Contract
EXHIBIT
4.2
__________
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 December 1, 2009
__________
Providing
among other things for
First
Mortgage Bonds, Collateral Series D of 2009 due 2012
_________
Supplemental
to Open-End Mortgage, General Mortgage
Indenture
and Deed of Trust, Dated as of June 19, 2008
THIS SIXTH SUPPLEMENTAL
INDENTURE (this “Supplemental
Indenture”), dated as of December 1, 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”), a Fourth Supplemental Indenture supplementing
the Original Indenture dated as of June 15, 2009 (the “Fourth
Supplemental Indenture”), a Fifth Supplemental Indenture supplementing
the Original Indenture dated as of June 30, 2009 (the “Fifth
Supplemental Indenture”) and the Original Indenture, as supplemented by
the aforementioned First Supplemental Indenture, Second Supplemental Indenture,
Third Supplemental Indenture, Fourth Supplemental Indenture, Fifth 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 a new series of Bonds under the Indenture,
consisting of $28,807,000 in aggregate principal amount to be designated as
“First Mortgage Bonds, Collateral Series D of 2009 due 2012 (hereinafter
referred to as the “bonds of December
2009 Collateral Series”), which shall bear interest at the rate per annum
set forth in, shall be subject to certain redemption rights and obligations set
forth in, and will otherwise be in the form and have the terms and provisions
provided for in this Supplemental Indenture; and
WHEREAS, the bonds of December
2009 Collateral Series and the Trustee’s certificate of authentication to
be endorsed thereon shall be substantially in the form included in Exhibit A
hereto; and
WHEREAS, the bonds of December
2009 Collateral Series shall be delivered to the Bank no earlier than one
Business Day following the effectiveness of the BCIDA 2008-A Reimbursement
Agreement (as defined below); 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 December 2009
Collateral Series 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 this 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.
“Bank”
means 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 December 1, 2009 (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 0000-X
Xxxxxxx Xxxx Xxxxxxxxx” 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.
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“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 0000-X Xxxxxxx Xxxx Xxxxxxxxx.
“BCIDA
2008-A
Revenue Bonds” means the $28,525,000 aggregate principal amount of Beaver
County Pollution Control Revenue Refunding Bonds, Series 2008-A
(FirstEnergy Generation Corp. Project) issued by the BCIDA.
“Interest Payment
Date” shall have the meaning assigned to such term in the form of bond of
December 2009 Collateral Series.
The terms “Available
Amount,” “Bank
Assignee,” “Cancellation
Date,” “Fee
Letter,” “Letter of
Credit,” “Obligations”
and “Reimbursement
Obligation,” shall have the respective meanings assigned to those terms
in the BCIDA 2008-A Reimbursement Agreement.
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
December 2009 Collateral Series shall be designated, as hereinbefore recited, as
the Company’s “First Mortgage Bonds, Collateral Series D of
2009 due 2012” and, subject to the provisions of the Indenture, shall be limited
to the aggregate principal amount of Twenty Eight Million Eight Hundred and
Seven Thousand Dollars ($28,807,000). The bonds of December 2009
Collateral Series 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 December 2009
Collateral 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 form included in Exhibit A hereto. The bonds of
December 2009 Collateral Series shall be dated as provided in Section 3.03
of the Indenture.
(b) The
bonds of December 2009 Collateral Series shall bear interest as provided in the
form of the bond of December 2009 Collateral Series, 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 December 2009 Collateral
Series shall be as set forth in the form of the bond of December 2009
Collateral Series.
(c) The
interest on the bonds of December 2009 Collateral Series so payable on any
Interest Payment Date shall, subject to the exceptions provided in Section 3.07
of the Indenture,
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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 December 2009 Collateral
Series 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 under the BCIDA 2008-A Reimbursement Agreement. 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 payable under
the Fee Letter shall be deemed a payment in respect of (x) principal of or (y)
interest on, respectively, the bonds of December 2009 Collateral Series, but any
such payment of principal shall not reduce the principal amount of the bonds of
December 2009 Collateral Series 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 December
2009 Collateral Series 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.
The Trustee may
conclusively presume that the obligation of the Company to pay the principal of,
and interest on, the bonds of December 2009 Collateral Series, 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 due
under the BCIDA 2008-A Reimbursement Agreement or of letter of credit fees due
under the Fee Letter 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 December 2009 Collateral 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 December 2009 Collateral 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 December 2009 Collateral
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 December 2009 Collateral Series shall not
be transferable except (i) to a successor to the respective Bank or Bank
Assignee under the BCIDA 2008-A Reimbursement Agreement, (ii) in connection with
the
4
exercise of the
rights and remedies of the holder thereof consequent upon an “Event of Default”
as defined in the BCIDA 2008-A Reimbursement Agreement, 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 December 2009 Collateral 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 December 2009 Collateral
Series shall be issued in the denomination of $1,000 and any integral
multiple thereof. The bonds of December 2009 Collateral
Series shall each be numbered R-1 and consecutively upwards.
SECTION
2.08. Temporary
Bonds. Until definitive bonds of December 2009 Collateral
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 December 2009 Collateral Series without coupons.
SECTION
2.09. Mandatory
Redemption. The bonds of December 2009 Collateral
Series shall be subject to mandatory redemption as provided in the form
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 3.01Except
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 December 2009 Collateral 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.
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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.]
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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.
FIRSTENERGY
GENERATION CORP.
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By:
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/s/ Xxxxx X.
Xxxxxxx
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Xxxxx X.
Xxxxxxx
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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/
Xxxx X.
Xxxxxxxx
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Xxxx X.
Xxxxxxxx
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Vice
President
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STATE OF
OHIO )
)ss.:
COUNTY
OF )
On the 1st day
of December, 2009, personally appeared before me, a Notary Public in and for the
said County and State aforesaid, Xxxxx X. Xxxxxxx, 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 1st day
of December, 2009.
/s/
Xxxxxxx X.
Xxxxxxx
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________________,
Notary Public
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Commission
Expires August 28, 2011
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Xxxxxxx X. Xxxxxxx | |
Resident Summit County | |
Notary Public, State of Ohio | |
My Commission Expires: 08/20/11 |
STATE OF
OHIO )
)ss.:
COUNTY OF
CUYAHOGA )
On the 1st day
of December, 2009, personally appeared before me, a Notary Public in and for the
said County and State aforesaid, Xxxx X. Xxxxxxxx, 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 she did sign such instrument as such Vice President
for and on behalf of said national banking association and that the same is her
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 1st day
of December, 2009.
/s/
Xxxxxx X.
Impala
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Xxxxxx X.
Impala, Notary Public
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Commission
Expires ______________
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B. IMPALA | |
NOTARY PUBLIC – STATE OF OHIO | |
My Commission expires Dec. 15, 0000 |
Xxx
Xxxx xx Xxx Xxxx 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
0000 Xxxx 0xx
Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx
00000
THE BANK OF
NEW YORK MELLON TRUST
COMPANY,
N.A.
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By:
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/s/
Xxxx X.
Xxxxxxxx
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Xxxx X.
Xxxxxxxx
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Vice
President
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THIS INSTRUMENT
PREPARED BY:
Xxxxx X.
Xxxxxx
Xxxx Xxxx Xxxxxxx
Xxxxx & Xxxx LLP
Xxx
Xxxxxx Xxxx
Xxx
Xxxx, XX 00000
Exhibit
A
[FORM OF FIRST MORTGAGE BOND
OF BONDS OF DECEMBER 2009 COLLATERAL SERIES]
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 Reimbursement Agreement 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,
Collateral Series D of 2009 due 2012
Due
June 6, 2012
$[_____________________]
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 Nova Scotia (the “Bank”)
under that certain Letter of Credit and Reimbursement Agreement, dated as of
December 1, 2009, 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, 2012, 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 under the Fee Letter (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 Sixth Supplemental Indenture dated
as of December 1, 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 of the Supplemental Indenture unless and
until the Trustee receives the notice contemplated by Section 2.04 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,” “Fee
Letter,” “Letter of
Credit,” “Obligations”
and “Reimbursement
Obligation” shall have the respective meanings set forth in the
Reimbursement Agreement. The Letter of Credit was issued in favor of
the bond trustee for $28,525,000 aggregate principal amount of Beaver County
Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy 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 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 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 D of 2009 due
2012,” created by the Supplemental Indenture, as provided for in the Indenture,
and authorized for issuance in an aggregate principal amount of up to
$28,807,000.
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 Reimbursement Agreement, 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:________________________________
Name:
Title:
Attest:
______________________________
Name:
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
|
Xxxxx County -
Office of
the County
Recorder of
Xxxxx County,
Ohio
|
Instrument
No.
20080627-0032756
|
06/27/2008
|
Xxxxx
Xxxxxxxxx
Plant
|
Xxxxxx 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
|
Xxxxx County -
Office of
the County
Recorder of
Xxxxx 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
1-1
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
|
Xxxxxx
Plant
|
Xxxxxxxxx
County -
Office of the
County
Recorder of
Jefferson
County,
Ohio
|
Instrument No.
232633
Official
Record Volume
851 Page
344
|
06/27/2008
|
Seneca
Plant
|
Xxxxxx County
- Office
of the County
Recorder
of Xxxxxx
County,
Pennsylvania
|
Instrument No.
2008-2962
|
06/27/2008
|
Stryker
Plant
|
Xxxxxxxx
County -
Office of the
County
Recorder of
Xxxxxxxx
County,
Ohio
|
Instrument
No.
200800082091
Official
Record Book 0240
Page
0516
|
06/27/2008
|
Schedule
1-2