First Supplemental Indenture, dated as of June 15, 2009, under the Open-End Mortgage, General Mortgage Indenture and Deed of Trust, dated as of June 1, 2009

THIS FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 15, 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.

 

 

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, pursuant to Section 14.01(a) of the Indenture, the Company and the Trustee, without the consent of the bondholders, in a form satisfactory to the Trustee, may enter into a supplemental indenture to among other things, correct or amplify the description of any property at any time subject to the Lien of this Indenture and make any other changes to the provisions of this Indenture when there are no Bonds of a series or Tranche Outstanding that will be adversely affected; and

 

WHEREAS, the Company desires to delete the real property description set forth on Exhibit A of the Original Indenture and replace it with Exhibit J attached to this Supplemental Indenture; and

 

WHEREAS, the Company desires to amend and restate Section 4.03(b)(iv) to clarify that in connection with the issuance of bonds on the basis of Property Additions, the delivery of a written appraisal of an Engineer or Appraiser is only required with respect to Property Additions that were actually acquired after the date of execution and delivery of the Original Indenture and there are no Holders of Bonds of any series or Tranche; and

 

WHEREAS, the Company, by appropriate corporate action in conformity with the terms of the Indenture, has duly determined to create nine new series of Bonds under the Indenture, consisting of (i) $107,500,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Guarantee Series A of 2009 due 2033” (hereinafter referred to as the “bonds of Guarantee Series A”), (ii) up to $500,000,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Guarantee Series B of 2009 due 2011” (hereinafter referred to as the “bonds of Guarantee Series B”), (iii) $8,079,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series A of 2009 due 2010” (hereinafter referred to as the “bonds of Collateral Series A”), (iv) $7,272,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series B of 2009 due 2010” (hereinafter referred to as the “bonds of Collateral Series B”), (v) $100,078,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series C of 2009 due 2010” (hereinafter referred

 

 

 

to as the “bonds of Collateral Series C”), (vi) $83,617,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series D of 2009 due 2010” (hereinafter referred to as the “bonds of Collateral Series D”), (vii) $73,367,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series E of 2009 due 2010” (hereinafter referred to as the “bonds of Collateral Series E”), (viii) $46,959,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series F of 2009 due 2011” (hereinafter referred to as the “bonds of Collateral Series F”) and (ix) $60,592,000 in aggregate principal amount to be designated as “First Mortgage Bonds, Collateral Series G of 2009 due 2011” (hereinafter referred to as the “bonds of Collateral Series G,” and together with the bonds of Guarantee Series A, the bonds of Guarantee Series B, the bonds of Collateral Series A, the bonds of Collateral Series B, the bonds of Collateral Series C, the bonds of Collateral Series D, the bonds of Collateral Series E and the bonds of Collateral Series F, the “bonds of June 2009 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 of authentication to be endorsed thereon shall be substantially in the form included in Exhibit A hereto; the bonds of Guarantee Series B 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 Collateral Series A 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 B 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 C and the Trustee’s certificate of authentication to be endorsed thereon shall be substantially in the form included in Exhibit E hereto; the bonds of Collateral Series D and the Trustee’s certificate of authentication to be endorsed thereon shall be substantially in the form included in Exhibit F hereto; the bonds of Collateral Series E and the Trustee’s certificate of authentication to be endorsed thereon shall be substantially in the form included in Exhibit G hereto; the bonds of Collateral Series F and the Trustee’s certificate of authentication to be endorsed thereon shall be substantially in the form included in Exhibit H hereto; and the bonds of Collateral Series G and the Trustee’s certificate of authentication to be endorsed thereon shall be substantially in the form included in Exhibit I 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 A, the bonds of Guarantee Series B, the bonds of Collateral Series A, the bonds of Collateral Series B, the bonds of Collateral Series C, the bonds of Collateral Series D, the bonds of Collateral Series E, the bonds of Collateral Series F, and the bonds of Collateral Series G, 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, 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, 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:

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” shall mean Barclays Bank PLC, New York Branch, as Administrative Agent under each of the Reimbursement Agreements or any successor thereto as such Administrative Agent thereunder.

 

“Banks” shall mean, with respect to each of the Reimbursement Agreements, the Fronting Bank and the other participating banks parties to such Reimbursement Agreement.

 

“BCIDA 2005-A Revenue Bonds” means the $72,650,000 aggregate principal amount of Beaver County Pollution Control Revenue Refunding Bonds, Series 2005-A (FirstEnergy Nuclear Generation Corp. Project) issued by the Beaver County Industrial Development Authority.

 

“BCIDA 2005-A Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of December 16, 2005 (as amended), 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 was issued by the Fronting Bank in favor of the trustee for the BCIDA 2005-A Revenue Bonds.

 

“BCIDA 2006-A Revenue Bonds” means the $60,000,000 aggregate principal amount of Beaver County Pollution Control Revenue Refunding Bonds, Series 2006-A (FirstEnergy Nuclear Generation Corp. Project) issued by the Beaver County Industrial Development Authority.

 

 

 

 

“BCIDA 2006-A Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of April 3, 2006 (as amended), among the Company, Barclays Bank, PLC, New York Branch, as Administrative Agent and Fronting Bank, KeyBank National Association, as Syndication Agent, and the Banks, pursuant to which a letter of credit was issued by the Fronting Bank in favor of the trustee for the BCIDA 2006-A Revenue Bonds.

 

“bonds of June 2009 Collateral Series” means collectively, the bonds of Collateral Series A, the bonds of Collateral Series B, the bonds of Collateral Series C, the bonds of Collateral Series D, the bonds of Collateral Series E, the bonds of Collateral Series F, and the bonds of Collateral Series G

 

“Fronting Bank” shall mean Barclays Bank PLC, New York Branch, as Fronting Bank under each of the Reimbursement Agreements or any successor thereto as such Fronting Bank thereunder.

 

“Guaranteed Parties” shall mean The Cleveland Electric Illuminating Company, The Toledo Edison Company and Ohio Edison Company, as guaranteed parties under the Guaranty Agreement.

 

“Guaranty Agreement” shall mean that certain Surplus Margin Guaranty dated as of June 16, 2009 by the Company in favor of the Guaranteed Parties.

 

“Initial Interest Accrual Date” shall have the meaning assigned to such term in the form of bond of Guarantee Series A.

 

“Interest Payment Date” shall have the meaning assigned to such term in the respective form of bond of Series.

 

“OAQDA 2005-A Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of December 16, 2005 (as amended), 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 was issued by the Fronting Bank in favor of the trustee for the OAQDA 2005-A Revenue Bonds.

 

“OAQDA 2005-A Revenue Bonds” means the $8,000,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2005-A (FirstEnergy Nuclear Generation Corp. Project) issued by the Ohio Air Quality Development Authority.

 

“OAQDA 2005-B Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of December 16, 2005 (as amended), 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 was issued by the Fronting Bank in favor of the trustee for the OAQDA 2005-B Revenue Bonds.

 

 

 

 

“OAQDA 2005-B Revenue Bonds” means the $7,200,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2005-B (FirstEnergy Nuclear Generation Corp. Project) issued by the Ohio Air Quality Development Authority.

 

“OWDA 2005-A Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of December 16, 2005 (as amended), 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 was issued by the Fronting Bank in favor of the trustee for the OWDA 2005-A Revenue Bonds.

 

“OWDA 2005-A Revenue Bonds” means the $99,100,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2005-A (FirstEnergy Nuclear Generation Corp. Project) issued by the Ohio Water Development Authority.

 

“OWDA 2005-B Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of December 16, 2005 (as amended), 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 was issued by the Fronting Bank in favor of the trustee for the OWDA 2005-B Revenue Bonds.

 

“OWDA 2005-B Revenue Bonds” means the $82,800,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2005-B (FirstEnergy Nuclear Generation Corp. Project) issued by the Ohio Water Development Authority.

 

“OWDA 2006-A Reimbursement Agreement” means that certain Letter of Credit and Reimbursement Agreement dated as of April 3, 2006 (as amended), 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 was issued by the Fronting Bank in favor of the trustee for the OWDA 2006-A Revenue Bonds.

 

“OWDA 2006-A Revenue Bonds” means the $46,500,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2006-A (FirstEnergy Nuclear Generation Corp. Project) issued by the Ohio Water Development Authority.

 

“OWDA 2009-A Revenue Bonds” means the $107,500,000 aggregate principal amount of State of Ohio Pollution Control Revenue Refunding Bonds, Series 2009-A (FirstEnergy Nuclear Generation Corp. Project) to be issued by the Ohio Water Development Authority.

 

“OWDA 2009-A Revenue Bond Indenture” means the Trust Indenture, dated as of June 1, 2009, between the Ohio Water Development Authority and the OWDA 2009-A Revenue Bond Trustee, securing the OWDA 2009-A Revenue Bonds issued for the benefit of the Company.

 

“OWDA 2009-A Revenue Bond Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee under that certain OWDA 2009-A Revenue Bond Indenture.

 

 

 

“Reimbursement Agreements” means the BCIDA 2005-A Reimbursement Agreement, the BCIDA 2006-A Reimbursement Agreement, the OAQDA 2005-A Reimbursement Agreement, the OAQDA 2005-B Reimbursement Agreement, the OWDA 2005-A Reimbursement Agreement, the OWDA 2005-B Reimbursement Agreement and the OWDA 2006-A Reimbursement Agreement.

 

The terms “Available Amount,” “Commitments,” “Letter of Credit,” “Obligations,” and “Tender Advances” 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.

 

SECTION 2.01.  Designation and Issuance of Bonds.  (a) The bonds of Guarantee Series A shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Guarantee Series A of 2009 due 2033” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of One Hundred Seven Million Five Hundred Thousand Dollars ($107,500,000).  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 be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Guarantee Series B of 2009 due 2011” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Five Hundred Million Dollars ($500,000,000).  The bonds of Guarantee Series B are to be issued and secured by the Lien of the Indenture.

 

(c)           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 2010” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Eight Million Seventy-Nine Thousand Dollars ($8,079,000).  The bonds of Collateral Series A are to be issued and secured by the Lien of the Indenture.

 

(d)           The bonds of Collateral Series B shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Collateral Series B of 2009 due 2010” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Seven Million Two Hundred Seventy-Two Thousand Dollars ($7,272,000).  The bonds of Collateral Series B are to be issued and secured by the Lien of the Indenture.

 

(e)           The bonds of Collateral Series C shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Collateral Series C of 2009 due 2010” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of One Hundred

 

 

 

 

Million Seventy-Eight Thousand Dollars ($100,078,000).  The bonds of Collateral Series C are to be issued and secured by the Lien of the Indenture.

 

(f)           The bonds of Collateral Series D shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Collateral Series D of 2009 due 2010” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Eighty-Three Million Six Hundred Seventeen Thousand Dollars ($83,617,000).  The bonds of Collateral Series D are to be issued and secured by the Lien of the Indenture.

 

(g)           The bonds of Collateral Series E shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Collateral Series E of 2009 due 2010” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Seventy Three Million Three Hundred Sixty-Seven Thousand Dollars ($73,367,000).  The bonds of Collateral Series E are to be issued and secured by the Lien of the Indenture.

 

(h)           The bonds of Collateral Series F shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Collateral Series F of 2009 due 2011” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Forty-Six Million Nine Hundred Fifty-Nine Thousand Dollars ($46,959,000).  The bonds of Collateral Series F are to be issued and secured by the Lien of the Indenture.

 

(i)           The bonds of Collateral Series G shall be designated, as hereinbefore recited, as the Company’s “First Mortgage Bonds, Collateral Series G of 2009 due 2011” and, subject to the provisions of the Indenture, shall be limited to the aggregate principal amount of Sixty Million Five Hundred Ninety-Two Thousand Dollars ($60,592,000).  The bonds of Collateral Series G 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 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, F, G, H and I hereto.  The bonds of June 2009 Series shall be dated as provided in Section 3.03 of the Indenture.

 

(b)           The bonds of Guarantee Series A shall bear interest from the Initial Interest Accrual Date as provided in the form of the bond of Guarantee 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 Guarantee Series A shall be as set forth in the form of the bond of Guarantee Series A.

 

(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, be paid to the person in whose name such Bond is registered on such Interest Payment Date.

 

 

 

(d)           Interest shall be payable on the bonds of Guarantee Series B as set forth in the form of the bonds of Guarantee Series B.  The maturity date of the bonds of Guarantee Series B shall be as set forth in the form of the bonds of Guarantee Series B.

 

(e)           The bonds of Collateral 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 Collateral Series A on an Interest Payment Date to equal the amount of outstanding Obligations under the OAQDA 2005-A 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 2005-A Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral 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 Collateral Series A shall bear interest until the principal thereof shall be paid in full.

 

(f)           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 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.

 

(g)           The bonds of Collateral 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 Collateral Series B on an Interest Payment Date to equal the amount of outstanding Obligations under the OAQDA 2005-B 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 2005-B Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral 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 Collateral Series B shall bear interest until the principal thereof shall be paid in full.

 

(h)           The interest on the bonds of Collateral 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.

 

(i)           The bonds of Collateral Series C 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 Collateral Series C on an Interest Payment Date to equal the amount of outstanding Obligations under the OWDA 2005-A 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 2005-A Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral Series C 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 Collateral Series C shall bear interest until the principal thereof shall be paid in full.

 

 

 

 

(j)           The interest on the bonds of Collateral Series C 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.

 

(k)           The bonds of Collateral Series D 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 Collateral Series D on an Interest Payment Date to equal the amount of outstanding Obligations under the OWDA 2005-B 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 2005-B Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral Series D 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 Collateral Series D shall bear interest until the principal thereof shall be paid in full.

 

(l)           The interest on the bonds of Collateral Series D 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.

 

(m)           The bonds of Collateral Series E 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 Collateral Series E on an Interest Payment Date to equal the amount of outstanding Obligations under the BCIDA 2005-A 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 BCIDA 2005-A Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral Series E 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 Collateral Series E shall bear interest until the principal thereof shall be paid in full.

 

(n)           The interest on the bonds of Collateral Series E 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.

 

(o)           The bonds of Collateral Series F 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 Collateral Series F on an Interest Payment Date to equal the amount of outstanding Obligations under the OWDA 2006-A 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 2006-A Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral Series F 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 Collateral Series F shall bear interest until the principal thereof shall be paid in full.

 

(p)           The interest on the bonds of Collateral Series F 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.

 

(q)           The bonds of Collateral Series G 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 Collateral Series G on an Interest Payment Date to equal the amount of outstanding Obligations under the BCIDA 2006-A 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 BCIDA 2006-A Reimbursement Agreement) payable on such Interest Payment Date; provided, however, such interest rate or rates on the bonds of Collateral Series G 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 Collateral Series G shall bear interest until the principal thereof shall be paid in full.

 

(r)           The interest on the bonds of Collateral Series G 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 OWDA 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 OWDA 2009-A Revenue Bonds.  The bonds of Guarantee Series B shall be issued, delivered, and pledged to, and registered in the name of, FirstEnergy Service Company, as Custodian, under the Custodian Agreement (as defined below) pursuant to which it acts on behalf of the Guaranteed Parties under the Guaranty Agreement, in order to secure and provide for, and as collateral security for, the Company’s obligations under the Guaranty Agreement.  The bonds of Collateral Series A shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OAQDA 2005-A 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 Collateral Series B shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OAQDA 2005-B 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 Collateral Series C shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OWDA 2005-A 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 Collateral Series D shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OWDA 2005-B 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 Collateral Series E shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the BCIDA 2005-A 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 Collateral Series F shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the OWDA 2006-A 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 Collateral Series G shall be issued, delivered, and pledged to, and registered in the name of, the Administrative Agent under the BCIDA 2006-A 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 of the Revenue Bonds and Payments under the Reimbursement Agreements.  (a) If and when the principal of any OWDA 2009-A Revenue Bonds is paid, then there is deemed to be paid an equal principal amount of the bonds of Guarantee Series A then outstanding; provided, however, that such payment of the bonds of Guarantee Series A is deemed to be made only when and to the extent that notice of such payment of such OWDA 2009-A Revenue Bonds is given by the Company to the Trustee.

 

(b)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral 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 2005-A 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 2005-A Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Collateral 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 demand loans pursuant to Section 2.04 of the OAQDA 2005-A Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the 2005-A OAQDA Reimbursement Agreement or under the bonds of Collateral Series A shall reduce the stated principal amount of the bonds of Collateral Series A unless, and only to the extent that, the OAQDA 2005-A Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OAQDA 2005-A Reimbursement Agreement.

 

(c)           The Trustee may conclusively presume that the obligation of the Company to pay the principal of, and interest on, the bonds of Collateral 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 communication) from an authorized representative of the Administrative Agent stating that payment of Obligations due under the OAQDA 2005-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.

 

 

 

 

(d)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral 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 OAQDA 2005-B 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 2005-B Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Collateral 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 demand loans pursuant to Section 2.04 of the OAQDA 2005-B Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the OAQDA 2005-B Reimbursement Agreement or under the bonds of Collateral Series B shall reduce the stated principal amount of the bonds of Collateral Series B unless, and only to the extent that, the OAQDA 2005-B Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OAQDA 2005-B Reimbursement Agreement.

 

(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 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 communication) from an authorized representative of the Administrative Agent stating that payment of Obligations due under the OAQDA 2005-B 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)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral Series C, 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 2005-A 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 2005-A Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Collateral Series C 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 demand loans pursuant to Section 2.04 of the OWDA 2005-A Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the OWDA 2005-A Reimbursement Agreement or under the bonds of Collateral Series C shall reduce the stated principal amount of the bonds of Collateral Series C unless, and only to the extent that, the OWDA 2005-A Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OWDA 2005-A Reimbursement Agreement.

 

(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 C, 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 Administrative Agent stating that payment of Obligations due under the OWDA 2005-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)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral Series D, 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 2005-B 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 2005-B Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Collateral Series D 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 demand loans pursuant to Section 2.04 of the OWDA 2005-B Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the OWDA 2005-B Reimbursement Agreement or under the bonds of Collateral Series D shall reduce the stated principal amount of the bonds of Collateral Series D unless, and only to the extent that, the OWDA 2005-B Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OWDA 2005-B Reimbursement Agreement.

 

(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 D, 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 Administrative Agent stating that payment of Obligations due under the OWDA 2005-B Reimbursement Agreement has become due and payable and has not been fully paid and specifying the amount of funds required to make such payment.

 

(j)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral Series E, 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 BCIDA 2005-A 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 BCIDA 2005-A Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Collateral Series E 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 demand loans pursuant to Section 2.04 of the BCIDA 2005-A Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the BCIDA 2005-A Reimbursement Agreement or under the bonds of Collateral Series E shall reduce the stated principal amount of the bonds of Collateral Series E unless, and only to

 

 

 

 

 

the extent that, the BCIDA 2005-A Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the BCIDA 2005-A Reimbursement Agreement.

 

(k)           The Trustee may conclusively presume that the obligation of the Company to pay the principal of, and interest on, the bonds of Collateral Series E, 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 Administrative Agent stating that payment of Obligations due under the BCIDA 2005-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.

 

(l)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral Series F, 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 2006-A 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 2006-A Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of Collateral Series F 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 demand loans pursuant to Section 2.04 of the OWDA 2006-A Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the OWDA 2006-A Reimbursement Agreement or under the bonds of Collateral Series F shall reduce the stated principal amount of the bonds of Collateral Series F unless, and only to the extent that, the OWDA 2006-A Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the OWDA 2006-A Reimbursement Agreement.

 

(m)           The Trustee may conclusively presume that the obligation of the Company to pay the principal of, and interest on, the bonds of Collateral Series F, 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 Administrative Agent stating that payment of Obligations due under the OWDA 2006-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.

 

(n)           The Company shall receive a credit against its obligation to make any payment of interest on the bonds of Collateral Series G, 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 BCIDA 2006-A 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 BCIDA 2006-A Reimbursement Agreement).  The obligation of the Company to make any payment with respect to the principal of the bonds of

 

 

 

 

Collateral Series G 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 demand loans pursuant to Section 2.04 of the BCIDA 2006-A Reimbursement Agreement.  No payment of principal of such Tender Advances or demand loans under the BCIDA 2006-A Reimbursement Agreement or under the bonds of Collateral Series G shall reduce the stated principal amount of the bonds of Collateral Series G unless, and only to the extent that, the BCIDA 2006-A Reimbursement Agreement shall be terminated concurrently therewith in accordance with the provisions of Section 2.02(c) of the BCIDA 2006-A Reimbursement Agreement.

 

(o)           The Trustee may conclusively presume that the obligation of the Company to pay the principal of, and interest on, the bonds of Collateral Series G, 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 Administrative Agent stating that payment of Obligations due under the BCIDA 2006-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 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 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 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 A shall not be transferable except (i) to a successor to the OWDA 2009-A Revenue Bond Trustee under the OWDA 2009-A 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 Guarantee Series B shall not be transferable except (i) to a successor to FirstEnergy Service Company, an Ohio corporation (“FirstEnergy Service”) as Custodian, under the Custodian Agreement dated as of June 16, 2009, among FirstEnergy Service and the Guaranteed Parties, relating to the Guaranty Agreement, (ii) in connection with the exercise of the rights and remedies of the holder thereof consequent upon an “event of default” or an “early termination date” as defined in the Agreements referred to in the Guaranty Agreement or 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 June 2009 Collateral Series shall not be transferable except (i) to a successor to the respective Administrative Agent under the respective Reimbursement Agreement, (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 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 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 June 2009 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 Series without coupons.

 

SECTION 2.09.  Mandatory Redemption.  The bonds of June 2009 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 J 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.

 

SECTION 3.01                                Amendments.                                  The Indenture is hereby amended in the following respects.

 

(a)           Section 4.03(b)(iv) is amended and restated in its entirety as follows:

 

 

 

 

 

 

 

 

(b)           The real property description set forth on Exhibit A of the Original Indenture is hereby deleted and replaced with the real property description set forth on Exhibit J attached to this Supplemental Indenture and incorporated herein by reference.

 

On the 15th 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 15th day of June, 2009.

On the 15 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 15 day of June, 2009.

This Bond is not transferable except (i) to a successor trustee under the Trust  Indenture, dated as of June 1, 2009, 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.

 

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 First Supplemental Indenture dated as of June 15, 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 A 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 $107,500,000.

 

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 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 (as defined in the Revenue Bond Indenture), 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.