EXHIBIT
4.1(c)
THIRD
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
March 31, 2009
__________
Providing among
other things for
First Mortgage
Bonds, Collateral Series A of 2009 due 2011
_________
Supplemental to
Open-End Mortgage, General Mortgage
Indenture and
Deed of Trust, Dated as of June 19, 2008
THIS THIRD
SUPPLEMENTAL INDENTURE (this “
Supplemental Indenture ”), dated as of March
31, 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,
as indentures supplemental to the Original Indenture, a First
Supplemental Indenture dated as of June 25, 2008, a Second
Supplemental Indenture dated as of March 1, 2009 (collectively, the
“ Prior Supplemental Indentures ”, and
the Original Indenture, as supplemented by the aforementioned Prior
Supplemental Indentures, 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 $100,000,000 in
principal amount to be designated as “First Mortgage Bonds,
Collateral Series A of 2009 due 2011” (hereinafter referred
to as the “ bonds of Collateral Series A
”), 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 Collateral Series A and the Trustee’s
certificate of authentication to be endorsed thereon shall be
substantially in the form included in Exhibit A 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 Collateral Series A, 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 .
“
Administrative Agent ” means The Royal Bank of
Scotland Finance (Ireland), as Administrative Agent under the
Credit Agreement, or any successor thereto as such Administrative
Agent thereunder.
“
Advances ” shall have the meaning assigned to
such term in the Credit Agreement.
“
Borrowers ” means the Company and FirstEnergy
Solutions Corp., as Borrowers under the Credit
Agreement.
“
Commitment ” shall have the meaning assigned to
such term in the Credit Agreement.
“
Credit Agreement ” means the Credit Agreement,
dated as of March 31, 2009, among the Company, FirstEnergy
Solutions Corp., the banks and other financial institutions party
thereto from time to time and the Administrative Agent.
“
Interest Payment Date ” shall have the meaning
assigned to such term in the form of bond of Collateral Series
A.
“
Lenders ” shall have the meaning assigned to
such term in the Credit Agreement.
“
Majority Lenders ” shall have the
meaning assigned to such term in the Credit 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.
The bonds of Collateral Series A shall be designated,
as hereinbefore recited, as the Company’s “First
Mortgage Bonds, Collateral Series A of 2009 due
2011” and, subject to the provisions of the Indenture, shall
be limited to the aggregate principal amount of One Hundred Million
Dollars ($100,000,000). The bonds of Collateral Series A
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 Collateral Series A 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 Collateral Series A shall be dated
as provided in Section 3.03 of the Original Indenture.
(b) The
bonds of Collateral Series A shall bear interest as provided in the
form of the bond of Collateral Series A, 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 A shall be as set forth in the form of
the bond of Collateral Series A.
(c) The
interest on the bonds of Collateral Series A so payable on any
Interest Payment Date shall, subject to the exceptions provided in
Section 3.07 of the Original 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 Collateral Series A shall be issued,
delivered, and pledged to, and registered in the name of, the
Administrative Agent, for the benefit of the Lenders, in order to
secure and provide for, and as collateral security for, the payment
when due of the principal of and interest on, and fees with respect
to, outstanding Advances under the Credit Agreement.
SECTION
2.04. Credit for Payments under the Credit
Agreement. Any payment made in respect of the
Borrowers’ obligations under the Credit Agreement with
respect to the payment of principal of or interest on the Advances
shall be deemed a payment in respect of the principal of or
interest on (as applicable) the bonds of Collateral Series A, but
such payment shall not reduce the principal amount of the bonds of
Collateral Series A unless, and then only to the extent, the
aggregate amount of the Lenders’ Commitments 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 A shall be fully
satisfied and discharged to the extent that, at any time that any
such payment shall be due, the Borrowers or either of them shall
have paid fully the then due principal of and interest on, and fees
with
respect to,
outstanding Advances. Until such time as the Trustee shall have
received notice from the Administrative Agent that an "Event of
Default" under the Credit Agreement has occurred and is continuing,
the Trustee shall be entitled to assume that all such payments have
been made. In the event that all of the obligations of
the Borrowers under the Credit Agreement have been discharged, the
bond of Collateral Series A shall be deemed to have been paid in
full and shall be surrendered to the Trustee for
cancellation.
SECTION
2.05. Execution of Bonds. The bonds
of Collateral Series A shall be executed on behalf of the Company
in accordance with Section 3.03 of the Original
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
Collateral Series A 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 Collateral Series A shall be
transferable and exchangeable, in the manner provided in Sections
3.05 and 3.06 of the Original Indenture, at said office or
agency. The bonds of Collateral Series A shall not be
transferable except (i) to a successor to the Administrative Agent
under the Credit Agreement, (ii) to any Person or Persons 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 Collateral Series A 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 definitive bonds of Collateral Series A shall be
issued in the denomination of $5,000 and any integral multiple
thereof. The bonds of Collateral Series A shall each be
numbered R-1 and consecutively upwards.
SECTION
2.08. Temporary Bonds. Until
definitive bonds of Collateral Series A 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 Original Indenture, temporary
registered bonds of Collateral Series A without coupons.
SECTION
2.09. Mandatory Redemption. The
bonds of Collateral Series A shall be redeemed by the Company in
whole at any time prior to maturity at a redemption price of 100%
of the principal amount to be redeemed, plus any accrued and unpaid
interest to the redemption date, but only if the Trustee shall
receive a written demand from the Administrative Agent for
redemption of all the bonds of Collateral Series A held by the
Administrative Agent (a “ Redemption Demand
”) stating (i) that an “Event of Default” under
the Credit Agreement has
occurred and is
continuing or an event providing a Lender the right to demand
repayment under Section 2.08(b) of the Credit Agreement has
occurred and the notice period specified in such Section 2.08(b)
has expired and (ii) that payment of the
