as Borrowers,
as Banks,
as Administrative Agent,
PARTY HERETO FROM TIME TO TIME
as Fronting Banks
HERETO FROM TIME TO TIME
as Swing Line Lenders
J.P. MORGAN SECURITIES LLC | CITIGROUP GLOBAL MARKETS INC. | |
BARCLAYS CAPITAL | KEYBANK NATIONAL ASSOCIATION | |
MERRILL LYNCH, PIERCE, FENNER & SMITH | THE BANK OF NOVA SCOTIA | |
INCORPORATED | UNION BANK, N.A. | |
RBS SECURITIES INC. | THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | |
WELLS FARGO SECURITIES, LLC |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED BARCLAYS CAPITAL THE ROYAL BANK OF SCOTLAND PLC Syndication Agents | CITIBANK, N.A. UNION BANK, N.A. THE BANK OF NOVA SCOTIA THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. KEYBANK NATIONAL ASSOCIATION WELLS FARGO BANK, NATIONAL ASSOCIATION Documentation Agents |
Page | ||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | ||||
SECTION 1.02. Computation of Time Periods | 21 | |||
SECTION 1.03. Accounting Terms | 22 | |||
SECTION 1.04. Terms Generally | 22 | |||
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT | ||||
SECTION 2.01. The Pro-Rata Advances | 22 | |||
SECTION 2.02. Making the Pro-Rata Advances | 23 | |||
SECTION 2.03. Swing Line Advances | 24 | |||
SECTION 2.04. Letters of Credit | 27 | |||
SECTION 2.05. Fees | 35 | |||
SECTION 2.06. Adjustment of the Commitments; Borrower Sublimits | 36 | |||
SECTION 2.07. Repayment of Advances | 37 | |||
SECTION 2.08. Interest on Advances | 37 | |||
SECTION 2.09. Additional Interest on Advances | 38 | |||
SECTION 2.10. Interest Rate Determination | 38 | |||
SECTION 2.11. Conversion of Advances | 39 | |||
SECTION 2.12. Prepayments | 40 | |||
SECTION 2.13. Increased Costs | 41 | |||
SECTION 2.14. Illegality | 42 | |||
SECTION 2.15. Payments and Computations | 43 | |||
SECTION 2.16. Taxes | 45 | |||
SECTION 2.17. Sharing of Payments, Etc. | 47 | |||
SECTION 2.18. Noteless Agreement; Evidence of Indebtedness | 48 | |||
SECTION 2.19. Extension of Termination Date | 49 | |||
SECTION 2.20. Several Obligations | 50 | |||
SECTION 2.21. Defaulting Lenders | 51 | |||
ARTICLE III CONDITIONS OF LENDING AND ISSUING LETTERS OF CREDIT | ||||
SECTION 3.01. Conditions Precedent to Initial Extension of Credit | 52 | |||
SECTION 3.02. Conditions Precedent to Each Extension of Credit | 54 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES | ||||
SECTION 4.01. Representations and Warranties of the Borrowers | 55 | |||
ARTICLE V COVENANTS OF THE BORROWERS | ||||
SECTION 5.01. Affirmative Covenants of the Borrowers | 58 | |||
SECTION 5.02. Debt to Capitalization Ratio | 62 | |||
SECTION 5.03. Negative Covenants of the Borrowers | 62 |
i
Page | ||||
ARTICLE VI EVENTS OF DEFAULT | ||||
SECTION 6.01. Events of Default | 66 | |||
ARTICLE VII THE ADMINISTRATIVE AGENT | ||||
SECTION 7.01. Authorization and Action | 69 | |||
SECTION 7.02. Administrative Agent’s Reliance, Etc. | 69 | |||
SECTION 7.03. JPMCB and the Fronting Banks and Swing Line Lenders | 70 | |||
SECTION 7.04. Lender Credit Decision; No Other Duties | 70 | |||
SECTION 7.05. Indemnification | 71 | |||
SECTION 7.06. Successor Administrative Agent | 71 | |||
SECTION 7.07. Delegation of Duties | 72 | |||
ARTICLE VIII MISCELLANEOUS | ||||
SECTION 8.01. Amendments, Etc. | 72 | |||
SECTION 8.02. Notices, Etc. | 73 | |||
SECTION 8.03. Electronic Communications | 73 | |||
SECTION 8.04. No Waiver; Remedies | 75 | |||
SECTION 8.05. Costs and Expenses; Indemnification | 75 | |||
SECTION 8.06. Right of Set-off | 77 | |||
SECTION 8.07. Binding Effect | 77 | |||
SECTION 8.08. Assignments and Participations | 77 | |||
SECTION 8.09. Governing Law | 82 | |||
SECTION 8.10. Consent to Jurisdiction; Waiver of Jury Trial | 82 | |||
SECTION 8.11. Severability | 83 | |||
SECTION 8.12. Entire Agreement | 83 | |||
SECTION 8.13. Execution in Counterparts | 83 | |||
SECTION 8.14. USA PATRIOT Act Notice | 83 | |||
SECTION 8.15. No Fiduciary Duty | 83 |
ii
Schedule I | - | List of Commitments and Lending Offices | ||
Schedule II | - | List of L/C Fronting Bank Commitments | ||
Schedule III | - | List of Swing Line Commitments | ||
Schedule IV | - | Letters of Credit | ||
Schedule V | - | Existing Facilities | ||
Schedule VI | - | Disclosure Documents | ||
Exhibit A | - | Form of Assignment and Assumption | ||
Exhibit B | - | Form of Note | ||
Exhibit C | - | Form of Notice of Pro-Rata Borrowing | ||
Exhibit D | - | Form of Notice of Swing Line Borrowing | ||
Exhibit E | - | Form of Letter of Credit Request | ||
Exhibit F | - | Form of Opinion of Wendy E. Stark, Associate General Counsel of FE | ||
Exhibit G | - | Form of Opinion of Akin Gump Strauss Hauer & Feld LLP | ||
Exhibit H | - | Form of Opinion of King & Spalding LLP | ||
Exhibit I | - | Form of Affiliate Subordination Provisions |
iii
DEFINITIONS AND ACCOUNTING TERMS
2
LEVEL 6 | ||||||||||||||||||||||||
Reference | ||||||||||||||||||||||||
LEVEL 2 | LEVEL 3 | LEVEL 4 | LEVEL 5 | Ratings | ||||||||||||||||||||
Reference | Reference | Reference | Reference | lower than | ||||||||||||||||||||
LEVEL 1 | Ratings lower | Ratings of | Ratings lower | Ratings | BB+ by S&P | |||||||||||||||||||
Reference | than Level 1 | lower than | than Level 3 | lower than | and Ba1 by | |||||||||||||||||||
Ratings at | but at least | Level 2 but at | but at least | Level 4 but at | Moody’s, or | |||||||||||||||||||
least A- by | BBB+ by | least BBB by | BBB- by S&P | least BB+ by | no | |||||||||||||||||||
BASIS FOR | S&P or A3 by | S&P or Baa1 | S&P or Baa2 | or Baa3 by | S&P or Ba1 | Reference | ||||||||||||||||||
PRICING | Moody’s. | by Moody’s. | by Moody’s. | Moody’s. | by Moody’s. | Ratings. | ||||||||||||||||||
Applicable Margin for Eurodollar Rate Advances | 1.25 | % | 1.50 | % | 1.75 | % | 2.00 | % | 2.25 | % | 2.50 | % | ||||||||||||
Applicable Margin for Alternate Base Rate Advances | 0.25 | % | 0.50 | % | 0.75 | % | 1.00 | % | 1.25 | % | 1.50 | % |
3
4
5
6
7
8
9
10
11
12
13
14
(A) | recourse to the named obligor with respect to such Indebtedness (the “Debtor”) for amounts limited to the cash flow or net cash flow (other than historic cash flow) from the asset; and |
(B) | recourse to the Debtor for the purpose only of enabling amounts to be claimed in respect of such Indebtedness in an enforcement of any security interest or lien given by the Debtor over the asset or the income, cash flow or other proceeds deriving from the asset (or given by any shareholder or the like in the Debtor over its shares or like interest in the capital of the Debtor) to secure the Indebtedness, but only if the extent of the recourse to the Debtor is limited solely to the amount of any recoveries made on any such enforcement; and |
15
(C) | recourse to the Debtor generally or indirectly to any Affiliate of the Debtor, under any form of assurance, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for a breach of an obligation (other than a payment obligation or an obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the Person against which such recourse is available. |
16
17
18
19
20
21
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
22
23
24
25
26
27
28
29
30
31
32
33
34
LEVEL 6 | ||||||||||||||||||||||||
LEVEL 2 | LEVEL 3 | LEVEL 4 | LEVEL 5 | Reference | ||||||||||||||||||||
Reference | Reference | Reference | Reference | Ratings | ||||||||||||||||||||
LEVEL 1 | Ratings lower | Ratings of | Ratings lower | Ratings lower | lower than | |||||||||||||||||||
Reference | than Level 1 | lower than | than Level 3 | than Level 4 | BB+ by S&P | |||||||||||||||||||
Ratings at least | but at least | Level 2 but at | but at least | but at least | and Ba1 by | |||||||||||||||||||
A- by S&Por | BBB+ by | least BBB by | BBB- by S&P | BB+ by S&P | Moody’s, or | |||||||||||||||||||
BASIS FOR | A3 by | S&P or Baa1 | S&P or Baa2 | or Baa3 by | or Ba1 by | no Reference | ||||||||||||||||||
PRICING | Moody’s. | by Moody’s. | by Moody’s. | Moody’s. | Moody’s. | Ratings. | ||||||||||||||||||
Commitment Fee | 0.15 | % | 0.20 | % | 0.25 | % | 0.30 | % | 0.40 | % | 0.55 | % |
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
CONDITIONS OF LENDING AND ISSUING LETTERS OF CREDIT
52
53
54
REPRESENTATIONS AND WARRANTIES
55
56
57
COVENANTS OF THE BORROWERS
58
59
60
61
62
63
64
65
EVENTS OF DEFAULT
66
67
68
THE ADMINISTRATIVE AGENT
69
70
71
MISCELLANEOUS
72
73
74
75
76
77
78
79
80
81
82
83
FIRSTENERGY SOLUTIONS CORP. | ||||
By: | /s/ James F. Pearson | |||
James F. Pearson | ||||
Vice President & Treasurer | ||||
ALLEGHENY ENERGY SUPPLY COMPANY, LLC | ||||
By: | /s/ James F. Pearson | |||
James F. Pearson | ||||
Vice President & Treasurer |
S-1
JPMORGAN CHASE BANK, N.A., as Administrative Agent, as a Bank and as a Fronting Bank | ||||
By: | /s/ Peter Christensen | |||
Name: | Peter Christensen | |||
Title: | Vice President |
S-2
BANK OF AMERICA, N.A., as a Bank, as a Fronting Bank and as a Swing Line Lender | ||||
By: | /s/ Mike Mason | |||
Name: | Mike Mason | |||
Title: | Director |
S-3
BARCLAYS BANK PLC, as a Bank | ||||
By: | /s/ Ann E. Sutton | |||
Name: | Ann E. Sutton | |||
Title: | Director |
S-4
THE ROYAL BANK OF SCOTLAND PLC, as a Bank and as a Fronting Bank | ||||
By: | /s/ Andrew N. Taylor | |||
Name: | Andrew N. Taylor | |||
Title: | Vice President |
S-5
CITIBANK, N.A., as a Bank and as a Fronting Bank | ||||
By: | /s/ Maureen Maroney | |||
Name: | Maureen Maroney | |||
Title: | Vice President |
S-6
KEYBANK NATIONAL ASSOCIATION, as a Bank and as a Fronting Bank | ||||
By: | /s/ Sherrie I. Manson | |||
Name: | Sherrie I. Manson | |||
Title: | Senior Vice President |
S-7
THE BANK OF NOVA SCOTIA, as a Bank and as a Fronting Bank | ||||
By: | /s/ Thane Rattew | |||
Name: | Thane Rattew | |||
Title: | Managing Director |
S-8
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank and as a Fronting Bank | ||||
By: | /s/ Bradford Joyce | |||
Name: | Bradford Joyce | |||
Title: | Director |
S-9
UNION BANK, N.A., as a Bank | ||||
By: | /s/ Eric Otieno | |||
Name: | Eric Otieno | |||
Title: | Assistant Vice President |
S-10
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Bank and as a Fronting Bank | ||||
By: | /s/ Frederick W. Price | |||
Name: | Frederick W. Price | |||
Title: | Managing Director |
S-11
MORGAN STANLEY BANK, N.A., as a Bank | ||||
By: | /s/ Sherrese Clarke | |||
Name: Sherrese Clarke | ||||
Title: Authorized Signatory |
S-12
BNP Paribas, as a Bank | ||||
By: | /s/ Denis O’Meara | |||
Name: | Denis O’Meara | |||
Title: | Managing Director | |||
By: | /s/ Pasquale Perraglia | |||
Name: | Pasquale Perraglia | |||
Title: | Vice President |
S-13
CREDIT SUISSE AG, Cayman Islands Branch, as a Bank | ||||
By: | /s/ Shaheen Malik | |||
Name: | Shaheen Malik | |||
Title: | Vice President | |||
By: | /s/ Rahul Parmar | |||
Name: | Rahul Parmar | |||
Title: | Associate |
S-14
Goldman Sachs Bank USA, as a Bank | ||||
By: | /s/ Mark Walton | |||
Name: | Mark Walton | |||
Title: | Authorized Signatory |
S-15
ROYAL BANK OF CANADA, as a Bank | ||||
By: | /s/ Thomas Casey | |||
Name: | Thomas Casey | |||
Title: | Authorized Signatory |
S-16
UBS AG, Stamford Branch, as a Bank | ||||
By: | /s/ Irja R. Otsa | |||
Name: | Irja R. Otsa | |||
Title: | Associate Director | |||
By: | /s/ Mary E. Evans | |||
Name: | Mary E. Evans | |||
Title: | Associate Director |
S-17
MIZUHO CORPORATE BANK, LTD. as a Bank | ||||
By: | /s/ Leon Mo | |||
Name: | Leon Mo | |||
Title: | Authorized Signatory |
S-18
PNC BANK, NATIONAL ASSOCIATION, as a Bank | ||||
By: | /s/ Christian S. Brown | |||
Name: | Christian S. Brown | |||
Title: | Senior Vice President |
S-19
SUMITOMO MITSUI BANKING CORPORATION, as a Bank | ||||
By: | /s/ Hiroshi Higuma | |||
Name: | Hiroshi Higuma | |||
Title: | Joint General Manager |
S-20
U.S. Bank National Association, as a Bank | ||||
By: | /s/ Eric J. Cosgrove | |||
Name: | Eric J. Cosgrove | |||
Title: | Vice President |
S-21
The Bank of New York Mellon, as a Bank | ||||
By: | /s/ Richard K. Fronapfel, Jr. | |||
Name: | Richard K. Fronapfel, Jr. | |||
Title: | Vice President |
S-22
CoBank, ACB, as a Bank | ||||
By: | /s/ Josh Batchelder | |||
Name: | Josh Batchelder | |||
Title: | Vice President |
S-23
Banco Bilbao Vizcaya Argentaria, SA- New York Branch, as a Bank | ||||
By: | /s/ Michael Oka | |||
Name: | Michael Oka | |||
Title: | Executive Director | |||
By: | /s/ Michael D’Anna | |||
Name: | Michael D’Anna | |||
Title: | Executive Director |
S-24
CIBC Inc., as a Bank | ||||
By: | /s/ Robert W. Casey, Jr. | |||
Name: | Robert Casey | |||
Title: | Authorized Signatory | |||
By: | /s/ Josh Hogarth | |||
Name: | Josh Hogarth | |||
Title: | Director |
S-25
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Bank | ||||
By: | /s/ Tom Byargeon | |||
Name: | Tom Byargeon | |||
Title: | Managing Director | |||
By: | /s/ Sharada Manne | |||
Name: | Sharada Manne | |||
Title: | Director |
S-26
Sovereign Bank, as a Bank | ||||
By: | /s/ Robert D. Lanigan | |||
Name: | Robert D. Lanigan | |||
Title: | SVP |
S-27
THE HUNTINGTON NATIONAL BANK, as a Bank | ||||
By: | /s/ Brian H. Gallagher | |||
Name: | Brian H. Gallagher | |||
Title: | Senior Vice President |
S-28
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
JPMorgan Chase Bank, N.A. | $ | 111,111,111.11 | 1111 Fannin, 10th Floor | Same as Domestic | ||||
Houston, TX 77002-6925 | Lending Office | |||||||
Account Manager: Leslie Hill | ||||||||
Phone: (713) 750-2318 | ||||||||
Fax: (713) 427-6307 | ||||||||
Email: leslie.d.hill@chase.com | ||||||||
Bank of America, N.A. | $ | 111,111,111.11 | 104 N Tryon Street, Floor 17 | Same as Domestic | ||||
Charlotte, NC 28155-0001 | Lending Office | |||||||
Contact: Mike Mason | ||||||||
Phone: (980) 683-1839 | ||||||||
Fax: (980) 233-7196 | ||||||||
Email: Michael.mason@baml.com | ||||||||
Barclays Bank PLC | $ | 111,111,111.11 | 745 Seventh Avenue | Same as Domestic | ||||
New York, NY 10019 | Lending Office | |||||||
Contact: Adam Stewart | ||||||||
Phone: (201) 499-3220 | ||||||||
Fax: (212) 412-7401 | ||||||||
Email: adam.stewart@barcap.com | ||||||||
Group Email:xrausloanops1@barclayscapital.com | ||||||||
The Royal Bank of Scotland plc | $ | 111,111,111.11 | 600 Washington Boulevard, Stamford, | Same as Domestic | ||||
Connecticut 06901 | Lending Office | |||||||
Contact: John Ferrante | ||||||||
Phone: (203) 897-7623 | ||||||||
Fax: (203) 873-5300 | ||||||||
Email: john.ferrante@rbs.com | ||||||||
Group Email: gbmnaagency@rbs.com | ||||||||
Citibank, N.A. | $ | 111,111,111.11 | 399 Park Ave, 16th Floor 5 | Same as Domestic | ||||
New York, NY 10043 | Lending Office | |||||||
Contact: Loan Administration | ||||||||
Phone: (302) 894-6052 | ||||||||
Fax: (212) 994-0847 | ||||||||
Email: GLOriginationOps@citi.com |
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
KeyBank National Association | $ | 111,111,111.11 | 124 Public Square | Same as Domestic | ||||
Cleaveland, OH 44114 | Lending Office | |||||||
Contact: Yvette Dyson-Owens | ||||||||
Phone: (216) 689-4815 | ||||||||
Fax: (216) 370-6119 | ||||||||
Email: Yvette_M_Dyson-Owens@Keybank.com | ||||||||
The Bank of Nova Scotia | $ | 111,111,111.11 | 1 Liberty Plaza | Same as Domestic | ||||
New York, NY 10006 | Lending Office | |||||||
Contact: Melissa McMillan | ||||||||
Phone: (212) 225-5705 | ||||||||
Fax: (212) 225-5709 | ||||||||
Email: mellissa_mcmillan@scotiacapital.com | ||||||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. | $ | 55,555,555.56 | 1251 Avenue of the Americas | Same as Domestic | ||||
New York, NY 10020-1104 | Lending Office | |||||||
Contact: Mr. Jamie Velez | ||||||||
Phone: (201) 413-8586 | ||||||||
Fax: (201) 521-2304 | ||||||||
Union Bank, N.A. | $ | 55,555,555.56 | 445 S. Figueroa Street, 15th Floor | Same as Domestic | ||||
Los Angeles, CA 90071 | Lending Office | |||||||
Contact: Commercial Loan Operations | ||||||||
Fax: (800) 446-9951 | ||||||||
Email: synd@unionbank.com | ||||||||
Wells Fargo Bank, National Association | $ | 111,111,111.11 | 301 S. College St., 15th Floor | Same as Domestic | ||||
MAC: D1053-150 | Lending Office | |||||||
Charlotte, NC 28202 | ||||||||
Contact: Michelle P Field | ||||||||
Phone: (303) 863-5411 | ||||||||
Fax: (303) 863-2729 | ||||||||
Email: Michelle.p.field@wellsfargo.com | ||||||||
Morgan Stanley Bank, N.A. | $ | 108,333,333.33 | 1000 Lancaster Street | Same as Domestic | ||||
Baltimore, MD 21202 | Lending Office | |||||||
Phone: (443) 627-4355 | ||||||||
Fax: (718) 233-2140 | ||||||||
Email: msloanservicing@morganstanley.com |
2
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
BNP Paribas | $ | 108,333,333.33 | 787 Seventh Avenue | Same as Domestic | ||||
New York, NY 10019 | Lending Office | |||||||
Contact: Denis O’Meara | ||||||||
Phone: (212) 471-8108 | ||||||||
Fax: (212) 841-2745 | ||||||||
Email: denis.omeara@us.bnpparibas.com | ||||||||
Credit Suisse AG | $ | 108,333,333.33 | Eleven Madison Avenue | Same as Domestic | ||||
New York, NY 10010 | Lending Office | |||||||
Contact: Vijaykumar Kalji | ||||||||
Phone: +91 20 6673 4371 | ||||||||
Fax: (866) 469-3871 | ||||||||
Email: vijaykumar.kalji@credit-suisse.com | ||||||||
Goldman Sachs Bank USA | $ | 108,333,333.33 | 200 West Street | Same as Domestic | ||||
New York, NY 10282 | Lending Office | |||||||
Contact: Operations | ||||||||
Phone: (212) 902-1099 | ||||||||
Fax: (212) 977-3966 | ||||||||
Email: gs-sbd-admin-contacts@ny.email.gs.com | ||||||||
Royal Bank of Canada | $ | 108,333,333.33 | Three World Financial Center | Same as Domestic | ||||
5th Floor | Lending Office | |||||||
New York, NY 10281 | ||||||||
Contact: Manager, Loans Administration | ||||||||
Phone: (212) 428-6322 | ||||||||
Fax: (212) 428-2372 | ||||||||
UBS AG, Stamford Branch | $ | 108,333,333.33 | 677 Washington Blvd. | Same as Domestic | ||||
Stamford, CT 06901 | Lending Office | |||||||
Contact: Samantha Mason | ||||||||
Phone: (203) 719-4839 | ||||||||
Fax: (203) 719-3390 | ||||||||
Email: Samantha.mason@ubs.com | ||||||||
Mizuho Corporate Bank, LTD. | $ | 92,777,777.78 | 1251 Avenue of the Americas | Same as Domestic | ||||
New York, NY 10020 | Lending Office |
3
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
PNC Bank, National Association | $ | 92,777,777.78 | 249 First Avenue | Same as Domestic | ||||
Pittsburgh, PA 15222 | Lending Office | |||||||
Contact: Maja Kuljic | ||||||||
Phone: (440) 546-7364 | ||||||||
Fax: (877) 728-2851 | ||||||||
Email: Participationla8brv@pnc.com | ||||||||
Sumitomo Mitsui Banking Corporation | $ | 92,777,777.78 | 277 Park Avenue | Same as Domestic | ||||
6th Floor | Lending Office | |||||||
New York, NY 10172 | ||||||||
Contact: Delma Mitchell | ||||||||
Phone: (212) 224-4387 | ||||||||
Fax: (212) 224-4391 | ||||||||
Email: Delma_c_mitchell@smbcgroup.com | ||||||||
U.S. Bank National Association | $ | 92,777,777.78 | National Corporate Banking | Same as Domestic | ||||
CN-OH-W8 | Lending Office | |||||||
425 Walnut Street, 8th Floor | ||||||||
Cincinnati, OH 45202 | ||||||||
Contact: Eric Cosgrove | ||||||||
Phone: (513) 632-3033 | ||||||||
Fax: (513) 632-2068 | ||||||||
Email: eric.cosgrove@usbank.com | ||||||||
The Bank of New York Mellon | $ | 92,777,777.78 | 1 Wall Street, 19th Floor | Same as Domestic | ||||
New York, NY 10286 | Lending Office | |||||||
Contact: Amber Mierek | ||||||||
Phone: (315) 765-4300 | ||||||||
Fax: (315) 765-4782 | ||||||||
Email: amber.mierek@bnymellon.com | ||||||||
CoBank, ACB | $ | 69,444,444.44 | 5500 South Quebec St. | Same as Domestic | ||||
Greenwood Village, CO 80111 | Lending Office | |||||||
Contact: Graham Kaiser | ||||||||
Phone: (303) 740-4386 | ||||||||
Fax: (303) 740-4021 | ||||||||
Email: agencybank@cobank.com |
4
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
Banco Bilbao | $ | 66,666,666.67 | 1345 Avenue of the Americas | Same as Domestic | ||||
Vizcaya Argentaria, S.A. | 45th Floor | Lending Office | ||||||
New York, NY 10105 | ||||||||
Contact: C&I Banking | ||||||||
Phone: (212) 728-2382 | ||||||||
Fax: (212) 333-2926 | ||||||||
Email:cibny@grupobbva.com | ||||||||
CIBC | $ | 66,666,666.67 | 425 Lexington Avenue, 4th Floor | Same as Domestic | ||||
New York, NY 10017 | Lending Office | |||||||
Contact: Angela Tom | ||||||||
Phone: (416) 542-4446 | ||||||||
Fax: (905) 948-1934 | ||||||||
Email:Angela.Tom@cibc.ca | ||||||||
Credit Agricole | $ | 66,666,666.67 | 1301 Avenue of the Americas | Same as Domestic | ||||
Corporate and | New York, NY 10019 | Lending Office | ||||||
Investment Bank | ||||||||
Contact: Dixon Schultz | ||||||||
Phone: (713) 890-8607 | ||||||||
Fax: (713) 890-8668 | ||||||||
Email:dixon.schultz@ca-cib.com | ||||||||
Sovereign Bank | $ | 66,666,666.67 | 75 State Street | Same as Domestic | ||||
Boston, MA 02109 | Lending Office | |||||||
Contact: Roxaine Ovid | ||||||||
Phone: (610) 988-1261 | ||||||||
Fax: (484) 338-2831 | ||||||||
Email:participations@sovereignbank.com | ||||||||
The Huntington | $ | 50,000,000.00 | 41 South High Street | Same as Domestic | ||||
National Bank | Columbus, OH 43215 | Lending Office | ||||||
Contact: Shefali Patel | ||||||||
Phone: (614) 480-5677 | ||||||||
Fax: (614) 480-2249 | ||||||||
Email:Shefali.patel@huntington.com | ||||||||
TOTAL | $ | 2,500,000,000 |
5
L/C Fronting Bank | ||||||
Fronting Bank | Fronting Bank Address | Commitment | ||||
JPMorgan Chase Bank, N.A. | Global Trade Services, | $ | 257,200,000 | |||
10420 Highland Manor Drive | ||||||
Floor 4, Tampa, FL 33610-9128 | ||||||
Attention: Letter of Credit Department | ||||||
Fax: (813) 432-5162 | ||||||
Email: James.Alonzo@jpmchase.com | ||||||
Bank of America, N.A. | 100 North Tryon Street | $ | 357,200,000 | |||
Charlotte, NC 28255 | ||||||
Contact: John Yzeik | ||||||
Phone: (570) 330-4315 | ||||||
Fax: (800) 755-4186 | ||||||
Email: john.p.yzeik@baml.com | ||||||
The Royal Bank of Scotland plc | 600 Washington Boulevard, Stamford, | $ | 100,000,000 | |||
Connecticut 06901 | ||||||
Contact: Richard Emmich | ||||||
Phone: (203) 897-7619 | ||||||
Fax: (212) 401-1494 | ||||||
Email: richard.emmich@rbs.com | ||||||
Citibank, N.A. | 399 Park Ave, 16th Floor 5 | $ | 357,200,000 | |||
New York, NY 10043 | ||||||
Contact: Loan Administration | ||||||
Phone: (302) 894-6052 | ||||||
Fax: (212) 994-0847 | ||||||
Email: GLOriginationOps@citi.com | ||||||
KeyBank National Association | 127 Public Square | $ | 357,200,000 | |||
Cleveland, OH 44114 | ||||||
Contact: Yvette Dyson-Owens | ||||||
Phone: (216) 689-4815 | ||||||
Fax: (216) 370-6119 | ||||||
Email: Yvette_M_Dyson-Owens@Keybank.com |
L/C Fronting Bank | ||||||
Fronting Bank | Fronting Bank Address | Commitment | ||||
The Bank of Nova Scotia | 1 Liberty Plaza | $ | 357,200,000 | |||
New York, NY 10006 | ||||||
Contact: Melissa McMillan | ||||||
Phone: (212) 225-5705 | ||||||
Fax: (212) 225-5709 | ||||||
Email: mellissa_mcmillan@scotiacapital.com | ||||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. | 1251 Avenue of the Americas | $ | 357,200,000 | |||
New York, NY 10020-1104 | ||||||
Contact: Mr. Jamie Velez | ||||||
Phone: (201) 413-8586 | ||||||
Fax: (201) 521-2304 | ||||||
Wells Fargo Bank, National Association | 301 S. College Street, 15th Floor | $ | 357,200,000 | |||
MAC: D1053-150 | ||||||
Charlotte, NC 28202 | ||||||
Contact: Elaine Shue | ||||||
Phone: (704) 715-3133 | ||||||
Fax: (877) 487-0377 | ||||||
Email: Elaine.Shue@wachovia.com |
2
Swing Line Lender | Swing Line Commitment | |||
JPMorgan Chase Bank, N.A. | $ | 125,000,000 | ||
Bank of America, N.A. | $ | 125,000,000 |
1. | $1,000,000,000 Credit Agreement, dated as of September 24, 2009, among Allegheny, the banks, financial institutions and other institutional lenders party thereto, Bank of America, N.A. and The Bank of Nova Scotia, as the initial issuing banks for the letters of credit issued or to be issued thereunder, and Bank of America, N.A., as Administrative Agent. |
2. | $2,750,000,000 Credit Agreement, dated as of August 24, 2006, as amended as of November 2, 2007, among FES, certain other borrowers named therein, the lenders and fronting banks parties thereto and Citibank, N.A., as administrative agent. |
Form of Assignment and Assumption
1. | Assignor[s]: __________________ | |
__________________ | ||
[Assignor [is] [is not] a Defaulting Lender] |
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
2. | Assignee[s]: | |||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender] | ||||
3. | Borrowers: Company, LLC | FirstEnergy Solutions Corp. and Allegheny Energy Supply | ||
4. | Administrative Agent: | JPMorgan Chase Bank, .N.A. as the administrative agent under the Credit Agreement | ||
5. | Credit Agreement: | The $2,500,000,000 Credit Agreement dated as of June 17, 2011 among FirstEnergy Solutions Corp. and Allegheny Energy Supply Company, LLC, as Borrowers, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the fronting banks and swing line lenders party thereto | ||
6. | Assigned Interest[s]: |
Amount of | Percentage | |||||||||||||||||||
Aggregate Amount of | Commitment/ | Assigned of | ||||||||||||||||||
Commitment/Advances | Advances | Commitment/ | CUSIP | |||||||||||||||||
Assignor[s]5 | Assignee[s]6 | for all Lenders7 | Assigned8 | Advances8 | Number | |||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % |
[7. | Trade Date: _________]9 |
5 | List each Assignor, as appropriate. | |
6 | List each Assignee, as appropriate. | |
7 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
8 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder. | |
9 | To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
A-2
ASSIGNOR[S]10 [NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
ASSIGNEE[S]11 [NAME OF ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: | ||||
10 | Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). | |
11 | Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). |
A-3
JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||||
By: | ||||
Title: | ||||
Consented to: | ||||
[LIST ALL FRONTING BANKS]., as a Fronting Bank | ||||
By: | ||||
Title: | ||||
[LIST ALL SWING LINE LENDERS], as a Swing Line Lender | ||||
By: | ||||
Title: | ||||
[FIRSTENERGY CORP. | ||||
By: | ||||
Title: | ||||
ALLEGHENY ENERGY SUPPLY COMPANY, LLC | ||||
By: | ||||
Title: ]13 |
12 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
13 | To be added only if the consent of the Borrowers are required by the terms of the Credit Agreement. |
A-4
ASSIGNMENT AND ASSUMPTION
Form of Note
U.S.$[_____] | _____ _____, 20____ |
[FIRSTENERGY SOLUTIONS CORP.] | ||||||
[ALLEGHENY ENERGY SUPPLY COMPANY, LLC] | ||||||
By: | ||||||
Name: Title: |
B-2
Form of Notice of Pro-Rata Borrowing
for the Lenders party to the Credit Agreement
referred to below
_____ _____, 200____ |
* | Delete for initial Extension of Credit. |
C-2
Very truly yours, | ||||||
[FIRSTENERGY SOLUTIONS CORP.] | ||||||
[ALLEGHENY ENERGY SUPPLY COMPANY, LLC]** | ||||||
By: | ||||||
Name: Title: |
** | Please use a separate Notice of Pro-Rata Borrowing for each Borrower. |
C-3
Form of Notice of Swing Line Borrowing
for the Lenders party to the Credit Agreement
referred to below
_____ _____, 200____ |
* | Delete for initial Extension of Credit. |
Very truly yours, | ||||||
[FIRSTENERGY SOLUTIONS CORP.] | ||||||
[ALLEGHENY ENERGY SUPPLY COMPANY, LLC] | ||||||
By: | ||||||
Name: Title: |
D-2
Form of Letter of Credit Request
_____ _____, 200_____ |
[INSERT ADMINISTRATIVE AGENT’S ADDRESS]
Attn: _____
[ADDRESS]]
[FIRSTENERGY SOLUTIONS CORP.] | ||||||
[ALLEGHENY ENERGY SUPPLY COMPANY, LLC] | ||||||
By: | ||||||
Name: Title: |
* | Delete for initial Extension of Credit. | |
** | Insert applicable Fronting Bank L/C Fronting Bank Commitment. |
E-2
Form of Opinion of Wendy E. Stark, Associate General Counsel of FE
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
G-1
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 2
F-2
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 3
F-3
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 4
Respectfully submitted, | ||
Wendy E. Stark Associate General Counsel |
F-4
Form of Opinion of Akin Gump Strauss Hauer & Feld LLP
June 17, 2011 |
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
G-1
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 2
G-2
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 3
G-3
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 4
G-4
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 5
Very truly yours, | ||
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. |
G-5
CERTIFICATE OF GOOD STANDING
G-6
ORGANIZATIONAL DOCUMENTS
1. | Certificate of Formation of Allegheny, filed with the Secretary of State of the State of Delaware on November 12, 1999. | |
2. | Fifth Amended and Restated Limited Liability Company Agreement of Allegheny, effective as of September 4, 2003. |
G-7
Form of Opinion of
Special New York Counsel to the Administrative Agent
June 17, 2011 |
administrative agent, the fronting banks, the
swing line lenders and the lenders party to
the Credit Agreement defined below
(i) | The Credit Agreement is, and each of the Notes when executed and delivered for value received will be, the legal, valid and binding obligation of each Borrower that is a party thereto enforceable against such Borrower in accordance with their respective terms. |
(ii) | While we have not independently considered the matters covered by the Borrowers’ Counsel Opinions to the extent necessary to enable us to express the conclusions stated therein, each of the Borrowers’ Counsel Opinions and the other documents furnished to the Administrative Agent pursuant to Section 3.01(a) of the Credit Agreement are substantially responsive to the corresponding requirements set forth in Section 3.01(a) of the Credit Agreement pursuant to which the same have been delivered. |
(a) | Our opinion in paragraph (i) above is subject to the effect of any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar law affecting creditors’ rights generally. |
(b) | Our opinion in paragraph (i) above is subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
(c) | We note further that, in addition to the application of equitable principles described above, courts have imposed an obligation on contracting parties to act reasonably and in good faith in the exercise of their contractual rights and remedies, and may also apply public policy considerations in limiting the right of parties seeking to obtain indemnification under circumstances where the conduct of such parties in the circumstances in question is determined to have constituted negligence. |
(d) | We express no opinion herein as to (i) Section 8.06 of the Credit Agreement, (ii) the enforceability of provisions purporting to grant to a party conclusive rights of determination, (iii) the availability of specific performance or other equitable remedies, (iv) the enforceability of rights to indemnity under Federal or state securities laws and (v) the enforceability of waivers by parties of their respective rights and remedies under law. |
H-2
(e) | Our opinion in paragraph (i) is limited to the law of the State of New York and the Federal law of the United States, and we do not express any opinion herein concerning any other law. Without limiting the generality of the foregoing, we express no opinion as to the effect of the law of any jurisdiction other than the State of New York wherein any Lender may be located or wherein enforcement of the Credit Agreement or the Notes may be sought that limits the rates of interest legally chargeable or collectible. |
(f) | In connection with any provision of the Credit Agreement or the Notes whereby any Borrower submits to the jurisdiction of any court of competent jurisdiction, we note the limitations of 28 U.S.C. §§1331 and 1332 on Federal court of jurisdiction. |
Very truly yours, |
H-3
FOR INDEBTEDNESS TO AFFILIATES
2
3
4
5
as Borrowers,
as Banks,
as Administrative Agent,
PARTY HERETO FROM TIME TO TIME
as Fronting Banks
HERETO FROM TIME TO TIME
as Swing Line Lenders
RBS SECURITIES INC. | CITIGROUP GLOBAL MARKETS INC. | |
BARCLAYS CAPITAL | KEYBANK NATIONAL ASSOCIATION | |
J.P. MORGAN SECURITIES LLC | THE BANK OF NOVA SCOTIA | |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED | UNION BANK, N.A. | |
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | ||
WELLS FARGO SECURITIES, LLC |
CITIBANK, N.A. | ||
UNION BANK, N.A. | ||
BARCLAYS CAPITAL | THE BANK OF NOVA SCOTIA | |
J.P. MORGAN SECURITIES LLC | THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED | KEYBANK NATIONAL ASSOCIATION | |
Syndication Agents | WELLS FARGO BANK, NATIONAL ASSOCIATION | |
Documentation Agents |
Page | ||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | ||||
SECTION 1.01. Certain Defined Terms | 1 | |||
SECTION 1.02. Computation of Time Periods | 23 | |||
SECTION 1.03. Accounting Terms | 23 | |||
SECTION 1.04. Terms Generally | 23 | |||
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT | ||||
SECTION 2.01. The Pro-Rata Advances | 23 | |||
SECTION 2.02. Making the Pro-Rata Advances | 24 | |||
SECTION 2.03. Swing Line Advances | 25 | |||
SECTION 2.04. Letters of Credit | 28 | |||
SECTION 2.05. Fees | 36 | |||
SECTION 2.06. Reduction of the Commitments; Borrower Sublimits | 37 | |||
SECTION 2.07. Repayment of Advances | 37 | |||
SECTION 2.08. Interest on Advances | 37 | |||
SECTION 2.09. Additional Interest on Advances | 38 | |||
SECTION 2.10. Interest Rate Determination | 38 | |||
SECTION 2.11. Conversion of Advances | 39 | |||
SECTION 2.12. Prepayments | 40 | |||
SECTION 2.13. Increased Costs | 41 | |||
SECTION 2.14. Illegality | 42 | |||
SECTION 2.15. Payments and Computations | 43 | |||
SECTION 2.16. Taxes | 45 | |||
SECTION 2.17. Sharing of Payments, Etc. | 47 | |||
SECTION 2.18. Noteless Agreement; Evidence of Indebtedness | 48 | |||
SECTION 2.19. Extension of Termination Date | 48 | |||
SECTION 2.20. Several Obligations | 50 | |||
SECTION 2.21. Defaulting Lenders | 51 | |||
ARTICLE III CONDITIONS OF LENDING AND ISSUING LETTERS OF CREDIT | ||||
SECTION 3.01. Conditions Precedent to Initial Extension of Credit | 52 | |||
SECTION 3.02. Conditions Precedent to Each Extension of Credit | 54 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES | ||||
SECTION 4.01. Representations and Warranties of the Borrowers | 55 | |||
ARTICLE V COVENANTS OF THE BORROWERS | ||||
SECTION 5.01. Affirmative Covenants of the Borrowers | 58 | |||
SECTION 5.02. Debt to Capitalization Ratio | 61 | |||
SECTION 5.03. Negative Covenants of the Borrowers | 62 |
i
Page | ||||
ARTICLE VI EVENTS OF DEFAULT | ||||
SECTION 6.01. Events of Default | 65 | |||
ARTICLE VII THE ADMINISTRATIVE AGENT | ||||
SECTION 7.01. Authorization and Action | 68 | |||
SECTION 7.02. Administrative Agent’s Reliance, Etc. | 68 | |||
SECTION 7.03. RBS and the Fronting Banks and Swing Line Lenders | 69 | |||
SECTION 7.04. Lender Credit Decision; No Other Duties | 69 | |||
SECTION 7.05. Indemnification | 70 | |||
SECTION 7.06. Successor Administrative Agent | 70 | |||
SECTION 7.07. Delegation of Duties | 71 | |||
ARTICLE VIII MISCELLANEOUS | ||||
SECTION 8.01. Amendments, Etc. | 71 | |||
SECTION 8.02. Notices, Etc. | 72 | |||
SECTION 8.03. Electronic Communications | 72 | |||
SECTION 8.04. No Waiver; Remedies | 74 | |||
SECTION 8.05. Costs and Expenses; Indemnification | 74 | |||
SECTION 8.06. Right of Set-off | 76 | |||
SECTION 8.07. Binding Effect | 76 | |||
SECTION 8.08. Assignments and Participations | 76 | |||
SECTION 8.09. Governing Law | 81 | |||
SECTION 8.10. Consent to Jurisdiction; Waiver of Jury Trial | 81 | |||
SECTION 8.11. Severability | 82 | |||
SECTION 8.12. Entire Agreement | 82 | |||
SECTION 8.13. Execution in Counterparts | 82 | |||
SECTION 8.14. USA PATRIOT Act Notice | 82 | |||
SECTION 8.15. No Fiduciary Duty | 83 |
ii
Schedule I | — | List of Commitments and Lending Offices | ||
Schedule II | — | List of L/C Fronting Bank Commitments | ||
Schedule III | — | List of Swing Line Commitments | ||
Schedule IV | — | Letters of Credit | ||
Schedule V | — | Existing Facilities | ||
Schedule VI | — | Disclosure Documents | ||
Exhibit A | — | Form of Assignment and Assumption | ||
Exhibit B | — | Form of Note | ||
Exhibit C | — | Form of Notice of Pro-Rata Borrowing | ||
Exhibit D | — | Form of Notice of Swing Line Borrowing | ||
Exhibit E | — | Form of Letter of Credit Request | ||
Exhibit F | — | Form of Opinion of Wendy E. Stark, Associate General Counsel of FE | ||
Exhibit G | — | Form of Opinion of Akin Gump Strauss Hauer & Feld LLP | ||
Exhibit H | — | Form of Opinion of King & Spalding LLP |
iii
DEFINITIONS AND ACCOUNTING TERMS
2
LEVEL 6 | ||||||||||||||||||||||||
Reference | ||||||||||||||||||||||||
LEVEL 2 | LEVEL 3 | LEVEL 4 | LEVEL 5 | Ratings | ||||||||||||||||||||
Reference | Reference | Reference | Reference | lower than | ||||||||||||||||||||
LEVEL 1 | Ratings lower | Ratings of | Ratings lower | Ratings | BB+ by S&P | |||||||||||||||||||
Reference | than Level 1 | lower than | than Level 3 | lower than | and Ba1 by | |||||||||||||||||||
Ratings at | but at least | Level 2 but at | but at least | Level 4 but at | Moody’s, or | |||||||||||||||||||
least A- by | BBB+ by | least BBB by | BBB- by S&P | least BB+ by | no | |||||||||||||||||||
BASIS FOR | S&Por A3 by | S&Por Baa1 | S&Por Baa2 | or Baa3 by | S&Por Ba1 | Reference | ||||||||||||||||||
PRICING | Moody’s. | by Moody’s. | by Moody’s. | Moody’s. | by Moody’s. | Ratings. | ||||||||||||||||||
Applicable Margin for Eurodollar Rate Advances | 1.25 | % | 1.50 | % | 1.75 | % | 2.00 | % | 2.25 | % | 2.50 | % | ||||||||||||
Applicable Margin for Alternate Base Rate Advances | 0.25 | % | 0.50 | % | 0.75 | % | 1.00 | % | 1.25 | % | 1.50 | % |
3
4
Borrower | Borrower Sublimit | |||
FE | $ | 2,000,000,000 | ||
CEI | $ | 500,000,000 | ||
Met-Ed | $ | 300,000,000 | ||
OE | $ | 500,000,000 | ||
Penn | $ | 50,000,000 | ||
TE | $ | 500,000,000 | ||
ATSI | $ | 100,000,000 | ||
JCP&L | $ | 425,000,000 | ||
MP | $ | 150,000,000 | ||
Penelec | $ | 300,000,000 | ||
PE | $ | 150,000,000 | ||
West-Penn | $ | 200,000,000 |
5
6
7
8
9
10
11
12
13
14
15
(A) | recourse to the named obligor with respect to such Indebtedness (the “Debtor”) for amounts limited to the cash flow or net cash flow (other than historic cash flow) from the asset; and | ||
(B) | recourse to the Debtor for the purpose only of enabling amounts to be claimed in respect of such Indebtedness in an enforcement of any security interest or lien given by the Debtor over the asset or the income, cash flow or other proceeds deriving from the asset (or given by any shareholder or the like in the Debtor over its shares or like interest in the capital of the Debtor) to secure the Indebtedness, but only if the extent of the recourse to the Debtor is limited solely to the amount of any recoveries made on any such enforcement; and | ||
(C) | recourse to the Debtor generally or indirectly to any Affiliate of the Debtor, under any form of assurance, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for a breach of an obligation (other than a payment obligation or an obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the Person against which such recourse is available. |
16
17
18
19
20
21
22
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
23
24
25
26
27
28
29
30
31
32
33
34
35
LEVEL 6 | ||||||||||||||||||||||||
LEVEL 2 | LEVEL 3 | LEVEL 4 | LEVEL 5 | Reference | ||||||||||||||||||||
Reference | Reference | Reference | Reference | Ratings | ||||||||||||||||||||
LEVEL 1 | Ratings lower | Ratings of | Ratings lower | Ratings lower | lower than | |||||||||||||||||||
Reference | than Level 1 | lower than | than Level 3 | than Level 4 | BB+ by S&P | |||||||||||||||||||
Ratings at least | but at least | Level 2 but at | but at least | but at least | and Ba1 by | |||||||||||||||||||
A- by S&Por | BBB+ by | least BBB by | BBB- by S&P | BB+ by S&P | Moody’s, or | |||||||||||||||||||
BASIS FOR | A3 by | S&Por Baa1 | S&Por Baa2 | or Baa3 by | or Ba1 by | no Reference | ||||||||||||||||||
PRICING | Moody’s. | by Moody’s. | by Moody’s. | Moody’s. | Moody’s. | Ratings. | ||||||||||||||||||
Commitment Fee | 0.15 | % | 0.20 | % | 0.25 | % | 0.30 | % | 0.40 | % | 0.55 | % |
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
CONDITIONS OF LENDING AND ISSUING LETTERS OF CREDIT
52
53
54
REPRESENTATIONS AND WARRANTIES
55
56
57
COVENANTS OF THE BORROWERS
58
59
60
61
62
63
64
EVENTS OF DEFAULT
65
66
67
THE ADMINISTRATIVE AGENT
68
69
70
MISCELLANEOUS
71
72
73
74
75
76
77
78
79
80
81
82
83
FIRSTENERGY CORP. THE CLEVELAND ELECTRIC ILLUMINATING COMPANY METROPOLITAN EDISON COMPANY OHIO EDISON COMPANY PENNSYLVANIA POWER COMPANY THE TOLEDO EDISON COMPANY AMERICAN TRANSMISSION SYSTEMS, INCORPORATED MONONGAHELA POWER COMPANY PENNSYLVANIA ELECTRIC COMPANY THE POTOMAC EDISON COMPANY WEST PENN POWER COMPANY | ||||
By: | /s/ James F. Pearson | |||
James F. Pearson | ||||
Vice President & Treasurer | ||||
JERSEY CENTRAL POWER & LIGHT COMPANY | ||||
By: | /s/ Randy Scilla | |||
Randy Scilla | ||||
Treasurer |
S-1
THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent, as a Bank, as a Swing Line Lender and as a Fronting Bank | ||||
By: | /s/ Andrew N. Taylor | |||
Name: | Andrew N. Taylor | |||
Title: | Vice President |
S-2
BANK OF AMERICA, N.A., as a Bank | ||||
By: | /s/ Mike Mason | |||
Name: | Mike Mason | |||
Title: | Director |
S-3
BARCLAYS BANK PLC, as a Bank, as a Fronting Bank and as a Swing Line Lender | ||||
By: | /s/ Ann E. Sutton | |||
Name: | Ann E. Sutton | |||
Title: | Director |
S-4
JPMORGAN CHASE BANK, N.A., as a Bank and as a Fronting Bank | ||||
By: | /s/ Peter Christensen | |||
Name: | Peter Christensen | |||
Title: | Vice President |
S-5
CITIBANK, N.A., as a Bank | ||||
By: | /s/ Maureen Maroney | |||
Name: | Maureen Maroney | |||
Title: | Vice President |
S-6
KEYBANK NATIONAL ASSOCIATION, as a Bank | ||||
By: | /s/ Sherrie I. Manson | |||
Name: | Sherrie I. Manson | |||
Title: | Senior Vice President |
S-7
THE BANK OF NOVA SCOTIA, as a Bank | ||||
By: | /s/ Thane Rattew | |||
Name: | Thane Rattew | |||
Title: | Managing Director |
S-8
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank | ||||
By: | /s/ Bradford Joyce | |||
Name: | Bradford Joyce | |||
Title: | Director |
S-9
UNION BANK, N.A., as a Bank | ||||
By: | /s/ Eric Otieno | |||
Name: | Eric Otieno | |||
Title: | Assistant Vice President |
S-10
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Bank | ||||
By: | /s/ Frederick W. Price | |||
Name: | Frederick W. Price | |||
Title: | Managing Director |
S-11
MORGAN STANLEY BANK, N.A., as a Bank | ||||
By: | /s/ Sherrese Clarke | |||
Name: | Sherrese Clarke | |||
Title: | Authorized Signatory |
S-12
BNP Paribas, as a Bank | ||||
By: | /s/ Denis O’Meara | |||
Name: | Denis O’Meara | |||
Title: | Managing Director | |||
By: | /s/ Pasquale Perraglia | |||
Name: | Pasquale Perraglia | |||
Title: | Vice President |
S-13
CREDIT SUISSE AG, Cayman Islands Branch, as a Bank | ||||
By: | /s/ Shaheen Malik | |||
Name: | Shaheen Malik | |||
Title: | Vice President | |||
By: | /s/ Rahul Parmar | |||
Name: | Rahul Parmar | |||
Title: | Associate |
S-14
Goldman Sachs Bank USA, as a Bank | ||||
By: | /s/ Mark Walton | |||
Name: | Mark Walton | |||
Title: | Authorized Signatory |
S-15
ROYAL BANK OF CANADA, as a Bank | ||||
By: | /s/ Thomas Casey | |||
Name: | Thomas Casey | |||
Title: | Authorized Signatory | |||
S-16
UBS AG, Stamford Branch, as a Bank | ||||
By: | /s/ Irja R. Otsa | |||
Name: | Irja R. Otsa | |||
Title: | Associate Director | |||
By: | /s/ Mary E. Evans | |||
Name: | Mary E. Evans | |||
Title: | Associate Director |
S-17
MIZUHO CORPORATE BANK, LTD, as a Bank | ||||
By: | /s/ Leon Mo | |||
Name: | Leon Mo | |||
Title: | Authorized Signatory |
S-18
PNC BANK, NATIONAL ASSOCIATION, as a Bank | ||||
By: | /s/ Christian S. Brown | |||
Name: | Christian S. Brown | |||
Title: | Senior Vice President |
S-19
SUMITOMO MITSUI BANKING CORPORATION, as a Bank | ||||
By: | /s/ Hiroshi Higuma | |||
Name: | Hiroshi Higuma | |||
Title: | Joint General Manager |
S-20
U.S. Bank National Association, as a Bank | ||||
By: | /s/ Eric J. Cosgrove | |||
Name: | Eric J. Cosgrove | |||
Title: | Vice President |
S-21
The Bank of New York Mellon, as a Bank | ||||
By: | /s/ Richard K. Fronapfel, Jr. | |||
Name: | Richard K. Fronapfel, Jr. | |||
Title: | Vice President |
S-22
CoBank, ACB, as a Bank | ||||
By: | /s/ Josh Batchelder | |||
Name: | Josh Batchelder | |||
Title: | Vice President |
S-23
Banco Bilbao Vizcaya Argentaria, SA- New York Branch as a Bank | ||||
By: | /s/ Michael Oka | |||
Name: | Michael Oka | |||
Title: | Executive Director | |||
By: | /s/ Michael D’Anna | |||
Name: | Michael D’Anna | |||
Title: | Executive Director |
S-24
CIBC Inc., as a Bank | ||||
By: | /s/ Robert W. Casey, Jr. | |||
Name: | Robert Casey | |||
Title: | Authorized Signatory | |||
By: | /s/ Josh Hogarth | |||
Name: | Josh Hogarth | |||
Title: | Director |
S-25
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Bank | ||||
By: | /s/ Tom Byargeon | |||
Name: | Tom Byargeon | |||
Title: | Managing Director | |||
By: | /s/ Sharada Manne | |||
Name: | Sharada Manne | |||
Title: | Director |
S-26
Sovereign Bank, as a Bank | ||||
By: | /s/ Robert D. Lanigan | |||
Name: | Robert D. Lanigan | |||
Title: | SVP |
S-27
THE HUNTINGTON NATIONAL BANK, as a Bank | ||||
By: | /s/ Brian H. Gallagher | |||
Name: | Brian H. Gallagher | |||
Title: | Senior Vice President |
S-28
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
The Royal Bank of Scotland plc | $ | 88,888,888.89 | 600 Washington Boulevard, Stamford, Connecticut 06901 | Same as Domestic Lending Office | ||||
Contact: John Ferrante Phone: (203) 897-7623 Fax: (203) 873-5300 Email:john.ferrante@rbs.com Group Email:gbmnaagency@rbs.com | ||||||||
Bank of America, N.A. | $ | 88,888,888.89 | 104 N Tryon Street, Floor 17 Charlotte, NC 28155-0001 Contact: Mike Mason Phone: (980) 683-1839 Fax: (980) 233-7196 Email:Michael.mason@baml.com | Same as Domestic Lending Office | ||||
Barclays Bank PLC | $ | 88,888,888.89 | 745 Seventh Avenue New York, NY 10019 Primary Contact: Shawn Powers Phone: (201) 499-4580 Fax: (917) 522-0555 Email:shawn.powers@barcap.com Group Email: xrausloanops3@barclayscapital.com | Same as Domestic Lending Office | ||||
JPMorgan Chase Bank, N.A. | $ | 88,888,888.89 | 1111 Fannin, 10th Floor Houston, TX 77002-6925 Account Manager: Leslie Hill Phone: (713) 750-2318 Fax: (713) 427-6307 Email:leslie.d.hill@chase.com | Same as Domestic Lending Office | ||||
Citibank, N.A. | $ | 88,888,888.89 | 399 Park Ave, 16th Floor 5 New York, NY 10043 Contact: Loan Administration Phone: (302) 894-6052 Fax: (212) 994-0847 Email:GLOriginationOps@citi.com | Same as Domestic Lending Office |
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
KeyBank National Association | $ | 88,888,888.89 | 124 Public Square Cleaveland, OH 44114 Contact: Yvette Dyson-Owens Phone: (216) 689-4815 Fax: (216) 370-6119 Email:Yvette_M_Dyson-Owens@Keybank.com | Same as Domestic Lending Office | ||||
The Bank of Nova Scotia | $ | 88,888,888.89 | 1 Liberty Plaza New York, NY 10006 Contact: Melissa McMillan Phone: (212) 225-5705 Fax: (212) 225-5709 Email:mellissa_mcmillan@scotiacapital.com | Same as Domestic Lending Office | ||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. | $ | 44,444,444.44 | 1251 Avenue of the Americas New York, NY 10020-1104 Contact: Mr. Jamie Velez Phone: (201) 413-8586 Fax: (201) 521-2304 | Same as Domestic Lending Office | ||||
Union Bank, N.A. | $ | 44,444,444.44 | 445 S. Figueroa Street, 15th Floor Los Angeles, CA 90071 Contact: Commercial Loan Operations Fax: (800) 446-9951 Email:synd@unionbank.com | Same as Domestic Lending Office | ||||
Wells Fargo Bank, National Association | $ | 88,888,888.89 | 301 S. College St., 15th Floor MAC: D1053-150 Charlotte, NC 28202 Contact: Michelle P Field Phone: (303) 863-5411 Fax: (303) 863-2729 Email:Michelle.p.field@wellsfargo.com | Same as Domestic Lending Office | ||||
Morgan Stanley Bank, N.A. | $ | 86,666,666.67 | 1000 Lancaster Street Baltimore, MD 21202 Phone: (443) 627-4355 Fax: (718) 233-2140 Email:msloanservicing@morganstanley.com | Same as Domestic Lending Office |
2
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
BNP Paribas | $ | 86,666,666.67 | 787 Seventh Avenue New York, NY 10019 Contact: Denis O’Meara Phone: (212) 471-8108 Fax: (212) 841-2745 Email:denis.omeara@us.bnpparibas.com | Same as Domestic Lending Office | ||||
Credit Suisse AG | $ | 86,666,666.67 | Eleven Madison Avenue New York, NY 10010 Contact: Vijaykumar Kalji Phone + 91 20 6673 4371 Fax: (866) 469-3871 Email:vijaykumar.kalji@credit-suisse.com | Same as Domestic Lending Office | ||||
Goldman Sachs Bank USA | $ | 86,666,666.67 | 200 West Street New York, NY 10282 Contact: Operations Phone: (212) 902-1099 Fax: (212) 977-3966 Email:gs-sbd-admin-contacts@ny.email.gs.com | Same as Domestic Lending Office | ||||
Royal Bank of Canada | $ | 86,666,666.67 | Three World Financial Center 5th Floor New York, NY 10281 Contact: Manager, Loans Administration Phone: (212) 428-6322 Fax: (212) 428-2372 | Same as Domestic Lending Office | ||||
UBS AG, Stamford Branch | $ | 86,666,666.67 | 677 Washington Blvd. Stamford, CT 06901 Contact: Samantha Mason Phone: (203) 719-4839 Fax: (203) 719-3390 Email:Samantha.mason@ubs.com | Same as Domestic Lending Office | ||||
Mizuho Corporate Bank, LTD. | $ | 74,222,222.22 | 1251 Avenue of the Americas New York, NY 10020 | Same as Domestic Lending Office |
3
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
PNC Bank, National Association | $ | 74,222,222.22 | 249 First Avenue Pittsburgh, PA 15222 Contact: Maja Kuljic Phone: (440) 546-7364 Fax: (877) 728-2851 Email:Participationla8brv@pnc.com | Same as Domestic Lending Office | ||||
Sumitomo Mitsui Banking Corporation | $ | 74,222,222.22 | 277 Park Avenue 6th Floor New York, NY 10172 Contact: Delma Mitchell Phone: (212) 224-4387 Fax: (212) 224-4391 Email:Delma_c_mitchell@smbcgroup.com | Same as Domestic Lending Office | ||||
U.S. Bank National Association | $ | 74,222,222.22 | National Corporate Banking CN-OH-W8 425 Walnut Street, 8th Floor Cincinnati, OH 45202 Contact: Eric Cosgrove Phone: (513) 632-3033 Fax: (513) 632-2068 Email:eric.cosgrove@usbank.com | Same as Domestic Lending Office | ||||
The Bank of New York Mellon | $ | 74,222,222.22 | 1 Wall Street, 19th Floor New York, NY 10286 Contact: Amber Mierek Phone: (315) 765-4300 Fax: (315) 765-4782 Email:amber.mierek@bnymellon.com | Same as Domestic Lending Office | ||||
CoBank, ACB | $ | 55,555,555.56 | 5500 South Quebec St. Greenwood Village, CO 80111 Contact: Graham Kaiser Phone: (303) 740-4386 Fax: (303) 740-4021 Email:agencybank@cobank.com | Same as Domestic Lending Office |
4
Eurodollar Lending | ||||||||
Lender | Allocation | Domestic Lending Office | Office | |||||
Banco Bilbao Vizcaya Argentaria, S.A. | $ | 53,333,333.33 | 1345 Avenue of the Americas 45th Floor New York, NY 10105 Contact: C&I Banking Phone: (212) 728-2382 Fax: (212) 333-2926 Email:cibny@grupobbva.com | Same as Domestic Lending Office | ||||
CIBC | $ | 53,333,333.33 | 425 Lexington Avenue, 4th Floor New York, NY 10017 Contact: Angela Tom Phone: (416) 542-4446 Fax: (905) 948-1934 Email:Angela.Tom@cibc.ca | Same as Domestic Lending Office | ||||
Credit Agricole Corporate and Investment Bank | $ | 53,333,333.33 | 1301 Avenue of the Americas New York, NY 10019 Contact: Dixon Schultz Phone: (713) 890-8607 Fax: (713) 890-8668 Email:dixon.schultz@ca-cib.com | Same as Domestic Lending Office | ||||
Sovereign Bank | $ | 53,333,333.33 | 75 State Street Boston, MA 02109 Contact: Roxaine Ovid Phone: (610) 988-1261 Fax: (484) 338-2831 Email:participations@sovereignbank.com | Same as Domestic Lending Office | ||||
The Huntington National Bank | $ | 40,000,000.00 | 41 South High Street Columbus, OH 43215 Contact: Shefali Patel Phone: (614) 480-5677 Fax: (614) 480-2249 Email:Shefali.patel@huntington.com | Same as Domestic Lending Office | ||||
TOTAL | $ | 2,000,000,000 |
5
L/C Fronting Bank | ||||||
Fronting Bank | Fronting Bank Address | Commitment | ||||
The Royal Bank of Scotland plc | 600 Washington Boulevard, Stamford, Connecticut 06901 Primary Contact: Richard Emmich Phone: (203) 897-7619 Fax: (212) 401-1494 Email:richard.emmich@rbs.com Secondary Contact: Marchette Major Phone: (203) 897-7638 Fax: (212) 401-1494 Email:marchette.major@rbs.com | $ | 250,000,000 | |||
Barclays Bank PLC | Letter of Credit Department 200 Park Avenue New York, NY 10166 Attn: Dawn Townsend Phone: (201) 499-2081 Fax: (212) 412-5011 Email:dawn.townsend@barcap.com | $ | 350,000,000 | |||
Group Email:XraLetterofCredit@barclayscapital.com | ||||||
JPMorgan Chase Bank, N.A. | Global Trade Services, 10420 Highland Manor Drive Floor 4, Tampa, FL 33610-9128 Attention: Letter of Credit Department Fax: (813) 432-5162 Email:James.Alonzo@jpmchase.com | $ | 100,000,000 |
Swing Line Lender | Swing Line Commitment | |||
The Royal Bank of Scotland plc | $ | 125,000,000 | ||
Barclays Bank PLC | $ | 125,000,000 |
1. | $2,750,000,000 Credit Agreement, dated as of August 24, 2006, as amended as of November 2, 2007, among certain of the Borrowers, the lenders and fronting banks parties thereto and Citibank, N.A., as administrative agent. | |
2. | $110,000,000 Credit Agreement, dated as of December 18, 2009, among Monongahela Power Company, certain banks, financial institutions and other institutional lenders, The Bank of Nova Scotia, as joint lead arranger and administrative agent, and Union Bank, N.A., as joint lead arranger and as syndication agent. | |
3. | $150,000,000 Credit Agreement, dated as of April 30, 2010, among The Potomac Edison Company, certain banks, financial institutions and other institutional lenders, The Bank of Nova Scotia as the global coordinator, Commerzbank AG, New York and Grand Cayman Branches, as joint lead arranger and administrative agent, and BNP Paribas Securities Corp., as joint lead arranger and as syndication agent. | |
4. | $200,000,000 Credit Agreement, dated as of April 30, 2010, among West Penn Power Company, certain banks, financial institutions and other institutional lenders, The Bank of Nova Scotia as the global coordinator, joint lead arranger and as syndication agent, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC, as joint lead arranger. |
1. | Update to matters addressed in each of FE’s, Met-Ed’s and Penelec’sFirst Quarter Form 10-Q, Note 10 — Regulatory Matters, (E) Pennsylvania, concerning Met-Ed and Penelec and the collection of marginal transmission losses: | |
On June 14, 2011, the Commonwealth Court affirmed the Pennsylvania Public Utility Commission’s (PPUC) decision that the marginal transmission losses are not recoverable as transmission costs. Met-Ed and Penelec are considering an appeal of the Commonwealth Court’s decision to the Pennsylvania Supreme Court. If management ultimately determines that the probability of success is not high enough to support continued recognition of the regulatory assets that had been established for the recoverable marginal transmission losses, Met-Ed and Penelec would write off the regulatory assets. | ||
2. | Update to matters addressed in (i) FE’s First Quarter Form 10-Q, Note 10 — Regulatory Matters, (H) FERC Matters, RTO Realignment; and (ii) ATSI 2010 Annual Financial Statements, Note 10 — Commitments and Contingencies, Regulatory Matters, RTO Realignment: | |
On February 1, 2011, ATSI — in conjunction with PJM — submitted its proposal for moving its transmission rate into PJM’s tariffs to FERC. On May 31, 2011, FERC issued an order that made the following rulings: (i) ATSI’s formula rate was moved into PJM’s tariffs without change; (ii) ATSI’s request to recover exit fees, entry costs, and MTEP costs was found to lack evidentiary basis and FERC directed that these costs (that would have been incremental to ATSI’s formula rate) be removed from the rate until such time as ATSI presents evidence that demonstrates that the benefits to transmission customers of moving to PJM exceed these costs; (iii) consistent with existing practices under the PJM tariff, ATSI had proposed to adopt a formal process for communicating information about the annual update to ATSI’s formula rate to customers — FERC noted that some transmission customers objected to parts of the proposed process and set this narrow set of issues for hearing. | ||
On April 1, 2011, the Midwest ISO Transmission Owners (including ATSI) filed proposed tariff language that describes the mechanics of collecting and administering MTEP costs from ATSI-zone ratepayers. This filing is important because the Midwest ISO Transmission Owners agreed that transmission customers, and not ATSI (or other utilities) are responsible for MTEP costs. On May 31, 2011, FERC issued an order rejecting elements of this filing. The basis for FERC’s rejection was FERC’s finding, in the ATSI T-Rates case order, that ATSI had not yet established that the MTEP costs should be recovered from customers. FERC directed ATSI and the RTOs (PJM and MISO) to submit compliance filings by June 30, 2011 to adjust the tariffs as necessary to implement the May 31, 2011 orders. ATSI will submit the compliance filings as directed. Moreover, ATSI likely will ask for rehearing of FERC’s directives with regard to exit fees, entry costs, and MTEP costs. | ||
FERC has ruled that ATSI cannot yet recover the MISO exit fee in its transmission rates, from the ATSI Utilities and its other transmission customers. |
3. | Update to matters addressed in (i) FE’s First Quarter Form 10-Q, Note 10 — Regulatory Matters, (H) FERC Matters, MISO Multi-Value Project Rule Proposal; and (ii) ATSI 2010 Annual Financial Statements, Note 10 — Commitments and Contingencies, Regulatory Matters, MISO Multi-Value Project Rule Proposal: | |
On May 31, 2011, FERC issued an order that made the following rulings: (i) ATSI’s formula rate was moved into PJM’s tariffs without change; (ii) ATSI’s request to recover exit fees, entry costs, and MTEP costs was found to lack evidentiary basis and FERC directed that these costs (that would have been incremental to ATSI’s formula rate) be removed from the rate until such time as ATSI presents evidence that demonstrates that the benefits to transmission customers of moving to PJM exceed these costs; (iii) consistent with existing practices under the PJM tariff ATSI had proposed to adopt a formal process for communicating information about the annual update to ATSI’s formula rate to customers — FERC noted that some transmission customers objected to parts of the proposed process and set this narrow set of issues for hearing. FERC also announced that it would host a settlement conference on June 23, 2011, to determine if settlement can be reached on the narrow question of the procedures and protocols for communicating data to customers about the annual update to the formula rate. FirstEnergy will attend this settlement conference. | ||
FERC directed ATSI and the RTOs (PJM and MISO) to submit compliance filings by June 30, 2011 to adjust the tariffs as necessary to implement the May 31, 2011 orders. ATSI will submit the compliance filings as directed. Moreover, ATSI likely will ask for rehearing of FERC’s directives with regard to exit fees, entry costs, and MTEP costs. The rehearing filing will be submitted on June 30, 2011. |
Form of Assignment and Assumption
1. | Assignor[s]: | |||||
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
[Assignor [is] [is not] a Defaulting Lender] | ||||||
2. | Assignee[s]: | |||||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender] | ||||||
3. | Borrowers: | FirstEnergy Corp., The Cleveland Electric Illuminating Company, Metropolitan Edison Company, Ohio Edison Company, Pennsylvania Power Company, The Toledo Edison Company, American Transmission Systems, Incorporated, Jersey Central Power & Light Company, Monongahela Power Company, Pennsylvania Electric Company, The Potomac Edison Company and West Penn Power Company | ||||
4. | Administrative Agent: | The Royal Bank of Scotland plc as the administrative agent under the Credit Agreement | ||||
5. | Credit Agreement: | The $2,000,000,000 Credit Agreement dated as of June 17, 2011 among FirstEnergy Corp., The Cleveland Electric Illuminating Company, Metropolitan Edison Company, Ohio Edison Company, Pennsylvania Power Company, The Toledo Edison Company, American Transmission Systems, Incorporated, Jersey Central Power & Light Company, Monongahela Power Company, Pennsylvania Electric Company, The Potomac Edison Company and West Penn Power Company, as Borrowers, the Lenders parties thereto, The Royal Bank of Scotland plc, as Administrative Agent, and the fronting banks and swing line lenders party thereto | ||||
6. | Assigned Interest[s]: |
Amount of | Percentage | |||||||||||||||||||
Aggregate Amount of | Commitment/ | Assigned of | ||||||||||||||||||
Commitment/Advances | Advances | Commitment/ | CUSIP | |||||||||||||||||
Assignor[s]5 | Assignee[s]6 | for all Lenders7 | Assigned8 | Advances8 | Number | |||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % |
[7. | Trade Date: | ]9 |
5 | List each Assignor, as appropriate. | |
6 | List each Assignee, as appropriate. | |
7 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
8 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder. | |
9 | To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
A-2
ASSIGNOR[S]10 [NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
ASSIGNEE[S]11 [NAME OF ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: |
10 | Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). | |
11 | Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). |
A-3
[Consented to and]12 Accepted: | ||||
THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
Consented to: | ||||
[LIST ALL FRONTING BANKS]., as a Fronting Bank | ||||
By: | ||||
Name: | ||||
Title: | ||||
[LIST ALL SWING LINE LENDERS], as a Swing Line Lender | ||||
By: | ||||
Name: | ||||
Title: | ||||
[FIRSTENERGY CORP. THE CLEVELAND ELECTRIC ILLUMINATING COMPANY METROPOLITAN EDISON COMPANY OHIO EDISON COMPANY PENNSYLVANIA POWER COMPANY THE TOLEDO EDISON COMPANY AMERICAN TRANSMISSION SYSTEMS, INCORPORATED MONONGAHELA POWER COMPANY PENNSYLVANIA ELECTRIC COMPANY THE POTOMAC EDISON COMPANY WEST PENN POWER COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
JERSEY CENTRAL POWER & LIGHT COMPANY | ||||
By: | ||||
Name: | ||||
Title:]13 |
12 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
13 | To be added only if the consent of the Borrowers are required by the terms of the Credit Agreement. |
A-4
ASSIGNMENT AND ASSUMPTION
Form of Note
U.S.$[ ] | , 20 |
[FIRSTENERGY CORP.] [THE CLEVELAND ELECTRIC ILLUMINATING COMPANY] [METROPOLITAN EDISON COMPANY] [OHIO EDISON COMPANY] [PENNSYLVANIA POWER COMPANY] [THE TOLEDO EDISON COMPANY] [AMERICAN TRANSMISSION SYSTEMS, INCORPORATED] [JERSEY CENTRAL POWER & LIGHT COMPANY] [MONONGAHELA POWER COMPANY] [PENNSYLVANIA ELECTRIC COMPANY] [THE POTOMAC EDISON COMPANY] [WEST PENN POWER COMPANY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-2
Form of Notice of Pro-Rata Borrowing
for the Lenders party to the Credit Agreement
referred to below
* | Delete for initial Extension of Credit. |
C-2
Very truly yours,** [FIRSTENERGY CORP.] [THE CLEVELAND ELECTRIC ILLUMINATING COMPANY] [METROPOLITAN EDISON COMPANY] [OHIO EDISON COMPANY] [PENNSYLVANIA POWER COMPANY] [THE TOLEDO EDISON COMPANY] [AMERICAN TRANSMISSION SYSTEMS, INCORPORATED] [JERSEY CENTRAL POWER & LIGHT COMPANY] [MONONGAHELA POWER COMPANY] [PENNSYLVANIA ELECTRIC COMPANY] [THE POTOMAC EDISON COMPANY] [WEST PENN POWER COMPANY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
** | Please use a separate Notice of Pro-Rata Borrowing for each Borrower. |
C-3
Form of Notice of Swing Line Borrowing
for the Lenders party to the Credit Agreement
referred to below
* | Delete for initial Extension of Credit. |
D-2
Very truly yours, [FIRSTENERGY CORP.] [THE CLEVELAND ELECTRIC ILLUMINATING COMPANY] [METROPOLITAN EDISON COMPANY] [OHIO EDISON COMPANY] [PENNSYLVANIA POWER COMPANY] [THE TOLEDO EDISON COMPANY] [AMERICAN TRANSMISSION SYSTEMS, INCORPORATED] [JERSEY CENTRAL POWER & LIGHT COMPANY] [MONONGAHELA POWER COMPANY] [PENNSYLVANIA ELECTRIC COMPANY] [THE POTOMAC EDISON COMPANY] [WEST PENN POWER COMPANY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
D-3
Form of Letter of Credit Request
Administrative Agent
[INSERT ADMINISTRATIVE AGENT’S ADDRESS]
Attn:
[ADDRESS]]
* | Delete for initial Extension of Credit. | |
** | Insert applicable Fronting Bank L/C Fronting Bank Commitment. |
E-2
Very truly yours, [FIRSTENERGY CORP.] [THE CLEVELAND ELECTRIC ILLUMINATING COMPANY] [METROPOLITAN EDISON COMPANY] [OHIO EDISON COMPANY] [PENNSYLVANIA POWER COMPANY] [THE TOLEDO EDISON COMPANY] [AMERICAN TRANSMISSION SYSTEMS, INCORPORATED] [JERSEY CENTRAL POWER & LIGHT COMPANY] [MONONGAHELA POWER COMPANY] [PENNSYLVANIA ELECTRIC COMPANY] [THE POTOMAC EDISON COMPANY] [WEST PENN POWER COMPANY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
E-3
Form of Opinion of Wendy E. Stark, Associate General Counsel of FE
The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 2
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The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 3
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The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 4
Associate General Counsel
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Form of Opinion of Akin Gump Strauss Hauer & Feld LLP
The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 2
1. | No Governmental Action is or will be required under any Included Law for the due execution and delivery by each Borrower of each Loan Document to which it is a party or the performance by it of its obligations thereunder, other than (i) the Regulatory Orders, each of which is in full force and effect as of the date hereof, and (ii) such Governmental Action as may be required after the date hereof in connection with the performance by such Borrower of the general covenants set forth in Sections 5.01(a) and (b) of the Credit Agreement. |
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The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 3
2. | The execution and delivery by each Borrower of each Loan Document to which it is a party do not, and the performance by such Borrower of its obligations under each such Loan Document will not, result in a breach or violation of any Included Law or any of the Regulatory Orders. | ||
3. | The Credit Agreement constitutes a valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with its terms. | ||
4. | Each Note, when properly completed and executed by the applicable Borrower and delivered in exchange for value, will constitute a valid and binding obligation of such Borrower, enforceable against such Borrower in accordance with its terms. |
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The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 4
G-4
The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto and the swing line lenders party thereto
June 17, 2011
Page 5
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Form of Opinion of
Special New York Counsel to the Administrative Agent
administrative agent, the fronting banks, the
swing line lenders and the lenders party to
the Credit Agreement defined below
(i) | The Credit Agreement is, and each of the Notes when executed and delivered for value received will be, the legal, valid and binding obligation of each Borrower that is a party thereto enforceable against such Borrower in accordance with their respective terms. | ||
(ii) | While we have not independently considered the matters covered by the Borrowers’ Counsel Opinions to the extent necessary to enable us to express the conclusions stated therein, each of the Borrowers’ Counsel Opinions and the other documents furnished to the Administrative Agent pursuant to Section 3.01(a) of the Credit Agreement are substantially responsive to the corresponding requirements set forth in Section 3.01(a) of the Credit Agreement pursuant to which the same have been delivered. |
(a) | Our opinion in paragraph (i) above is subject to the effect of any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar law affecting creditors’ rights generally. | ||
(b) | Our opinion in paragraph (i) above is subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
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(c) | We note further that, in addition to the application of equitable principles described above, courts have imposed an obligation on contracting parties to act reasonably and in good faith in the exercise of their contractual rights and remedies, and may also apply public policy considerations in limiting the right of parties seeking to obtain indemnification under circumstances where the conduct of such parties in the circumstances in question is determined to have constituted negligence. | ||
(d) | We express no opinion herein as to (i) Section 8.06 of the Credit Agreement, (ii) the enforceability of provisions purporting to grant to a party conclusive rights of determination, (iii) the availability of specific performance or other equitable remedies, (iv) the enforceability of rights to indemnity under Federal or state securities laws and (v) the enforceability of waivers by parties of their respective rights and remedies under law. | ||
(e) | Our opinion in paragraph (i) is limited to the law of the State of New York and the Federal law of the United States, and we do not express any opinion herein concerning any other law. Without limiting the generality of the foregoing, we express no opinion as to the effect of the law of any jurisdiction other than the State of New York wherein any Lender may be located or wherein enforcement of the Credit Agreement or the Notes may be sought that limits the rates of interest legally chargeable or collectible. | ||
(f) | In connection with any provision of the Credit Agreement or the Notes whereby any Borrower submits to the jurisdiction of any court of competent jurisdiction, we note the limitations of 28 U.S.C. §§1331 and 1332 on Federal court of jurisdiction. |
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