governmental charge required to be paid by the Company or the
Trustee.
SECTION
2.07.
Denominations
and Numbering of Bonds
. The bonds of June 2009 Second Series
shall be issued in the denomination of $1,000 and any integral multiple
thereof. Each series of bonds of June 2009 Second Series shall each
be numbered R-1 and consecutively upwards.
SECTION
2.08.
Temporary
Bonds.
Until definitive bonds of June 2009 Second Series are
ready for delivery, there may be authenticated and issued in lieu of any thereof
and subject to all of the provisions, limitations, and conditions set forth in
Section 3.04 of the Indenture, temporary registered bonds of June 2009 Second
Series without coupons.
SECTION
2.09.
Mandatory
Redemption.
The bonds of June 2009 Second Series shall be
subject to mandatory redemption as provided in the respective forms
thereof.
SECTION
2.10.
Confirmation
of Lien.
The Company, for the equal and proportionate benefit
and security of the holders of all Bonds at any time issued under the Indenture,
hereby confirms the lien and security interest of the Indenture upon, and hereby
grants, bargains, sells, releases, conveys, assigns, transfers, mortgages,
pledges, sets over and confirms to the Trustee, and grants to the Trustee a
security interest in, the Mortgaged Property (as defined in the Indenture), but
excluding from such lien, security interest and grant all property which, by
virtue of any of the provisions of the Indenture, is excluded from the lien,
security interests and granting clauses thereof.
ARTICLE
III
MISCELLANEOUS
SECTION
3.01 Except
as herein otherwise expressly provided, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by
reason of this Supplemental Indenture; the Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals herein or in the
bonds of June 2009 Second Series (except the
Trustee’s
authentication certificate), all of which are made by the Company solely; and
this Supplemental Indenture is executed and accepted by the Trustee, subject to
all the terms and conditions set forth in the Indenture, as fully to all intents
and purposes as if the terms and conditions of the Indenture were herein set
forth at length.
SECTION
3.02 As
supplemented by this Supplemental Indenture, the Indenture is in all respects
ratified and confirmed, and the Indenture as herein defined, and this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
SECTION
3.03 Nothing
in this Supplemental Indenture contained shall or shall be construed to confer
upon any person other than a Holder of Bonds issued under the Indenture, the
Company and the Trustee any right or interest to avail himself of any benefit
under any provision of the Indenture or of this Supplemental
Indenture.
SECTION
3.04 This
Supplemental Indenture may be simultaneously executed in several counterparts
and all such counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
[Remainder of this
page intentionally left blank.]
IN WITNESS WHEREOF,
FIRSTENERGY NUCLEAR GENERATION CORP., party of the first part hereto, and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., party of the second part hereto,
have caused these presents to be executed in their respective names as of the
day and year first above written.
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FIRSTENERGY
NUCLEAR GENERATION CORP.
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By:
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/s/ James F.
Pearson
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James F.
Pearson
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Vice President
and 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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Biagio S.
Impala
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Vice
President
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Second
Supplemental Indenture
STATE OF
OHIO )
)ss.:
COUNTY
OF )
On the 30
th
day of
June, 2009, personally appeared before me, a Notary Public in and for the said
County and State aforesaid, James F. Pearson, to me known and known to me to be
the Vice President and Treasurer of FIRSTENERGY NUCLEAR GENERATION CORP., the
corporation which executed the foregoing instrument, and who severally
acknowledged that he did sign such instrument as such Vice President and
Treasurer of FIRSTENERGY NUCLEAR GENERATION CORP., the same is his free act and
deed and the free and corporate act and deed of said corporation.
IN WITNESS WHEREOF,
I have hereunto set my hand and seal the 30
th
day of
June, 2009.
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/s/
Michele A. Buchtel
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________________,
Notary Public
|
Commission Expires Aug. 28,
2011
|
Michele
A. Buchtel
Resident Summit
County
Notary Public, State of
Ohio
My
Commission Expires: 08/28/11
Second
Supplemental Indenture
STATE OF
OHIO
)
)ss.:
COUNTY OF
CUYAHOGA )
On the 30
th
day of
June, 2009, personally appeared before me, a Notary Public in and for the said
County and State aforesaid, Biagio S. Impala, to me known and known to me to be
a Vice President of THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., the
national banking association which executed the foregoing instrument, and who
severally acknowledged that he did sign such instrument as such Vice President
for and on behalf of said national banking association and that the same is his
free act and deed and the free and corporate act and deed of said national
banking association.
IN WITNESS WHEREOF,
I have hereunto set my hand and seal the 30
th
day of
June, 2009.
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/s/
Ernie K. Demanelis
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________________,
Notary Public
|
Commission
Expires ______________
|
ERNIE K. DEMANELIS,
Attorney At Law
Notary Public -
State of Ohio
My commission has no expiration
date.
Section
147.03 R. C.
Second
Supplemental Indenture
The
Bank of New York Mellon Trust Company, N.A. hereby certifies that its precise
name and address as
Trustee is:
The
Bank of New York Mellon Trust Company, N.A.
Global Corporate Trust
1660 West 2
nd
Street,
Suite 830
Cleveland, Ohio
44113
THE BANK OF
NEW YORK MELLON TRUST
COMPANY,
N.A.
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By:
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/s/ Biagio S.
Impala
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Biagio S.
Impala
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Vice
President
|
Second
Supplemental Indenture
THIS INSTRUMENT
PREPARED BY:
Lucas F.
Torres
Akin Gump Strauss
Hauer & Feld LLP
One
Bryant Park
New
York, NY 10036
Exhibit A
[
FORM OF FIRST MORTGAGE BOND
OF GUARANTEE SERIES C
]
This
Bond is not transferable except (i) to a successor trustee under the Trust
Indenture, dated as of September 1, 2008, between the Ohio Water Development
Authority and The Bank of New York Mellon Trust Company, N.A., as trustee,
referred to herein, (ii) in connection with the exercise of the rights and
remedies of the holder hereof consequent upon an “Event of Default” as defined
in the Indenture referred to herein or (iii) as may be necessary to comply with
a final order of a court of competent jurisdiction in connection with any
bankruptcy or reorganization proceeding of the Company.
FIRSTENERGY
NUCLEAR GENERATION CORP.
First Mortgage Bond,
Guarantee Series C of 2009 due 2033
Due
October 1, 2033
$[_____________________] No.
R-__
FIRSTENERGY NUCLEAR GENERATION
CORP.
, a corporation of the State of Ohio (herein, together with its
successors and assigns, the “
Company
”),
for value received promises to pay to The Bank of New York Mellon Trust Company,
N.A., as trustee (the “
Revenue Bond
Trustee
”) under that certain Trust Indenture, dated as of September 1,
2008, between the Ohio Water Development Authority and the Revenue Bond Trustee,
securing $20,450,000 of State of Ohio Pollution Control Revenue Refunding Bonds,
Series 2008-B (FirstEnergy Nuclear Generation Corp. Project) issued for the
benefit of the Company (the “
Revenue
Bonds
”) (such Trust Indenture, as amended from time to time, hereinafter
the “
Revenue Bond
Indenture
”), or registered assigns, on October 1, 2033, the principal sum
of [_____________________] Dollars, and to pay interest on the unpaid principal
amount from the Initial Interest Accrual Date (as hereinafter defined) at the
Revenue Bond Interest Rate (as hereinafter defined) per annum payable
semi-annually on April 1 and October 1 in each year commencing on the April 1 or
October 1 immediately succeeding the Initial Interest Accrual Date (each such
date herein referred to as an “
Interest Payment
Date
”) on and until maturity, or, in the case of any Bonds of this series
duly called for redemption, on and until the redemption date, or in the case of
any default by the Company in the payment of the principal due on any Bonds of
this series, until the Company’s obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined).
The
interest on each Bond of this series so payable on any Interest Payment Date
shall, subject to the exceptions provided in Section 3.07 of the Indenture, be
paid to the person in whose name such Bond is registered on the date of such
payment. The principal of, and the interest on, this Bond shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private
debts.
This Bond is one of
an issue of Bonds of the Company known as its First Mortgage Bonds, issued and
to be issued in one or more series under and secured by an Open-End Mortgage,
General Mortgage Indenture and Deed of Trust, dated as of June 1, 2009, duly
executed by the Company to The Bank of New York Mellon Trust Company, N.A., a
national banking association organized and existing under the laws of the United
States of America, as Trustee (the “
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Second Supplemental Indenture dated as of June 30, 2009 (as amended,
supplemented, modified or restated, the
“
Supplemental
Indenture
”
), to
which Open-End Mortgage, General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto (collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Guarantee Series C of 2009 due
2033,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$20,450,000.
If and when the
principal of any Revenue Bonds is paid, then there is deemed to be paid an equal
principal amount of the Bonds of this series then outstanding; provided,
however, that such payment of the Bonds of this series is deemed to be made only
when and to the extent that notice of such payment of such Revenue Bonds is
given by the Company to the Trustee.
The Bonds of this
series have been delivered and pledged to the Revenue Bond Trustee pursuant to a
Pledge Agreement, dated June 30, 2009, between the Company and the Revenue Bond
Trustee (the “
Pledge
Agreement
”), as security for the Revenue Bonds until the Release Date (as
defined in the Pledge Agreement). The Bonds of this series shall be
redeemed by the Company in whole at any time prior to maturity at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the date of redemption following receipt by the Trustee of written demand for
redemption (a “
Redemption
Demand
”) from an authorized representative of the Revenue Bond Trustee
under the Revenue Bond Indenture stating that the principal amount of all the
Revenue Bonds then outstanding under the Revenue Bond Indenture has been
declared due and payable pursuant to the provisions of Section 11.02 of the
Revenue Bond Indenture, specifying the date of the accelerated maturity of such
Revenue Bonds and the date or dates from which interest on the Revenue Bonds has
then accrued and is unpaid (specifying the rate or rates of such accrual and the
principal amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and demanding payment
of the principal amount of the Bonds of this series plus accrued interest
thereon to the date fixed for such redemption. The date fixed for such
redemption shall be set forth in the aforesaid Redemption Demand and shall not
be earlier than the date specified in such Redemption Demand as the date of
accelerated maturity of the Revenue Bonds then outstanding under the Revenue
Bond Indenture and not later than forty-five days after the Trustee’s receipt of
such Redemption Demand unless such forty-fifth day is earlier than such date of
accelerated maturity. The Revenue Bond Trustee as the sole holder of
the Bonds of this series, and any successor thereto, hereby irrevocably waives
any requirement of notice of such redemption under Section 5.04 of the
Indenture. Upon receipt of the aforesaid Redemption Demand, the
earliest
date from
which unpaid interest on the Revenue Bonds has then accrued (as specified by the
Revenue Bond Trustee in the Redemption Demand) shall become the initial interest
accrual date (the “
Initial Interest
Accrual Date
”) with respect to the Bonds of this series; provided,
however, on any demand for payment of the principal amount thereof at maturity
as a result of the principal of the Revenue Bonds becoming due and payable on
the maturity date of the Bonds of this series, the earliest date from which
unpaid interest on the Revenue Bonds has then accrued shall become the Initial
Interest Accrual Date with respect to the Bonds of this series, such date,
together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, to be as stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. Such redemption shall become null
and void for all purposes under the Indenture (including the fixing of the
Initial Interest Accrual Date with respect to the Bonds of this series) upon
receipt by the Trustee of written notice from the Revenue Bond Trustee of the
annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and of the rescission of the
aforesaid Redemption Demand prior to the redemption date specified in the
Redemption Demand, and thereupon no redemption of the Bonds of this series and
no payment in respect thereof as specified in the Redemption Demand, shall be
effected or required. But no such rescission shall extend to any
subsequent Redemption Demand from the Revenue Bond Trustee or impair any right
consequent on any such subsequent Redemption Demand.
The “
Revenue Bond
Interest Rate
” shall be the same rate of interest per annum as is borne
by the Revenue Bonds; provided, however, that if there are different rates of
interest borne by the Revenue Bonds, or if interest is required to be paid on
the Revenue Bonds more frequently than on each April 1 or October 1, the Revenue
Bond Interest Rate shall be the rate that results in the total amount of
interest payable on an Interest Payment Date, a redemption date or at maturity,
as the case may be, or at any other time interest on this Bond is due and
payable, to be equal to the total amount of unpaid interest that has accrued on
all then outstanding Revenue Bonds.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an “Event of Default” as therein defined.
From and after the
Release Date, the Bonds of this series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date or promptly following, the Bonds of
this series shall be surrendered to and cancelled by the Trustee.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of
incorporators, stockholders, officers and directors being
released by the
registered owner hereof by the acceptance of this Bond and being likewise waived
and released by the terms of the Indenture.
This Bond is
nontransferable except to (i) effect transfer to any successor to the Revenue
Bond Trustee under the Revenue Bond Indenture, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender and cancellation of this Bond
and the payment of any applicable taxes and fees required by law, and upon any
such transfer or exchange a new registered Bond or Bonds of the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be. The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner
for the purpose of receiving
payment of or on account of the principal and interest due hereon and for all
other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY NUCLEAR
GENERATION
CORP.
By:______________________________
Title:
Attest:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the
Bonds of the series designated therein referred to in the within-
mentioned Indenture.
THE
BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By:_________________________
Authorized Signatory
Exhibit
B
[
FORM OF FIRST MORTGAGE BOND
OF GUARANTEE SERIES D
]
This
Bond is not transferable except (i) to a successor trustee under the
Trust Indenture, dated as of September 1, 2008, between the Ohio Air
Quality Development Authority and The Bank of New York Mellon Trust Company,
N.A., as trustee, referred to herein, (ii) in connection with the exercise of
the rights and remedies of the holder hereof consequent upon an “Event of
Default” as defined in the Indenture referred to herein or (iii) as may be
necessary to comply with a final order of a court of competent jurisdiction in
connection with any bankruptcy or reorganization proceeding of the
Company.
FIRSTENERGY
NUCLEAR GENERATION CORP.
First Mortgage Bond,
Guarantee Series D of 2009 due 2033
Due
October 1, 2033
$[_____________________]
No. R-__
FIRSTENERGY NUCLEAR GENERATION
CORP.
, a corporation of the State of Ohio (herein, together with its
successors and assigns, the “
Company
”),
for value received promises to pay to The Bank of New York Mellon Trust Company,
N.A., as trustee (the “
Revenue Bond
Trustee
”) under that certain Trust Indenture, dated as of September 1,
2008, between the Ohio Air Quality Development Authority and the Revenue Bond
Trustee, securing $9,100,000 of State of Ohio Pollution Control Revenue
Refunding Bonds, Series 2008-B (FirstEnergy Nuclear Generation Corp. Project)
issued for the benefit of the Company (the “
Revenue
Bonds
”) (such Trust Indenture, as amended from time to time, hereinafter
the “
Revenue Bond
Indenture
”), or registered assigns, on October 1, 2033, the principal sum
of [_____________________] Dollars, and to pay interest on the unpaid principal
amount from the Initial Interest Accrual Date (as hereinafter defined) at the
Revenue Bond Interest Rate (as hereinafter defined) per annum payable
semi-annually on April 1 and October 1 in each year commencing on the April 1 or
October 1 immediately succeeding the Initial Interest Accrual Date (each such
date herein referred to as an “
Interest Payment
Date
”) on and until maturity, or, in the case of any Bonds of this series
duly called for redemption, on and until the redemption date, or in the case of
any default by the Company in the payment of the principal due on any Bonds of
this series, until the Company’s obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined).
The
interest on each Bond of this series so payable on any Interest Payment Date
shall, subject to the exceptions provided in Section 3.07 of the Indenture, be
paid to the person in whose name such Bond is registered on the date of such
payment. The principal of, and the interest on, this Bond shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio in any coin or currency of the United
States of America
which at the time of payment is legal tender for the payment of public and
private debts.
This Bond is one of
an issue of Bonds of the Company known as its First Mortgage Bonds, issued and
to be issued in one or more series under and secured by an Open-End Mortgage,
General Mortgage Indenture and Deed of Trust, dated as of June 1, 2009, duly
executed by the Company to The Bank of New York Mellon Trust Company, N.A., a
national banking association organized and existing under the laws of the United
States of America, as Trustee (the “
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Second Supplemental Indenture dated as of June 30, 2009 (as amended,
supplemented, modified or restated, the
“
Supplemental
Indenture
”
), to
which Open-End Mortgage, General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto (collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Guarantee Series D of 2009 due
2033,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$9,100,000.
If and when the
principal of any Revenue Bonds is paid, then there is deemed to be paid an equal
principal amount of the Bonds of this series then outstanding; provided,
however, that such payment of the Bonds of this series is deemed to be made only
when and to the extent that notice of such payment of such Revenue Bonds is
given by the Company to the Trustee.
The Bonds of this
series have been delivered and pledged to the Revenue Bond Trustee pursuant to a
Pledge Agreement, dated June 30, 2009, between the Company and the Revenue Bond
Trustee (the “
Pledge
Agreement
”), as security for the Revenue Bonds until the Release Date (as
defined in the Pledge Agreement). The Bonds of this series shall be
redeemed by the Company in whole at any time prior to maturity at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the date of redemption following receipt by the Trustee of written demand for
redemption (a “
Redemption
Demand
”) from an authorized representative of the Revenue Bond Trustee
under the Revenue Bond Indenture stating that the principal amount of all the
Revenue Bonds then outstanding under the Revenue Bond Indenture has been
declared due and payable pursuant to the provisions of Section 11.02 of the
Revenue Bond Indenture, specifying the date of the accelerated maturity of such
Revenue Bonds and the date or dates from which interest on the Revenue Bonds has
then accrued and is unpaid (specifying the rate or rates of such accrual and the
principal amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and demanding payment
of the principal amount of the Bonds of this series plus accrued interest
thereon to the date fixed for such redemption. The date fixed for such
redemption shall be set forth in the aforesaid Redemption Demand and shall not
be earlier than the date specified in such Redemption Demand as the date of
accelerated maturity of the Revenue Bonds then outstanding under the Revenue
Bond Indenture and not later than forty-five days after the Trustee’s receipt of
such Redemption Demand unless such forty-fifth day is earlier than such date of
accelerated
maturity. The
Revenue Bond Trustee as the sole holder of the Bonds of this series, and any
successor thereto, hereby irrevocably waives any requirement of notice of such
redemption under Section 5.04 of the Indenture. Upon receipt of the
aforesaid Redemption Demand, the earliest date from which unpaid interest on the
Revenue Bonds has then accrued (as specified by the Revenue Bond Trustee in the
Redemption Demand) shall become the initial interest accrual date (the “
Initial Interest
Accrual Date
”) with respect to the Bonds of this series; provided,
however, on any demand for payment of the principal amount thereof at maturity
as a result of the principal of the Revenue Bonds becoming due and payable on
the maturity date of the Bonds of this series, the earliest date from which
unpaid interest on the Revenue Bonds has then accrued shall become the Initial
Interest Accrual Date with respect to the Bonds of this series, such date,
together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, to be as stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. Such redemption shall become null
and void for all purposes under the Indenture (including the fixing of the
Initial Interest Accrual Date with respect to the Bonds of this series) upon
receipt by the Trustee of written notice from the Revenue Bond Trustee of the
annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and of the rescission of the
aforesaid Redemption Demand prior to the redemption date specified in the
Redemption Demand, and thereupon no redemption of the Bonds of this series and
no payment in respect thereof as specified in the Redemption Demand, shall be
effected or required. But no such rescission shall extend to any
subsequent Redemption Demand from the Revenue Bond Trustee or impair any right
consequent on any such subsequent Redemption Demand.
The “
Revenue Bond
Interest Rate
” shall be the same rate of interest per annum as is borne
by the Revenue Bonds; provided, however, that if there are different rates of
interest borne by the Revenue Bonds, or if interest is required to be paid on
the Revenue Bonds more frequently than on each April 1 or October 1, the Revenue
Bond Interest Rate shall be the rate that results in the total amount of
interest payable on an Interest Payment Date, a redemption date or at maturity,
as the case may be, or at any other time interest on this Bond is due and
payable, to be equal to the total amount of unpaid interest that has accrued on
all then outstanding Revenue Bonds.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an “Event of Default” as therein defined.
From and after the
Release Date, the Bonds of this series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date or promptly following, the Bonds of
this series shall be surrendered to and cancelled by the Trustee.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of incorporators,
stockholders, officers and directors being released by the registered owner
hereof by the acceptance of this Bond and being likewise waived and released by
the terms of the Indenture.
This Bond is
nontransferable except to (i) effect transfer to any successor to the Revenue
Bond Trustee under the Revenue Bond Indenture, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender and cancellation of this Bond
and the payment of any applicable taxes and fees required by law, and upon any
such transfer or exchange a new registered Bond or Bonds of the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be. The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner
for the purpose of receiving
payment of or on account of the principal and interest due hereon and for all
other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY NUCLEAR GENERATION
CORP.
By: _____________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This
is one of the Bonds of the series designated therein referred to in the
within-
mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By: ________________________________
Authorized
Signatory
Exhibit C
[
FORM OF FIRST MORTGAGE BOND
OF GUARANTEE SERIES E
]
This
Bond is not transferable except (i) to a successor trustee under the
Trust Indenture, dated as of April 1, 2009, between the Ohio Air
Quality Development Authority and The Bank of New York Mellon Trust Company,
N.A., as trustee, referred to herein, (ii) in connection with the exercise of
the rights and remedies of the holder hereof consequent upon an “Event of
Default” as defined in the Indenture referred to herein or (iii) as may be
necessary to comply with a final order of a court of competent jurisdiction in
connection with any bankruptcy or reorganization proceeding of the
Company.
FIRSTENERGY
NUCLEAR GENERATION CORP.
First Mortgage Bond,
Guarantee Series E of 2009 due 2033
Due
June 1, 2033
$[_____________________] No.
R-__
FIRSTENERGY NUCLEAR GENERATION
CORP.
, a corporation of the State of Ohio (herein, together with its
successors and assigns, the “
Company
”),
for value received promises to pay to The Bank of New York Mellon Trust Company,
N.A., as trustee (the “
Revenue Bond
Trustee
”) under that certain Trust Indenture, dated as of April 1, 2009,
between the Ohio Air Quality Development Authority and the Revenue Bond Trustee,
securing $62,500,000 of State of Ohio Pollution Control Revenue Refunding Bonds,
Series 2009-A (FirstEnergy Nuclear Generation Corp. Project) issued for the
benefit of the Company (the “
Revenue
Bonds
”) (such Trust Indenture, as amended from time to time, hereinafter
the “
Revenue Bond
Indenture
”), or registered assigns, on June 1, 2033, the principal sum of
[_____________________] Dollars, and to pay interest on the unpaid principal
amount from the Initial Interest Accrual Date (as hereinafter defined) at the
Revenue Bond Interest Rate (as hereinafter defined) per annum payable
semi-annually on June 1 and December 1 in each year commencing on the June 1 or
December 1 immediately succeeding the Initial Interest Accrual Date (each such
date herein referred to as an “
Interest Payment
Date
”) on and until maturity, or, in the case of any Bonds of this series
duly called for redemption, on and until the redemption date, or in the case of
any default by the Company in the payment of the principal due on any Bonds of
this series, until the Company’s obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined).
The
interest on each Bond of this series so payable on any Interest Payment Date
shall, subject to the exceptions provided in Section 3.07 of the Indenture, be
paid to the person in whose name such Bond is registered on the date of such
payment. The principal of, and the interest on, this Bond shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio in any coin or currency of the United
States of America
which at the time of payment is legal tender for the payment of public and
private debts.
This Bond is one of
an issue of Bonds of the Company known as its First Mortgage Bonds, issued and
to be issued in one or more series under and secured by an Open-End Mortgage,
General Mortgage Indenture and Deed of Trust, dated as of June 1, 2009, duly
executed by the Company to The Bank of New York Mellon Trust Company, N.A., a
national banking association organized and existing under the laws of the United
States of America, as Trustee (the “
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Second Supplemental Indenture dated as of June 30, 2009 (as amended,
supplemented, modified or restated, the
“
Supplemental
Indenture
”
), to
which Open-End Mortgage, General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto (collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Guarantee Series E of 2009 due
2033,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$62,500,000.
If and when the
principal of any Revenue Bonds is paid, then there is deemed to be paid an equal
principal amount of the Bonds of this series then outstanding; provided,
however, that such payment of the Bonds of this series is deemed to be made only
when and to the extent that notice of such payment of such Revenue Bonds is
given by the Company to the Trustee.
The Bonds of this
series have been delivered and pledged to the Revenue Bond Trustee pursuant to a
Pledge Agreement, dated June 30, 2009, between the Company and the Revenue Bond
Trustee (the “
Pledge
Agreement
”), as security for the Revenue Bonds until the Release Date (as
defined in the Pledge Agreement). The Bonds of this series shall be
redeemed by the Company in whole at any time prior to maturity at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the date of redemption following receipt by the Trustee of written demand for
redemption (a “
Redemption
Demand
”) from an authorized representative of the Revenue Bond Trustee
under the Revenue Bond Indenture stating that the principal amount of all the
Revenue Bonds then outstanding under the Revenue Bond Indenture has been
declared due and payable pursuant to the provisions of Section 11.02 of the
Revenue Bond Indenture, specifying the date of the accelerated maturity of such
Revenue Bonds and the date or dates from which interest on the Revenue Bonds has
then accrued and is unpaid (specifying the rate or rates of such accrual and the
principal amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and demanding payment
of the principal amount of the Bonds of this series plus accrued interest
thereon to the date fixed for such redemption. The date fixed for such
redemption shall be set forth in the aforesaid Redemption Demand and shall not
be earlier than the date specified in such Redemption Demand as the date of
accelerated maturity of the Revenue Bonds then outstanding under the Revenue
Bond Indenture and not later than forty-five days after the Trustee’s receipt of
such Redemption Demand unless such forty-fifth day is earlier than such date of
accelerated
maturity. The
Revenue Bond Trustee as the sole holder of the Bonds of this series, and any
successor thereto, hereby irrevocably waives any requirement of notice of such
redemption under Section 5.04 of the Indenture. Upon receipt of the
aforesaid Redemption Demand, the earliest date from which unpaid interest on the
Revenue Bonds has then accrued (as specified by the Revenue Bond Trustee in the
Redemption Demand) shall become the initial interest accrual date (the “
Initial Interest
Accrual Date
”) with respect to the Bonds of this series; provided,
however, on any demand for payment of the principal amount thereof at maturity
as a result of the principal of the Revenue Bonds becoming due and payable on
the maturity date of the Bonds of this series, the earliest date from which
unpaid interest on the Revenue Bonds has then accrued shall become the Initial
Interest Accrual Date with respect to the Bonds of this series, such date,
together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, to be as stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. Such redemption shall become null
and void for all purposes under the Indenture (including the fixing of the
Initial Interest Accrual Date with respect to the Bonds of this series) upon
receipt by the Trustee of written notice from the Revenue Bond Trustee of the
annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and of the rescission of the
aforesaid Redemption Demand prior to the redemption date specified in the
Redemption Demand, and thereupon no redemption of the Bonds of this series and
no payment in respect thereof as specified in the Redemption Demand, shall be
effected or required. But no such rescission shall extend to any
subsequent Redemption Demand from the Revenue Bond Trustee or impair any right
consequent on any such subsequent Redemption Demand.
The “
Revenue Bond
Interest Rate
” shall be the same rate of interest per annum as is borne
by the Revenue Bonds; provided, however, that if there are different rates of
interest borne by the Revenue Bonds, or if interest is required to be paid on
the Revenue Bonds more frequently than on each June 1 or December 1, the Revenue
Bond Interest Rate shall be the rate that results in the total amount of
interest payable on an Interest Payment Date, a redemption date or at maturity,
as the case may be, or at any other time interest on this Bond is due and
payable, to be equal to the total amount of unpaid interest that has accrued on
all then outstanding Revenue Bonds.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an “Event of Default” as therein defined.
From and after the
Release Date, the Bonds of this series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date or promptly following, the Bonds of
this series shall be surrendered to and cancelled by the Trustee.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of incorporators,
stockholders, officers and directors being released by the registered owner
hereof by the acceptance of this Bond and being likewise waived and released by
the terms of the Indenture.
This Bond is
nontransferable except to (i) effect transfer to any successor to the Revenue
Bond Trustee under the Revenue Bond Indenture, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender and cancellation of this Bond
and the payment of any applicable taxes and fees required by law, and upon any
such transfer or exchange a new registered Bond or Bonds of the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be. The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner
for the purpose of receiving
payment of or on account of the principal and interest due hereon and for all
other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY NUCLEAR GENERATION
CORP.
By:______________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the Bonds of the series designated therein referred to in the
within-
mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By: ______________________________
Authorized
Signatory
Exhibit D
[
FORM OF FIRST MORTGAGE BOND
OF COLLATERAL SERIES H
]
This
Bond is not transferable except (i) to a successor Bank or a Bank Assignee under
the Reimbursement Agreement (as defined below), (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture referred to herein or (iii) as
may be necessary to comply with a final order of a court of competent
jurisdiction in connection with any bankruptcy or reorganization proceeding of
the Company.
FIRSTENERGY
NUCLEAR GENERATION CORP.
First Mortgage Bond,
Collateral Series H of 2009 due 2011
Due
June 6, 2011
$[_____________________]
No. R-__
FIRSTENERGY NUCLEAR GENERATION
CORP.
, a corporation of the State of Ohio (herein, together with its
successors and assigns, the “
Company
”),
for value received promises to pay to The Bank of Nova Scotia (the “
Bank
”)
under that certain Letter of Credit and Reimbursement Agreement, dated as of
June 6, 2008, between the Company and the Bank (such Reimbursement Agreement, as
amended from time to time, hereinafter the “
Reimbursement
Agreement
”), or registered assigns, on June 6, 2011, the principal sum of
[_____________________] Dollars or, at any time (if less), such lesser principal
amount as is equal to the sum of (a) the Available Amount of the Letter of
Credit outstanding at such time, plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations that are outstanding under the Reimbursement
Agreement at such time, and to pay interest on said principal amount from the
date hereof at such rate or rates
per annum
on each day as
shall cause the amount of interest payable on the Bonds of this series on an
Interest Payment Date (as hereinafter defined) to equal the sum of the amount of
accrued interest on such outstanding Reimbursement Obligations plus the amount
of the Letter of Credit Fees (as defined below) payable on such Interest Payment
Date
.
Said interest shall
accrue hereon until the principal hereof shall be paid in full, subject to
Section 2.04 of the Second Supplemental Indenture dated as of June 30, 2009 (as
amended, supplemented, modified or restated, the
“
Supplemental
Indenture
”
),
executed and delivered by the Company to the Trustee (as hereinafter defined),
which provides for certain credits towards payment of principal of, and interest
on, the Bonds of this series. Interest shall accrue on the Bonds of
this series from the date of issuance hereof, and the payment thereof shall be
credited as provided in Section 2.04(d) of the Supplemental Indenture unless and
until the Trustee receives the notice contemplated by Section 2.04(e) of the
Supplemental Indenture, whereupon the interest on the Bonds of this series shall
become and
remain due and
payable until such time as the Trustee receives a further written notice
(including a telecopy or other form of written telecommunication) from an
authorized representative of the Bank stating that such payments need not
continue. The interest on each Bond of this series so payable on any
Interest Payment Date shall, subject to the exceptions provided in Section 3.07
of the Indenture (as hereinafter defined) and to the provisions of Section 2.04
of the Supplemental Indenture, be paid to the person in whose name such Bond is
registered on the date of such payment. The principal of, and the
interest on, this Bond shall be payable at the office or agency of the Company
in the City of Cleveland, State of Ohio in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment
of public and private debts.
As used herein,
“
Interest
Payment Date
” shall mean the applicable date for the payment of accrued
interest on outstanding Reimbursement Obligations under the Reimbursement
Agreement and the terms “
Available
Amount
,” “
Bank
,”
“
Bank
Assignee
,” “
Letter of
Credit
,” “
Letter of Credit
Fees
,” “
Obligations
”
and “
Reimbursement
Obligations
” shall have the respective meanings set forth in the
Reimbursement Agreement. The Letter of Credit was issued in favor of
the bond trustee for $26,000,000 aggregate principal amount of State of Ohio
Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy Nuclear
Generation Corp. Project) issued by the Ohio Air Quality Development
Authority.
This Bond is one of
an issue of Bonds of the Company issued and to be issued in one or more series
under and secured by an Open-End Mortgage, General Mortgage Indenture and Deed
of Trust, dated as of June 1, 2009, duly executed by the Company to The Bank of
New York Mellon Trust Company, N.A., a national banking association organized
and existing under the laws of the United States of America, as Trustee (the
“
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Supplemental Indenture, to which Open-End Mortgage, General Mortgage
Indenture and Deed of Trust and all indentures supplemental thereto
(collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Collateral Series H of 2009 due
2011,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$26,257,000.
Any payment of
Reimbursement Obligations made by or on behalf of the Company in respect of the
Reimbursement Agreement shall be deemed a payment in respect of this Bond, but
such payment shall not reduce the principal amount of this Bond then in effect
unless the stated amount available to be drawn under the Letter of Credit is
irrevocably reduced concurrently with such payment. In the event that
all of the Company's obligations under the Reimbursement Agreement have been
discharged and the Letter of Credit shall have been cancelled and returned to
the Bank, this Bond shall be deemed paid in full and the Holder shall surrender
this Bond to the Trustee for cancellation.
The Bonds of this
series shall be redeemed promptly, without notice, by the Company in whole at
100% of the principal amount thereof plus accrued interest to the date of
redemption (the “
Redemption
Price
”) following receipt by the Trustee of written demand for redemption
(a “
Redemption
Demand
”) from an authorized representative of the Bank under the
Reimbursement Agreement stating that (i) all of the Reimbursement Obligations
under the Reimbursement Agreement have become or have been declared to be
immediately due and payable as a result of the occurrence and continuance of an
“Event of Default” under the Reimbursement Agreement and (ii) that the Bank has
demanded payment thereof from the Company;
provided
that the Bonds of this series shall be redeemed automatically by the Company,
without any notice to any person, in whole at the Redemption Price, if the
Reimbursement Obligations under the Reimbursement Agreement have become
immediately due and payable as a result of the occurrence of an “Event of
Default” under the Reimbursement Agreement with respect to the Company (but not
any subsidiary thereof) under Section 6.01(f) of the Reimbursement
Agreement. Such redemption shall be effected on the fifth Business
Day following receipt by the Trustee of the Redemption Demand, if such
Redemption Demand is required, or the occurrence of an “Event of Default” under
the Reimbursement Agreement with respect to the Company (but not any subsidiary
thereof) under Section 6.01(f) of the Reimbursement Agreement. Any
payment of the Redemption Price made to the Bank shall constitute a payment by
the Company in respect of Reimbursement Obligations under the Reimbursement
Agreement. A Redemption Demand shall be rescinded and shall be null
and void for all purposes of the Indenture upon receipt by the Trustee, no later
than the Business Day prior to the date fixed for redemption, of a written
notice from the Bank withdrawing said Redemption Demand.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an Event of Default as therein defined.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of
incorporators, stockholders, officers and directors being released by the
registered owner hereof by the acceptance of this Bond and being likewise waived
and released by the terms of the Indenture.
This Bond is
nontransferable except to effect transfer (i) to any successor to the Bank or a
Bank Assignee under the Reimbursement Agreement, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture, or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender
and
cancellation of this Bond and the payment of any applicable taxes and fees
required by law, and upon any such transfer or exchange a new registered Bond or
Bonds of the same series and tenor, will be issued to the authorized transferee,
or the registered holder, as the case may be. The Company and the Trustee may
deem and treat the person in whose name this Bond is registered as the absolute
owner
for the purpose of
receiving payment of or on account of the principal and interest due hereon and
for all other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY NUCLEAR GENERATION
CORP.
By: ______________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the Bonds of the series designated therein referred to in the
within-
mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By: ______________________________
Authorized
Signatory
Exhibit E
[
FORM OF FIRST MORTGAGE BOND
OF COLLATERAL SERIES I
]
This
Bond is not transferable except (i) to a successor Bank or a Bank Assignee under
the Reimbursement Agreement (as defined below), (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture referred to herein or (iii) as
may be necessary to comply with a final order of a court of competent
jurisdiction in connection with any bankruptcy or reorganization proceeding of
the Company.
FIRSTENERGY
NUCLEAR GENERATION CORP.
First Mortgage Bond,
Collateral Series I of 2009 due 2011
Due
June 6, 2011
$[_____________________]
No. R-__
FIRSTENERGY NUCLEAR GENERATION
CORP.
, a corporation of the State of Ohio (herein, together with its
successors and assigns, the “
Company
”),
for value received promises to pay to The Bank of Nova Scotia (the “
Bank
”)
under that certain Letter of Credit and Reimbursement Agreement, dated as of
June 6, 2008, between the Company and the Bank (such Reimbursement Agreement, as
amended from time to time, hereinafter the “
Reimbursement
Agreement
”), or registered assigns, on June 6, 2011, the principal sum of
[_____________________] Dollars or, at any time (if less), such lesser principal
amount as is equal to the sum of (a) the Available Amount of the Letter of
Credit outstanding at such time, plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations that are outstanding under the Reimbursement
Agreement at such time, and to pay interest on said principal amount from the
date hereof at such rate or rates
per annum
on each day as
shall cause the amount of interest payable on the Bonds of this series on an
Interest Payment Date (as hereinafter defined) to equal the sum of the amount of
accrued interest on such outstanding Reimbursement Obligations plus the amount
of the Letter of Credit Fees (as defined below) payable on such Interest Payment
Date
.
Said interest shall
accrue hereon until the principal hereof shall be paid in full, subject to
Section 2.04 of the Second Supplemental Indenture dated as of June 30, 2009 (as
amended, supplemented, modified or restated, the
“
Supplemental
Indenture
”
),
executed and delivered by the Company to the Trustee (as hereinafter defined),
which provides for certain credits towards payment of principal of, and interest
on, the Bonds of this series. Interest shall accrue on the Bonds of
this series from the date of issuance hereof, and the payment thereof shall be
credited as provided in Section 2.04(f) of the Supplemental Indenture unless and
until the Trustee receives the notice contemplated by Section 2.04(g) of the
Supplemental
Indenture, whereupon the interest on the Bonds of this series shall become and
remain due and payable until such time as the Trustee receives a further written
notice (including a telecopy or other form of written telecommunication) from an
authorized representative of the Bank stating that such payments need not
continue. The interest on each Bond of this series so payable on any
Interest Payment Date shall, subject to the exceptions provided in Section 3.07
of the Indenture (as hereinafter defined) and to the provisions of Section 2.04
of the Supplemental Indenture, be paid to the person in whose name such Bond is
registered on the date of such payment. The principal of, and the
interest on, this Bond shall be payable at the office or agency of the Company
in the City of Cleveland, State of Ohio in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment
of public and private debts.
As used herein,
“
Interest
Payment Date
” shall mean the applicable date for the payment of accrued
interest on outstanding Reimbursement Obligations under the Reimbursement
Agreement and the terms “
Available
Amount
,” “
Bank
,”
“
Bank
Assignee
,” “
Letter of
Credit,
” “
Letter of Credit
Fees,
” “
Obligations
”
and “
Reimbursement
Obligations
” shall have the respective meanings set forth in the
Reimbursement Agreement. The Letter of Credit was issued in favor of
the bond trustee for $54,600,000 aggregate principal amount of State of Ohio
Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy Nuclear
Generation Corp. Project) issued by the Ohio Water Development
Authority.
This Bond is one of
an issue of Bonds of the Company issued and to be issued in one or more series
under and secured by an Open-End Mortgage, General Mortgage Indenture and Deed
of Trust, dated as of June 1, 2009, duly executed by the Company to The Bank of
New York Mellon Trust Company, N.A., a national banking association organized
and existing under the laws of the United States of America, as Trustee (the
“
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Supplemental Indenture, to which Open-End Mortgage, General Mortgage
Indenture and Deed of Trust and all indentures supplemental thereto
(collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Collateral Series I of 2009 due
2011,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$55,139,000.
Any payment of
Reimbursement Obligations made by or on behalf of the Company in respect of the
Reimbursement Agreement shall be deemed a payment in respect of this Bond, but
such payment shall not reduce the principal amount of this Bond then in effect
unless the stated amount available to be drawn under the Letter of Credit is
irrevocably reduced concurrently with such payment. In the event that
all of the Company's obligations under the Reimbursement Agreement have been
discharged and the Letter of Credit shall have been cancelled and returned to
the Bank, this Bond shall be deemed paid in full and the Holder shall surrender
this Bond to the Trustee for cancellation.
The Bonds of this
series shall be redeemed promptly, without notice, by the Company in whole at
100% of the principal amount thereof plus accrued interest to the date of
redemption (the “
Redemption
Price
”) following receipt by the Trustee of written demand for redemption
(a “
Redemption
Demand
”) from an authorized representative of the Bank under the
Reimbursement Agreement stating that (i) all of the Reimbursement Obligations
under the Reimbursement Agreement have become or have been declared to be
immediately due and payable as a result of the occurrence and continuance of an
“Event of Default” under the Reimbursement Agreement and (ii) that the Bank has
demanded payment thereof from the Company;
provided
that the Bonds of this series shall be redeemed automatically by the Company,
without any notice to any person, in whole at the Redemption Price, if the
Reimbursement Obligations under the Reimbursement Agreement have become
immediately due and payable as a result of the occurrence of an “Event of
Default” under the Reimbursement Agreement with respect to the Company (but not
any subsidiary thereof) under Section 6.01(f) of the Reimbursement
Agreement. Such redemption shall be effected on the fifth Business
Day following receipt by the Trustee of the Redemption Demand, if such
Redemption Demand is required, or the occurrence of an “Event of Default” under
the Reimbursement Agreement with respect to the Company (but not any subsidiary
thereof) under Section 6.01(f) of the Reimbursement Agreement. Any
payment of the Redemption Price made to the Bank shall constitute a payment by
the Company in respect of Reimbursement Obligations under the Reimbursement
Agreement. A Redemption Demand shall be rescinded and shall be null
and void for all purposes of the Indenture upon receipt by the Trustee, no later
than the Business Day prior to the date fixed for redemption, of a written
notice from the Bank withdrawing said Redemption Demand.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an Event of Default as therein defined.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of
incorporators, stockholders, officers and directors being released by the
registered owner hereof by the acceptance of this Bond and being likewise waived
and released by the terms of the Indenture.
This Bond is
nontransferable except to effect transfer (i) to any successor to the Bank or a
Bank Assignee under the Reimbursement Agreement, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture, or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender
and
cancellation of this Bond and the payment of any applicable taxes and fees
required by law, and upon any such transfer or exchange a new registered Bond or
Bonds of the same series and tenor, will be issued to the authorized transferee,
or the registered holder, as the case may be. The Company and the Trustee may
deem and treat the person in whose name this Bond is registered as the absolute
owner
for the purpose of
receiving payment of or on account of the principal and interest due hereon and
for all other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY
NUCLEAR GENERATION
CORP.
By: ______________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the Bonds of the series designated therein referred to in the
within-
mentioned Indenture.
THE
BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By: _____________________________
Authorized
Signatory
Exhibit F
[
FORM OF FIRST MORTGAGE BOND
OF COLLATERAL SERIES J
]
This
Bond is not transferable except (i) to a successor Bank or a Bank Assignee under
the Reimbursement Agreement (as defined below), (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture referred to herein or (iii) as
may be necessary to comply with a final order of a court of competent
jurisdiction in connection with any bankruptcy or reorganization proceeding of
the Company.
FIRSTENERGY
NUCLEAR GENERATION CORP.
First Mortgage Bond,
Collateral Series J of 2009 due 2010
Due
June 6, 2010
$[_____________________]
No. R-__
FIRSTENERGY NUCLEAR GENERATION
CORP.
, a corporation of the State of Ohio (herein, together with its
successors and assigns, the “
Company
”),
for value received promises to pay to The Bank of Nova Scotia (the “
Bank
”)
under that certain Letter of Credit and Reimbursement Agreement, dated as of
June 6, 2008, between the Company and the Bank (such Reimbursement Agreement, as
amended from time to time, hereinafter the “
Reimbursement
Agreement
”), or registered assigns, on June 6, 2010, the principal sum of
[_____________________] Dollars or, at any time (if less), such lesser principal
amount as is equal to the sum of (a) the Available Amount of the Letter of
Credit outstanding at such time, plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations that are outstanding under the Reimbursement
Agreement at such time, and to pay interest on said principal amount from the
date hereof at such rate or rates
per annum
on each day as
shall cause the amount of interest payable on the Bonds of this series on an
Interest Payment Date (as hereinafter defined) to equal the sum of the amount of
accrued interest on such outstanding Reimbursement Obligations plus the amount
of the Letter of Credit Fees (as defined below) payable on such Interest Payment
Date
.
Said interest shall
accrue hereon until the principal hereof shall be paid in full, subject to
Section 2.04 of the Second Supplemental Indenture dated as of June 30, 2009 (as
amended, supplemented, modified or restated, the
“
Supplemental
Indenture
”
),
executed and delivered by the Company to the Trustee (as hereinafter defined),
which provides for certain credits towards payment of principal of, and interest
on, the Bonds of this series. Interest shall accrue on the Bonds of
this series from the date of issuance hereof, and the payment thereof shall be
credited as provided in Section 2.04(h) of the Supplemental Indenture unless and
until the Trustee receives the notice contemplated by Section 2.04(i) of the
Supplemental
Indenture, whereupon the interest on the Bonds of this series shall become and
remain due and payable until such time as the Trustee receives a further written
notice (including a telecopy or other form of written telecommunication) from an
authorized representative of the Bank stating that such payments need not
continue. The interest on each Bond of this series so payable on any
Interest Payment Date shall, subject to the exceptions provided in Section 3.07
of the Indenture (as hereinafter defined) and to the provisions of Section 2.04
of the Supplemental Indenture, be paid to the person in whose name such Bond is
registered on the date of such payment. The principal of, and the
interest on, this Bond shall be payable at the office or agency of the Company
in the City of Cleveland, State of Ohio in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment
of public and private debts.
As used herein,
“
Interest
Payment Date
” shall mean the applicable date for the payment of accrued
interest on outstanding Reimbursement Obligations under the Reimbursement
Agreement and the terms “
Available
Amount
,” “
Bank
,”
“
Bank
Assignee
,” “
Letter of
Credit
,” “
Letter of
Credit
Fees
”
“
Obligations
”
and “
Reimbursement
Obligations
” shall have the respective meanings set forth in the
Reimbursement Agreement. The Letter of Credit was issued in favor of
the bond trustee for $98,900,000 aggregate principal amount of Beaver County
Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy Nuclear
Generation Corp. Project) issued by the Beaver County Industrial Development
Authority.
This Bond is one of
an issue of Bonds of the Company issued and to be issued in one or more series
under and secured by an Open-End Mortgage, General Mortgage Indenture and Deed
of Trust, dated as of June 1, 2009, duly executed by the Company to The Bank of
New York Mellon Trust Company, N.A., a national banking association organized
and existing under the laws of the United States of America, as Trustee (the
“
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Supplemental Indenture, to which Open-End Mortgage, General Mortgage
Indenture and Deed of Trust and all indentures supplemental thereto
(collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Collateral Series J of 2009 due
2010,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$99,876,000.
Any payment of
Reimbursement Obligations made by or on behalf of the Company in respect of the
Reimbursement Agreement shall be deemed a payment in respect of this Bond, but
such payment shall not reduce the principal amount of this Bond then in effect
unless the stated amount available to be drawn under the Letter of Credit is
irrevocably reduced concurrently with such payment. In the event that
all of the Company's obligations under the Reimbursement Agreement have been
discharged and the Letter of Credit shall have been cancelled and returned to
the Bank, this Bond shall be deemed paid in full and the Holder shall surrender
this Bond to the Trustee for cancellation.
The Bonds of this
series shall be redeemed promptly, without notice, by the Company in whole at
100% of the principal amount thereof plus accrued interest to the date of
redemption (the “
Redemption
Price
”) following receipt by the Trustee of written demand for redemption
(a “
Redemption
Demand
”) from an authorized representative of the Bank under the
Reimbursement Agreement stating that (i) all of the Reimbursement Obligations
under the Reimbursement Agreement have become or have been declared to be
immediately due and payable as a result of the occurrence and continuance of an
“Event of Default” under the Reimbursement Agreement and (ii) that the Bank has
demanded payment thereof from the Company;
provided
that the Bonds of this series shall be redeemed automatically by the Company,
without any notice to any person, in whole at the Redemption Price, if the
Reimbursement Obligations under the Reimbursement Agreement have become
immediately due and payable as a result of the occurrence of an “Event of
Default” under the Reimbursement Agreement with respect to the Company (but not
any subsidiary thereof) under Section 6.01(f) of the Reimbursement
Agreement. Such redemption shall be effected on the fifth Business
Day following receipt by the Trustee of the Redemption Demand, if such
Redemption Demand is required, or the occurrence of an “Event of Default” under
the Reimbursement Agreement with respect to the Company (but not any subsidiary
thereof) under Section 6.01(f) of the Reimbursement Agreement. Any
payment of the Redemption Price made to the Bank shall constitute a payment by
the Company in respect of Reimbursement Obligations under the Reimbursement
Agreement. A Redemption Demand shall be rescinded and shall be null
and void for all purposes of the Indenture upon receipt by the Trustee, no later
than the Business Day prior to the date fixed for redemption, of a written
notice from the Bank withdrawing said Redemption Demand.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an Event of Default as therein defined.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of
incorporators, stockholders, officers and directors being released by the
registered owner hereof by the acceptance of this Bond and being likewise waived
and released by the terms of the Indenture.
This Bond is
nontransferable except to effect transfer (i) to any successor to the Bank or a
Bank Assignee under the Reimbursement Agreement, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture, or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender
and
cancellation of this Bond and the payment of any applicable taxes and fees
required by law, and upon any such transfer or exchange a new registered Bond or
Bonds of the same series and tenor, will be issued to the authorized transferee,
or the registered holder, as the case may be. The Company and the Trustee may
deem and treat the person in whose name this Bond is registered as the absolute
owner
for the purpose of
receiving payment of or on account of the principal and interest due hereon and
for all other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY
NUCLEAR GENERATION
CORP.
By: ___________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the Bonds of the series designated therein referred to in the
within-
mentioned
Indenture.
THE
BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By:____________________________________
Authorized
Signatory
Schedule 1
Filing Offices for the Original
Indenture
Plant
|
Jurisdiction/Filing
Office
|
Recording Information
|
Date filed
|
Davis
Besse
|
Office
of the County
Recorder of Ottawa
County,
Ohio
|
OR
Volume 1278, Page
204
|
June
12, 2009
|
Perry
|
Office
of the County
Recorder of Lake County,
Ohio
|
Document #
2009R015200
|
June
12, 2009
|
Beaver
Valley
|
Office
of the County
Recorder of Beaver
County,
Pennsylvania
|
Instrument No.
3346070
|
June
12,
2009
|
FIFTH
SUPPLEMENTAL INDENTURE
__________
FIRSTENERGY
GENERATION CORP.
TO
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(formerly
known as The Bank of New York Trust Company, N.A.),
as
Trustee
__________
Dated
as of June 30, 2009
__________
Providing
among other things for
First
Mortgage Bonds, Guarantee Series F of 2009 due 2047
First
Mortgage Bonds, Guarantee Series G of 2009 due 2018
First
Mortgage Bonds, Guarantee Series H of 2009 due 2018
_________
Supplemental
to Open-End Mortgage, General Mortgage
Indenture
and Deed of Trust, Dated as of June 19, 2008
THIS FIFTH SUPPLEMENTAL
INDENTURE
(this “
Supplemental
Indenture
”), dated as of June 30, 2009, between FIRSTENERGY GENERATION
CORP., a corporation organized and existing under the laws of the State of Ohio
(hereinafter called the “
Company
”),
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank
of New York Trust Company, N.A.), a national banking association organized and
existing under the laws of the United States of America, as Trustee (hereinafter
called the “
Trustee
”)
under the Open-End Mortgage, General Mortgage Indenture and Deed of Trust, dated
as of June 19, 2008 (hereinafter called the “
Original
Indenture
”) with the Company.
W
I T N E S S E T H:
WHEREAS
, the Company has
heretofore duly executed and delivered to the Trustee the Original Indenture to
secure Bonds of the Company, issuable in series, from time to time, in the
manner and subject to the conditions set forth, and without limit as to
principal amount except as provided in the Original Indenture which Original
Indenture has been filed for record in the filing offices set forth on Schedule
1 attached hereto and incorporated herein by reference; and
WHEREAS
, the Company has
heretofore executed and delivered to the Trustee, a First Supplemental Indenture
supplementing the Original Indenture dated as of June 25, 2008 (the “
First
Supplemental Indenture
”), a Second Supplemental Indenture supplementing
the Original Indenture dated as of March 1, 2009 (the “
Second
Supplemental Indenture
”), a Third Supplemental Indenture supplementing
the Original Indenture dated as of March 31, 2009 (the “
Third
Supplemental Indenture,
” and a Fourth Supplemental Indenture dated as of
June 15, 2009 supplementing the Original Indenture (the “
Fourth
Supplemental Indenture
”) and the Original Indenture, as supplemented by
the aforementioned First Supplemental Indenture, Second Supplemental Indenture,
Third Supplemental Indenture, Fourth Supplemental Indenture and this
Supplemental Indenture and any other indentures supplemental to the Original
Indenture are herein collectively called the “
Indenture
”);
and
WHEREAS
, the Company, by
appropriate corporate action in conformity with the terms of the Indenture, has
duly determined to create three new series of Bonds under the Indenture,
consisting of (i) $46,300,000 in aggregate principal amount to be designated as
“First Mortgage Bonds, Guarantee Series F of 2009 due 2047” (hereinafter
referred to as the “
bonds of
Guarantee Series F
”); (ii) $2,985,000 in aggregate principal amount
to be designated as “First Mortgage Bonds, Guarantee Series G of 2009 due
2018” (hereinafter referred to as the “
bonds of
Guarantee Series G
”); and (iii) $2,805,000 in aggregate principal
amount to be designated as “First Mortgage Bonds, Guarantee Series H of
2009 due 2018” (hereinafter referred to as the “
bonds of
Guarantee Series H
” and together with the bonds of Guarantee
Series F and the bonds of Guarantee Series G, the “
bonds of
Guarantee Series
”), which shall bear interest at the respective rates per
annum set forth in, shall be subject to certain redemption rights and
obligations set forth in, and will otherwise be in the respective forms and have
the terms and provisions provided for in this Supplemental Indenture;
and
WHEREAS
, the bonds of
Guarantee Series F and the Trustee’s certificate of authentication to be
endorsed thereon shall be substantially in the form included in Exhibit A
hereto; the bonds of Guarantee Series G and the Trustee’s certificate of
authentication to be
endorsed thereon
shall be substantially in the form included in Exhibit B hereto; and the bonds
of Guarantee Series H and the Trustee’s certificate of authentication to be
endorsed thereon shall be substantially in the form included in Exhibit C
hereto; and
WHEREAS
, it is provided in the
Indenture, among other things, that the Company shall execute and file with the
Trustee and the Trustee, at the request of the Company, when required by the
Indenture, shall join in the execution of indentures supplemental thereto, and
which thereafter shall form a part thereof, for the purpose, among others of
providing for the creation of any series of Bonds and specifying the form and
provisions of the Bonds of such series; and
WHEREAS
, the Company deems it
advisable to enter into this Supplemental Indenture for the purposes of
establishing the form, terms and provisions of the bonds of Guarantee
Series F, the bonds of Guarantee Series G and the bonds of Guarantee
Series H as provided and contemplated by Sections 2.01(a) and 3.01(b) of
the Indenture, and the Company has requested and hereby requests the Trustee to
join in the execution of th
is
Supplemental Indenture; and
WHEREAS
, all acts and things
have been done and performed which are necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed;
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized.
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 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
as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01
Terms Incorporated by
Reference
.
Except for the terms
defined in this Supplemental Indenture, all capitalized terms used in this
Supplemental Indenture have the respective meanings set forth in the Original
Indenture.
SECTION
1.02
Additional
Definitions
.
“
BCIDA
”
means the Beaver County Industrial Development Authority.
“
BCIDA
2008-B
Pledge Agreement
” means the Pledge Agreement, dated June 30, 2009,
between the Company and the BCIDA 2008-B Revenue Bond Trustee pursuant to which
the Company pledges and delivers the bonds of Guarantee Series F.
“
BCIDA 2008-B
Revenue Bond Indenture
” means the Trust Indenture, dated as of September
1, 2008, between the Beaver County Industrial Development Authority and the
BCIDA 2008-B Revenue
Bond Trustee, securing the BCIDA 2008-B Revenue Bonds issued for the benefit of
the Company.
“
BCIDA 2008-B
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A., as trustee under that certain BCIDA 2008-B Revenue Bond
Indenture.
“
BCIDA 2008-B
Revenue Bonds
” means the $46,300,000 aggregate principal amount of Beaver
County Industrial Development Authority Pollution Control Revenue Refunding
Bonds, Series 2008-B (FirstEnergy Generation Corp. Project) issued by the
BCIDA.
“
OAQDA
”
means the Ohio Air Quality Development Authority.
“
OAQDA
2008-C
Pledge Agreement
” means the Pledge Agreement, dated June 30, 2009,
between the Company and the OAQDA 2008-C Revenue Bond Trustee pursuant to which
the Company pledges and delivers the bonds of Guarantee Series G.
“
OAQDA 2008-C
Revenue Bond Indenture
” means the Trust Indenture, dated as of September
1, 2008, between the OAQDA and the OAQDA 2008-C Revenue Bond Trustee, securing
the OAQDA 2008-C Revenue Bonds issued for the benefit of the
Company.
“
OAQDA 2008-C
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A., as trustee under that certain OAQDA 2008-C Revenue Bond
Indenture.
“
OAQDA
2008-C
Revenue Bonds
” means the $2,985,000 aggregate principal amount of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-C
(FirstEnergy Generation Corp. Project) issued by the OAQDA.
“
OWDA
”
means the Ohio Water Development Authority.
“
OWDA
2008-B Pledge
Agreement
” means the Pledge Agreement, dated June 30, 2009, between the
Company and the OWDA 2008-B Revenue Bond Trustee pursuant to which the Company
pledges and delivers the bonds of Guarantee Series H.
“
OWDA 2008-B
Revenue Bond Indenture
” means the Trust Indenture, dated as of September
1, 2008, between the OWDA and the OWDA 2008-B Revenue Bond Trustee, securing the
OWDA 2008-B Revenue Bonds issued for the benefit of the Company.
“
OWDA 2008-B
Revenue Bond Trustee
” means The Bank of New York Mellon Trust Company,
N.A., as trustee under that certain OWDA 2008-B Revenue Bond
Indenture.
“
OWDA
2008-B Revenue
Bonds
” means the $2,805,000 aggregate principal amount of State of Ohio
Pollution Control Revenue Refunding Bonds, Series 2008-B (FirstEnergy
Generation Corp. Project) issued by the OWDA.
“
Initial Interest
Accrual Date
” shall have the respective meaning assigned to such term in
the respective form of bond of Guarantee Series F, form of bond of
Guarantee Series G and form of Bond of Guarantee
Series H.
“
Interest Payment
Date
” shall have the meaning assigned to such term in the respective form
of bond of Guarantee Series.
“Revenue Bond
Indenture
” means each of the BCIDA 2008-B Revenue Bond Indenture, OAQDA
2008-C Revenue Bond Indenture and OWDA 2008-B Revenue Bond
Indenture.
“Revenue Bond
Trustee
” means each of the BCIDA 2008-B Revenue Bond Trustee, OAQDA
2008-C Revenue Bond Trustee and OWDA 2008-B Revenue Bond Trustee.
SECTION
1.03.
Rules of
Construction.
All references to any agreement refer to such
agreement as modified, varied, supplemented, amended or restated from time to
time by the parties thereto (including any permitted successors or assigns) in
accordance with its terms.
ARTICLE
II
BONDS
SECTION
2.01.
Designation
and Issuance of Bonds.
(a) The bonds of Guarantee
Series F shall be designated, as hereinbefore recited, as the Company’s
“First Mortgage Bonds,
Guarantee Series F
of 2009 due 2047” and, subject to the provisions of the Indenture, shall be
limited to the aggregate principal amount of Forty-Six Million Three Hundred
Thousand Dollars ($46,300,000). The bonds of Guarantee Series F
are to be issued and secured by the Lien of the Indenture.
(b) The
bonds of Guarantee Series G shall be designated, as hereinbefore recited,
as the Company’s “First Mortgage Bonds, Guarantee Series G of 2009 due
2018” and, subject to the provisions of the Indenture, shall be limited to the
aggregate principal amount of Two Million Nine Hundred Eighty Five Thousand
Dollars ($2,985,000). The bonds of Guarantee Series G are to be
issued and secured by the Lien of the Indenture.
(c) The
bonds of Guarantee Series H shall be designated, as hereinbefore recited,
as the Company’s “First Mortgage Bonds, Guarantee Series H of 2009 due
2018” and, subject to the provisions of the Indenture, shall be limited to the
aggregate principal amount of Two Million Eight Hundred Five Thousand Dollars
($2,805,000). The bonds of Guarantee Series H are to be issued
and secured by the Lien of the Indenture.
SECTION
2.02.
Form, Date,
Maturity Date, Interest Rate and Interest Payment Dates of
Bonds.
(a) The definitive bonds of Guarantee
Series shall be in engraved, lithographed, printed or typewritten form and
shall be registered bonds without coupons, and such bonds and the Trustee’s
certificate of authentication to be endorsed thereon shall be substantially in
the respective forms included in Exhibits A, B and C hereto. The
bonds of Guarantee Series shall be dated as provided in Section 3.03 of the
Indenture.
(b) The
bonds of Guarantee Series F shall bear interest from the Initial Interest
Accrual Date as provided in the form of the bond of Guarantee Series F, and
such provisions are incorporated at this place as though set forth in their
entirety. The interest rate and maturity date
of the bonds
of Guarantee Series F shall be as set forth in the form of the bond of
Guarantee Series F.
(c) The
interest on the bonds of Guarantee Series F so payable on any Interest
Payment Date shall, subject to the exceptions provided in Section 3.07 of the
Indenture, be paid to the person in whose name such Bond is registered on such
Interest Payment Date.
(d) The
bonds of Guarantee Series G shall bear interest from the Initial Interest
Accrual Date as provided in the form of the bond of Guarantee Series G, and
such provisions are incorporated at this place as though set forth in their
entirety. The interest rate and maturity date of the bonds of Guarantee
Series G shall be as set forth in the form of the bond of Guarantee
Series G.
(e) The
interest on the bonds of Guarantee Series G so payable on any Interest
Payment Date shall, subject to the exceptions provided in Section 3.07 of the
Indenture, be paid to the person in whose name such bond is registered on such
Interest Payment Date.
(f) The
bonds of Guarantee Series H shall bear interest from the Initial Interest
Accrual Date as provided in the form of the bond of Guarantee Series H, and
such provisions are incorporated at this place as though set forth in their
entirety. The interest rate and maturity date of the bonds of Guarantee
Series H shall be as set forth in the form of the bond of Guarantee
Series H.
(g) The
interest on the bonds of Guarantee Series H so payable on any Interest
Payment Date shall, subject to the exceptions provided in Section 3.07 of the
Indenture, be paid to the person in whose name such bond is registered on such
Interest Payment Date.
SECTION
2.03.
Bonds Issued
as Collateral Security.
The bonds of Guarantee Series F shall
be issued, delivered, and pledged to, and registered in the name of, the BCIDA
2008-B Revenue Bond Trustee in order to secure and provide for, and as
collateral security for, the due and punctual payment of the principal of and
interest on the BCIDA 2008-B Revenue Bonds until the Release Date (as defined in
the BCIDA 2008-B Pledge Agreement). The bonds of Guarantee Series G
shall be issued, delivered, and pledged to, and registered in the name of, the
OAQDA 2008-C Revenue Bond Trustee in order to secure and provide for, and as
collateral security for, the due and punctual payment of the principal of and
interest on the OAQDA 2008-C Revenue Bonds until the Release Date (as defined in
the OAQDA 2008-C Pledge Agreement). The bonds of Guarantee Series H
shall be issued, delivered, and pledged to, and registered in the name of, the
OWDA 2008-B Revenue Bond Trustee in order to secure and provide for, and as
collateral security for, the due and punctual payment of the principal of and
interest on the OWDA 2008-B Revenue Bonds until the Release Date (as defined in
the OWDA 2008-B Pledge Agreement).
SECTION
2.04.
Credit for
Payments of the Revenue Bonds.
(a) If and when the
principal of any BCIDA 2008-B Revenue Bonds is paid, then there is deemed to be
paid an equal principal amount of the bonds of Guarantee Series F then
outstanding; provided, however, that such payment of the bonds of Guarantee
Series F is deemed to be made only when and to the
extent that notice
of such payment of such BCIDA 2008-B Revenue Bonds is given by the Company to
the Trustee.
(b) If
and when the principal of any OAQDA 2008-C Revenue Bonds is paid, then there is
deemed to be paid an equal principal amount of the bonds of Guarantee
Series G then outstanding; provided, however, that such payment of the
bonds of Guarantee Series G is deemed to be made only when and to the
extent that notice of such payment of such OAQDA 2008-C Revenue Bonds is given
by the Company to the Trustee.
(c) If
and when the principal of any OWDA 2008-B Revenue Bonds is paid, then there is
deemed to be paid an equal principal amount of the bonds of Guarantee
Series H then outstanding; provided, however, that such payment of the
bonds of Guarantee Series H is deemed to be made only when and to the
extent that notice of such payment of such OWDA 2008-B Revenue Bonds is given by
the Company to the Trustee.
SECTION
2.05.
Execution of
Bonds.
The bonds of Guarantee Series shall be executed on
behalf of the Company in accordance with Section 3.03 of the
Indenture.
SECTION
2.06.
Medium and
Places of Payment of Principal of, and Interest on, Bonds; Transferability and
Exchangeability.
The principal of, and the interest on, the
bonds of Guarantee Series shall be payable in any coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts, and such principal and interest shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio. The Corporate Trust Office of the Trustee shall serve as the
initial location of such office. Subject to the limitations provided
herein, the bonds of Guarantee Series shall be transferable and
exchangeable, in the manner provided in Sections 3.05 and 3.06 of the Indenture,
at said office or agency. The bonds of Guarantee Series shall
not be transferable except (i) to a successor to the respective Revenue Bond
Trustee, as applicable, under the respective Revenue Bond Indenture, as
applicable, (ii) in connection with the exercise of the rights and remedies of
the holder thereof consequent upon an event of default as defined in the
Indenture, or (iii) as may be necessary to comply with a final order of a court
of competent jurisdiction in connection with any bankruptcy or reorganization
proceeding of the Company. No charge shall be made by the Company to
the registered owner of any bond of Guarantee Series for the registration of
transfer of such Bond or for the exchange thereof for Bonds of the same series
of other authorized denominations, except, in the case of any transfer, a charge
sufficient to reimburse the Company for any stamp or other tax or governmental
charge required to be paid by the Company or the Trustee.
SECTION
2.07.
Denominations
and Numbering of Bonds
. The bonds of Guarantee
Series shall be issued in the denomination of $1,000 and any integral
multiple thereof. The bonds of June 2009 Series shall each be
numbered R-1 and consecutively upwards.
SECTION
2.08.
Temporary
Bonds.
Until definitive bonds of Guarantee Series are
ready for delivery, there may be authenticated and issued in lieu of any thereof
and subject to all of the provisions, limitations, and conditions set forth in
Section 3.04 of the Indenture, temporary registered bonds of Guarantee
Series without coupons.
SECTION
2.09.
Mandatory
Redemption.
The bonds of Guarantee Series shall be
subject to mandatory redemption as provided in the respective forms
thereof.
SECTION
2.10.
Confirmation
of Lien.
The Company, for the equal and proportionate benefit
and security of the holders of all Bonds at any time issued under the Indenture,
hereby confirms the lien and security interest of the Indenture upon, and hereby
grants, bargains, sells, releases, conveys, assigns, transfers, mortgages,
pledges, sets over and confirms to the Trustee, and grants to the Trustee a
security interest in, the Mortgaged Property, including all additional property
heretofore made subject to the Indenture by virtue of one or more supplemental
indentures.
ARTICLE
III
MISCELLANEOUS
SECTION
3.01 Except
as herein otherwise expressly provided, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by
reason of this Supplemental Indenture; the Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals herein or in the
bonds of Guarantee Series (except the Trustee’s authentication
certificate), all of which are made by the Company solely; and this Supplemental
Indenture is executed and accepted by the Trustee, subject to all the terms and
conditions set forth in the Indenture, as fully to all intents and purposes as
if the terms and conditions of the Indenture were herein set forth at
length.
SECTION
3.02 As
supplemented by this Supplemental Indenture, the Indenture is in all respects
ratified and confirmed, and the Indenture as herein defined, and this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
SECTION
3.03 Nothing
in this Supplemental Indenture contained shall or shall be construed to confer
upon any person other than a Holder of Bonds issued under the Indenture, the
Company and the Trustee any right or interest to avail himself of any benefit
under any provision of the Indenture or of this Supplemental
Indenture.
SECTION
3.04
This Supplemental Indenture may be simultaneously executed in several
counterparts and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
[Remainder of this
page intentionally left blank.]
IN WITNESS WHEREOF,
FIRSTENERGY GENERATION CORP., party of the first part hereto, and THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A., party of the second part hereto, have
caused these presents to be executed in their respective names as of the day and
year first above written.
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FIRSTENERGY
GENERATION CORP.
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By:
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/s/ James F.
Pearson
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James F.
Pearson
|
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Vice President
and 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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Biagio S.
Impala
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Vice
President
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Fifth
Supplemental Indenture
STATE OF
OHIO )
)ss.:
COUNTY
OF )
On the 30
th
day of
June, 2009, personally appeared before me, a Notary Public in and for the said
County and State aforesaid, James F. Pearson, to me known and known to me to be
the Vice President and Treasurer of FIRSTENERGY GENERATION CORP., the
corporation which executed the foregoing instrument, and who severally
acknowledged that he did sign such instrument as such Vice President and
Treasurer of FIRSTENERGY GENERATION CORP., the same is his free act and deed and
the free and corporate act and deed of said corporation.
IN WITNESS WHEREOF,
I have hereunto set my hand and seal the 30
th
day of
June, 2009.
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/s/ Michele A.
Buchtel
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________________,
Notary Public
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Commission
Expires Aug. 28, 2011
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Michele A.
Buchtel
Resident Summit County
Notary Public, State
of Ohio
My Commission Expires: 08/28/11
Fifth
Supplemental Indenture
STATE OF
OHIO )
)ss.:
COUNTY OF
CUYAHOGA )
On the 30
th
day of
June, 2009, personally appeared before me, a Notary Public in and for the said
County and State aforesaid, Biagio S. Impala, to me known and known to me to be
a Vice President of THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., the
national banking association which executed the foregoing instrument, and who
severally acknowledged that he did sign such instrument as such Vice President
for and on behalf of said national banking association and that the same is his
free act and deed and the free and corporate act and deed of said national
banking association.
IN WITNESS WHEREOF,
I have hereunto set my hand and seal the 30
th
day of
June, 2009.
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/s/ Ernie K.
Demanelis
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________________,
Notary Public
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Commission
Expires ______________
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ERNIE K. DEMANELIS,
Attorney At Law
Notary Public
- State of
Ohio
My commission has no expiration
date.
Section 147.03 R. C.
Fifth
Supplemental Indenture
The Bank of New York Mellon Trust Company, N.A.
hereby certifies that its precise
name and
address as Trustee is:
The
Bank of New York Mellon Trust Company, N.A.
Global Corporate Trust
1660 West 2
nd
Street,
Suite 830
Cleveland, Ohio 44113
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
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By:
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/s/ Biagio S.
Impala
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Biagio S.
Impala
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Vice
President
|
Fifth
Supplemental Indenture
THIS INSTRUMENT
PREPARED BY:
Lucas F.
Torres
Akin Gump Strauss
Hauer & Feld LLP
One
Bryant Park
New
York, NY 10036
Fifth
Supplemental Indenture
Exhibit A
[
FORM OF FIRST MORTGAGE BOND
OF GUARANTEE SERIES F
]
This
Bond is not transferable except (i) to a successor trustee under the
Trust Indenture, dated as of September 1, 2008, between the Beaver
County Industrial Development Authority and The Bank of New York Mellon Trust
Company, N.A., as trustee, referred to herein, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture referred to herein or (iii) as
may be necessary to comply with a final order of a court of competent
jurisdiction in connection with any bankruptcy or reorganization proceeding of
the Company.
FIRSTENERGY
GENERATION CORP.
First Mortgage Bond,
Guarantee Series F of 2009 due 2047
Due
October 1, 2047
$[_____________________]
No. R-__
FIRSTENERGY GENERATION CORP.
,
a corporation of the State of Ohio (herein, together with its successors and
assigns, the “
Company
”),
for value received promises to pay to The Bank of New York Mellon Trust Company,
N.A., as trustee (the “
Revenue Bond
Trustee
”) under that certain Trust Indenture, dated as of September 1,
2008, between the Beaver County Industrial Development Authority and the Revenue
Bond Trustee, securing $46,300,000 of Beaver County Industrial Development
Authority Pollution Control Revenue Refunding Bonds, Series 2008-B
(FirstEnergy Generation Corp. Project) issued for the benefit of the Company
(the “
Revenue
Bonds
”) (such Trust Indenture, as amended from time to time, hereinafter
the “
Revenue Bond
Indenture
”), or registered assigns, on October 1, 2047, the principal sum
of [_____________________] Dollars, and to pay interest on the unpaid principal
amount from the Initial Interest Accrual Date (as hereinafter defined) at the
Revenue Bond Interest Rate (as hereinafter defined) per annum payable
semi-annually on April 1 and October 1 in each year commencing on the April 1 or
October 1 immediately succeeding the Initial Interest Accrual Date (each such
date herein referred to as an “
Interest Payment
Date
”) on and until maturity, or, in the case of any Bonds of this series
duly called for redemption, on and until the redemption date, or in the case of
any default by the Company in the payment of the principal due on any Bonds of
this series, until the Company’s obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined).
The
interest on each Bond of this series so payable on any Interest Payment Date
shall, subject to the exceptions provided in Section 3.07 of the Indenture, be
paid to the person in whose name such Bond is registered on the date of such
payment. The principal of, and the interest on, this Bond shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private
debts.
This Bond is one of
an issue of Bonds of the Company known as its First Mortgage Bonds, issued and
to be issued in one or more series under and secured by an Open-End Mortgage,
General Mortgage Indenture and Deed of Trust, dated as of June 19, 2008, duly
executed by the Company to The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A.), a national banking
association organized and existing under the laws of the United States of
America, as Trustee (the “
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Fifth Supplemental Indenture dated as of June 30, 2009 (as amended,
supplemented, modified or restated, the
“
Supplemental
Indenture
”
), to
which Open-End Mortgage, General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto (collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Guarantee Series F of 2009
due 2047,” created by the Supplemental Indenture, as provided for in the
Indenture, and authorized for issuance in an aggregate principal amount of up to
$46,300,000.
If and when the
principal of any Revenue Bonds is paid, then there is deemed to be paid an equal
principal amount of the Bonds of this series then outstanding; provided,
however, that such payment of the Bonds of this series is deemed to be made only
when and to the extent that notice of such payment of such Revenue Bonds is
given by the Company to the Trustee.
The Bonds of this
series have been delivered and pledged to the Revenue Bond Trustee pursuant to a
Pledge Agreement, dated June 30, 2009, between the Company and the Revenue Bond
Trustee (the “
Pledge
Agreement
”), as security for the Revenue Bonds until the Release Date (as
defined in the Pledge Agreement). The Bonds of this series shall be
redeemed by the Company in whole at any time prior to maturity at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the date of redemption following receipt by the Trustee of written demand for
redemption (a “
Redemption
Demand
”) from an authorized representative of the Revenue Bond Trustee
under the Revenue Bond Indenture stating that the principal amount of all the
Revenue Bonds then outstanding under the Revenue Bond Indenture has been
declared due and payable pursuant to the provisions of Section 11.02 of the
Revenue Bond Indenture, specifying the date of the accelerated maturity of such
Revenue Bonds and the date or dates from which interest on the Revenue Bonds has
then accrued and is unpaid (specifying the rate or rates of such accrual and the
principal amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and demanding payment
of the principal amount of the Bonds of this series plus accrued interest
thereon to the date fixed for such redemption. The date fixed for such
redemption shall be set forth in the aforesaid Redemption Demand and shall not
be earlier than the date specified in such Redemption Demand as the date of
accelerated maturity of the Revenue Bonds then outstanding under the Revenue
Bond Indenture and not later than forty-five days after the Trustee’s receipt of
such Redemption Demand unless such forty-fifth day is earlier than such date of
accelerated maturity. The Revenue Bond Trustee as the sole holder of
the Bonds of this series, and any successor thereto, hereby irrevocably waives
any requirement of notice of such redemption under
Section 5.04 of the
Indenture. Upon receipt of the aforesaid Redemption Demand, the
earliest date from which unpaid interest on the Revenue Bonds has then accrued
(as specified by the Revenue Bond Trustee in the Redemption Demand) shall become
the initial interest accrual date (the “
Initial Interest
Accrual Date
”) with respect to the Bonds of this series; provided,
however, on any demand for payment of the principal amount thereof at maturity
as a result of the principal of the Revenue Bonds becoming due and payable on
the maturity date of the Bonds of this series, the earliest date from which
unpaid interest on the Revenue Bonds has then accrued shall become the Initial
Interest Accrual Date with respect to the Bonds of this series, such date,
together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, to be as stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. Such redemption shall become null
and void for all purposes under the Indenture (including the fixing of the
Initial Interest Accrual Date with respect to the Bonds of this series) upon
receipt by the Trustee of written notice from the Revenue Bond Trustee of the
annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and of the rescission of the
aforesaid Redemption Demand prior to the redemption date specified in the
Redemption Demand, and thereupon no redemption of the Bonds of this series and
no payment in respect thereof as specified in the Redemption Demand, shall be
effected or required. But no such rescission shall extend to any
subsequent Redemption Demand from the Revenue Bond Trustee or impair any right
consequent on any such subsequent Redemption Demand.
The “
Revenue Bond
Interest Rate
” shall be the same rate of interest per annum as is borne
by the Revenue Bonds; provided, however, that if there are different rates of
interest borne by the Revenue Bonds, or if interest is required to be paid on
the Revenue Bonds more frequently than on each April 1 or October 1, the Revenue
Bond Interest Rate shall be the rate that results in the total amount of
interest payable on an Interest Payment Date, a redemption date or at maturity,
as the case may be, or at any other time interest on this Bond is due and
payable, to be equal to the total amount of unpaid interest that has accrued on
all then outstanding Revenue Bonds.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an Event of Default as therein defined.
From and after the
Release Date, the Bonds of this series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date or promptly following, the Bonds of
this series shall be surrendered to and cancelled by the Trustee.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of incorporators, stockholders, officers and
directors being released by the registered owner hereof by the acceptance of
this Bond and being likewise waived and released by the terms of the
Indenture.
This Bond is
nontransferable except to (i) effect transfer to any successor to the Revenue
Bond Trustee under the Revenue Bond Indenture, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender and cancellation of this Bond
and the payment of any applicable taxes and fees required by law, and upon any
such transfer or exchange a new registered Bond or Bonds of the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be. The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner
for the purpose of receiving
payment of or on account of the principal and interest due hereon and for all
other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY
GENERATION CORP.
By: __________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Indenture.
THE
BANK OF NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By:_______________________________
Authorized
Signatory
Exhibit
B
[
FORM OF FIRST MORTGAGE BOND
OF GUARANTEE SERIES G
]
This
Bond is not transferable except (i) to a successor trustee under the
Trust Indenture, dated as of September 1, 2008, between the Ohio Air
Quality Development Authority and The Bank of New York Mellon Trust Company,
N.A., as trustee, referred to herein, (ii) in connection with the exercise of
the rights and remedies of the holder hereof consequent upon an “Event of
Default” as defined in the Indenture referred to herein or (iii) as may be
necessary to comply with a final order of a court of competent jurisdiction in
connection with any bankruptcy or reorganization proceeding of the
Company.
FIRSTENERGY
GENERATION CORP.
First Mortgage Bond,
Guarantee Series G of 2009 due 2018
Due
October 1, 2018
$[_____________________]
No. R-__
FIRSTENERGY GENERATION CORP.
,
a corporation of the State of Ohio (herein, together with its successors and
assigns, the “
Company
”),
for value received promises to pay to The Bank of New York Mellon Trust Company,
N.A., as trustee (the “
Revenue Bond
Trustee
”) under that certain Trust Indenture, dated as of September 1,
2008, between the Ohio Air Quality Development Authority and the Revenue Bond
Trustee, securing $2,985,000 of State of Ohio Pollution Control Revenue
Refunding Bonds, Series 2008-C (FirstEnergy Generation Corp. Project)
issued for the benefit of the Company (the “
Revenue
Bonds
”) (such Trust Indenture, as amended from time to time, hereinafter
the “
Revenue Bond
Indenture
”), or registered assigns, on October 1, 2018, the principal sum
of [_____________________] Dollars, and to pay interest on the unpaid principal
amount from the Initial Interest Accrual Date (as hereinafter defined) at the
Revenue Bond Interest Rate (as hereinafter defined) per annum payable
semi-annually on April 1 and October 1 in each year commencing on the April 1 or
October 1 immediately succeeding the Initial Interest Accrual Date (each such
date herein referred to as an “
Interest Payment
Date
”) on and until maturity, or, in the case of any Bonds of this series
duly called for redemption, on and until the redemption date, or in the case of
any default by the Company in the payment of the principal due on any Bonds of
this series, until the Company’s obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined).
The
interest on each Bond of this series so payable on any Interest Payment Date
shall, subject to the exceptions provided in Section 3.07 of the Indenture, be
paid to the person in whose name such Bond is registered on the date of such
payment. The principal of, and the interest on, this Bond shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private
debts.
This Bond is one of
an issue of Bonds of the Company known as its First Mortgage Bonds, issued and
to be issued in one or more series under and secured by an Open-End Mortgage,
General Mortgage Indenture and Deed of Trust, dated as of June 19, 2008, duly
executed by the Company to The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A.), a national banking
association organized and existing under the laws of the United States of
America, as Trustee (the “
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Fifth Supplemental Indenture dated as of June 30, 2009 (as amended,
supplemented, modified or restated, the
“
Supplemental
Indenture
”
), to
which Open-End Mortgage, General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto (collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Guarantee Series G of 2009
due 2018,” created by the Supplemental Indenture, as provided for in the
Indenture, and authorized for issuance in an aggregate principal amount of up to
$2,985,000.
If and when the
principal of any Revenue Bonds is paid, then there is deemed to be paid an equal
principal amount of the Bonds of this series then outstanding; provided,
however, that such payment of the Bonds of this series is deemed to be made only
when and to the extent that notice of such payment of such Revenue Bonds is
given by the Company to the Trustee.
The Bonds of this
series have been delivered and pledged to the Revenue Bond Trustee pursuant to a
Pledge Agreement, dated June 30, 2009, between the Company and the Revenue Bond
Trustee (the “
Pledge
Agreement
”), as security for the Revenue Bonds until the Release Date (as
defined in the Pledge Agreement). The Bonds of this series shall be
redeemed by the Company in whole at any time prior to maturity at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the date of redemption following receipt by the Trustee of written demand for
redemption (a “
Redemption
Demand
”) from an authorized representative of the Revenue Bond Trustee
under the Revenue Bond Indenture stating that the principal amount of all the
Revenue Bonds then outstanding under the Revenue Bond Indenture has been
declared due and payable pursuant to the provisions of Section 11.02 of the
Revenue Bond Indenture, specifying the date of the accelerated maturity of such
Revenue Bonds and the date or dates from which interest on the Revenue Bonds has
then accrued and is unpaid (specifying the rate or rates of such accrual and the
principal amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and demanding payment
of the principal amount of the Bonds of this series plus accrued interest
thereon to the date fixed for such redemption. The date fixed for such
redemption shall be set forth in the aforesaid Redemption Demand and shall not
be earlier than the date specified in such Redemption Demand as the date of
accelerated maturity of the Revenue Bonds then outstanding under the Revenue
Bond Indenture and not later than forty-five days after the Trustee’s receipt of
such Redemption Demand unless such forty-fifth day is earlier than such date of
accelerated maturity. The Revenue Bond Trustee as the sole holder of
the Bonds of this series, and any successor thereto, hereby irrevocably waives
any requirement of notice of such redemption under
Section 5.04 of the
Indenture. Upon receipt of the aforesaid Redemption Demand, the
earliest date from which unpaid interest on the Revenue Bonds has then accrued
(as specified by the Revenue Bond Trustee in the Redemption Demand) shall become
the initial interest accrual date (the “
Initial Interest
Accrual Date
”) with respect to the Bonds of this series; provided,
however, on any demand for payment of the principal amount thereof at maturity
as a result of the principal of the Revenue Bonds becoming due and payable on
the maturity date of the Bonds of this series, the earliest date from which
unpaid interest on the Revenue Bonds has then accrued shall become the Initial
Interest Accrual Date with respect to the Bonds of this series, such date,
together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, to be as stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. Such redemption shall become null
and void for all purposes under the Indenture (including the fixing of the
Initial Interest Accrual Date with respect to the Bonds of this series) upon
receipt by the Trustee of written notice from the Revenue Bond Trustee of the
annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and of the rescission of the
aforesaid Redemption Demand prior to the redemption date specified in the
Redemption Demand, and thereupon no redemption of the Bonds of this series and
no payment in respect thereof as specified in the Redemption Demand, shall be
effected or required. But no such rescission shall extend to any
subsequent Redemption Demand from the Revenue Bond Trustee or impair any right
consequent on any such subsequent Redemption Demand.
The “
Revenue Bond
Interest Rate
” shall be the same rate of interest per annum as is borne
by the Revenue Bonds; provided, however, that if there are different rates of
interest borne by the Revenue Bonds, or if interest is required to be paid on
the Revenue Bonds more frequently than on each April 1 or October 1, the Revenue
Bond Interest Rate shall be the rate that results in the total amount of
interest payable on an Interest Payment Date, a redemption date or at maturity,
as the case may be, or at any other time interest on this Bond is due and
payable, to be equal to the total amount of unpaid interest that has accrued on
all then outstanding Revenue Bonds.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an Event of Default as therein defined.
From and after the
Release Date, the Bonds of this series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date or promptly following, the Bonds of
this series shall be surrendered to and cancelled by the Trustee.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of incorporators, stockholders, officers and
directors being released by the registered owner hereof by the acceptance of
this Bond and being likewise waived and released by the terms of the
Indenture.
This Bond is
nontransferable except to (i) effect transfer to any successor to the Revenue
Bond Trustee under the Revenue Bond Indenture, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender and cancellation of this Bond
and the payment of any applicable taxes and fees required by law, and upon any
such transfer or exchange a new registered Bond or Bonds of the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be. The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner
for the purpose of receiving
payment of or on account of the principal and interest due hereon and for all
other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY
GENERATION CORP.
By:___________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S AUTHENTICATION CERTIFICATE
]
TRUSTEE’S AUTHENTICATION CERTIFICATE
This is one of the Bonds of the series designated therein referred to in the
within-
mentioned Indenture.
THE BANK OF
NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By:________________________________
Authorized
Signatory
Exhibit
C
[
FORM OF FIRST MORTGAGE BOND
OF GUARANTEE SERIES H
]
This
Bond is not transferable except (i) to a successor trustee under the
Trust Indenture, dated as of September 1, 2008, between the Ohio
Water Development Authority and The Bank of New York Mellon Trust Company, N.A.,
as trustee, referred to herein, (ii) in connection with the exercise of the
rights and remedies of the holder hereof consequent upon an “Event of Default”
as defined in the Indenture referred to herein or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company.
FIRSTENERGY
GENERATION CORP.
First Mortgage Bond,
Guarantee Series H of 2009 due 2018
Due
October 1, 2018
$[_____________________]
No. R-__
FIRSTENERGY GENERATION CORP.
,
a corporation of the State of Ohio (herein, together with its successors and
assigns, the “
Company
”),
for value received promises to pay to The Bank of New York Mellon Trust Company,
N.A., as trustee (the “
Revenue Bond
Trustee
”) under that certain Trust Indenture, dated as of September 1,
2008, between the Ohio Water Development Authority and the Revenue Bond Trustee,
securing $2,805,000 of State of Ohio Pollution Control Revenue Refunding Bonds,
Series 2008-B (FirstEnergy Generation Corp. Project) issued for the benefit
of the Company (the “
Revenue
Bonds
”) (such Trust Indenture, as amended from time to time, hereinafter
the “
Revenue Bond
Indenture
”), or registered assigns, on October 1, 2018, the principal sum
of [_____________________] Dollars, and to pay interest on the unpaid principal
amount from the Initial Interest Accrual Date (as hereinafter defined) at the
Revenue Bond Interest Rate (as hereinafter defined) per annum payable
semi-annually on April 1 and October 1 in each year commencing on the April 1 or
October 1 immediately succeeding the Initial Interest Accrual Date (each such
date herein referred to as an “
Interest Payment
Date
”) on and until maturity, or, in the case of any Bonds of this series
duly called for redemption, on and until the redemption date, or in the case of
any default by the Company in the payment of the principal due on any Bonds of
this series, until the Company’s obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined).
The
interest on each Bond of this series so payable on any Interest Payment Date
shall, subject to the exceptions provided in Section 3.07 of the Indenture, be
paid to the person in whose name such Bond is registered on the date of such
payment. The principal of, and the interest on, this Bond shall be
payable at the office or agency of the Company in the City of Cleveland, State
of Ohio in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private
debts.
This Bond is one of
an issue of Bonds of the Company known as its First Mortgage Bonds, issued and
to be issued in one or more series under and secured by an Open-End Mortgage,
General Mortgage Indenture and Deed of Trust, dated as of June 19, 2008, duly
executed by the Company to The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A.), a national banking
association organized and existing under the laws of the United States of
America, as Trustee (the “
Trustee
”),
and indentures supplemental thereto, heretofore or hereafter executed, including
the Fifth Supplemental Indenture dated as of June 30, 2009 (as amended,
supplemented, modified or restated, the
“
Supplemental
Indenture
”
), to
which Open-End Mortgage, General Mortgage Indenture and Deed of Trust and all
indentures supplemental thereto (collectively referred to as the “
Indenture
”)
reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the terms and conditions upon
which such Bonds are, and are to be, issued and secured, and the rights of the
owners of such Bonds and the Trustee in respect of such security. As
provided in the Indenture, such Bonds may be in various principal sums, are
issuable in series, may mature at different times, may bear interest at
different rates and may otherwise vary as therein provided; and this Bond is one
Bond of a series entitled “First Mortgage Bonds, Guarantee Series H of 2009
due 2018,” created by the Supplemental Indenture, as provided for in the
Indenture, and authorized for issuance in an aggregate principal amount of up to
$2,805,000.
If and when the
principal of any Revenue Bonds is paid, then there is deemed to be paid an equal
principal amount of the Bonds of this series then outstanding; provided,
however, that such payment of the Bonds of this series is deemed to be made only
when and to the extent that notice of such payment of such Revenue Bonds is
given by the Company to the Trustee.
The Bonds of this
series have been delivered and pledged to the Revenue Bond Trustee pursuant to a
Pledge Agreement, dated June 30, 2009, between the Company and the Revenue Bond
Trustee (the “
Pledge
Agreement
”), as security for the Revenue Bonds until the Release Date (as
defined in the Pledge Agreement). The Bonds of this series shall be
redeemed by the Company in whole at any time prior to maturity at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the date of redemption following receipt by the Trustee of written demand for
redemption (a “
Redemption
Demand
”) from an authorized representative of the Revenue Bond Trustee
under the Revenue Bond Indenture stating that the principal amount of all the
Revenue Bonds then outstanding under the Revenue Bond Indenture has been
declared due and payable pursuant to the provisions of Section 11.02 of the
Revenue Bond Indenture, specifying the date of the accelerated maturity of such
Revenue Bonds and the date or dates from which interest on the Revenue Bonds has
then accrued and is unpaid (specifying the rate or rates of such accrual and the
principal amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and demanding payment
of the principal amount of the Bonds of this series plus accrued interest
thereon to the date fixed for such redemption. The date fixed for such
redemption shall be set forth in the aforesaid Redemption Demand and shall not
be earlier than the date specified in such Redemption Demand as the date of
accelerated maturity of the Revenue Bonds then outstanding under the Revenue
Bond Indenture and not later than forty-five days after the Trustee’s receipt of
such Redemption Demand unless such forty-fifth day is earlier than such date of
accelerated maturity. The Revenue Bond Trustee as the sole holder of
the Bonds of this series, and any successor thereto, hereby irrevocably waives
any requirement of notice of such redemption under
Section 5.04
of the Indenture. Upon receipt of the aforesaid Redemption Demand,
the earliest date from which unpaid interest on the Revenue Bonds has then
accrued (as specified by the Revenue Bond Trustee in the Redemption Demand)
shall become the initial interest accrual date (the “
Initial Interest
Accrual Date
”) with respect to the Bonds of this series; provided,
however, on any demand for payment of the principal amount thereof at maturity
as a result of the principal of the Revenue Bonds becoming due and payable on
the maturity date of the Bonds of this series, the earliest date from which
unpaid interest on the Revenue Bonds has then accrued shall become the Initial
Interest Accrual Date with respect to the Bonds of this series, such date,
together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, to be as stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. Such redemption shall become null
and void for all purposes under the Indenture (including the fixing of the
Initial Interest Accrual Date with respect to the Bonds of this series) upon
receipt by the Trustee of written notice from the Revenue Bond Trustee of the
annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and of the rescission of the
aforesaid Redemption Demand prior to the redemption date specified in the
Redemption Demand, and thereupon no redemption of the Bonds of this series and
no payment in respect thereof as specified in the Redemption Demand, shall be
effected or required. But no such rescission shall extend to any
subsequent Redemption Demand from the Revenue Bond Trustee or impair any right
consequent on any such subsequent Redemption Demand.
The “
Revenue Bond
Interest Rate
” shall be the same rate of interest per annum as is borne
by the Revenue Bonds; provided, however, that if there are different rates of
interest borne by the Revenue Bonds, or if interest is required to be paid on
the Revenue Bonds more frequently than on each April 1 or October 1, the Revenue
Bond Interest Rate shall be the rate that results in the total amount of
interest payable on an Interest Payment Date, a redemption date or at maturity,
as the case may be, or at any other time interest on this Bond is due and
payable, to be equal to the total amount of unpaid interest that has accrued on
all then outstanding Revenue Bonds.
The principal of
this Bond may be declared or may become due before the maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of an Event of Default as therein defined.
From and after the
Release Date, the Bonds of this series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date or promptly following, the Bonds of
this series shall be surrendered to and cancelled by the Trustee.
No recourse shall be
had for the payment of the principal of or premium, or interest if any, on this
Bond, or any part hereof, or for any claim based hereon or otherwise in respect
hereof, or of the indebtedness represented hereby, or upon any obligation,
covenant or agreement under the Indenture, against any incorporator,
stockholder, 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, all such liability of incorporators, stockholders, officers and
directors being released by the registered owner hereof by the acceptance of
this Bond and being likewise waived and released by the terms of the
Indenture.
This Bond is
nontransferable except to (i) effect transfer to any successor to the Revenue
Bond Trustee under the Revenue Bond Indenture, (ii) in connection with the
exercise of the rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture or (iii) as may be necessary to
comply with a final order of a court of competent jurisdiction in connection
with any bankruptcy or reorganization proceeding of the Company. But
this Bond is exchangeable by the registered holder hereof, in person or by
attorney duly authorized, at the Corporate Trust Office of the Trustee, any such
permitted transfer or exchange to be made in the manner and upon the conditions
prescribed in the Indenture, upon the surrender and cancellation of this Bond
and the payment of any applicable taxes and fees required by law, and upon any
such transfer or exchange a new registered Bond or Bonds of the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be. The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner
for the purpose of receiving
payment of or on account of the principal and interest due hereon and for all
other purposes.
This Bond shall not
be valid until authenticated by the manual signature of the Trustee, or a
successor Trustee or Authenticating Agent appointed pursuant to the
Indenture.
IN WITNESS WHEREOF,
the Company has caused this Bond 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.
Dated:
_____________
FIRSTENERGY
GENERATION CORP.
By:___________________________
Title:
Attest:
Title:
[
FORM OF TRUSTEE’S
AUTHENTICATION CERTIFICATE
]
TRUSTEE’S
AUTHENTICATION CERTIFICATE
This is one of the
Bonds of the series designated therein referred to in the within-
mentioned Indenture.
THE BANK OF
NEW YORK MELLON TRUST
COMPANY
, N.A.,
as
Trustee
By:_______________________________
Authorized Signatory
Schedule
1
Filing Offices For the Original
Indenture
Plant
|
Jurisdiction/Filing
Office
|
Recording Information
|
Date filed
|
Ashtabula
Plant
|
Ashtabula County -
Office
of the County
Recorder of Ashtabula
County,
Ohio
|
Instrument No.
200800007364
Volume
436 Page 1732
|
06/27/2008
|
Bay
Shore
Plant
|
Lucas
County - Office of
the
County Recorder of
Lucas
County, Ohio
|
Instrument No.
20080627-0032756
|
06/27/2008
|
Bruce
Mansfield
Plant
|
Beaver
County - Office
of the
County Recorder
of
Beaver County,
Pennsylvania
|
Instrument No.
3326465
|
06/27/2008
|
Burger
Plant
|
Belmont
County - Office
of the
County Recorder
of
Belmont County,
Ohio
|
Instrument No. 200800004786
Volume
0157 Page 172
|
06/27/2008
|
Eastlake Plant
|
Lake
County - Office of
the
County Recorder of
Lake
County, Ohio
|
Instrument No.
2008R018408
|
06/27/2008
|
Edgewater Plant and
West
Lorain
Plant
|
Lorain
County - Office
of the
County Recorder
of
Lorain County, Ohio
|
Instrument No.
2008-0259135
|
06/27/2008
|
Fremont
Plant
|
Sandusky County -
Office
of the County
Recorder of Sandusky
County,
Ohio
|
Instrument No.
200800004585
Official Record Book 66
Page
708
|
06/27/2008
|
Lake
Shore
Plant
|
Cuyahoga County -
Office
of
the County
Recorder of Cuyahoga
County,
Ohio
|
Instrument No.
200806270329
|
06/27/2008
|
Mad
River
Plant
|
Clark County -
Office of
the
County Recorder of
Clark
County, Ohio
|
Instrument
No.
200800010888
Official Record Volume
1852
Page 1946
Instrument No.
200800011009
Official Record Volume
1853
Page 18
|
06/27/2008
06/30/2008
(Re-recorded)
|
Schedule
1
Filing Offices For the Original
Indenture
Plant
|
Jurisdiction/Filing
Office
|
Recording Information
|
Date filed
|
Richland
Plant
|
Defiance
County -
Office of the County
Recorder of Defiance
County, Ohio
|
Instrument No.
200800003811
Official Record Book 327
Page
482
|
06/27/2008
|
Sammis
Plant
|
Jefferson
County -
Office of the
County
Recorder of
Jefferson
County,
Ohio
|
Instrument No. 232633
Official Record Volume
851
Page 344
|
06/27/2008
|
Seneca
Plant
|
Warren County - Office
of the County Recorder
of Warren County,
Pennsylvania
|
Instrument No. 2008-2962
|
06/27/2008
|
Stryker
Plant
|
Williams County -
Office of the County
Recorder of Williams
County, Ohio
|
Instrument No.
200800082091
Official Record Book 0240
Page
0516
|
06/27/2008
|