FIRST SUPPLEMENTAL INDENTURE

EXHIBIT 4.1(a)

 

 

 

 

FIRST SUPPLEMENTAL INDENTURE

 

 

__________

 

 

FIRSTENERGY GENERATION CORP.

 

 

TO

 

 

THE BANK OF NEW YORK TRUST COMPANY, N.A.,

as Trustee

 

 

__________

 

 

Dated as of June 25, 2008

 

 

__________

 

 

Providing among other things for

 

First Mortgage Bonds, Guarantee Series A of 2008 due 2009

 

First Mortgage Bonds, Guarantee Series B of 2008 due 2009

 

 

_________

 

Supplemental to Open-End Mortgage, General Mortgage

Indenture and Deed of Trust, Dated as of June 19, 2008

 

 

 

THIS FIRST SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of June 25, 2008, 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 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 (as hereby supplemented, hereinafter called 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 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 Indenture; and

 

WHEREAS, the Company, by appropriate corporate action in conformity with the terms of the Indenture, has duly determined to create two new series of Bonds under the Indenture, consisting of $142,653,250 in principal amount to be designated as “First Mortgage Bonds, Guarantee Series A of 2008 due 2009” (hereinafter referred to as the “ bonds of Guarantee Series A ”) and $6,513,617 in principal amount to be designated as “First Mortgage Bonds, Guarantee Series B of 2008 due 2009” (hereinafter referred to as the “ bonds of Guarantee Series B ”, and together with the bonds of Guarantee Series A, 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 A and the Trustee’s certificate to be endorsed thereon shall be substantially in the form included in Exhibit A hereto and the bonds of Guarantee Series B and the Trustee’s certificate to be endorsed thereon shall be substantially in the form included in Exhibit B 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 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 A and the bonds of Guarantee Series B, 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 Indenture.

 

SECTION 1.02                                 Additional Definitions .

 

 

 

 

 

“ OAQDA Bonds ” means the $141,260,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy Generation Corp. Project) to be issued by the Ohio Air Quality Development Authority.

 

 

 

“ OAQDA Reimbursement Agreement ” means that certain Letter of Credit and Reimbursement Agreement to be dated as of June 30, 2008 among the Company, Barclays Bank PLC, New York Branch, as Administrative Agent and Fronting Bank, and the Banks, pursuant to which a letter of credit is to be issued by the Fronting Bank in favor of the trustee for the OAQDA Bonds.

 

“ OWDA Bonds ” means the $6,450,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2008-A (FirstEnergy Generation Corp. Project) to be issued by the Ohio Water Development Authority.

 

“ OWDA Reimbursement Agreement ” means that certain Letter of Credit and Reimbursement Agreement to be dated as of June 30, 2008 among the Company, Barclays Bank PLC, New York Branch, as Administrative Agent and Fronting Bank, and the Banks, pursuant to which a letter of credit is to be issued by the Fronting Bank in favor of the trustee for the OWDA Bonds.

 

“ Reimbursement Agreements ” means the OAQDA Reimbursement Agreement and the OWDA Reimbursement Agreement.

 

The terms “ Available Amount ,” “ Commitments ,” “ Letter of Credit ,” “ Obligations ,” and “ Tender Advances ” shall have the respective meanings assigned to those terms in each 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 Guarantee Series A shall, as hereinbefore recited, be designated as the Company’s “First Mortgage Bonds, Guarantee Series A of 2008 due 2009” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of One Hundred Forty Two Million Six Hundred Fifty Three Thousand Two Hundred Fifty Dollars ($142,653,250).  The bonds of Guarantee Series A are to be issued and secured by the Lien of the Indenture.

 

(b)           The bonds of Guarantee Series B shall, as hereinbefore recited, be designated as the Company’s “First Mortgage Bonds, Guarantee Series B of 2008 due 2009” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Six Million Five Hundred Thirteen Thousand Six Hundred Seventeen Dollars ($6,513,617).  The bonds of Guarantee Series B 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 type-written form and shall be registered bonds without coupons, and such bonds and the Trustee’s certificate to be endorsed thereon shall be substantially in the respective     forms included in Exhibits A and B hereto.  The bonds of Guarantee Series shall be dated as provided in Section 3.03 of the Indenture.  All bonds of Guarantee Series shall mature on June 26, 2009.

 

(b)           The bonds of Guarantee Series A shall bear interest on each day that they are outstanding at such rate or rates per annum as shall cause the amount of interest payable on the bonds of Guarantee Series A on an Interest Payment Date to equal the amount of outstanding Obligations under the OAQDA Reimbursement Agreement (other than Tender Advances or reimbursement obligations of the Company to the Banks constituting demand loans pursuant to Section 2.04 of the OAQDA Reimbursement Agreement) payable on such Interest Payment Date; provided , however , such interest rate or rates on the bonds of Guarantee Series A shall not exceed ten percent (10%) per annum (calculated on the basis of a year of 360 days for the actual days elapsed).  The bonds of Guarantee Series A shall bear interest until the principal thereof shall be paid in full.

 

(c)           The interest on the bonds of Guarantee Series A 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.

 

(d)           The bonds of Guarantee Series B shall bear interest on each day that they are outstanding at such rate or rates per annum as shall cause the amount of interest payable on the bonds of Guarantee Series B on an Interest Payment Date to equal the amount of outstanding Obligations under the OWDA Reimbursement Agreement (other than Tender Advances or reimbursement obligations of the Company to the Banks constituting demand loans pursuant to Section 2.04 of the OWDA Reimbursement Agreement) payable on such Interest Payment Date; provided , however , such interest rate or rates on the bonds of Guarantee Series B shall not exceed ten percent (10%) per annum (calculated on the basis of a year of 360 days for the actual days elapsed).  The bonds of Guarantee Series B shall bear interest until the principal thereof shall be paid in full.

 

(e)           The interest on the bonds of Guarantee Series B 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 A shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OAQDA Reimbursement Agreement in order to secure and provide for, and as collateral security for, the due and punctual payment of the Obligations arising thereunder.  The bonds of Guarantee Series B shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OWDA Reimbursement Agreement in order to secure and provide for, and as collateral security for, the due and punctual payment of the Obligations arising thereunder.

 

 

 

SECTION 2.04.   Credit for Payments under Reimbursement Agreements.   (a)  The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Guarantee Series A, whether on an Interest Payment Date, at maturity, upon redemption, upon acceleration or otherwise, in an amount equal to the amount, if any, paid by or for the account of the Company in respect of any corresponding payment of the Obligations outstanding under the OAQDA Reimbursement Agreement (other than Tender Advances or reimbursement obligations of the Company to the Banks constituting demand loans pursuant to Section 2.04 of the OAQDA Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Guarantee Series A shall be credited in full if, at the time that any such payment of principal shall be due, there shall have been paid by or for the account of the Company an equivalent amount of Obligations constituting Tender Advances or reimbursement obligations of the Company to the Banks constituting demand loans pursuant to Section 2.04 of the OAQDA Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the OAQDA Reimbursement Agreement or under the bonds of Guarantee Series A shall reduce the stated principal amount of the bonds of Guarantee Series A unless, and only to the extent that, the OAQDA Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OAQDA Reimbursement Agreement.

 

(b)   The Trustee may conclusively presume that the obligation of the Company to pay the principal of, and interest on, the bonds of Guarantee Series A, 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 telecommunication) from an authorized representative of the Administrative Agent stating that payment of Obligations due under the OAQDA Reimbursement Agreement has become due and payable and has not been fully paid and specifying the amount of funds required to make such payment.

 

(c)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Guarantee Series B, whether on an Interest Payment Date, at maturity, upon redemption, upon acceleration or otherwise, in an amount equal to the amount, if any, paid by or for the account of the Company in respect of any corresponding payment of the Obligations outstanding under the OWDA Reimbursement Agreement (other than Tender Advances or reimbursement obligations of the Company to the Banks constituting demand loans pursuant to Section 2.04 of the OWDA Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Guarantee Series B shall be credited in full if, at the time that any such payment of principal shall be due, there shall have been paid by or for the account of the Company an equivalent amount of Obligations constituting Tender Advances or reimbursement obligations of the Company to the Banks constituting demand loans pursuant to Section 2.04 of the OWDA Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the OWDA Reimbursement Agreement or under the bonds of Guarantee Series B shall reduce the stated principal amount of the bonds of Guarantee Series B unless, and only to the extent that, the OWDA Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OWDA Reimbursement Agreement.

 

(d)           The Trustee may conclusively presume that the obligation of the Company to pay the principal of, and interest on, the bonds of Guarantee Series B, 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 telecommunication) from an authorized representative of the Administrative Agent stating that payment of Obligations due under the OWDA 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 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, and such bonds shall be transferable and exchangeable, in the manner provided in Sections 3.05 and 3.06 of the Indenture, at said office or agency.  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.  Bonds of Guarantee 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 (as defined in the Indenture), including the real property legally described on Exhibit C attached hereto and made a part hereof, 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 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