___________________________________________________________________________
___________________________________________________________________________
WEST PENN POWER COMPANY
TO
UNION BANK OF CALIFORNIA, N.A.
(TRUSTEE)
SECOND SUPPLEMENTAL
INDENTURE
DATED DECEMBER 7, 2007
EFFECTIVE AS OF DECEMBER 11, 2007
5.95% FIRST MORTGAGE BONDS DUE
2017
___________________________________________________________________________
___________________________________________________________________________
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A
PUBLIC UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY
PROVISIONS
SECOND SUPPLEMENTAL INDENTURE
, dated December 7, 2007, effective as of December
11, 2007, between WEST PENN POWER
COMPANY , a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania
(hereinafter called the “Company”), party of the first
part, and UNION BANK OF CALIFORNIA,
N.A. , a national banking association
organized and existing under the laws of the United States of
America (hereinafter called the “Trustee”), as Trustee
under the Indenture dated as of August 16, 2006, hereinafter
mentioned, party of the second part;
WHEREAS, the Company
has previously executed and delivered to the Trustee a First
Mortgage Indenture dated as of August 16, 2006 (as heretofore
supplemented, the “Indenture”), providing for the
issuance by the Company from time to time of its bonds, notes or
other evidence of indebtedness to be issued in one or more series
(in the Indenture and herein called the “Securities”)
and to provide security for the payment of the principal of and
premium, if any, and interest; if any, on the Securities;
and
WHEREAS , the Company
has also previously executed and delivered to the Trustee a First
Supplemental Indenture dated as of August 16, 2006, providing for
the issuance by the Company of its 5.875% First Mortgage Bonds due
2016 in an aggregate principal amount of $145,000,000;
and
WHEREAS , the Company,
in the exercise of the power and authority conferred upon and
reserved to it under the provisions of the Indenture and pursuant
to appropriate resolutions of the Board of Directors, has duly
determined to make, execute and deliver to the Trustee this Second
Supplemental Indenture to the Indenture as permitted by Sections
2.01, 3.01 and 14.01 of the Indenture in order to establish the
form or terms of, and to provide for the creation and issuance of,
a second series of Securities under the Indenture in an initial
aggregate principal amount of $275,000,000; and
WHEREAS , all things
necessary to make the Securities, when executed by the Company and
authenticated and delivered by the Trustee or any Authenticating
Agent and issued upon the terms and subject to the conditions
hereinafter and in the Indenture set forth against payment therefor
the valid, binding and legal obligations of the Company and to make
this Second Supplemental Indenture a valid, binding and legal
agreement of the Company, have been done;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL
INDENTURE WITNESSETH that, in order to
establish the terms of a series of Securities and for and in
consideration of the premises and of the covenants contained in the
Indenture and in this Second Supplemental Indenture and for other
good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, intending to be legally bound, it is
mutually covenanted and agreed as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions . Each capitalized term
that is used herein and is defined in the Indenture shall have the
meaning specified in the Indenture unless such term is otherwise
defined herein.
ARTICLE TWO
TITLE, FORM AND TERMS OF THE BONDS
Section 2.01 Title of the
Bonds . This Second Supplemental
Indenture hereby creates a series of Securities designated as the
“5.95% First Mortgage Bonds due 2017” of the Company
(collectively referred to herein as the “
Bonds ”) and such
Securities shall be executed, authenticated and delivered in
accordance with the provisions of, and, except as hereinafter
provided, shall in all respects be subject to all of the terms,
conditions and covenants of the Indenture as supplemented,
including by this Second Supplemental Indenture. For purposes of
the Indenture, the Bonds shall constitute a single series of
Securities and may be issued in an unlimited principal aggregate
amount, although the initial issuance of the Bonds shall be in the
principal amount of $275,000,000.
Section 2.02 Form and Terms
of the Bonds . The form and terms of the
Bonds pursuant to the authority granted by this Second Supplemental
Indenture in accordance with Sections 2.01 and 3.01 of the
Indenture are set forth herein. The signatures of the officers
executing the Bonds on behalf of the Company and attesting to the
facsimile of its corporate seal thereon may be by
facsimile.
The Bonds shall be registered Bonds without coupons
of the denominations of $2,000 and integral multiples of $1,000
thereof, appropriately numbered. The Bonds shall be issued in
global form, the depository therefor shall be The Depository Trust
Company (“ DTC
”), such Bonds shall be registered in the name
of Cede & Co. or any other nominee of DTC designated by DTC,
and such Bonds shall be held by the Trustee as custodian for DTC
and shall be exchangeable for certificated Bonds only in the
circumstances set forth in the Form of Bond set forth in Section
2.03 of this Article Two. The Bonds shall mature on December 15,
2017 and shall bear interest at the rate of 5.95% per annum,
payable semi-annually on the 15th day of June and the 15th day of
December in each year commencing June 15, 2008 (each such June 15
and December 15 hereinafter called an “ Interest Payment Date ”). If
any Interest Payment Date falls on a day that is not a Business Day
(as defined herein), the Interest Payment Date will be the next
succeeding Business Day (and without any interest or payment in
respect of any such delay). Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. The Bonds
shall be payable as to principal and interest in any coin or
currency of the United States of America which at the time of
payment is legal tender for public and private debts, and shall be
payable (as well the interest on the principal thereof) at the
agency of the Company in the Borough of Manhattan, The City of New
York initially located at 551 Madison Avenue, 11th Floor, New York
NY 10022. The Company shall pay interest on overdue principal at
the rate per annum borne by the Bonds, and it shall pay interest on
overdue installments of interest at the rate per annum borne by the
Bonds to the extent lawful.
The interest so payable on any Interest Payment Date
shall be paid to the persons in whose names the Bonds are
registered at the close of business on the last Business Day prior
to such Interest Payment Date (hereinafter called “
Record Date ”), a
“ Business Day
” being any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust
companies in The City of New York, as the place for payment, or
other location are generally authorized or required by law,
regulation or executive order to remain closed; except that if the
Company shall default in the payment of any interest due on such
Interest Payment Date, such defaulted interest shall be paid to the
persons in whose names the Bonds are registered on the date of
payment of such defaulted interest.
Except as provided hereinafter and in Article III of
the Indenture, every Bond shall be dated as of the date of its
authentication and delivery or, if that is an Interest Payment
Date, the next day, and shall bear interest from the Interest
Payment Date next preceding its date or December 11, 2007,
whichever is later. Except as provided in Article III of the
Indenture, any Bond authenticated and delivered by the Trustee
after the close of business on the Record Date with respect to any
Interest Payment Date and prior to such Interest Payment Date shall
be dated as of the date next following such Interest Payment Date
and shall bear interest from such Interest Payment Date, except
that if the Company shall default in the payment of any interest
due on such Interest Payment Date, such Bond shall bear interest
from the next preceding Interest Payment Date to which interest has
been paid or, if no interest has been paid on such Bond, from
December 11, 2007.
Section 2.03 Form of
Bond . The Bonds and the Trustee’s
authentication certificate shall be substantially in the following
form:
[FORM OF BOND]
[UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. 1
]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE
_________________________
1 To be inserted on Bonds in global form
only.
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS
SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A (“RULE
144A”) THEREUNDER. THE HOLDER OF THIS SECURITY AGREES FOR THE
BENEFIT OF WEST PENN POWER COMPANY (THE “COMPANY”) THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED [ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A,] 2 (II) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (IV) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
(V) TO THE COMPANY OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
[THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A
U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN
THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT (OTHER THAN A
DISTRIBUTOR, AS SUCH TERM IS DEFINED IN RULE 902(d) UNDER THE
SECURITIES ACT.] 3
THIS SECURITY AND ANY RELATED DOCUMENTATION MAY
BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF
THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER
OF THIS SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY
TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
_________________________
2 Not to be inserted on the Regulation S
Temporary Global Bond.
3 To be inserted on Regulation S
Temporary Global Bond only.
WEST PENN POWER COMPANY
(Incorporated under the laws of the Commonwealth of
Pennsylvania)
5.95% First Mortgage Bond due 2017
CUSIP No.
WEST PENN POWER COMPANY, a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania
(hereinafter called the “Company”, which term shall
include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises to
pay to , or registered assigns, on December 15, 2017, the sum of
______________ dollars ($_____________) [ as revised by the Schedule of
Increases and Decreases in Global Bond attached hereto
] ,
4 in any coin or
currency of the United States of America which at the time of
payment is legal tender for public and private debts, and to pay
interest thereon in like coin or currency from December 11, 2007,
or from the most recent June 15 or December 15 to which interest is
paid or provided for, at the rate of Five and Ninety-Five
Hundredths percent (5.95%) per annum, payable semi-annually, on the
15th day of June and December in each year, commencing June 15,
2008, until maturity, or, if this Bond shall be duly called for
redemption, until, but not including, the redemption date. The
Company shall pay interest on overdue principal at the rate per
annum borne by this Bond, and it shall pay interest on overdue
installments of interest at the rate per annum borne by this Bond
to the extent lawful. For purposes of the Second Supplemental
Indenture (as hereinafter defined) and this Bond, the term
“interest” shall be deemed to include interest provided
for in the first and second immediately preceding sentences. If any
Interest Payment Date (as defined in the Second Supplemental
Indenture) falls on a day that is not a Business Day (as defined in
the Second Supplemental Indenture), the Interest Payment Date will
be the next succeeding Business Day (and without any interest or
payment in respect of any such delay). The interest so payable on
any June 15 or December 15 will, subject to certain exceptions
provided in such Indenture, be paid to the person in whose name
this Bond is registered at the close of business on the last
Business Day prior to such June 15 or December 15; except that (i)
if this Bond shall be exchanged for certificated Bonds of this
Series, the Record Date shall be the close of business on the day
that is ten days prior to such Interest Payment Date, and (ii) if
the Company shall default in the payment of any interest due on
such Interest Payment Date, such defaulted interest shall be paid
to the persons in whose names this Bond is registered on the date
of payment of such defaulted interest.
_________________________
4 To be inserted on Bonds in global form
only.
Principal of, premium (if any) and interest on this
Bond are payable at the agency of the Company in the Borough of
Manhattan, The City of New York. Interest will be computed on the
basis of a 360 day year consisting of twelve (12) thirty (30) day
months.
The provisions of this Bond are continued on the
reverse hereof, and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
This Bond shall not be entitled to any benefit under
the Indenture or any indenture supplemental thereto, or become
valid or obligatory for any purpose, until Union Bank of
California, N.A., the Trustee under the Indenture, or a successor
trustee thereto under the Indenture, shall have signed the form of
certificate endorsed hereon.
IN WITNESS WHEREOF, West Penn Power Company has
caused a facsimile or an original of its corporate seal and the
original or facsimile signatures of its duly authorized officers to
be hereto affixed.
Dated:
WEST PENN POWER COMPANY
By ______________________________
[ Corporate Seal
]
Attest:
By: _______________________________
[ FORM OF
TRUSTEE’S CERTIFICATE ]
This is one of the Bonds, of the series designated
therein, described in the within-mentioned Indenture and the Second
Supplemental Indenture.
UNION BANK OF CALIFORNIA, N.A., as
Trustee,
By ______________________________
[ FORM OF REVERSE OF
BOND ]
This Bond is one of a duly authorized issue of Bonds
of the Company (herein called the “Bonds”), unlimited
in aggregate principal amount, of the series hereinafter specified,
all issued and to be issued under and equally secured by an
indenture, dated as of August 16, 2006, executed by the Company to
Union Bank of California, N.A. (herein called the
“Trustee”) (said indenture being herein called the
“Indenture”), to which Indenture and all indentures
supplemental thereto (including the Second Supplemental Indenture
hereinafter referred to) reference is hereby made for a description
of the properties mortgaged and pledged, the nature and extent of
the security, the rights of the registered owners of the Bonds and
of the Trustee in respect thereto, and the terms and conditions
upon which the Bonds are, and are to be, secured. To the extent
permitted by, and as provided in, the Indenture, modifications or
alterations of the Indenture, or of any indenture supplemental
thereto, and of the rights and obligations of the Company and of
the holders of the Bonds may be made, in certain cases without the
consent of the Bondholders, as set forth in Section 14.01 of the
Indenture, and otherwise with the consent of the Company by an
affirmative vote of not less than a majority in amount of the Bonds
entitled to vote then outstanding, at a meeting of Bondholders
called and held as provided in the Indenture, and by an affirmative
vote of not less than a majority in amount of the Bonds of any
series entitled to vote then outstanding and affected by such
modifications or alterations, in case one or more but less than all
of the series of Bonds then outstanding under the Indenture are so
affected; provided, however, that no such modifications or
alterations shall be made which will affect the terms of payment of
the principal of, or interest on, this Bond, which are
unconditional. The Bonds may be issued in series, for various
principal sums, may mature at different times, may bear interest at
different rates and may otherwise vary as provided in the
Indenture. This Bond is one of a series designated as “5.95%
First Mortgage Bonds due 2017” of the Company, issued under
and secured by the Indenture and all indentures supplemental
thereto and described in an indenture supplemental thereto (herein
called the “Second Supplemental Indenture”), dated
December 7, 2007, effective as of December 11, 2007, executed by
the Company to the Trustee.
The Bonds of this Series are subject to redemption
at any time, as a whole or in part, at the election of the Company,
at a redemption price equal to the greater of (a) 100% of the
principal amount of the Bonds of this Series to be redeemed, and
(b) as determined by the Quotation Agent, the sum of the present
values of the remaining scheduled payments of principal and
interest on the Bonds of this Series to be redeemed (not including
any portion of payments of interest accrued as of the redemption
date), discounted to the redemption date on a semi-annual basis at
the Adjusted Treasury Rate plus thirty (30) basis points, together,
in each case of both (a) and (b), with accrued interest to the
redemption date.
The redemption price will be calculated assuming a
360-day year consisting of twelve 30-day months.
“ Adjusted Treasury
Rate ” means, with respect to any
redemption date, the rate per year equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
“ Comparable Treasury
Issue ” means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term of the Bonds of this
Series that would be used, at the time of the selection and in
accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the
remaining term of the Bonds of this Series.
“ Comparable Treasury
Price ” means, with respect to any
redemption date: (a) the average of the Reference Treasury Dealer
Quotations for the redemption date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations, or (b) if, the
Trustee obtains fewer than three Reference Treasury Dealer
Quotations, the average of all Reference Treasury Dealer Quotations
so received.
“ Quotation
Agent ” means the Reference
Treasury Dealer appointed as such by the Company.
“ Reference Treasury
Dealer ” means (a) J.P. Morgan
Securities Inc., Barclays Capital Inc. and Scotia Capital (USA)
Inc. and their respective successors, unless any of them ceases to
be a primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”), in which case the Company
shall substitute another Primary Treasury Dealer; and (b) any other
Primary Treasury Dealer selected by the Company.
“ Reference Treasury
Dealer Quotations ” means, with
respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as
a percentage of its principal amount) quoted in writing to the
Trustee by that R
