Exhibit 10.1





EXECUTION COPY




U.S. $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 BANKS NAMED HEREIN,

as Banks,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




THE FRONTING BANKS

PARTY HERETO FROM TIME TO TIME

as Fronting Banks




and




THE SWING LINE LENDERS PARTY

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






Joint Lead Arrangers




	 	 	 
	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






 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	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	 





 


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	 	 	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	 






 


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SCHEDULES AND EXHIBITS




	 	 	 	 	 
	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






 


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CREDIT AGREEMENT




CREDIT AGREEMENT, dated as of June 17, 2011, among FIRSTENERGY SOLUTIONS CORP., an Ohio
corporation (“FES”), and ALLEGHENY ENERGY SUPPLY COMPANY, LLC, a Delaware limited liability company
(“Allegheny”, and together with FES, the “Borrowers”), the banks and other financial institutions
(the “Banks”) listed on the signature pages hereof, JPMorgan Chase Bank, N.A. (“JPMCB”), as
Administrative Agent (the “Administrative Agent”) for the Lenders hereunder, the fronting banks
party hereto from time to time and the swing line lenders party hereto from time to time.



PRELIMINARY STATEMENTS




(1) The Borrowers have requested that the Lenders establish a five-year unsecured revolving
credit facility in the amount of $2,500,000,000 in favor of the Borrowers, all of which may be used
for general corporate purposes and the entirety of which may be used for the issuance of Letters of
Credit.



(2) Subject to the terms and conditions of this Agreement, the Lenders severally, to the
extent of their respective Commitments (as defined herein), are willing to establish the requested
revolving credit facility in favor of the Borrowers.




NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS





SECTION 1.01. Certain Defined Terms.



As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):




“Account Party” has the meaning set forth in Section 2.04(a).




“Additional Commitment Lender” has the meaning set forth in Section 2.19(d).




“Additional Lender” has the meaning set forth in Section 2.06(b).




“Administrative Agent” has the meaning set forth in the preamble hereto.




“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.




“Advance” means a Pro-Rata Advance or a Swing Line Advance.


 


 









 






“Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
officer of such Person.




“Agreement” means this Credit Agreement, as amended, modified and supplemented from
time to time.




“Allegheny” has the meaning set forth in the preamble hereto.




“Allegheny FERC Order” means the Order Accepting for Filing Market-Based Rate Tariff,
and Granting Waivers and Blanket Authorizations issued by the FERC on September 30, 1999, in
Docket Nos. ER99-4020-000, et al., as amended, extended, supplemented, replaced or renewed
from time to time.




“Alternate Base Rate” means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be equal to
the highest of (i) the rate of interest per annum announced publicly by JPMCB in New York,
New York, from time to time, as its “prime rate”, (ii) the sum of 1/2 of 1% per annum plus
the Federal Funds Rate in effect from time to time and (iii) the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/32 of 1%) appearing on Telerate Page 3750
(or any successor page) as displaying the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) such day for a term of one month plus 1%;
provided, however, if more than one rate is specified on such service, the applicable rate
shall be the arithmetic mean of all such rates plus 1%.




“Alternate Base Rate Advance” means an Alternate Base Rate Pro-Rata Advance or a Swing
Line Advance.




“Alternate Base Rate Pro-Rata Advance” means a Pro-Rata Advance that bears interest as
provided in Section 2.08(a).




“Anniversary Date” has the meaning set forth in Section 2.19(a).




“Applicable Law” means all applicable laws, statutes, treaties, rules, codes,
ordinances, regulations, permits, certificates, orders, interpretations, licenses and
permits of any Governmental Authority and judgments, decrees, injunctions, writs, orders or
like action of any court, arbitrator or other judicial or quasi-judicial tribunal of
competent jurisdiction (including those pertaining to health, safety or the environment or
otherwise).




“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of an Alternate Base Rate Advance, and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.


 


2









 






“Applicable Margin” means, for any Alternate Base Rate Advance or any Eurodollar Rate
Advance made to any Borrower, the interest rate per annum set forth in the relevant row of
the table below, determined by reference to the Reference Ratings for such Borrower from
time to time in effect:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	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	%







For purposes of the foregoing, (i) if there is a difference of one level in Reference
Ratings of S&P and Moody’s and the higher of such Reference Ratings falls in Level 1, Level
2, Level 3, Level 4 or Level 5, then the higher Reference Rating will be used to determine
the pricing level and (ii) if there is a difference of more than one level in Reference
Ratings of S&P and Moody’s, the Reference Rating that is one level above the lower of such
Reference Ratings will be used to determine the pricing level, unless the lower of such
Reference Ratings falls in Level 6, in which case the lower of such Reference Ratings will
be used to determine the pricing level. If there exists only one Reference Rating, such
Reference Rating will be used to determine the pricing level.




“Approval” means (i) with respect to FES, the FES FERC Order and (ii) with respect to
Allegheny, the Allegheny FERC Order.




“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.




“Assignment and Assumption” means an assignment and assumption entered into by a Lender
and an assignee of such Lender, and accepted by the Administrative Agent, in substantially
the form of Exhibit A hereto.




“Attributable Securitization Obligations” has the meaning set forth in the definition
of “Permitted Securitization”.




“Authorized Officer” means, with respect to any notice, certificate or other
communication to be delivered by any Borrower hereunder, the chief executive officer,
president, chief financial officer, treasurer, assistant treasurer or controller of such
Borrower, which officer shall have all necessary corporate or limited liability company
authorization to deliver such notice, certificate or other communication.


 


3









 






“Available Commitment” means, for each Lender, the excess of such Lender’s Commitment
over such Lender’s Percentage of the Outstanding Credits. “Available Commitments” shall
refer to the aggregate of the Lenders’ Available Commitments hereunder.




“Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended from time to
time, and any Federal law with respect to bankruptcy, insolvency, reorganization,
liquidation, moratorium or similar laws affecting creditors’ rights generally.




“Bankruptcy Event” means, with respect to any Person, such Person has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with the reorganization or liquidation of its business appointed for it, or, in the
good faith determination of the Administrative Agent, has taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or
appointment, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority or instrumentality thereof, provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Person (or such Governmental Authority or instrumentality) to
reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.




“Banks” has the meaning set forth in the preamble hereto.




“Beneficiary” means any Person designated by an Account Party to whom a Fronting Bank
is to make payment, or on whose order payment is to be made, under a Letter of Credit.




“Borrower” has the meaning set forth in the preamble hereto.




“Borrower Extension Notice Date” has the meaning set forth in Section 2.19(a).




“Borrower Sublimit” means: (i) with respect to FES, $1,500,000,000, and (ii) with
respect to Allegheny, $1,000,000,000.




“Borrowing” means a Pro-Rata Borrowing or a Swing Line Borrowing.




“Business Day” means a day of the year on which banks are not required or authorized to
close in New York City or Akron, Ohio and, if the applicable Business Day relates to any
Eurodollar Rate Advances, a day on which dealings are carried on in the London interbank
market.


 


4









 






“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii)
any change (other than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in any law, rule, regulation or treaty
or in the administration, interpretation or application thereof by any Governmental
Authority or (iii) the making or issuance of any request, guideline or directive (whether or
not having the force of law) by any Governmental Authority; provided, however, the
Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules,
guidelines and directives promulgated thereunder, and all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to
have been introduced or adopted after the date of this Agreement, regardless of the date
enacted or adopted.




“Change of Control” has the meaning set forth in Section 6.01(j).




“Code” means the United States Internal Revenue Code of 1986, as amended from time to
time, and the applicable regulations thereunder.




“Commitment” means, as to any Lender, the amount set forth opposite such Lender’s name
on Schedule I hereto or, if such Lender has entered into any Assignment and Assumption, set
forth for such Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.08(c), as such amount may be reduced pursuant to Section 2.06(a) or increased
pursuant to Section 2.06(b).




“Commitment Increase” has the meaning set forth in Section 2.06(b).




“Commodity Trading Obligations” means the obligations of any Person under any commodity
swap agreement, commodity future agreement, commodity option agreement, commodity cap
agreement, commodity floor agreement, commodity collar agreement, commodity hedge agreement,
commodity forward contract or derivative transaction and any put, call or other agreement,
arrangement or transaction, including natural gas, power, emissions forward contracts,
renewable energy credits, or any combination of any such arrangements, agreements and/or
transactions, employed in the ordinary course of such Person’s business, including such
Person’s energy marketing, trading and asset optimization business. The term “commodity”
shall include electric energy and/or capacity, transmission rights, coal, petroleum, natural
gas, fuel transportation rights, emissions allowances, weather derivatives and related
products and by-products and ancillary services.




“Communications” has the meaning set forth in Section 8.03(a).


 


5









 






“Consolidated Debt” means, with respect to any Borrower at any date of determination
the aggregate Indebtedness of such Borrower and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP, but shall not include (i) Nonrecourse
Indebtedness of such Borrower and any of its Subsidiaries, (ii)
obligations under leases that shall have been or should be, in accordance with GAAP,
recorded as operating leases in respect of which such Borrower or any of its Consolidated
Subsidiaries is liable as a lessee, (iii) the aggregate principal and/or face amount of
Attributable Securitization Obligations of such Borrower and its Consolidated Subsidiaries
and (iv) the aggregate principal amount of Trust Preferred Securities and Junior
Subordinated Deferred Interest Obligations not exceeding 15% of the Total Capitalization of
such Borrower and its Consolidated Subsidiaries (determined, for purposes of such
calculation, without regard to the amount of Trust Preferred Securities and Junior
Subordinated Deferred Interest Debt Obligations outstanding of such Borrower); provided that
the amount of any mandatory principal amortization or defeasance of Trust Preferred
Securities or Junior Subordinated Deferred Interest Debt Obligations prior to the
Termination Date shall be included in this definition of Consolidated Debt.




“Consolidated Subsidiary” means, as to any Person, any Subsidiary of such Person the
accounts of which are or are required to be consolidated with the accounts of such Person in
accordance with GAAP.




“Controlled Group” means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control that, together with
any Borrower and its Subsidiaries, are treated as a single employer under Section 414(b),
(c) or (m) or 414(o) of the Code.




“Convert”, “Conversion” and “Converted” each refers to a conversion of Pro-Rata
Advances of one Type into Pro-Rata Advances of another Type or the selection of a new, or
the renewal of the same, Interest Period for Eurodollar Rate Advances pursuant to Section
2.10 or 2.11.




“Credit Parties” has the meaning set forth in Section 8.15 hereto.




“Cross-Default Provision” has the meaning set forth in Section 5.03(f) hereto.




“Date of Issuance” means the date of issuance by a Fronting Bank of a Letter of Credit
under this Agreement.




“Debt to Capitalization Ratio” means, for any Borrower, the ratio of Consolidated Debt
of such Borrower to Total Capitalization of such Borrower.




“Defaulting Lender” means any Lender that (i) has failed, within three Business Days of
the date required to be funded or paid, to (A) fund any portion of its Advances, (B) fund
any portion of its participations in Letters of Credit or Swing Line Advances or (C) pay
over to the Administrative Agent, any Fronting Bank or any Swing Line Lender any other
amount required to be paid by it hereunder, unless, in the case of clause (A) or (B) above,
such Lender notifies the Administrative Agent in writing that such failure is the result of
such Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (ii) has
notified any Borrower or the Administrative Agent, any Fronting Bank or any Swing Line
Lender in writing, or has made a public statement to the effect, that it does not


 


6









 






 intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement indicates that such position is based on such
Lender’s good faith determination that a condition precedent (specifically identified and
including the particular default, if any) to funding a loan under this Agreement cannot be
satisfied) or generally under other agreements in which it commits to extend credit, (iii)
has failed, within three Business Days after written request by the Administrative Agent,
any Fronting Bank or any Swing Line Lender, acting in good faith, to provide a certification
in writing from an authorized officer of such Lender that it will comply with its
obligations to fund prospective Advances and participations in then outstanding Letters of
Credit and Swing Line Advances under this Agreement, provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (iii) upon the Administrative Agent’s,
such Fronting Bank’s or such Swing Line Lender’s (as applicable) receipt of such
certification in form and substance reasonably satisfactory to it and the Administrative
Agent, or (iv) has become the subject of a Bankruptcy Event.




“Disclosure Documents” means (i) with respect to any Borrower that is required to file
reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, such Borrower’s
Annual Report on Form 10-K for the year ended December 31, 2010, Quarterly Report on Form
10-Q for the quarter ended March 31, 2011 and Current Reports on Form 8-K filed in 2011
prior to the date hereof and (ii) with respect to any Borrower that is not required to file
reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, (A) such
Borrower’s consolidated balance sheets as of December 31, 2010, and the related consolidated
statements of income, retained earnings and cash flows for the fiscal year then ended,
certified by PricewaterhouseCoopers LLP or Deloitte & Touche LLP, as applicable, and
unaudited consolidated balance sheets as of March 31, 2011 and related consolidated
statements of income, retained earnings and cash flows for the three-month period then
ended, with, in each case, any accompanying notes, all prepared in accordance with GAAP, and
(B) the matters described in the portion of Schedule VI hereto applicable to such Borrower
as indicated thereon.




“Dollars” and “$” each means lawful currency of the United States of America.




“Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Assumption pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Administrative Agent.




“Drawing” means a drawing by a Beneficiary under any Letter of Credit.




“Environmental Laws” means any federal, state or local laws, ordinances or codes,
rules, orders, or regulations relating to pollution or protection of the environment,
including, without limitation, laws relating to hazardous substances, laws relating to
reclamation of land and waterways and laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollution, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes.


 


7









 






“ERISA” means the Employee Retirement Income Security Act of 1974, and the regulations
promulgated and rulings issued thereunder, each as amended, modified and in effect from time
to time.




“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to time.




“Eurodollar Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto
or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Administrative Agent.




“Eurodollar Rate” means, for the Interest Period for any Eurodollar Rate Advance made
in connection with any Borrowing, the rate of interest per annum (rounded upward to the
nearest 1/32 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period for a period equal to such
Interest Period. If, for any reason, such rate is not available, the term “Eurodollar Rate”
for such Interest Period shall mean an interest rate per annum equal to the average rate per
annum (rounded upward to the nearest 1/32 of 1%) at which deposits in Dollars are offered by
the Reference Banks to prime banks in the London interbank eurodollar market at 11:00 a.m.
(London time) two Business Days before the first day of such Interest Period in an amount
substantially equal to the Reference Banks’ respective Percentages of such Borrowing to be
outstanding during such Interest Period and for a period equal to such Interest Period.




“Eurodollar Rate Advance” means an Advance that bears interest as provided in Section
2.08(b).




“Eurodollar Rate Reserve Percentage” of any Lender for the Interest Period for any
Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such percentage shall be
so applicable) under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such Interest Period.




“Event of Default” has the meaning set forth in Section 6.01.


 


8









 






“Exchange Act” means the Securities Exchange Act of 1934, and the regulations
promulgated thereunder, in each case as amended and in effect from time to time.




“Excluded Taxes” means, with respect to any Recipient of any payment to be made by or
on account of any obligation of any Borrower hereunder, (i) income or franchise taxes
imposed on (or measured by) the Recipient’s net income by the United States, or by the
jurisdiction under the laws of which such Recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its Applicable Lending Office is
located, (ii) any branch profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which such Recipient is located, and (iii) any
withholding taxes that (A) are imposed on amounts payable to such Recipient at the time such
Recipient becomes a Recipient under this Agreement or designates a new lending office,
except in each case to the extent that amounts with respect to such taxes were payable
either (i) to such Recipient’s assignor immediately before such Recipient became a Recipient
under this Agreement, or (ii) to such Recipient immediately before it designated a new
lending office, (B) are attributable to such Recipient’s failure to comply with Section
2.16(e), or (C) are imposed as a result of a failure by such Recipient to satisfy the
conditions for avoiding withholding under FATCA.




“Existing Facilities” means the credit facilities listed on Schedule V hereto.




“Existing Termination Date” has the meaning set forth in Section 2.19(a).




“Expiration Date” means, with respect to a Letter of Credit, its stated expiration
date.




“Extension of Credit” means the making of any Advance or the issuance, extension or
renewal, or any amendment that increases the Stated Amount, of a Letter of Credit.




“FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement
and any current or future regulations or official interpretations thereof.




“FE” means FirstEnergy Corp., an Ohio corporation.




“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such average is not such a multiple) of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.


 


9









 






“Fee Letters” means (i) the letter agreement, dated as of April 27, 2011, among the
Borrowers and JPMCB, (ii) the letter agreement, dated as of April 27, 2011, among
the Borrowers, JPMCB, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Bank of America, N.A., Barclays Bank PLC, The Royal Bank of Scotland plc and
RBS Securities Inc., and (iii) the letter agreement, dated as of May 2, 2011, among the
Borrowers, Citigroup Global Markets Inc., KeyBank National Association, The Bank of Nova
Scotia, Union Bank, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., Wells Fargo Bank, National
Association and Wells Fargo Securities, LLC, in each case, as amended, modified or
supplemented from time to time.




“FERC” means the Federal Energy Regulatory Commission or successor organization.




“FES” has the meaning set forth in the preamble hereto.




“FES FERC Order” means the Order Accepting for Filing Market-Based Rate Tariff, and
Granting Waivers and Blanket Authorizations issued by the FERC on January 24, 2001, in
Docket Nos. ER01-103-000, et al., as amended, extended, supplemented, replaced or renewed
from time to time.




“FES’s Mark-to-Market Obligations” means any of FES’s mark-to-market obligations under
master standard service offer supply agreements or similar agreements between FES and any of
FE’s regulated utility subsidiaries entered into from time to time as a result of FES’s
participation in state public utility commission-approved competitive bid processes to
provide retail electric generation supply.




“FES-FGC Guaranty” means the Guaranty, dated as of March 26, 2007, of FES with respect
to certain indebtedness of FGC.




“FES-NGC Guaranty” means the Guaranty, dated as of March 26, 2007, of FES with respect
to certain indebtedness of NGC.




“FGC” means FirstEnergy Generation Corp., an Ohio corporation.




“FGC-FES Guaranty” means the Guaranty, dated as of March 26, 2007, of FGC with respect
to certain indebtedness of FES




“First Mortgage Bonds” means the bonds, notes or similar instruments issued under any
FMB Mortgage.




“FMB Mortgage” means (i) with respect to FGC, the Open-End Mortgage, General Mortgage
Indenture and Deed of Trust, dated as of June 19, 2008, between FGC and The Bank of New York
Trust Company, N.A., as trustee, as amended, restated, supplemented or otherwise modified
from time to time (except as expressly provided otherwise herein), together with any
supplemental indentures issued pursuant thereto, (ii) with respect to NGC, the Open-End
Mortgage, General Mortgage Indenture and Deed of Trust, dated as of June 1, 2009, between
NGC and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended, restated,
supplemented or otherwise modified from time to time (except as expressly provided otherwise
herein), and (iii), with respect to Allegheny, a first mortgage indenture pursuant to which
Allegheny may issue bonds,
notes or similar instruments secured by a lien on all or substantially all of its fixed
assets, in each case of clauses (i), (ii) and (ii), together with any supplemental
indentures issued pursuant thereto.


 


10









 






“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrowers are resident for tax purposes. For purposes of this
definition, the United States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.




“Fraction” means, for any Borrower at any time, a fraction, the numerator of which
shall be the Borrower Sublimit of such Borrower at such time, and the denominator of which
shall be the sum of the Borrower Sublimits of all Borrowers at such time.




“Fronting Bank” means each Lender identified as a “Fronting Bank” on Schedule II and
any other Lender (in each case, acting directly or through an Affiliate) that delivers an
instrument in form and substance satisfactory to the Borrowers and the Administrative Agent
whereby such other Lender (or its Affiliate) agrees to act as “Fronting Bank” hereunder and
that specifies the maximum aggregate Stated Amount of Letters of Credit that such other
Lender (or its Affiliates) will agree to issue hereunder.




“Fronting Bank Fee Letter” has the meaning set forth in Section 3.01(b).




“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.




“GAAP” means generally accepted accounting principles in the United States in effect
from time to time.




“Genco” means each of FGC and NGC.




“Genco Guarantees” means the FES-FGC Guaranty, the FES-NGC Guaranty, the FGC-FES
Guaranty and the NGC-FES Guaranty.




“Governmental Action” means all authorizations, consents, approvals, waivers,
exceptions, variances, orders, licenses, exemptions, publications, filings, notices to and
declarations of or with any Governmental Authority (other than requirements the failure to
comply with which will not affect the validity or enforceability of any Loan Document or
have a material adverse effect on the transactions contemplated by any Loan Document or any
material rights, power or remedy of any Person thereunder or any other action in respect of
any Governmental Authority).




“Governmental Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank) and any group or body charged
with setting financial accounting or regulatory capital rules or standards (including,
without limitation, the Financial Accounting Standards Board, the Bank for International
Settlements or the Basel Committee on Banking Supervision or any successor or similar
authority to any of the foregoing).


 


11









 






“Hedging Obligations” mean, with respect to any Person, the obligations of such Person
under any interest rate or currency swap agreement, interest rate or currency future
agreement, interest rate collar agreement, interest rate or currency hedge agreement, and
any put, call or other agreement or arrangement designed to protect such Person against
fluctuations in interest rates or currency exchange rates.




“Hostile Acquisition” means any Target Acquisition (as defined below) involving a
tender offer or proxy contest that has not been recommended or approved by the board of
directors (or similar governing body) of the Person that is the subject of such Target
Acquisition. As used in this definition, the term “Target Acquisition” means any
transaction, or any series of related transactions, by which any Person directly or
indirectly (i) acquires all or substantially all of the assets or ongoing business of any
other Person, whether through purchase of assets, merger or otherwise, (ii) acquires (in one
transaction or as the most recent transaction in a series of transactions) control of at
least a majority in ordinary voting power of the securities of any such Person that have
ordinary voting power for the election of directors or (iii) otherwise acquires control of
more than a 50% ownership interest in any such Person.




“Increasing Lender” has the meaning set forth in Section 2.06(b).




“Indebtedness” of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, or with respect to deposits or advances of
any kind, or for the deferred purchase price of property or services other than trade
accounts payable, (ii) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (iii) all obligations of such Person upon which interest charges are
customarily paid, (iv) all obligations under leases that shall have been or should be, in
accordance with GAAP, recorded as capital leases in respect of which such Person is liable
as lessee, (v) withdrawal liability incurred under ERISA by such Person or any of its
affiliates to any Multiemployer Plan, (vi) reimbursement obligations of such Person (whether
contingent or otherwise) in respect of letters of credit, bankers acceptances, surety or
other bonds and similar instruments, (vii) all Indebtedness of others secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed by such Person and
(viii) obligations of such Person under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of others of the
kinds referred to above. For the avoidance of doubt, “Indebtedness” shall include, as of
any date of determination with respect to FES, the aggregate obligations of the Gencos under
outstanding First Mortgage Bonds issued pursuant to their respective FMB Mortgages to
guarantee or otherwise support FES’s Market-to-Market Obligations, which obligations shall
be deemed to be limited in amount to the aggregate amount of FES’s Mark-to-Market
Obligations for which Mark-to-Market Guarantees are in effect as of such date less the amount of cash or letter of
credit collateral securing or otherwise supporting FES’s Mark-to-Market Obligations as of
such date.


 


12









 






“Indemnified Persons” has the meaning set forth in Section 8.05(c) hereto.




“Indemnified Taxes” means all Taxes (including Other Taxes) other than Excluded Taxes.




“Interest Period” means, for each Eurodollar Rate Advance made to any Borrower as part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or
the date of the Conversion of any Pro-Rata Advance into such Eurodollar Rate Advance and
ending on the last day of the period selected by such Borrower pursuant to the provisions
below and, thereafter in the case of Pro-Rata Advances, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be, in the case of any Eurodollar Rate Advance, one week or one,
two, three or six months, in each case, as the applicable Borrower may select by notice to
the Administrative Agent pursuant to Section 2.02(a) or Section 2.11(a); provided, however,
that:




(i) no Borrower may select any Interest Period that ends after the latest
Termination Date;




(ii) Interest Periods commencing on the same date for Advances made as part of
the same Borrowing shall be of the same duration;




(iii) no more than ten different Interest Periods shall apply to outstanding
Eurodollar Rate Advances on any date of determination; and




(iv) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided, that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day.




“ISDA Master Agreement” means the printed form of the 1992 ISDA Master Agreement
(Multicurrency — Cross Border) or the 2002 ISDA Master Agreement (Multicurrency — Cross
Border), as applicable, including any Schedule and Credit Support Annex thereto, as
published by the International Swaps and Derivatives Association, Inc.




“JPMCB” has the meaning set forth in the preamble hereto.




“Junior Subordinated Deferred Interest Debt Obligations” means subordinated deferrable
interest debt obligations of any Borrower or any of its Subsidiaries (i) for
which the maturity date is subsequent to the Termination Date and (ii) that are fully
subordinated in right of payment to the Indebtedness hereunder.


 


13









 






“L/C Commitment Amount” means $2,500,000,000 as the same may be reduced permanently
from time to time pursuant to Section 2.06.




“L/C Fronting Bank Commitment” means, with respect to any Fronting Bank, the aggregate
Stated Amount of all Letters of Credit that such Fronting Bank agrees to issue, as modified
from time to time pursuant to an agreement signed by such Fronting Bank. With respect to
each Lender that is a Fronting Bank on the date hereof, such Fronting Bank’s L/C Fronting
Bank Commitment shall equal such Fronting Bank’s “L/C Fronting Bank Commitment” listed on
Schedule II, and (ii) with respect to any Lender that becomes a Fronting Bank after the date
hereof, such Lender’s L/C Fronting Bank Commitment shall equal the amount agreed upon
between the Borrowers and such Lender at the time that such Lender becomes a Fronting Bank,
in each case as such L/C Fronting Bank Commitment may be modified in accordance with the
terms of this Agreement.




“Lender Extension Notice Date” has the meaning set forth in Section 2.19(b).




“Lenders” means the Banks listed on the signature pages hereof and each assignee of a
Bank or another Lender that shall become a party hereto pursuant to Section 8.08 and, as the
context requires, includes the Swing Line Lenders.




“Letter of Credit” has the meaning set forth in Section 2.04(a).




“Letter of Credit Cash Cover” has the meaning set forth in Section 6.01.




“Letter of Credit Request” has the meaning set forth in Section 2.04(c).




“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its Subsidiaries shall be deemed to own, subject to a Lien,
any asset that it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention agreement relating to
such asset.




“Loan Documents” means this Agreement, any Note, the Fee Letters and the Fronting Bank
Fee Letters.




“Majority Lenders” means, at any time prior to the Termination Date, Lenders having in
the aggregate more than 50% of the Commitments (without giving effect to any termination in
whole of the Commitments pursuant to Section 6.01) and at any time on or after the
Termination Date, Lenders having more than 50% of the then aggregate Outstanding Credits of
the Lenders; provided, that for purposes hereof, no Borrower, nor any of its Affiliates, if
a Lender, shall be included in (i) the Lenders having such amount of the Commitments or the
Advances or (ii) determining the total amount of the Commitments or the Outstanding Credits.


 


14









 






“Margin Stock” has the meaning assigned to that term in Regulation U issued by the
Board of Governors of the Federal Reserve System, and as amended and in effect from time to
time.




“Mark-to-Market Guarantees” means guarantees by a Genco supporting FES’s Mark-to-Market
Obligations, which guarantees may be secured by First Mortgage Bonds.




“Material Adverse Effect” means, with respect to any Borrower, (i) any material adverse
effect on the business, property, operations or financial condition of such Borrower and its
Consolidated Subsidiaries, taken as a whole, or (ii) any material adverse effect on the
validity or enforceability against such Borrower of this Agreement or any Note.




“Money Pool” has the meaning set forth in Section 5.01(i).




“Moody’s” means Moody’s Investors Service, Inc.




“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which any Borrower or any member of the Controlled Group is or may reasonably be
expected to have an obligation to make, contributions, or with respect to which any Borrower
may reasonably be expected to incur liability.




“New Fronting Bank” has the meaning set forth in Section 2.04(r).




“NGC-FES Guaranty” means the Guaranty, dated as of March 26, 2007, of NGC with respect
to certain indebtedness of FES.




“NGC” means FirstEnergy Nuclear Generation Corp., an Ohio corporation.




“Nonconsenting Lender” has the meaning set forth in Section 2.19(b).




“Nonrecourse Indebtedness” means, with respect to any Borrower and its Subsidiaries,
(i) any Indebtedness that finances the acquisition, development, construction or improvement
of an asset in respect of which the Person to which such Indebtedness is owed has no
recourse whatsoever to such Borrower or any of its Affiliates and (ii) any Indebtedness
existing on the date of this Agreement that finances the ownership or operation of an asset
in respect of which the Person to which such Indebtedness is owed has no recourse whatsoever
to such Borrower or any of its Affiliates, in each case of clauses (i) and (ii), other than:




	 	(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.







“Note” means any promissory note issued at the request of a Lender pursuant to Section
2.18 in the form of Exhibit B hereto.




“Notice of Pro-Rata Borrowing” means a notice of a Pro-Rata Borrowing pursuant to
Section 2.02(a), which shall be substantially in the form of Exhibit C.




“Notice of Swing Line Borrowing” means a notice of a Swing Line Borrowing pursuant to
Section 2.03 which, if in writing, shall be substantially in the form of Exhibit D.




“OECD” means the Organization for Economic Cooperation and Development.




“Organizational Documents” means, as applicable to any Person, the charter, code of
regulations, articles of incorporation, by-laws, certificate of formation, operating
agreement, certificate of partnership, limited liability company agreement, operating
agreement, partnership agreement, certificate of limited partnership, limited partnership
agreement or other constitutive documents of such Person.




“Original Fronting Banks” has the meaning set forth in Section 2.04(r).




“Other Taxes” means any and all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made hereunder or
under any other Loan Document or from the execution, delivery, performance or enforcement or
registration of, from the receipt or perfection of a security interest under, or otherwise
with respect to, this Agreement or any other Loan Document.




“Outstanding Credits” means, on any date of determination, an amount equal to (i) the
aggregate principal amount of all Advances outstanding on such date plus (ii) the aggregate
undrawn amount of all issued Letters of Credit outstanding on such date plus (iii) the
aggregate amount of Reimbursement Obligations outstanding on such date (excluding
Reimbursement Obligations that, on such date of determination, are repaid with the proceeds
of Advances made in accordance with Sections 2.04 (f) and (g), to the extent the principal
amount of such Advances is included in the determination of the aggregate principal amount
of all outstanding Advances as provided in clause (i) of this
definition). The Outstanding Credits of a Lender on any date of determination shall be
an amount equal to the outstanding Advances made by such Lender plus the amount of such
Lender’s participation interest in outstanding Letters of Credit, Reimbursement Obligations
and Swing Line Advances included in the definition of “Outstanding Credits”.


 


16









 






“Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.




“Participant” has the meaning set forth in Section 8.08(d).




“Participant Register” has the meaning set forth in Section 8.08(d).




“Patriot Act” means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001), as in effect from time to time.




“Payment Date” means the date on which payment of a Drawing is made by a Fronting Bank.




“PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any
or all of its functions under ERISA.




“Percentage” means, in respect of any Lender on any date of determination, the
percentage obtained by dividing such Lender’s Commitment on such day by the total of the
Commitments on such day, and multiplying the quotient so obtained by 100%.




“Permitted Obligations” mean (i) nonspeculative Hedging Obligations of any Person and
its subsidiaries arising in the ordinary course of business and in accordance with such
Person’s established risk management policies that are designed to protect such Person
against, among other things, fluctuations in interest rates or currency exchange rates and
which in the case of agreements relating to interest rates shall have a notional amount no
greater than the payments due with respect to the applicable obligations being hedged and
(ii) Commodity Trading Obligations. For the avoidance of doubt, such transactions shall be
considered nonspeculative if undertaken in conformance with FE’s Corporate Risk Management
Policy then in effect, as approved by FE’s Audit Committee, together with the Approved
Business Unit Risk Management Policies referenced thereunder, including, but not limited to,
the FES Commodity Portfolio Risk Management Policy.




“Permitted Securitization” means, for any Borrower and its Subsidiaries, any sale,
assignment, conveyance, grant and/or contribution, or series of related sales, assignments,
conveyances, grants and/or contributions, by such Borrower or any of its Subsidiaries of
Receivables (or purported sale, assignment, conveyance, grant and/or contribution) to a
trust, corporation or other entity, where the purchase of such Receivables may be funded or
exchanged in whole or in part by the incurrence or issuance by the applicable Securitization
SPV, if any, of Indebtedness or securities (such Indebtedness and securities being
“Attributable Securitization Obligations”) that are to be secured by or otherwise satisfied
by payments from, or that represent interests in, the


 


17









 






cash flow derived primarily from such Receivables (provided, however, that
“Indebtedness” as used in this definition shall not include Indebtedness incurred by a
Securitization SPV owed to any Borrower or any of its Subsidiaries, which Indebtedness
represents all or a portion of the purchase price or other consideration paid by such
Securitization SPV for such receivables or interests therein), where (i) any representation,
warranty, covenant, recourse, repurchase, hold harmless, indemnity or similar obligations of
such Borrower or any of its Subsidiaries, as applicable, in respect of Receivables sold,
assigned, conveyed, granted or contributed, or payments made in respect thereof, are
customary for transactions of this type, and do not prevent the characterization of the
transaction as a true sale under applicable laws (including debtor relief laws) and (ii) any
representation, warranty, covenant, recourse, repurchase, hold harmless, indemnity or
similar obligations of any Securitization SPV in respect of Receivables sold, assigned,
conveyed, granted or contributed or payments made in respect thereof, are customary for
transactions of this type.




“Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency thereof.




“Plan” means, at any time, an “employee pension benefit plan” (as defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 or 430 of the Code, (i) that is
(A) maintained by or contributed to by (or to which there is or may be an obligation to
contribute to by) any Borrower or any member of the Controlled Group for employees of any
Borrower or a member of the Controlled Group, or (B) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer makes
contributions, and (ii) each such plan as to which any Borrower or a member of the
Controlled Group has within the preceding five plan years maintained, contributed to or had
an obligation to contribute to.




“Platform” has the meaning set forth in Section 8.03(b).




“Pro-Rata Advance” means an advance by a Lender to any Borrower as part of a Pro-Rata
Borrowing pursuant to Section 2.01 and refers to an Alternate Base Rate Pro-Rata Advance or
a Eurodollar Rate Advance, subject to Conversion pursuant to Section 2.10 or 2.11.




“Pro-Rata Borrowing” means a borrowing consisting of simultaneous Pro-Rata Advances of
the same Type made by each of the Lenders pursuant to Section 2.01 or Converted pursuant to
Section 2.10 or 2.11.




“PUCO” means The Public Utilities Commission of Ohio.


 


18









 






“Receivables” means any accounts receivable, payment intangibles, notes receivable,
rights to receive future payments and related rights (whether now existing or arising or
acquired in the future, whether constituting accounts, chattel paper,
instruments, general intangibles or otherwise, and including the right to payment of
any interest or finance charges), including financial transmission rights (“FTRs”) or any
other rights to payment from PJM Interconnection LLC or another regional transmission
authority of the Borrower or any of its Subsidiaries, and any supporting obligations and
other financial assets related thereto (including all collateral securing such
accounts receivables, FTRs or other assets, contracts and contract rights, all guarantees
with respect thereto, and all proceeds thereof) that are transferred, or in respect of which
security interests are granted in one or more transactions that are customary for asset
securitizations of such Receivables.




“Recipient” means, as applicable, (i) the Administrative Agent, (ii) any Lender, (iii)
any Fronting Bank and (iv) any Swing Line Lender.




“Reference Banks” means JPMCB and any Lender as may be selected from time to time to
act as a replacement or additional Reference Bank hereunder by the Administrative Agent.




“Reference Ratings” means, with respect to any Borrower, the ratings assigned by S&P
and Moody’s to the senior unsecured non-credit enhanced debt of such Borrower; provided
that, if there is no such rating, “Reference Ratings” shall mean the ratings that are one
level below the ratings assigned by S&P and Moody’s to the senior secured debt of such
Borrower.




“Register” has the meaning set forth in Section 8.08(c).




“Reimbursement Obligation” means the obligation of each Borrower to reimburse a
Fronting Bank for any Drawing paid by such Fronting Bank pursuant to Section 2.04(g).




“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person’s Affiliates.




“Required Reimbursement Date” has the meaning set forth in Section 2.04(f)(i).




“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.




“SEC” means the United States Securities and Exchange Commission.




“Securitization SPV” means any trust, partnership or other Person established by a
Borrower or a Subsidiary of such Borrower to implement a Permitted Securitization.




“Significant Subsidiaries” means (i) with respect to FES, each of FGC and NGC, and (ii)
with respect to either Borrower, any other significant subsidiary (as such term is defined
in Regulation S-X of the SEC (17 C.F.R. §210.1-02(w)), or any successor provision) of such
Borrower (excluding Securitization SPVs).


 


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“Specified Date” has the meaning set forth in Section 2.19(c).




“Stated Amount” means the maximum amount available to be drawn by a Beneficiary under a
Letter of Credit.




“Subsidiary” means, with respect to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar functions are at the
time directly or indirectly owned by such a Person, or one or more Subsidiaries, or by such
Person and one or more of its Subsidiaries.




“Swing Line Advance” means an Advance made by a Swing Line Lender to any Borrower as
part of a Swing Line Borrowing pursuant to Section 2.03.




“Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance made by a
Swing Line Lender pursuant to Section 2.03.




“Swing Line Commitment” means, with respect to any Swing Line Lender, the aggregate
amount of Swing Line Advances that such Swing Line Lender agrees to make, as modified from
time to time pursuant to an agreement signed by such Swing Line Lender. With respect to
each Lender that is a Swing Line Lender on the date hereof, such Swing Line Lender’s Swing
Line Commitment shall equal the “Swing Line Commitment” listed for such Swing Line Lender on
Schedule III and, with respect to any Lender that becomes a Swing Line Lender after the date
hereof, such Lender’s Swing Line Commitment shall equal the amount agreed upon between the
Borrowers and such Lenders at the time such Lender becomes a Swing Line Lender.




“Swing Line Lender” means each of the Lenders identified as a “Swing Line Lender” on
Schedule III and any other Lender or Affiliate thereof that may be appointed from time to
time by the Borrowers to provide Swing Line Advances under this Agreement, that is
reasonably acceptable to the Administrative Agent and that accepts such appointment.




“Swing Line Sublimit” means an amount equal to the lesser of (i) $250,000,000 and (ii)
the aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
aggregate Commitments.




“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
assessments, fees, charges or withholdings imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




“Termination Date” means June 17, 2016, subject, for certain Lenders, to the extension
described in Section 2.19 hereof, or, in any case, the earlier date of termination in whole
of the Commitments pursuant to Section 2.06 or Section 6.01 hereof.


 


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“Termination Event” means (i) a Reportable Event described in Section 4043 of ERISA and
the regulations issued thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such regulations), or (ii) the
withdrawal of any member of the Controlled Group from a Plan during a plan year in
which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or (iii)
the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as
a termination under Section 4041 or 4042 of ERISA, or (iv) the institution of proceedings to
terminate a Plan by the PBGC, or (v) any other event or condition that might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment by a court of
competent jurisdiction of a trustee to administer, any Plan.




“Total Capitalization” means, with respect to any Borrower at any date of determination
the sum, without duplication, of (i) Consolidated Debt of such Borrower, (ii) the capital
stock (but excluding treasury stock and capital stock subscribed and unissued) and other
equity accounts (including retained earnings and paid in capital but excluding accumulated
other comprehensive income and loss) of such Borrower and its Consolidated Subsidiaries,
(iii) consolidated equity of the preference stockholders of such Borrower and its
Consolidated Subsidiaries, and (iv) the aggregate principal amount of Trust Preferred
Securities and Junior Subordinated Deferred Interest Debt Obligations of such Borrower and
its Consolidated Subsidiaries.




“Trust Preferred Securities” means any securities, however denominated, (i) issued by
any Borrower or any Consolidated Subsidiary of any Borrower, (ii) that are not subject to
mandatory redemption or the underlying securities, if any, of which are not subject to
mandatory redemption, (iii) that are perpetual or mature no less than 30 years from the date
of issuance, (iv) the indebtedness issued in connection with which, including any guaranty,
is subordinate in right of payment to the unsecured and unsubordinated indebtedness of the
issuer of such indebtedness or guaranty, and (v) the terms of which permit the deferral of
the payment of interest or distributions thereon to a date occurring after the Termination
Date.




“Type” means the designation of a Borrowing or an Advance as a Eurodollar Rate
Borrowing or Advance or as an Alternate Base Rate Borrowing or Advance.




“Unmatured Default” means any event that, with the giving of notice or the passage of
time, or both, would constitute an Event of Default.




“U.S. Person” means any Person that is a “United States person” as defined in Section
7701(a)(30) of the Code.




“U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.16(e)(ii)(C).




SECTION 1.02. Computation of Time Periods.



In this Agreement in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including” and the words “to” and “until” each
means “to but excluding”.


 


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SECTION 1.03. Accounting Terms.



All accounting terms not specifically defined herein shall be construed in accordance with
GAAP consistent with those applied in the preparation of the financial statements referred to in
Section 4.01(g).




SECTION 1.04. Terms Generally.



Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be
followed by the phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise, (i) any definition
of or reference to any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended, amended and
restated, supplemented or otherwise modified (subject to any restrictions on such amendments,
restatements, supplements or modifications set forth herein), (ii) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (iii) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provisions hereof, (iv) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, and (v) the definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.



ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT





SECTION 2.01. The Pro-Rata Advances.



Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make
Pro-Rata Advances to each Borrower in Dollars only from time to time on any Business Day during the
period from the date hereof until the Termination Date in an aggregate amount not to exceed at any
time outstanding the Available Commitment of such Lender. Each Pro-Rata Borrowing shall be in an
aggregate amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type and, in the case of Eurodollar Rate Advances, having
the same Interest Period made or Converted on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender’s Available Commitment, and subject
to the conditions set forth in Article III and the other terms and conditions hereof, each Borrower
may from time to time borrow, prepay pursuant to Section 2.12 and reborrow under this Section 2.01;
provided, that in no case shall any Lender be required to make a Pro-Rata Advance to a Borrower
hereunder if (i) the amount of such Pro-Rata Advance would exceed such Lender’s Available
Commitment, (ii) the making of such Pro-Rata Advance, together with the making of the other
Pro-Rata Advances constituting part of the same Pro-Rata Borrowing, would cause the total amount of
all Outstanding Credits to exceed the aggregate amount of the Commitments or (iii) the amount of
such Pro-Rata Advance,
together with all other Outstanding Credits for the account of such Borrower, would exceed
such Borrower’s Borrower Sublimit.


 


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SECTION 2.02. Making the Pro-Rata Advances.



(a) Each Pro-Rata Borrowing shall be made on notice, given (i) in the case of a Pro-Rata
Borrowing comprising Eurodollar Rate Advances, not later than 11:00 a.m. (New York time) on the
third Business Day prior to the date of the proposed Borrowing, and (ii) in the case of a Pro-Rata
Borrowing comprising Alternate Base Rate Pro-Rata Advances, not later than 11:00 a.m. (New York
time) on the date of the proposed Pro-Rata Borrowing, by any Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof. Each such Notice of Pro-Rata Borrowing by a
Borrower shall be by telecopier, in substantially the form of Exhibit C hereto, specifying therein
the requested (A) date of such Pro-Rata Borrowing, (B) Type of Pro-Rata Advances to be made in
connection with such Pro-Rata Borrowing, (C) aggregate amount of such Pro-Rata Borrowing, (D) in
the case of a Pro-Rata Borrowing comprising Eurodollar Rate Advances, the initial Interest Period
for each such Pro-Rata Advance, which Pro-Rata Borrowing shall be subject to the limitations stated
in the definition of “Interest Period” in Section 1.01, and (E) the identity of the Borrower
requesting such Pro-Rata Borrowing. Each Borrower may request that more than one Borrowing be made
on any date. Each Lender shall, before 1:00 p.m. (New York time) on the date of such Pro-Rata
Borrowing, make available for the account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.02, in same day funds, such Lender’s Percentage of
such Pro-Rata Borrowing. After the Administrative Agent’s receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to such Borrower at the Administrative Agent’s aforesaid address.



(b) Each Notice of Pro-Rata Borrowing delivered by any Borrower shall be irrevocable and
binding on such Borrower. In the case of any Notice of Pro-Rata Borrowing delivered by any
Borrower requesting Eurodollar Rate Advances, such Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in such Notice of Pro-Rata Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by such Lender to fund the Pro-Rata Advance to be made by such
Lender as part of such Borrowing when such Pro-Rata Advance, as a result of such failure, is not
made on such date.



(c) Unless the Administrative Agent shall have received written notice via facsimile
transmission from a Lender prior to (A) 5:00 p.m. (New York time) one Business Day prior to the
date of a Pro-Rata Borrowing comprising Eurodollar Rate Advances or (B) 12:00 noon (New York time)
on the date of a Pro-Rata Borrowing comprising Alternate Base Rate Pro-Rata Advances that such
Lender will not make available to the Administrative Agent such Lender’s Percentage of such
Pro-Rata Borrowing, the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Pro-Rata Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such
Percentage of such Pro-Rata Borrowing available to the Administrative Agent, such Lender and
such Borrower severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)
in the case of such Borrower, the interest rate applicable at the time to Pro-Rata Advances made in
connection with such Pro-Rata Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender’s Pro-Rata Advance as part of such Pro-Rata Borrowing
for purposes of this Agreement.


 


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(d) The failure of any Lender to make the Pro-Rata Advance to be made by it as part of any
Pro-Rata Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make
its Pro-Rata Advance on the date of such Pro-Rata Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Pro-Rata Advance to be made by such other Lender on the
date of any Borrowing.




SECTION 2.03. Swing Line Advances.



(a) The Swing Line. Subject to the terms and conditions set forth herein, each Swing Line
Lender agrees to make Swing Line Advances to any Borrower in Dollars only from time to time on any
Business Day during the period from the date hereof until the Termination Date in an aggregate
amount not to exceed at any time the amount of such Swing Line Lender’s Swing Line Commitment;
provided, however, no Swing Line Lender shall be required to make a Swing Line Advance hereunder if
(i) the amount of such Swing Line Advance, together with the aggregate principal amount of all
other Swing Line Advances outstanding would exceed the Swing Line Sublimit, (ii) the making of such
Swing Line Advance, together with the making of the other Swing Line Advances constituting part of
the same Swing Line Borrowing, would cause the total amount of all Outstanding Credits to exceed
the aggregate amount of the Commitments or (iii) the amount of such Swing Line Advance would exceed
such Borrower’s Borrower Sublimit. Within the foregoing limits, and subject to the other terms and
conditions hereof, each Borrower may borrow under this Section 2.03, prepay under Section 2.12, and
reborrow under this Section 2.03. Immediately upon the making of a Swing Line Advance, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
applicable Swing Line Lender a risk participation in such Swing Line Advance in an amount equal to
such Lender’s Percentage of the amount of such Swing Line Advance. No more than five Swing Line
Advances may be outstanding hereunder at any time.



(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon any Borrower’s
irrevocable notice to the applicable Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the applicable Swing Line Lender and the
Administrative Agent not later than 11:00 a.m. (New York time) on the date of the proposed Swing
Line Borrowing, or at such later time as a Swing Line Lender may agree, and shall specify (i) the
date of such Swing Line Borrowing, (ii) the amount of such Swing Line Borrowing, which shall be not
less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (iii) the
identity of the Borrower requesting such Swing Line Borrowing. Each such telephonic notice must be
confirmed promptly by delivery to the relevant Swing Line Lender and the Administrative Agent of a
written Notice of


 


24









 






Swing Line Borrowing, appropriately completed and signed by such Borrower. Promptly after receipt by such Swing
Line Lender of any telephonic Notice of Swing Line Borrowing, such Swing Line Lender will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also
received such Notice of Swing Line Borrowing and, if not, such Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless such Swing Line
Lender has received notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 12:00 p.m. (New York time) on the date of the proposed Swing
Line Borrowing (A) directing such Swing Line Lender not to make such Swing Line Advance as a result
of the limitations set forth in the first sentence of Section 2.03(a) or (B) that one or more of
the applicable conditions specified in Article III is not then satisfied, then, subject to the
terms and conditions hereof, such Swing Line Lender will, not later than 1:00 p.m. on the borrowing
date specified in such Notice of Swing Line Borrowing, make the amount of its Swing Line Advance
available to the applicable Borrower at its office by crediting the account of such Borrower on the
books of such Swing Line Lender in immediately available funds.




(c) Refinancing of Swing Line Advances.




(i) Each Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of any Borrower (each of which hereby irrevocably authorizes each Swing Line
Lender to so request on its behalf), that each Lender make an Alternate Base Rate Pro-Rata
Advance in an amount equal to such Lender’s Percentage of the amount of Swing Line Advances
made by such Swing Line Lender then outstanding to such Borrower. Such request shall be
made in writing (which written request shall be deemed to be a Notice of Pro-Rata Borrowing
for purposes hereof) and in accordance with the requirements of Sections 2.01 and 2.02,
without regard to the minimum and multiples specified therein for the principal amount of
Alternate Base Rate Pro-Rata Advances, but subject to the unutilized portion of the
Commitments and the conditions set forth in Section 3.02. Such Swing Line Lender shall
furnish such Borrower with a copy of the applicable Notice of Pro-Rata Borrowing promptly
after delivering such notice to the Administrative Agent. Each Lender shall, before 1:00
p.m. (New York time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at its address referred to in Section
8.02, in same day funds, such Lender’s Percentage of such Pro-Rata Borrowing. After the
Administrative Agent’s receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such funds available
to such Borrower at the Administrative Agent’s aforesaid address, whereupon, subject to
Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made
an Alternate Base Rate Pro-Rata Advance to such Borrower in such amount. The Administrative
Agent shall remit the funds so received to the applicable Swing Line Lender.




(ii) If for any reason any Swing Line Advance cannot be refinanced by a Pro-Rata
Borrowing in accordance with Section 2.03(c)(i), the request for Alternate Base Rate
Pro-Rata Advances submitted by a Swing Line Lender as set forth herein shall be deemed to be
a request by such Swing Line Lender that each Lender fund its risk participation in the
relevant Swing Line Advances, and each Lender’s payment to the
Administrative Agent for the account of such Swing Line Lender pursuant to Section
2.03(c)(i) shall be deemed payment in respect of such participation.


 


25









 






(iii) If any Lender fails to make available to the Administrative Agent for the account
of any Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(i), such Swing Line Lender shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to such Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by such Swing Line Lender in accordance with
banking industry rules on interbank compensation. A certificate of such Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.




(iv) Each Lender’s obligation to make Pro-Rata Advances or to purchase and fund risk
participations in Swing Line Advances pursuant to this Section 2.03(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right that such Lender may have against any Swing
Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of an Unmatured Default or Event of Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however, that
each Lender’s obligation to make Pro-Rata Advances pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 3.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line
Advances, together with interest as provided herein.




(d) Repayment of Participations.




(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Advance, if the applicable Swing Line Lender receives any payment on account of
such Swing Line Advance, such Swing Line Lender will distribute to such Lender its
Percentage of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s risk participation was funded) in the
same funds as those received by such Swing Line Lender.




(ii) If any payment received by any Swing Line Lender in respect of principal or
interest on any Swing Line Advance is required to be returned by such Swing Line Lender
under any of the circumstances described in Section 2.15(g) (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to such Swing Line Lender its Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand
upon the request of such Swing Line
Lender. The obligations of the Lenders under this clause shall survive the payment in
full of the obligations hereunder and the termination of this Agreement.


 


26









 





(e) Interest for Account of Swing Line Lenders. Each Swing Line Lender shall be responsible
for invoicing the applicable Borrower for interest on the Swing Line Advances made to such
Borrower. Until each Lender funds its Alternate Base Rate Pro-Rata Advance or risk participation
pursuant to this Section 2.03 to refinance such Lender’s Percentage of any Swing Line Advance,
interest in respect of such Percentage interest shall be solely for the account of such Swing Line
Lender.



(f) Payments Directly to Swing Line Lenders. Each Borrower with outstanding Swing Line
Advances shall make all payments of principal and interest in respect of such Swing Line Advances
directly to the Swing Line Lender that made such Advances.




SECTION 2.04. Letters of Credit.



(a) Agreement of Fronting Banks. Subject to the terms and conditions of this Agreement, each
Fronting Bank agrees to issue and amend (including, without limitation, to extend or renew) for the
account of any Borrower or any Subsidiary thereof (each such Person, an “Account Party”) one or
more standby letters of credit (individually, a “Letter of Credit” and collectively, the “Letters
of Credit”) from and including the date hereof to the third Business Day preceding the Termination
Date, in an aggregate Stated Amount at any time outstanding not to exceed such Fronting Bank’s LC
Fronting Bank Commitment, up to a maximum aggregate Stated Amount of all Letters of Credit at any
one time outstanding equal to the L/C Commitment Amount minus Reimbursement Obligations outstanding
at such time. Each Letter of Credit may be renewable (if so requested by the applicable Borrower),
shall have a Stated Amount not less than $100,000 and shall have an Expiration Date of no later
than the earlier of (x) the third Business Day preceding the latest Termination Date and (y) the
date occurring one year after the Date of Issuance of such Letter of Credit; provided, however,
that no Fronting Bank will issue or amend a Letter of Credit if, immediately following such
issuance or amendment, (i) the Stated Amount of such Letter of Credit would (A) exceed the
Available Commitments or (B) when aggregated with (1) the Stated Amounts of all other outstanding
Letters of Credit and (2) the outstanding Reimbursement Obligations, exceed the L/C Commitment
Amount or (ii) the total amount of all Outstanding Credits would exceed the aggregate amount of the
Commitments. Letters of Credit shall be denominated in Dollars only. Notwithstanding that any
Letter of Credit issued or outstanding hereunder may be in support of any obligations of, or for
the account of, a Subsidiary of a Borrower, any Borrower that requests the issuance of any such
Letter of Credit in support of any obligations of, or for the account of, any of its Subsidiaries
shall be obligated to reimburse the applicable Fronting Bank for any and all drawings under such
Letter of Credit. Each Borrower that requests the issuance of any such Letter of Credit hereby
acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to
such Borrower’s benefit and that such Borrower’s business derives substantial benefits from the
businesses of such Subsidiary. No Fronting Bank shall be under any obligation to issue any Letter
of Credit if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such Fronting Bank from issuing such Letter of Credit, (B)
any law applicable to such Fronting Bank or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over such Fronting Bank shall
prohibit,
or request that such Fronting Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such Fronting Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such Fronting Bank is
not otherwise compensated hereunder) not in effect on the date hereof, or shall impose upon such
Fronting Bank any unreimbursed loss, cost or expense that was not applicable on the date hereof and
that such Fronting Bank in good faith deems material to it, (C) the issuance of such Letter of
Credit would violate one or more policies of such Fronting Bank or (D) such Fronting Bank is not
required to make any Extension of Credit in connection with a Letter of Credit under Section
2.21(d).


 


27









 





(b) Forms. Each Letter of Credit shall be in a form customarily used by the Fronting Bank
that is to issue such Letter of Credit or in such other form as has been approved by such Fronting
Bank. At the time of issuance or amendment, subject to the terms and conditions of this Agreement,
the amount and the terms and conditions of each Letter of Credit shall be subject to approval by
the applicable Fronting Bank and the applicable Borrower.



(c) Notice of Issuance; Application. The applicable Borrower shall give the applicable
Fronting Bank and the Administrative Agent written notice, or telephonic notice confirmed in
writing, in any case, at least two Business Days (or such shorter period as such Fronting Bank may
agree in its sole discretion) prior to the requested Date of Issuance of a Letter of Credit, such
notice to be in substantially the form of Exhibit E hereto (a “Letter of Credit Request”). Such
Borrower shall also execute and deliver such customary letter of credit application forms as
requested from time to time by such Fronting Bank. Such application forms shall indicate the
identity of the Account Party and that such Borrower is the “Applicant” or shall otherwise indicate
that such Borrower is the obligor in respect of any Letter of Credit to be issued thereunder. If
the terms or conditions of the application forms conflict with any provision of this Agreement, the
terms of this Agreement shall govern.



(d) Issuance. Provided that the applicable Borrower has given the notice prescribed by
Section 2.04(c) and subject to the other terms and conditions of this Agreement, including the
satisfaction of the applicable conditions precedent set forth in Article III, the applicable
Fronting Bank shall issue the requested Letter of Credit on the requested Date of Issuance as set
forth in the applicable Letter of Credit Request for the benefit of the stipulated Beneficiary and
shall deliver the original of such Letter of Credit to the Beneficiary at the address specified in
the notice. At the request of the applicable Borrower, such Fronting Bank shall deliver a copy of
each Letter of Credit to such Borrower within a reasonable time after the Date of Issuance thereof.
Upon the request of such Borrower, such Fronting Bank shall deliver to such Borrower a copy of any
Letter of Credit proposed to be issued hereunder prior to the issuance thereof.



(e) Notice of Drawing. Each Fronting Bank shall promptly notify the applicable Borrower by
telephone, facsimile or other telecommunication of any Drawing under a Letter of Credit issued for
the account of such Borrower by such Fronting Bank.


 


28









 





(f) Payments. Each Borrower hereby agrees to pay to each Fronting Bank, in the manner
provided in subsection (g) below:




(i) on the date of receipt by such Borrower of notice of any Drawing pursuant to a
subsection (e) above, if such notice is received not later than 11:00 a.m. (New York City
time), or on the first Business Day following receipt of such notice by such Borrower, if
such notice is received later than 11:00 a.m. (New York City time), an amount equal to the
amount paid by such Fronting Bank in connection with such Drawing (such date being the
“Required Reimbursement Date”); and




(ii) if any Drawing shall be reimbursed to any Fronting Bank after 12:00 noon (New York
time) on the applicable Payment Date, interest on any and all amounts required to be paid
pursuant to clause (i) of this subsection (f) from and after such Payment Date until payment
in full, payable on demand, at the annual rate of interest applicable to Alternate Base Rate
Advances as in effect from time to time, provided, however, that from and after the Required
Reimbursement Date with respect to such Drawing until payment in full, such interest rate
shall be increased by 2.00%.



(g) Method of Reimbursement. Each Borrower shall reimburse each Fronting Bank for each
Drawing under any Letter of Credit issued for the account of such Borrower by such Fronting Bank
pursuant to subsection (f) above in the following manner:




(i) such Borrower shall reimburse such Fronting Bank in the manner described in
subsection (f) above and Section 2.15; or




(ii) if (A) such Borrower has not reimbursed such Fronting Bank pursuant to paragraph
(i) above, (B) the applicable conditions to Borrowing set forth in Articles II and III have
been fulfilled, and (C) the Available Commitments in effect at such time exceed the amount
of the Drawing to be reimbursed, such Borrower may reimburse such Fronting Bank for such
Drawing with the proceeds of an Alternate Base Rate Pro-Rata Advance or, if the conditions
specified in the foregoing clauses (A), (B) and (C) have been satisfied and a Notice of
Borrowing requesting a Eurodollar Rate Advance has been given in accordance with Section
2.02 three Business Days prior to the relevant Payment Date, with the proceeds of a
Eurodollar Rate Advance.



(h) Nature of Fronting Banks’ Duties. In determining whether to honor any Drawing under any
Letter of Credit issued by any Fronting Bank, such Fronting Bank shall be responsible only to
determine that the documents and certificates required to be delivered under such Letter of Credit
have been delivered and that they comply on their face with the requirements of such Letter of
Credit. Each Borrower otherwise assumes all risks of the acts and omissions of, or misuse of any
Letter of Credit issued by any Fronting Bank for the account of such Borrower by, the Beneficiary
of such Letter of Credit. In furtherance and not in limitation of the foregoing, but consistent
with applicable law, no Fronting Bank shall be responsible, absent gross negligence or willful
misconduct, (i) for the form, validity, sufficiency, accuracy, genuineness or legal effects of any
document submitted by any party in connection with the application for and issuance of any drawing
honored under a Letter of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign any such Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part,


 


29









 






which may
prove to be invalid or ineffective for any reason; (iii) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, facsimile or otherwise, whether or not they be in cipher; (iv) for errors
in interpretation of technical terms; (v) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any such Letter of Credit, or the proceeds
thereof; (vi) for the misapplication by the Beneficiary of any such Letter of Credit or of the
proceeds of any drawing honored under such Letter of Credit; and (vii) for any consequences arising
from causes beyond the control of such Fronting Bank. None of the above shall affect, impair or
prevent the vesting of any of such Fronting Bank’s rights or powers hereunder. Not in limitation
of the foregoing, any action taken or omitted to be taken by any Fronting Bank under or in
connection with any Letter of Credit shall not create against such Fronting Bank any liability to
the Borrowers or any Lender, except for actions or omissions resulting from the gross negligence or
willful misconduct of such Fronting Bank or any of its agents or representatives, and such Fronting
Bank shall not be required to take any action that exposes such Fronting Bank to personal liability
or that is contrary to this Agreement or applicable law.



(i) Obligations of Borrowers Absolute. The obligation of each Borrower to reimburse each
Fronting Bank for Drawings honored under the Letters of Credit issued for the account of such
Borrower by such Fronting Bank shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances including, without limitation,
the following circumstances:




(i) any lack of validity or enforceability of any Letter of Credit;




(ii) the existence of any claim, set-off, defense or other right that any Borrower, any
Account Party or any Affiliate of any Borrower or any Account Party may have at any time
against a Beneficiary or any transferee of any Letter of Credit (or any Persons or entities
for whom any such Beneficiary or transferee may be acting), such Fronting Bank or any other
Person, whether in connection with this Agreement, the transactions contemplated herein or
any unrelated transaction;




(iii) any draft, demand, certificate or any other documents presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;




(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Loan Documents;




(v) any non-application or misapplication by the Beneficiary of the proceeds of any
Drawing under a Letter of Credit; or




(vi) the fact that an Event of Default or an Unmatured Default shall have occurred and
be continuing.



No payment made under this Section shall be deemed to be a waiver of any claim any Borrower may
have against any Fronting Bank or any other Person.


 


30









 





(j) Participations by Lenders. By the issuance of a Letter of Credit and without any further
action on the part of any Fronting Bank or any Lender in respect thereof, each Fronting
Bank shall hereby be deemed to have granted to each Lender, and each Lender shall hereby be
deemed to have acquired from such Fronting Bank, an undivided interest and participation in such
Letter of Credit (including any letter of credit issued by such Fronting Bank in substitution or
exchange for such Letter of Credit pursuant to the terms thereof) equal to such Lender’s Percentage
of the Stated Amount of such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to such Fronting Bank, in accordance with this subsection (j), such
Lender’s Percentage of each payment made by such Fronting Bank in respect of an unreimbursed
Drawing under a Letter of Credit. Such Fronting Bank shall notify the Administrative Agent of the
amount of such unreimbursed Drawing honored by it not later than (x) 12:00 noon (New York time) on
the date of payment of a draft under a Letter of Credit, if such payment is made at or prior to
11:00 a.m. (New York time) on such day, and (y) the close of business (New York time) on the date
of payment of a draft under a Letter of Credit, if such payment is made after 11:00 a.m. (New York
time) on such day, and the Administrative Agent shall notify each Lender of the date and amount of
such unreimbursed Drawing under such Letter of Credit honored by such Fronting Bank and the amount
of such Lender’s Percentage therein no later than (1) 1:00 p.m. (New York time) on such day, if
such payment is made at or prior to 11:00 a.m. (New York time) on such day, and (2) 11:00 a.m. (New
York time) on the next following Business Day, if such payment is made after 11:00 a.m. (New York
time) on such day. Not later than 2:00 p.m. (New York time) on the date of receipt of a notice of
an unreimbursed Drawing by a Lender, such Lender agrees to pay to such Fronting Bank an amount
equal to the product of (A) such Lender’s Percentage and (B) the amount of the payment made by such
Fronting Bank in respect of such unreimbursed Drawing.



If payment of the amount due pursuant to the preceding sentence from a Lender is received by
such Fronting Bank after the close of business on the date it is due, such Lender agrees to pay to
such Fronting Bank, in addition to (and along with) its payment of the amount due pursuant to the
preceding sentence, interest on such amount at a rate per annum equal to (i) for the period from
and including the date such payment is due to but excluding the second succeeding Business Day, the
Federal Funds Rate, and (ii) for the period from and including the second Business Day succeeding
the date such payment is due to but excluding the date on which such amount is paid in full, the
Federal Funds Rate plus 2.00%.



(k) Obligations of Lenders Absolute. Each Lender acknowledges and agrees that (i) its
obligation to acquire a participation in any Fronting Bank’s liability in respect of the Letters of
Credit and (ii) its obligation to make the payments specified herein, and the right of each
Fronting Bank to receive the same, in the manner specified herein, are absolute and unconditional
and shall not be affected by any circumstances whatsoever, including, without limitation, (A) the
occurrence and continuance of any Event of Default or Unmatured Default; (B) any other breach or
default by any Borrower, the Administrative Agent or any Lender hereunder; (C) any lack of validity
or enforceability of any Letter of Credit or any Loan Document; (D) the existence of any claim,
setoff, defense or other right that the Lender may have at any time against any Borrower, any other
Account Party, any Beneficiary, any Fronting Bank or any other Lender; (E) the existence of any
claim, setoff, defense or other right that any Borrower may have at any time against any
Beneficiary, any Fronting Bank, the Administrative Agent, any Lender or any other Person, whether
in connection with this Agreement or any other documents contemplated hereby or any unrelated
transactions; (F) any amendment or waiver of,
or consent to any departure from, all or any of the Letters of Credit or this Agreement; (G)
any statement or any document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (H) payment by any Fronting Bank under any Letter of Credit against
presentation of a draft or certificate that does not comply with the terms of such Letter of
Credit, so long as such payment is not the consequence of such Fronting Bank’s gross negligence or
willful misconduct in determining whether documents presented under a Letter of Credit comply with
the terms thereof; (I) the occurrence of the Termination Date; or (J) any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing. Nothing herein shall prevent
the assertion by any Lender of a claim by separate suit or compulsory counterclaim, nor shall any
payment made by a Lender under Section 2.04 hereof be deemed to be a waiver of any claim that a
Lender may have against any Fronting Bank or any other Person.


 


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(l) Proceeds of Reimbursements. Upon receipt of a payment from a Borrower pursuant to
subsection (f) hereof, the applicable Fronting Bank shall promptly transfer to each Lender that has
funded its participation in the applicable Drawing pursuant to subsection (j) above, such Lender’s
pro rata share (determined in accordance with such Lender’s Percentage) of such payment. All
payments due to the Lenders from any Fronting Bank pursuant to this subsection (l) shall be made to
the Lenders if, as, and, to the extent possible, when such Fronting Bank receives payments in
respect of Drawings under the Letters of Credit pursuant to subsection (f) hereof, and in the same
funds in which such amounts are received; provided that if any Lender to which such Fronting Bank
is required to transfer any such payment (or any portion thereof) pursuant to this subsection (l)
does not receive such payment (or portion thereof) prior to (i) the close of business on the
Business Day on which such Fronting Bank received such payment from such Borrower, if such Fronting
Bank received such payment prior to 1:00 p.m. (New York time) on such day, or (ii) 1:00 p.m. (New
York time) on the Business Day next succeeding the Business Day on which such Fronting Bank
received such payment from the Borrower, if such Fronting Bank received such payment after 1:00
p.m. (New York time) on such day, such Fronting Bank agrees to pay to such Lender, along with its
payment of the portion of such payment due to such Lender, interest on such amount at a rate per
annum equal to (A) for the period from and including the Business Day when such payment was
required to be made to the Lenders to but excluding the second succeeding Business Day, the Federal
Funds Rate and (B) for the period from and including the second Business Day succeeding the
Business Day when such payment was required to be made to the Lenders to but excluding the date on
which such amount is paid in full, the Federal Funds Rate plus 2.00%.



(m) Concerning the Fronting Banks. Each Fronting Bank will exercise and give the same care
and attention to the Letters of Credit issued by it as it gives to its other letters of credit and
similar obligations, and each Lender agrees that each Fronting Bank’s sole liability to such Lender
shall be (i) to distribute promptly, as and when received by such Fronting Bank, and in accordance
with the provisions of subsection (l) above, such Lender’s Percentage of any payments to such
Fronting Bank by the Borrowers pursuant to subsection (f) above in respect of Drawings under the
Letters of Credit issued by such Fronting Bank, (ii) to exercise or refrain from exercising any
right or to take or to refrain from taking any action under this Agreement or any Letter of Credit
issued by such Fronting Bank as may be directed in writing by the Majority Lenders (or, when
expressly required by the terms of this Agreement, all


 


32









 






 of the Lenders) or the Administrative Agent
acting at the direction and on behalf of the Majority Lenders (or, when expressly
required by the terms of this Agreement, all of the Lenders), except to the extent
required by the terms hereof or thereof or by applicable law, and (iii) as otherwise expressly set
forth in this Section 2.04. No Fronting Bank shall be liable for any action taken or omitted at
the request or with approval of the Majority Lenders (or, when expressly required by the terms of
this Agreement, all of the Lenders) or of the Administrative Agent acting on behalf of the Majority
Lenders (or, when expressly required by the terms of this Agreement, all of the Lenders) or for the
nonperformance of the obligations of any other party under this Agreement, any Letter of Credit or
any other document contemplated hereby or thereby. Without in any way limiting any of the
foregoing, each Fronting Bank may rely upon the advice of counsel concerning legal matters and upon
any written communication or any telephone conversation that it believes to be genuine or to have
been signed, sent or made by the proper Person and shall not be required to make any inquiry
concerning the performance by any Borrower, any Beneficiary or any other Person of any of their
respective obligations and liabilities under or in respect of this Agreement, any Letter of Credit
or any other documents contemplated hereby or thereby. No Fronting Bank shall have any obligation
to make any claim, or assert any Lien, upon any property held by such Fronting Bank or assert any
offset thereagainst in satisfaction of all or any part of the obligations of the Borrowers
hereunder; provided that each Fronting Bank shall, if so directed by the Majority Lenders or the
Administrative Agent acting on behalf of and with the consent of the Majority Lenders, have an
obligation to make a claim, or assert a Lien, upon property held by such Fronting Bank in
connection with this Agreement, or assert an offset thereagainst.



Each Fronting Bank may accept deposits from, make loans or otherwise extend credit to, and
generally engage in any kind of banking or trust business with the Borrowers or any of their
Affiliates, or any other Person, and receive payment on such loans or extensions of credit and
otherwise act with respect thereto freely and without accountability in the same manner as if it
were not a Fronting Bank hereunder.



Each Fronting Bank makes no representation or warranty and shall have no responsibility with
respect to: (i) the genuineness, legality, validity, binding effect or enforceability of this
Agreement or any other documents contemplated hereby; (ii) the truthfulness, accuracy or
performance of any of the representations, warranties or agreements contained in this Agreement or
any other documents contemplated hereby; (iii) the collectibility of any amounts due under this
Agreement; (iv) the financial condition of the Borrowers or any other Person; or (v) any act or
omission of any Beneficiary with respect to its use of any Letter of Credit or the proceeds of any
Drawing under any Letter of Credit.



(n) Indemnification of Fronting Banks by Lenders. To the extent that any Fronting Bank is not
reimbursed and indemnified by the Borrowers under Section 8.05 hereof, each Lender agrees to
reimburse and indemnify such Fronting Bank on demand, pro rata in accordance with such Lender’s
Percentage, for and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against such Fronting Bank, in any way relating to or
arising out of this Agreement, any Letter of Credit or any other document contemplated hereby or
thereby, or any action taken or omitted by such Fronting Bank under or in connection with this
Agreement, any Letter of Credit or any other document contemplated hereby or thereby; provided,
however, that such Lender shall not be liable


 


33









 






for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Fronting Bank’s gross negligence or
willful misconduct; and provided further, however, that such Lender shall not be liable to such
Fronting Bank or any other Lender for the failure of any Borrower to reimburse such Fronting Bank
for any drawing made under a Letter of Credit issued for the account of such Borrower with respect
to which such Lender has paid such Fronting Bank such Lender’s pro rata share (determined in
accordance with such Lender’s Percentage), or for such Borrower’s failure to pay interest thereon.
Each Lender’s obligations under this subsection (n) shall survive the payment in full of all
amounts payable by such Lender under subsection (j) above, and the termination of this Agreement
and the Letters of Credit. Nothing in this subsection (n) is intended to limit any Lender’s
reimbursement obligation contained in subsection (j) above.



(o) Representations of Lenders. As between any Fronting Bank and the Lenders, by its
execution and delivery of this Agreement each Lender hereby represents and warrants solely to such
Fronting Bank that (i) it is duly organized and validly existing in good standing under the laws of
the jurisdiction of its formation, and has full corporate power, authority and legal right to
execute, deliver and perform its obligations to such Fronting Bank under this Agreement; and (ii)
this Agreement constitutes its legal, valid and binding obligation enforceable against it in
accordance with the terms hereof, except as such enforceability may be limited by applicable bank
organization, moratorium, conservatorship or other laws now or hereafter in effect affecting the
enforcement of creditors rights in general and the rights of creditors of banks, and except as such
enforceability may be limited by general principles of equity (whether considered in a proceeding
at law or in equity).



(p) The Letters of Credit listed in Schedule IV shall be deemed “Letters of Credit” upon
fulfillment of the conditions precedent listed in Sections 3.01 and 3.02.



(q) Successor Fronting Bank. Any Fronting Bank may resign at any time by giving written
notice thereof to the Lenders, the other Fronting Banks and the Borrowers, as long as such Fronting
Bank has no Letters of Credit outstanding under this Agreement. Upon such resignation, the
Borrowers may designate one or more Lenders as Fronting Banks to replace the retiring Fronting
Bank. If a Fronting Bank has any Letters of Credit outstanding under this Agreement and delivers a
written notice of its intent to resign to the Lenders, the other Fronting Banks and the Borrowers,
such Fronting Bank shall continue to honor its obligations under this Agreement, but shall have no
obligation to issue any new Letter of Credit. Upon receipt of such notice of intent to resign, the
Borrowers and such Fronting Bank may agree to replace or terminate the outstanding Letters of
Credit issued by such Fronting Bank and to designate one or more Lenders as Fronting Banks to
replace such Fronting Bank.



(r) Reallocation of L/C Fronting Bank Commitments. If any Lender becomes a Fronting Bank
after the date hereof (a “New Fronting Bank”), the L/C Fronting Bank Commitments of the Lenders
that are Fronting Banks on the date hereof (the “Original Fronting Banks”) shall be reduced by an
aggregate amount equal to such New Fronting Bank’s L/C Fronting Banks Commitment, with such
reduction to be allocated among the Original Fronting Banks ratably in accordance such Original
Fronting Banks’ respective L/C Fronting Bank Commitments on the date of such reduction.


 


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SECTION 2.05. Fees.



(a) Each Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee on the amount of such Lender’s Percentage of the unused portion of such Borrower’s
Borrower Sublimit from the date hereof in the case of each Bank and from the effective date
specified in the Assignment and Assumption pursuant to which it became a Lender in the case of each
other Lender until the Termination Date applicable to such Lender, payable on the last day of each
March, June, September and December during such period, and on such Termination Date, at the rate
per annum set forth below determined by reference to the Reference Ratings of FE from time to time
in effect:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	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&P or	 	 	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	%






For purposes of the foregoing, if (i) there is a difference of one level in Reference Ratings of
S&P and Moody’s and the higher of such Reference Ratings falls in Level 1, Level 2, Level 3, Level
4 or Level 5, then the higher Reference Rating will be used to determine the commitment fee, and
(ii) there is a difference of more than one level in Reference Ratings of S&P and Moody’s, the
Reference Rating that is one level above the lower of such Reference Ratings will be used to
determine the commitment fee, unless the lower of such Reference Ratings falls in Level 6, in which
case the lower of such Reference Ratings will be used to determine the commitment fee. If there
exists only one Reference Rating, such Reference Rating will be used to determine the commitment
fee.



(b) Each Borrower agrees to pay the fees payable by such Borrower in such amounts and payable
on such terms as set forth in the Fee Letters.



(c) Each Borrower agrees to pay to the Administrative Agent, for the account of the Lenders, a
fee in an amount equal to the then Applicable Margin for Eurodollar Rate Advances for such Borrower
multiplied by the Stated Amount of each Letter of Credit issued for the account of such Borrower,
in each case for the number of days that such Letter of Credit is issued and outstanding, payable
quarterly in arrears on the last day of each March, June, September and December and on the date
such Letter of Credit expires.



(d) Each Borrower agrees to pay to each Fronting Bank, for its own account, certain fees
payable such Borrower in such amounts and payable on such terms as set forth in the Fronting Bank
Fee Letter to which such Fronting Bank is a party.


 


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SECTION 2.06. Adjustment of the Commitments; Borrower Sublimits.



(a) Commitment Reduction. The Borrowers shall have the right, upon at least three Business
Days’ notice to the Administrative Agent, to terminate in whole or, upon same day notice, from time
to time to permanently reduce ratably in part the unused portion of the Commitments; provided that
each partial reduction shall be in the aggregate amount of $5,000,000 or in an integral multiple of
$1,000,000 in excess thereof; provided, further, that the Commitments may not be reduced to an
amount that is less than the aggregate Stated Amount of outstanding Letters of Credit. Subject to
the foregoing, any reduction of the Commitments to an amount below $2,500,000,000 shall also result
in a reduction of the L/C Commitment Amount to the extent of such deficit. Each such notice of
termination or reduction shall be irrevocable; provided, further, that, if, after giving effect to
any reduction of the Commitments, the Swing Line Sublimit or any Borrower Sublimit exceeds the
amount of the aggregate Commitments, such sublimit shall be automatically reduced by the amount of
such excess, and the L/C Fronting Bank Commitments shall be automatically reduced ratably in
proportion to the amount of reduction of the Commitments. Without limiting subsection (b) below,
any Commitment reduced or terminated pursuant to this subsection (a) may not be reinstated.



(b) Commitment Increase. (i) On any date on or prior to the Termination Date, but no more
than once in each calendar year, the Borrowers may increase the aggregate amount of the Commitments
by an amount not less than $50,000,000 and up to an aggregate amount for all such increases not
more than the sum of the aggregate amount of the Commitments on the date of such request plus
$500,000,000 (any such increase, a “Commitment Increase”) by designating one or more of the
existing Lenders or one or more Affiliates thereof (each of which, in its sole discretion, may
determine whether and to what degree to participate in such Commitment Increase) or one or more
other Persons that at the time agree, in the case of any existing Lender, to increase its
Commitment (an “Increasing Lender”) and, in the case of any other Person or an Affiliate of a
Lender (an “Additional Lender”), to become a party to this Agreement; provided that (i) each
Additional Lender shall be acceptable to the Administrative Agent, and each Increasing Lender and
each Additional Lender shall be acceptable to the Fronting Banks and the Swing Line Lenders, (ii)
the allocations of the Commitment Increase among the Increasing Lenders shall be based on the ratio
of each Increasing Lender’s proposed Commitment amount after giving effect to such Commitment
Increase to the aggregate amount of all Increasing Lenders’ proposed Commitment amounts after
giving effect to such Commitment Increase, and (iii) the amount of the Commitment of each
Additional Lender shall not be less than $5,000,000. The sum of the increases in the Commitments
of the Increasing Lenders pursuant to this subsection (b) plus the Commitments of the Additional
Lenders upon giving effect to the Commitment Increase shall not exceed the amount of the Commitment
Increase. The Borrowers shall provide prompt notice of any proposed Commitment Increase pursuant
to this Section 2.06(b) to the Administrative Agent, which shall promptly provide a copy of such
notice to the Lenders and the Fronting Banks.




(ii) Any Commitment Increase shall become effective upon (A) the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to the
Administrative Agent signed by each Borrower, each Increasing Lender and each Additional
Lender, setting forth the new Commitment of each such Lender and setting forth the agreement
of each Additional Lender to become a party to this Agreement and
to be bound by all the terms and provisions hereof binding upon each Lender, (B) the
funding by each Lender of the Advance(s) to be made by each such Lender described in
paragraph (iii) below and (C) receipt by the Administrative Agent of a certificate (the
statements contained in which shall be true) of an Authorized Officer of each Borrower
stating that both before and after giving effect to such Commitment Increase (1) no Event of
Default has occurred and is continuing and (2) all representations and warranties made by
such Borrower in this Agreement are true and correct in all material respects.


 


36









 






(iii) Upon the effective date of any Commitment Increase, the Borrowers shall prepay
the outstanding Pro-Rata Advances (if any) in full, and shall simultaneously make new
Pro-Rata Advances hereunder in an amount equal to such prepayment, so that, after giving
effect thereto, the Pro-Rata Advances are held ratably by the Lenders in accordance with
their respective Commitments (after giving effect to such Commitment Increase). Prepayments
made under this paragraph (iii) shall not be subject to the notice requirements of Section
2.12.




(iv) Notwithstanding any provision contained herein to the contrary, from and after the
date of any Commitment Increase and the making of any Pro-Rata Advances on such date
pursuant to paragraph (iii) above, all calculations and payments of the commitment fee,
Letter of Credit fees and interest on the Advances shall take into account the actual
Commitment of each Lender and the principal amount outstanding of each Advance made by such
Lender during the relevant period of time.



(c) Borrower Sublimit Increase. In connection with any Commitment Increase, each Borrower may
increase its Borrower Sublimit by an amount equal to its Fraction (calculated as of the date
hereof) of such Commitment Increase by delivering a notice to the Administrative Agent requesting
such increase.




SECTION 2.07. Repayment of Advances.



Each Borrower agrees to repay the principal amount of each Advance made by each Lender to such
Borrower no later than the earlier of (i) 364 days after the date such Advance is made (or in the
case of a Swing Line Advance, 10 days after the date such Swing Line Advance is made) and (ii) the
latest Termination Date applicable to such Lender; provided, however, that if any Borrower shall
deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent
(including, without limitation, certified copies of governmental approvals and legal opinions) that
such Borrower is authorized under Applicable Law to incur Indebtedness hereunder maturing more than
364 days after the date of incurrence of such Indebtedness, such Borrower shall repay each Advance
made to it by a Lender no later than the latest Termination Date applicable to such Lender.




SECTION 2.08. Interest on Advances.



Each Borrower agrees to pay interest on the unpaid principal amount of each Advance made by
each Lender to such Borrower from the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum, subject to Section 2.15(f):



(a) Alternate Base Rate Pro-Rata Advances. If such Advance is an Alternate Base Pro-Rata Rate
Advance, a rate per annum equal at all times to the Alternate Base Rate in effect from time to time
plus the Applicable Margin for such Alternate Base Rate Pro-Rata Advance in effect from time to
time, payable quarterly in arrears on the last day of each March, June, September and December, on
the Termination Date and on the date such Alternate Base Rate Pro-Rata Advance shall be Converted
or be paid in full and as provided in Section 2.12;


 


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(b) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during the Interest Period for such Advance to the sum of the Eurodollar Rate
for such Interest Period plus the Applicable Margin for such Eurodollar Rate Advance in effect from
time to time, payable on the last day of each Interest Period for such Eurodollar Rate Advance
(and, in the case of any Interest Period of six months, on the last day of the third month of such
Interest Period), on the Termination Date and on the date such Eurodollar Rate Advance shall be
Converted or be paid in full and as provided in Section 2.12; and



(c) Swing Line Advances. If such Advance is a Swing Line Advance, a rate per annum equal to
the sum of the Alternate Base Rate in effect from time to time plus the Applicable Margin for such
Swing Line Advance payable on the date such Swing Line Advance is paid in full and as provided in
Section 2.12.




SECTION 2.09. Additional Interest on Advances.



Each Borrower agrees to pay to each Lender, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate Advance made by such Lender to such
Borrower, from the date of such Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate
for the Interest Period for such Advance from (ii) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such Advance; provided,
that no Lender shall be entitled to demand additional interest under this Section 2.09 more than 90
days following the last day of the Interest Period in respect of which such demand is made;
provided further, however, that the foregoing proviso shall in no way limit the right of any Lender
to demand or receive such additional interest to the extent that such additional interest relates
to the retroactive application by the Board of Governors of the Federal Reserve System of any
regulation described above if such demand is made within 90 days after the implementation of such
retroactive regulation. Such additional interest shall be determined by such Lender and notified
to the applicable Borrower through the Administrative Agent, and such determination shall be
conclusive and binding for all purposes, absent manifest error.




SECTION 2.10. Interest Rate Determination.



(a) The Administrative Agent shall give prompt notice to the applicable Borrower and the
Lenders of the applicable interest rate determined by the Administrative Agent for purposes of
Section 2.08(a), (b) or (c).


 


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(b) If, with respect to any Eurodollar Rate Advances, the Majority Lenders notify the
Administrative Agent that (i) Dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate
Advances, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate or
(iii) the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Majority Lenders of making or funding their respective Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the Borrowers and the
Lenders, whereupon




(i) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into an Alternate Base Rate Pro-Rata Advance, and




(ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers
and the Lenders that the circumstances causing such suspension no longer exist.



(c) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
thereofor, Convert into a Base Rate Advance, and the obligation of the Lenders to make or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.




SECTION 2.11. Conversion of Advances.



(a) Voluntary. Any Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 11:00 a.m. (New York time) on the third Business Day prior to the date of any
proposed Conversion into Eurodollar Rate Advances, and on the date of any proposed Conversion into
Alternate Base Rate Pro-Rata Advances, and subject to the provisions of Sections 2.10 and 2.14,
Convert all Pro-Rata Advances of one Type made to such Borrower in connection with the same
Borrowing into Pro-Rata Advances of another Type or Types or Pro-Rata Advances of the same Type
having the same or a new Interest Period; provided, however, that any Conversion of, or with
respect to, any Eurodollar Rate Advances into Pro-Rata Advances of another Type or Pro-Rata
Advances of the same Type having the same or new Interest Periods, shall be made on, and only on,
the last day of an Interest Period for such Eurodollar Rate Advances, unless the applicable
Borrower shall also reimburse the Lenders in respect thereof pursuant to Section 8.05(b) on the
date of such Conversion. Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Pro-Rata Advances to be Converted, and
(iii) if such Conversion is into, or with respect to, Eurodollar Rate Advances, the duration of the
Interest Period for each such resulting Pro-Rata Advance.



(b) Mandatory. If any Borrower shall fail to select the Type of any Pro-Rata Advance or the
duration of any Interest Period for any Borrowing comprising Eurodollar Rate Advances in accordance
with the provisions contained in the definition of “Interest Period” in Section 1.01 and Section
2.11(a), or if any proposed Conversion of a Borrowing that is to comprise Eurodollar Rate Advances
upon Conversion shall not occur as a result of the
circumstances described in paragraph (c) below, the Administrative Agent will forthwith so
notify such Borrower and the Lenders, and such Advances will automatically, on the last day of the
then existing Interest Period therefor, Convert into Alternate Base Rate Pro-Rata Advances.


 


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(c) Failure to Convert. Each notice of Conversion given by any Borrower pursuant to
subsection (a) above shall be irrevocable and binding on such Borrower. In the case of any
Borrowing that is to comprise Eurodollar Rate Advances upon Conversion, the Borrower agrees to
indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any
failure of such Conversion to occur pursuant to the provisions of Section 2.10(c), including,
without limitation, any loss, cost or expense incurred by reason of the liquidation or redeployment
of deposits or other funds acquired by such Lender to fund such Eurodollar Rate Advances upon such
Conversion, when such Conversion does not occur. Each Borrower’s obligations under this subsection
(c) shall survive the repayment of all other amounts owing by such Borrower to the Lenders and the
Administrative Agent under this Agreement and any Note and the termination of the Commitments.




SECTION 2.12. Prepayments.



(a) Optional. Any Borrower may at any time prepay the outstanding principal amounts of the
Advances made to such Borrower as part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount prepaid, upon notice
thereof given to the Administrative Agent by such Borrower not later than 11:00 a.m. (New York
time) (i) on the date of any such prepayment in the case of Alternate Base Rate Advances and (ii)
on the second Business Day prior to any such prepayment in the case of Eurodollar Rate Advances;
provided, however, that (x) each partial prepayment of any Borrowing shall be in an aggregate
principal amount not less than $5,000,000 with respect to Pro-Rata Borrowings and $1,000,000 with
respect to Swing Line Borrowings and (y) in the case of any such prepayment of a Eurodollar Rate
Advance, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.05(b) on the date of such prepayment.



(b) Mandatory. (i) If and to the extent that the Outstanding Credits on any date hereunder
shall exceed the aggregate amount of the Commitments hereunder on such date, each Borrower agrees
to (A) prepay on such date a principal amount of Advances and/or (B) pay to the Administrative
Agent an amount in immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to all or a portion of the amount
available for drawing under the Letters of Credit outstanding at such time, which prepayment under
clause (A) and payment under clause (B) shall, when taken together result in the amount of
Outstanding Credits minus the amount paid to the Administrative Agent pursuant to clause (B) being
less than or equal to the aggregate amount of the Commitments hereunder on such date.




(ii) If at any time the Outstanding Credits with respect to a Borrower on any date
hereunder shall exceed the Borrower Sublimit for such Borrower, such Borrower agrees to (A)
prepay on such date Advances in a principal amount equal to such excess and/or (B) pay to
the Administrative Agent an amount in immediately available funds (which funds shall be held
as collateral pursuant to arrangements satisfactory to the
Administrative Agent) equal to all or a portion of the amount available for drawing under
the Letters of Credit outstanding to such Borrower at such time, which prepayment under
clause (A) and payment under clause (B) shall, when taken together, result in the amount of
Outstanding Credits minus the amount paid to the Administrative Agent pursuant to clause (B)
being less than or equal to the aggregate amount of the applicable Borrower Sublimit
hereunder on such date.


 


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(iii) If at any time the aggregate principal amount of the Swing Line Advances exceeds
the Swing Line Sublimit, each Borrower agrees to prepay the Swing Line Advances outstanding
to such Borrower in a principal amount equal to such Borrower’s pro-rata amount of such
excess, determined on the basis of the percentage of the aggregate principal amount of Swing
Line Advances outstanding to such Borrower.



Any prepayment of Advances shall be accompanied by accrued interest on the amount prepaid to the
date of such prepayment and, in the case of any such prepayment of Eurodollar Rate Advances, the
applicable Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.05(b).




SECTION 2.13. Increased Costs.



(a) If, due to any Change in Law, there shall be any increase in the cost (other than in
respect of Taxes, which are addressed exclusively in Section 2.16) to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances or any increase in the cost to any
Fronting Bank or any Lender of issuing, maintaining or participating in Letters of Credit, other
than, in each case, relating to Taxes, then each Borrower shall from time to time, upon demand by
such Lender or such Fronting Bank (as the case may be) (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Lender or such
Fronting Bank (as the case may be) additional amounts sufficient to compensate such Lender or such
Fronting Bank (as the case may be) for such increased cost. A certificate as to the amount of such
increased cost and the basis therefor, submitted to each Borrower and the Administrative Agent by
such Lender or such Fronting Bank (as the case may be), shall constitute such demand and shall be
conclusive and binding for all purposes, absent manifest error.



(b) If any Lender or any Fronting Bank determines that any Change in Law affects or would
affect the amount of capital required or expected to be maintained by such Lender or such Fronting
Bank (as the case may be) or any corporation controlling such Lender or such Fronting Bank (as the
case may be) and that the amount of such capital is increased by or based upon the existence of (i)
such Lender’s commitment to lend or participate in Letters of Credit hereunder and other
commitments of this type or (ii) the Advances made by such Lender or (iii) the participations in
Letters of Credit acquired by such Lender or (iv) in the case of any Fronting Bank, such Fronting
Bank’s commitment to issue, maintain and honor drawings under Letters of Credit hereunder, or (v)
the honoring of Letters of Credit by any Fronting Bank hereunder, then, upon demand by such Lender
or such Fronting Bank (as the case may be) (with a copy of such demand to the Administrative
Agent), each Borrower shall immediately pay to the Administrative Agent for the account of such
Lender or such Fronting Bank (as the case may be), from time to time as specified by such Lender or
such Fronting Bank (as the case may be),
additional amounts sufficient to compensate such Lender, such Fronting Bank or such
corporation in the light of such circumstances, to the extent that such Lender or such Fronting
Bank (as the case may be) determines such increase in capital to be allocable to (i) in the case of
such Lender, the existence of such Lender’s commitment to lend hereunder or the Advances made by
such Lender or (ii) the participations in Letters of Credit acquired by such Lender or (iii) in
the case of any Fronting Bank, such Fronting Bank’s Commitment to issue, maintain and honor
drawings under Letters of Credit hereunder, or (iv) the honoring of Letters of Credit by any
Fronting Bank hereunder. A certificate as to such amounts submitted to each Borrower and the
Administrative Agent by such Lender or such Fronting Bank (as the case may be) shall constitute
such demand and shall be conclusive and binding for all purposes, absent manifest error.


 


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(c) Each Borrower shall be liable for its pro rata share of each payment to be made by the
Borrowers under subsections (a) and (b) of this Section 2.13, determined on the basis of such
Borrower’s Fraction; provided, however, that if and to the extent that any such liabilities are
reasonably determined by the Borrowers (subject to the approval of the Administrative Agent, which
approval shall not be unreasonably withheld) to be directly attributable to Advances made to a
specific Borrower, then only such Borrower shall be liable for such payments.



(d) Failure or delay on the part of any Lender or Fronting Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or Fronting Bank’s right to
demand such compensation, provided that the Borrowers shall not be required to compensate a Lender
or Fronting Bank pursuant to this Section for any increased costs or additional amounts incurred
more than 180 days prior to the date that such Lender or Fronting Bank notifies the Borrowers of
such Lender’s or Fronting Bank’s intention to claim such compensation (except that, if such Change
in Law giving rise to such increased costs is retroactive, then the 180-day period referred to
above shall be extended to include the period of retroactive effect thereof).




SECTION 2.14. Illegality.



Notwithstanding any other provision of this Agreement, if any Lender shall notify the
Administrative Agent that the introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or any central bank or other governmental authority asserts that
it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer exist and (ii) the Borrowers shall
forthwith prepay in full all Eurodollar Rate Advances of all Lenders then outstanding, together
with interest accrued thereon, unless (A) the Borrowers, within five Business Days of notice from
the Administrative Agent, Converts all Eurodollar Rate Advances of all Lenders then outstanding
into Advances of another Type in accordance with Section 2.11 or (B) the Administrative Agent
notifies the Borrowers that the circumstances causing such prepayment no longer exist. Any Lender
that becomes aware of circumstances that would permit such Lender to notify the Administrative
Agent of any illegality under this Section 2.14 shall use its best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change
the jurisdiction of its Applicable Lending Office if the making of such change would avoid or
eliminate such illegality and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.


 


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SECTION 2.15. Payments and Computations.



(a) Each Borrower shall make each payment hereunder and under any Note not later than 12:00
noon (New York time) on the day when due in Dollars to the Administrative Agent or, with respect to
payments made in respect of Reimbursement Obligations, to the applicable Fronting Bank, at its
address referred to in Section 8.02 in same day funds, without set-off, counterclaim or defense and
any such payment to the Administrative Agent or any Fronting Bank (as the case may be) shall
constitute payment by such Borrower hereunder or under any Note, as the case may be, for all
purposes, and upon such payment the Lenders shall look solely to the Administrative Agent or such
Fronting Bank (as the case may be) for their respective interests in such payment. The
Administrative Agent or such Fronting Bank (as the case may be) will promptly after any such
payment cause to be distributed like funds relating to the payment of principal or interest or
commitment fees or Reimbursement Obligations ratably (other than amounts payable pursuant to
Section 2.02(c), 2.05, 2.09, 2.11(c), 2.13, 2.16, 2.21 or 8.05(b)) (according to the Lenders’
respective Commitments) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be applied in accordance
with the terms of this Agreement. Upon its acceptance of an Assignment and Assumption and
recording of the information contained therein in the Register pursuant to Section 8.08(d), from
and after the effective date specified in such Assignment and Assumption, the Administrative Agent
and each Fronting Bank shall make all payments hereunder and under any Note in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and
Assumption shall make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.



(b) Each Borrower hereby authorizes each Lender, each Swing Line Lender and each Fronting
Bank, if and to the extent payment owed to such Lender, such Swing Line Lender or such Fronting
Bank (as the case may be) is not made by such Borrower to the Administrative Agent, such Swing Line
Lender or such Fronting Bank (as the case may be) when due hereunder or under any Note held by such
Lender, to charge from time to time against any or all of such Borrower’s accounts (other than any
payroll account maintained by such Borrower with such Lender, such Swing Line Lender or such
Fronting Bank (as the case may be) if and to the extent that such Lender, such Swing Line Lender or
such Fronting Bank (as the case may be) shall have expressly waived its set-off rights in writing
in respect of such payroll account) with such Lender, such Swing Line Lender or such Fronting Bank
(as the case may be) any amount so due.



(c) All computations of interest based on the Alternate Base Rate (based upon JPMCB’s “prime
rate”) shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of commitment fees and of interest based on the Alternate Base
Rate (based upon the Federal Funds Rate or upon clause (iii) of the definition of Alternate Base
Rate), the Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative Agent, and
all computations of interest pursuant to Section 2.09 shall be
made by a Lender, on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the period for which such
commitment fees or interest are payable. Each determination by the Administrative Agent (or, in
the case of Section 2.09, by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.


 


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(d) Whenever any payment hereunder or under any Note shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
commitment fees, as the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.



(e) Unless the Administrative Agent shall have received notice from any Borrower prior to the
date on which any payment is due to the Lenders hereunder that such Borrower will not make such
payment in full, the Administrative Agent may assume that each Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that a Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.



(f) The principal amount of any Advance (or any portion thereof) payable by a Borrower
hereunder or under any Note that is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall (to the fullest extent permitted by law) bear interest from the date when due
until paid in full at a rate per annum equal at all times to the rate otherwise applicable to such
Advance plus 2% per annum, payable upon demand. Any other amount payable by a Borrower hereunder
or under any Note that is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall (to the fullest extent permitted by law) bear interest from the date when due
until paid in full at a rate per annum equal at all times to the rate of interest applicable to
Alternate Base Rate Advances plus 2% per annum, payable upon demand.



(g) To the extent that any payment by or on behalf of a Borrower is made to the Administrative
Agent, any Fronting Bank or any Lender, or the Administrative Agent, any Fronting Bank or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, such
Fronting Bank or such Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise, then (i) to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred, and (ii) each Lender
and each Fronting Bank severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders and the Fronting Banks under clause
(ii) of the preceding sentence shall survive the payment in full of any amounts hereunder and the
termination of this Agreement.


 


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SECTION 2.16. Taxes.



(a) Any and all payments by each Borrower hereunder and under any Note or any other Loan
Document shall be made, in accordance with Section 2.15, free and clear of and without deduction or
withholding for any Indemnified Taxes, and all liabilities with respect thereto. If a Borrower
shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note or any other Loan Document to any Recipient, (i) if such Taxes are Indemnified
Taxes, the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.16) such Recipient
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall timely pay or cause to be
timely paid the full amount deducted to the relevant Governmental Authority in accordance with
Applicable Law.



(b) In addition, each Borrower agrees to timely pay or cause to be timely paid any Other Taxes
in accordance with Applicable Law.



(c) Each Borrower agrees to indemnify each Recipient, within 30 days after written demand
therefore, for the full amount of Indemnified Taxes (including, without limitation, any Indemnified
Taxes imposed by any jurisdiction on amounts payable under this Section 2.16) paid or payable by
such Recipient and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability delivered to FE by or on behalf of the
applicable Recipient shall be conclusive, absent manifest error.



(d) As soon as practicable after any payment of Indemnified Taxes by any Borrower to a
Governmental Authority, such Borrower shall deliver to the Administrative Agent an original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.




(e) Tax Forms.




(i) Any Lender that is a U.S. Person shall deliver to each Borrower and the
Administrative Agent, on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of such
Borrower or the Administrative Agent), duly executed originals of IRS Form W-9 (or copies
thereof) certifying, to the extent such Lender is legally entitled to do so, that such
Lender is exempt from U.S. federal backup withholding tax.


 


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(ii) Any Lender that is not a U.S. Person and that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United States is a
party with respect to payments under this Agreement shall deliver to each
Borrower and the Administrative Agent, at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or
reasonably requested by such Borrower or the Administrative Agent as will permit such
payments to be made without withholding or at a reduced rate of withholding, as applicable.
Without limiting the generality of the foregoing, each Lender that is not a U.S. Person
shall, to the extent it is legally entitled to do so, (w) on or prior to the date such
Lender becomes a Lender under this Agreement, (x) on or prior to the date on which any such
form or certification expires or becomes obsolete, (y) after the occurrence of any event
requiring a change in the most recent form or certification previously delivered by it
pursuant to this subsection, and (z) from time to time upon the reasonable request by any
Borrower or the Administrative Agent, deliver to such Borrower and the Administrative Agent
(in such number of copies as shall be requested by such Borrower or the Administrative
Agent), whichever of the following is applicable:




(A) if such Lender is claiming eligibility for benefits of an income tax treaty
to which the United States is a party (x) with respect to payments of interest under
any Loan Document, duly executed originals of IRS Form W-8BEN, or any successor form
thereto, establishing an exemption from, or reduction of, U.S. federal withholding
tax pursuant to the “interest” article of such tax treaty, and (y) with respect to
any other payments under any Loan Document, duly executed originals of IRS Form
W-8BEN, or any successor form thereto, establishing an exemption from, or reduction
of, U.S. federal withholding tax pursuant to the “business profits” or “other
income” article of such tax treaty;




(B) duly executed originals of IRS Form W-8ECI, or any successor form thereto,
certifying that the payments received by such Lender are effectively connected with
such Lender’s conduct of a trade or business in the United States;




(C) if such Lender is claiming the benefits of the exemption for “portfolio
interest” under Section 871(h) or Section 881(c) of the Code, duly executed
originals of IRS Form W-8BEN, or any successor form thereto, together with a
certificate (a “U.S. Tax Compliance Certificate”) upon which such Lender certifies
that (1) such Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code,
or the obligation of the Borrower hereunder is not, with respect to such Lender, a
loan agreement entered into in the ordinary course of its trade or business, within
the meaning of that Section of the Code, (2) such Lender is not a 10% shareholder of
the Borrower within the meaning of Section 871(h)(3) or Section 881(c)(3)(B) of the
Code, (3) such Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Section 881(c)(3)(C) of the Code, and (4) the
interest payments in question are not effectively connected with a U.S. trade or
business conducted by such Lender; or




(D) if such Lender is not the beneficial owner (for example, a partnership or a
Lender granting a participation), duly executed originals of IRS Form W-8IMY, or any
successor form thereto, accompanied by IRS Form W-9, IRS Form W-8ECI, IRS Form
W-8BEN, a U.S. Tax Compliance Certificate, and/or other certification documents from
each beneficial owner, as applicable.


 


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(iii) Each Lender agrees that if any form or certification it previously delivered
under this Section 2.16(e) expires or becomes obsolete or inaccurate in any respect and such
Lender is not legally entitled to provide an updated form or certification, it shall
promptly notify the Borrowers and the Administrative Agent of its inability to update such
form or certification.



(f) If a payment made to a Lender hereunder or under any other Loan Document would be subject
to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to each Borrower and the Administrative
Agent, at the time or times prescribed by law and at such time or times reasonably requested by any
Borrower or the Administrative Agent, such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by such Borrower or the Administrative Agent as may be necessary for each of the
Borrowers and the Administrative Agent to comply with its obligations under FATCA, to determine
that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment.



(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.16 shall use
its best efforts (consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.



(h) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the
agreements and obligations of the Borrowers contained in this Section 2.16 shall survive the
payment in full of principal and interest hereunder and under any Note.




SECTION 2.17. Sharing of Payments, Etc.



(a) If any Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the Advances made by it or
participations in Letters of Credit acquired by it (other than pursuant to Section 2.02(c), 2.09,
2.11(c), 2.13, 2.16, 2.21 or 8.05(b)) in excess of its ratable share of payments on account of the
Advances or Letters of Credit (as the case may be) obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Advances made by them or
participations in Letters of Credit acquired by them (as the case may be) as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender’s ratable share (according to the proportion of (a) the amount of such
Lender’s required repayment to (b) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of the total amount so
recovered. Each Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.17 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.


 


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(b) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.02(c), 2.03(c), 2.04(j) or 7.05, then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender for the benefit of the Administrative Agent,
any Swing Line Lender or any Fronting Bank to satisfy such Lender’s obligations to it under such
Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in
a segregated account as cash collateral for, and application to, any future funding obligations of
such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order
as determined by the Administrative Agent in its discretion.




SECTION 2.18. Noteless Agreement; Evidence of Indebtedness.



(a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Lender resulting from each Advance made by
such Lender from time to time, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.



(b) The Administrative Agent shall also maintain accounts in which it will record (i) the
amount of each Advance made hereunder, the Borrower thereof, the Type thereof and the Interest
Period (if any) with respect thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from such Borrower to each Lender hereunder, and (iii) the amount of
any sum received by the Administrative Agent hereunder from each Borrower and each Lender’s share
thereof.



(c) Subject to Section 8.08(c), the entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of the Administrative Agent or
any Lender to maintain such accounts or any error therein shall not in any manner affect the
obligation of each Borrower to repay such obligations in accordance with their terms.



(d) Any Lender may request that its Advances be evidenced by a Note. In such event, each
Borrower shall prepare, execute and deliver to such Lender a Note payable to such Lender and its
registered assigns. Thereafter, the Advances evidenced by such Note and interest thereon shall at
all times (including after any assignment pursuant to Section 8.08) be represented by one or more
Notes payable to the payee named therein, or to its registered assigns pursuant to Section 8.08,
except to the extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Borrowings once again be evidenced as described in subsections
(a) and (b) above.


 


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SECTION 2.19. Extension of Termination Date.



(a) The Borrowers may, by notice to the Administrative Agent (which shall promptly notify the
Lenders) not earlier than 45 days prior to any anniversary of the date of this Agreement (the
“Anniversary Date”) but no later than 30 days prior to such anniversary of the Closing Date (the
date of delivery of any such notice being the “Borrower Extension Notice Date”), request that each
Lender extend such Lender’s Termination Date for an additional one year after the Termination Date
then in effect for such Lender hereunder (the “Existing Termination Date”). The Borrowers may
request no more than two extensions pursuant to this Section.



(b) Each Lender, acting in its sole and individual discretion, shall, by notice to the
Administrative Agent given not earlier than 30 days prior to the applicable Anniversary Date and
not later than the date (the “Lender Extension Notice Date”) that is 20 days prior to the
Applicable Anniversary Date, advise the Administrative Agent whether or not such Lender agrees to
such extension (and each Lender that determines not to so extend its Existing Termination Date (a
“Nonconsenting Lender”) shall notify the Administrative Agent of such fact promptly after such
determination (but in any event no later than the Lender Extension Notice Date), and any Lender
that does not so advise the Administrative Agent on or before the Lender Extension Notice Date
shall be deemed to be a Nonconsenting Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.



(c) The Administrative Agent shall notify the Borrowers of each Lender’s determination under
this Section no later than the date 15 days prior to the applicable Anniversary Date, or, if such
date is not a Business Day, on the next preceding Business Day (the “Specified Date”).



(d) The Borrowers shall have the right on or before the fifth Business Day after the Specified
Date to replace each Nonconsenting Lender (i) with an existing Lender, and/or (ii) by adding as
“Lenders” under this Agreement in place thereof, one or more Persons (each Lender in clauses (i)
and (ii), an “Additional Commitment Lender”), in each case, with the approval of the Administrative
Agent, the Swing Line Lenders and the Fronting Banks (which approvals shall not be unreasonably
withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form
and substance satisfactory to the Borrowers and the Administrative Agent pursuant to which such
Additional Commitment Lender shall, effective as of the Specified Date, undertake a Commitment
(and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender’s Commitment hereunder on such date); provided that the aggregate amount of
the Commitments for all Additional Commitment Lenders shall be no more than the aggregate amount of
the Commitments of all Nonconsenting Lenders; provided, further, that the existing Lenders shall
have the right to increase their Commitments up to the amount of the Nonconsenting Lenders’
Commitments before the Borrowers shall have the right to substitute any other Person for any
Nonconsenting Lender.



(e) If (and only if) the aggregate amount of the Commitments of the Lenders that have agreed
to extend their Existing Termination Dates plus the aggregate additional Commitments of the
Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments in
effect immediately prior to the Specified Date, then, effective as of the Specified Date, the
Existing Termination Date of each Lender agreeing to an extension and of each Additional
Commitment Lender shall be extended to the date that is one year after the Existing
Termination Date, and each Additional Commitment Lender shall thereupon become a “Lender” for all
purposes of this Agreement.


 


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(f) Notwithstanding the foregoing, the extension of a Lender’s Existing Termination Date
pursuant to this Section shall be effective with respect to such Lender on the Specified Date but
only if (i) the following statements shall be true: (A) no event has occurred and is continuing, or
would result from the extension of the Existing Termination Date, that constitutes an Event of
Default or an Unmatured Default and (B) the representations and warranties contained in Section
4.01 (other than the first sentence of subsection (g) thereof but solely with respect to the
unaudited consolidated balance sheet of such Borrower and its Subsidiaries, as at March 31, 2011,
and the related consolidated statements of income, retained earnings and cash flows for the three
months then ended) are correct in all material respects on and as of the Specified Date, before and
after giving effect to such extension, as though made on and as of such date, except for those made
specifically as of another date, in which case such representations and warranties shall be true as
of such other date, provided that, for purposes of the representations and warranties in Sections
4.01(f) and the last sentence of 4.01(g), the Disclosure Documents shall include all the SEC
filings made by FE and the Borrowers prior to the applicable Borrower Extension Notice Date and
(ii) on or prior to the Specified Date the Administrative Agent shall have received the following,
each dated the Specified Date and in form and substance satisfactory to the Administrative Agent:
(x) a certificate of an Authorized Officer of each Borrower to the effect that as of the Specified
Date the statements set forth in clauses (A) and (B) above are true, (y) certified copies of the
resolutions of the Board of Directors of each Borrower authorizing such extension and the
performance of this Agreement on and after the Specified Date, and of all documents evidencing
other necessary corporate action and Governmental Action with respect to this Agreement and such
extension of the Existing Termination Date and (z) an opinion of counsel to the Borrowers, as to
such matters related to the foregoing as the Administrative Agent or the Lenders through the
Administrative Agent may reasonably request.



(g) Subject to subsection (d) above, the Commitment of any Nonconsenting Lender shall
automatically terminate on its Existing Termination Date (without regard to any extension by any
other Lender).



(h) Each Swing Line Lender and Fronting Bank may, in its sole discretion, elect not to serve
in such capacity following any extension of the Termination Date; provided that, (i) the Borrowers
and the Administrative Agent may appoint a replacement for any such resigning Swing Line Lender or
Fronting Bank and (ii) the extension of the Termination Date may become effective without regard to
whether such replacement is found.




SECTION 2.20. Several Obligations.



Each Borrower’s obligations hereunder are several and not joint. Any action taken by or on
behalf of the Borrowers shall not result in one Borrower being held responsible for the actions,
debts or liabilities of the other Borrowers. Nothing contained herein shall be interpreted as
requiring the Borrowers to effect Borrowings jointly.


 


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SECTION 2.21. Defaulting Lenders.



Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:



(a) fees shall cease to accrue on the Percentage of such Defaulting Lender in the unused
portion of each Borrower’s Borrower Sublimit pursuant to Section 2.05(a);



(b) the Commitment and Outstanding Credits of such Defaulting Lender shall not be included in
determining whether (i) the Majority Lenders have taken or may take any action under this Agreement
or (ii) all Lenders affected thereby have taken or may take any action under this Agreement, except
to the extent Section 8.01 requires the consent of all Lenders affected thereby (and does not
otherwise exclude the Defaulting Lenders from such required consent) to an amendment, waiver or
other modification;



(c) if any Swing Line Advance, Letter of Credit or Reimbursement Obligation is outstanding at
the time such Lender becomes a Defaulting Lender then:




(i) all or any part of the obligation of such Defaulting Lender to participate in such
Swing Line Advance, Letter of Credit or Reimbursement Obligation shall be reallocated among
the non-Defaulting Lenders in accordance with their respective Percentages but only to the
extent that (x) the sum of all non-Defaulting Lenders’ Outstanding Credits does not exceed
the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in
Section 3.02 are satisfied at such time;




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, each Borrower shall within one Business Day following notice by the
Administrative Agent (x) first, prepay its Swing Line Advances, if any, and (y) second, cash
collateralize for the benefit of the applicable Fronting Banks only such Borrower’s
obligations, if any, corresponding to such Defaulting Lender’s obligation to participate in
Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i)
above) in a manner reasonably satisfactory to the Administrative Agent and such Fronting
Banks for so long as such LC Exposure is outstanding;




(iii) if and to the extent that any Borrower cash collateralizes any portion of such
Defaulting Lender’s obligation to participate in Letters of Credit pursuant to clause (ii)
above, such Borrower shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 2.05(c) with respect to such Defaulting Lender’s Percentage of the
Stated Amount of all Letters of Credit during the period such Defaulting Lender’s obligation
is cash collateralized;




(iv) if the obligation of the non-Defaulting Lenders to participate in Letters of
Credit is reallocated pursuant to clause (i) above, then the fees payable to the Lenders
pursuant to Section 2.05(c) shall be adjusted in accordance with such non-Defaulting
Lenders’ Percentages; and


 


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(v) if all or any portion of the obligation of the non-Defaulting Lenders to
participate in Letters of Credit is neither reallocated nor cash collateralized pursuant to
clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Fronting
Bank or any other Lender hereunder, all fees payable under Section 2.05(c) with respect to
such Defaulting Lender’s Percentage of the Stated Amount of all Letters of Credit shall be
payable to the applicable Fronting Banks until and to the extent that such obligation is
reallocated and/or cash collateralized; and



(d) so long as such Lender is a Defaulting Lender, no Swing Line Lender shall be required to
fund any Swing Line Advance, and no Fronting Bank shall be required to make any Extension of Credit
in connection with a Letter of Credit, unless it is satisfied that the related exposure and the
Defaulting Lender’s then outstanding obligations to participate in such Letter of Credit will be
100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the applicable Borrower in accordance with subsection (c) above, and participating
interests in any newly made Swing Line Advance or any new Extension of Credit relating to a Letter
of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with subsection
(c)(i) above (and such Defaulting Lender shall not participate therein).



If a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date
hereof and for so long as such event shall continue, then no Swing Line Lender shall be required to
fund any Swing Line Advance, and no Fronting Bank shall be required to issue, amend or increase any
Letter of Credit, unless such Swing Line Lender or Fronting Bank, as the case may be, shall have
entered into arrangements with the applicable Borrower or such Lender reasonably satisfactory to
such Swing Line Lender or Fronting Bank, as the case may be, to defease any risk to it in respect
of such Lender hereunder.



In the event that the Administrative Agent, the applicable Borrower, the Swing Line Lenders
and the Fronting Banks all agree that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the obligation of such Lender to participate in
Swing Line Advances made to such Borrower and Letters of Credit for the account of such Borrower
shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such
Lender shall purchase at par such of the Advances of the other Lenders (other than Swing Line
Advances) as the Administrative Agent shall determine may be necessary in order for such Lender to
hold such Advances in accordance with its Percentage.



ARTICLE III

CONDITIONS OF LENDING AND ISSUING LETTERS OF CREDIT





SECTION 3.01. Conditions Precedent to Initial Extension of Credit.



The obligation of each Lender and each Swing Line Lender to make its initial Advance to any
Borrower, and the obligation of each Fronting Bank to issue its initial Letter of Credit, are
subject to the conditions precedent that on or before the date of any such Extension of Credit:



(a) The Administrative Agent shall have received the following, each dated the same date
(except for the financial statements referred to in paragraph (iv)), in form and substance
satisfactory to the Administrative Agent and (except for any Note) with one copy for each
Swing Line Lender, each Fronting Bank and each Lender:




(i) This Agreement, duly executed by each of the parties hereto, and Notes requested by
any Lender pursuant to Section 2.18(d), duly completed and executed by each Borrower and
payable to the order of such Lender;


 


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(ii) Certified copies of the resolutions of the Board of Directors of each Borrower (or
the equivalent authorization, in the case of Allegheny) approving this Agreement and the
other Loan Documents to which it is, or is to be, a party and of all documents evidencing
any other necessary corporate action with respect to this Agreement and such Loan Documents;




(iii) A certificate of the Secretary or an Assistant Secretary of each Borrower
certifying (A) the names and true signatures of the officers of such Borrower authorized to
sign each Loan Document to which such Borrower is, or is to become, a party and the other
documents to be delivered hereunder; (B) that attached thereto are true and correct copies
of the Organizational Documents of such Borrower, in each case as in effect on such date;
(C) that attached thereto are true and correct copies of all governmental and regulatory
authorizations and approvals (including such Borrower’s Approval) required for the due
execution, delivery and performance by such Borrower of this Agreement and each other Loan
Document to which such Borrower is, or is to become, a party and (D) solely with respect to
the certificate of FES, that attached thereto are true and correct copies of the Genco
Guarantees;




(iv) Copies of all the Disclosure Documents (it being agreed that those Disclosure
Documents publicly available on the SEC’s EDGAR Database or on FE’s website no later than
the Business Day immediately preceding the date of such Extension of Credit will be deemed
to have been delivered under this clause (iv));




(v) An opinion of Wendy E. Stark, Associate General Counsel of FE, counsel for the
Borrowers, substantially in the form of Exhibit F hereto;




(vi) An opinion of Akin Gump Strauss Hauer & Feld LLP, special counsel for the
Borrowers, substantially in the form of Exhibit G hereto;




(vii) A favorable opinion of King & Spalding LLP, special New York counsel for the
Administrative Agent, substantially in the form of Exhibit H hereto; and




(viii) Such other certifications, opinions, financial or other information, approvals
and documents as the Administrative Agent, any Fronting Bank, any Swing Line Lender or any
other Lender may reasonably request, all in form and substance satisfactory to the
Administrative Agent, such Fronting Bank, such Swing Line Lender or such other Lender (as
the case may be).



(b) The Borrowers and each Fronting Bank shall have entered into an agreement, in form and
substance satisfactory to such Fronting Bank, concerning fees payable by the Borrower to such
Fronting Bank for its own account (the “Fronting Bank Fee Letters”).


 


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(c) The Borrowers shall have paid all of the fees payable in accordance with the Fee Letters,
and the Borrowers shall have paid all the fees payable in accordance with the Fronting Bank Fee
Letters.



(d) All amounts outstanding under the Existing Facilities, whether for principal, interest,
fees or otherwise, shall have been paid in full, all commitments to lend thereunder shall have been
terminated, and the Existing Facilities shall have been terminated.



(e) The Administrative Agent shall have received all documentation and information required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the Patriot Act, to the extent such documentation or
information is requested by the Administrative Agent on behalf of the Lenders prior to the date
hereof.




SECTION 3.02. Conditions Precedent to Each Extension of Credit.



The obligation of each Lender and each Swing Line Lender to make an Advance to any Borrower as
part of any Borrowing (including the initial Borrowing) that would increase the aggregate principal
amount of Advances outstanding hereunder, and the obligation of each Fronting Bank to issue, amend,
extend or renew a Letter of Credit (including the initial Letter of Credit for the account of such
Borrower), in each case, as part of an Extension of Credit, shall be subject to the further
conditions precedent that on the date of such Extension of Credit:




(i) The following statements shall be true (and each of the giving of the applicable
Notice of Pro-Rata Borrowing, Notice of Swing Line Borrowing or Letter of Credit Request and
the acceptance by such Borrower of the proceeds of such Borrowing or the acceptance of a
Letter of Credit by the Beneficiary thereof, as the case may be, shall constitute a
representation and warranty by such Borrower that on the date of such Extension of Credit
such statements are true):




(A) The representations and warranties of such Borrower contained in Section
4.01 (other than (1) subsection (f) thereof, (2) the first sentence of subsection
(g) thereof (but solely with respect to the unaudited consolidated balance sheet of
such Borrower and its Subsidiaries, as at March 31, 2011, and the related
consolidated statements of income, retained earnings and cash flows for the three
months then ended), and (3) the last sentence of subsection (g) thereof with respect
to any Extension of Credit following the initial Extension of Credit) hereof are
true and correct on and as of the date of such Extension of Credit, before and after
giving effect to such Extension of Credit and to the application of the proceeds
therefrom, as though made on and as of such date (other than, as to any such
representation or warranty that by its terms refers to a specific date other than
the date of such Extension of Credit, in which case, such representation and
warranty shall be true and correct as of such specific date);




(B) No event has occurred and is continuing, or would result from such
Extension of Credit or from the application of the proceeds therefrom, that
constitutes an Event of Default or an Unmatured Default with respect to such
Borrower; and


 


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(C) Immediately following such Extension of Credit, (1) the aggregate amount of
Outstanding Credits shall not exceed the aggregate amount of the Commitments then in
effect, (2) the Outstanding Credits of any Lender shall not exceed the amount of
such Lender’s Commitment, (3) the aggregate principal amount of Advances outstanding
for such Borrower shall not exceed the amounts authorized under such Borrower’s
Approval, (4) the Outstanding Credits for the account of any Borrower shall not
exceed the Borrower Sublimit for such Borrower, (5) the aggregate principal amount
of the Swing Line Advances outstanding shall not exceed the Swing Line Sublimit, and
(6) if such Extension of Credit relates to a Letter of Credit, the Stated Amount
thereof, when aggregated with (x) the Stated Amount of each other Letter of Credit
that is outstanding or with respect to which a Letter of Credit Request has been
received and (y) the outstanding Reimbursement Obligations, shall not exceed the L/C
Commitment Amount; and




(ii) Such Borrower shall have delivered to the Administrative Agent copies of such
other approvals and documents as the Administrative Agent, any Fronting Bank, any Swing Line
Lender or any other Lender (through the Administrative Agent) may reasonably request.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES





SECTION 4.01. Representations and Warranties of the Borrowers.




Each Borrower represents and warrants as follows:



(a) Existence and Power. It is a corporation or limited liability company, as the case may
be, duly formed, validly existing and in good standing under the laws of the jurisdiction of its
formation, is duly qualified to do business as a foreign corporation or limited liability company
in and is in good standing under the laws of each state in which the ownership of its properties or
the conduct of its business makes such qualification necessary, except where the failure to be so
qualified would not reasonably be expected to have a Material Adverse Effect with respect to such
Borrower, and has all corporate or limited liability company powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted except
where the failure to do so, in each case, would not reasonably be expected to have a Material
Adverse Effect.



(b) Due Authorization. The execution, delivery and performance by it of each Loan Document to
which it is, or is to become, a party, have been duly authorized by all necessary corporate action
on its part and do not, and will not, require the consent or approval of its shareholders or
members, as the case may be, other than such consents and approvals as have been duly obtained,
given or accomplished.


 


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(c) No Violation, Etc. Neither the execution, delivery or performance by it of this Agreement
or any other Loan Document to which it is, or is to become, a party, nor the consummation by it of
the transactions contemplated hereby or thereby, nor compliance by it with the provisions hereof or
thereof, contravenes or will contravene, or results or will result in a breach of, any of the
provisions of its Organizational Documents, any Applicable Law, or any indenture, mortgage, lease
or any other agreement or instrument to which it or any of its Subsidiaries is party or by which
its property or the property of any of its Subsidiaries is bound, or results or will result in the
creation or imposition of any Lien upon any of its property or the property of any of its
Subsidiaries except as provided herein, except to the extent such contravention or breach, or the
creation or imposition of any such Lien, individually or in the aggregate, has not had and would
not reasonably be expected to have a Material Adverse Effect with respect to such Borrower. Each
Borrower and each of its Subsidiaries is in compliance with all laws (including, without
limitation, ERISA and Environmental Laws), regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, has not
had and would not reasonably be expected to have a Material Adverse Effect with respect to such
Borrower.



(d) Governmental Actions. No Governmental Action is or will be required in connection with
the execution, delivery or performance by it, or the consummation by it of the transactions
contemplated by this Agreement or any other Loan Document to which it is, or is to become, a party
other than such Borrower’s Approval, as applicable, which has been duly issued and is in full force
and effect.



(e) Execution and Delivery. This Agreement and the other Loan Documents to which it is, or is
to become, a party have been or will be (as the case may be) duly executed and delivered by it, and
this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the
legal, valid and binding obligation of it enforceable against it in accordance with its terms,
subject, however, to the application by a court of general principles of equity and to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally.



(f) Litigation. Except as disclosed in such Borrower’s Disclosure Documents, there is no
pending or, to such Borrower’s knowledge, threatened action or proceeding (including, without
limitation, any proceeding relating to or arising out of Environmental Laws) affecting such
Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that would
reasonably be expected to have a Material Adverse Effect with respect to such Borrower.



(g) Financial Statements; Material Adverse Change. The consolidated balance sheets of such
Borrower and its Subsidiaries, as at December 31, 2010, and the related consolidated statements of
income, retained earnings and cash flows of such Borrower and its Subsidiaries, certified by
PricewaterhouseCoopers LLP or Deloitte & Touche LLP, as applicable, independent public accountants,
and the unaudited consolidated balance sheet of such Borrower and its Subsidiaries, as at March 31,
2011, and the related consolidated statements of income, retained earnings and cash flows of such
Borrower and its Subsidiaries, for the three months then ended, copies of which have been furnished
to each Lender, each Swing Line Lender and each Fronting Bank, in all cases as amended and restated
to the date hereof, present fairly in all
material respects the consolidated financial position of such Borrower and its Subsidiaries as
at the indicated dates and the consolidated results of the operations of such Borrower and its
Subsidiaries for the periods ended on the indicated dates, all in accordance with GAAP consistently
applied (in the case of such statements that are unaudited, subject to year-end adjustments and the
exclusion of detailed footnotes). Except as disclosed in such Borrower’s Disclosure Documents,
there has been no change, event or occurrence since December 31, 2010 that has had a Material
Adverse Effect with respect to such Borrower.


 


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(h) ERISA. Except as would not reasonably be expected to have a Material Adverse Effect:




(i) No Termination Event has occurred or is reasonably expected to occur with respect
to any Plan.




(ii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500
Series) with respect to each Plan, copies of which have been filed with the Internal Revenue
Service and furnished (or made available) to the Banks, (A) is complete and accurate, (B)
fairly presents the funding status of such Plan, and (C) since the date of such Schedule B
there has been no change in such funding status.




(iii) Neither it nor any member of the Controlled Group has incurred or reasonably
expects to incur any withdrawal liability under ERISA to any Multiemployer Plan.



(i) Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25%
of the value of the assets of such Borrower and its Subsidiaries subject to the restrictions of
Section 5.03(a) or (b) will consist of or be represented by Margin Stock. Such Borrower is not
engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock,
and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin Stock.



(j) Investment Company. Such Borrower is not an “investment company” or a company
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.



(k) No Event of Default. No event has occurred and is continuing that constitutes an Event of
Default or an Unmatured Default in each case with respect to such Borrower.



(l) No Material Misstatements. The reports, financial statements and other written
information furnished by or on behalf of such Borrower to the Administrative Agent, any Fronting
Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions
contemplated thereby, when taken together with such Borrower’s Disclosure Documents, do not contain
and will not contain, when taken as a whole, any untrue statement of a material fact and do not
omit and will not omit, when taken as a whole, to state any fact necessary to make the statements
therein, in the light of the circumstances under which they were or will be made, not misleading in
any material respect.


 


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(m) Genco Guarantees. All Indebtedness of FES (including, without limitation, its
Indebtedness under the Loan Documents and pursuant to the FES-FGC Guaranty) is guaranteed by NGC
pursuant to the NGC-FES Guaranty; and all Indebtedness of FES (including, without limitation, its
Indebtedness under the Loan Documents and pursuant to the FES-NGC Guaranty) is guaranteed by FGC
pursuant to the FGC-FES Guaranty.



ARTICLE V

COVENANTS OF THE BORROWERS





SECTION 5.01. Affirmative Covenants of the Borrowers.



Unless the Majority Lenders shall otherwise consent in writing, so long as any amount payable
by any Borrower hereunder shall remain unpaid, any Letter of Credit shall remain outstanding or any
Lender shall have any Commitment hereunder, such Borrower will:



(a) Preservation of Corporate Existence, Etc. (i) Without limiting the right of such Borrower
to merge with or into or consolidate with or into any other corporation or entity in accordance
with the provisions of Section 5.03(c) hereof, preserve and maintain its corporate or limited
liability company (as the case may be) existence, (ii) qualify and remain qualified as a foreign
corporation or limited liability company (as the case may be) in each jurisdiction in which such
qualification is reasonably necessary in view of its business and operations or the ownership of
its properties and (iii) preserve, renew and keep in full force and effect the rights, privileges
and franchises necessary or desirable in the normal conduct of its business, except, in the case of
clauses (ii) and (iii) above, to the extent that failure to do so would not reasonably be expected
to result in a Material Adverse Effect with respect to such Borrower; provided, however, that any
Borrower may change its form of organization from a corporation to a limited liability company or
from a limited liability company to a corporation if the Administrative Agent is reasonably
satisfied that such change shall not affect any obligations of such Borrower under the Loan
Documents.



(b) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all
material respects with all applicable laws, rules, regulations, and orders of any Governmental
Authority, the noncompliance with which would not reasonably be expected to result in a Material
Adverse Effect with respect to such Borrower, such compliance to include, without limitation,
compliance with the Patriot Act, regulations promulgated by the U.S. Treasury Department Office of
Foreign Assets Control, Environmental Laws and ERISA and paying before the same become delinquent
all material taxes, assessments and governmental charges imposed upon it or upon its property,
except to the extent compliance with any of the foregoing is then being contested in good faith by
appropriate legal proceedings.



(c) Maintenance of Insurance, Etc. Maintain insurance with responsible and reputable
insurance companies or associations or through its own program of self-insurance in such amounts
and covering such risks as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which such Borrower operates.


 


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(d) Inspection Rights. At any reasonable time and from time to time as the Administrative
Agent, any Swing Line Lender, any Fronting Bank or any Lender may reasonably request (upon five
Business Days’ prior notice delivered to the applicable Borrower and no more than once a year,
unless an Event of Default has occurred and is continuing), permit the Administrative Agent, such
Fronting Bank or such Lender or any agents or representatives thereof to examine and make copies of
and abstracts from the records and books of account of, and visit the properties of, such Borrower
and any of its Subsidiaries, and to discuss the affairs, finances and accounts of such Borrower and
any of its Subsidiaries with any of their respective officers or directors; provided, however, that
(x) such Borrower reserves the right to restrict access to any of its Subsidiaries’ facilities in
accordance with reasonably adopted procedures relating to safety and security and (y) neither
Borrower nor any of its Subsidiaries shall be required to disclose to the Administrative Agent, any
Swingline Lender, any Fronting Bank or any Lender or any agents or representatives thereof any
information that is the subject of attorney-client privilege or attorney work-product privilege
properly asserted by the applicable Person to prevent the loss of such privilege in connection with
such information or that is prevented from disclosure pursuant to a confidentiality agreement with
third parties (provided that such Borrower agrees to use commercially reasonable efforts to obtain
any required third-party consent to such disclosure, subject to customary nondisclosure
restrictions applicable to the Administrative Agent, any Swingline Lender, any Fronting Bank or the
Lenders, as applicable). The Administrative Agent, each Swing Line Lender, each Fronting Bank and
each Lender agree to use reasonable efforts to ensure that any information concerning such Borrower
or any of its Subsidiaries obtained by the Administrative Agent, such Fronting Bank or such Lender
pursuant to this subsection (d) or subsection (g) that is not contained in a report or other
document filed with the SEC, distributed by such Borrower or FE to its security holders or
otherwise generally available to the public, will, to the extent permitted by law and except as may
be required by valid subpoena or in the normal course of the Administrative Agent’s, such Swing
Line Lender’s, such Fronting Bank’s or such Lender’s business operations be treated confidentially
by the Administrative Agent, such Swing Line Lender, such Fronting Bank or such Lender, as the case
may be, and will not be distributed or otherwise made available by the Administrative Agent, such
Swing Line Lender, such Fronting Bank or such Lender, as the case may be, to any Person, other than
the Administrative Agent’s, such Swing Line Lender’s, such Fronting Bank’s or such Lender’s
employees, authorized agents or representatives (including, without limitation, attorneys and
accountants).



(e) Keeping of Books. Keep, and cause each Subsidiary to keep, proper books of record and
account in which entries shall be made of all financial transactions and the assets and business of
such Borrower and each of its Subsidiaries in accordance with GAAP.



(f) Maintenance of Properties. Maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, all of its properties (except such properties the failure of which to
maintain or preserve would not have, individually or in the aggregate, a Material Adverse Effect
with respect to such Borrower) that are used or that are useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and in accordance with prudent
industry practices applicable to the industry of such Borrower, in all material respects, and
(subject to (b) above) applicable law it being understood that this covenant relates only to the
good working order and condition of such properties and shall not be
construed as a covenant of such Borrower or any of its Subsidiaries not to dispose of such
properties by sale, lease, transfer or otherwise.


 


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(g) Reporting Requirements. Furnish, or cause to be furnished, to the Administrative Agent,
with sufficient copies for each Lender and each Fronting Bank, the following:




(i) promptly after becoming aware of the occurrence of any Event of Default with
respect to such Borrower continuing on the date of such statement, the statement of an
Authorized Officer of such Borrower setting forth details of such Event of Default and the
action that such Borrower has taken or proposes to take with respect thereto;




(ii) as soon as available and in any event within 60 days after the close of each of
the first three quarters in each fiscal year of such Borrower, consolidated balance sheets
of such Borrower and its Subsidiaries as at the end of such quarter and consolidated
statements of income of such Borrower and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, fairly presenting
in all material respects the financial condition of such Borrower and its Subsidiaries as at
such date and the results of operations of such Borrower and its Subsidiaries for such
period and setting forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding fiscal year, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the chief financial officer, treasurer,
assistant treasurer or controller of such Borrower as having been prepared in accordance
with GAAP consistently applied (in the case of such statements that are unaudited, subject
to year-end adjustments and the exclusion of detailed footnotes);




(iii) as soon as available and in any event within 105 days after the end of each
fiscal year of such Borrower, a copy of the annual report for such year for such Borrower
and its Subsidiaries, containing consolidated and consolidating financial statements of such
Borrower and its Subsidiaries for such year certified by PricewaterhouseCoopers LLP,
Deloitte & Touche LLP or other independent public accountants of recognized national
standing as fairly presenting, in all material respects, the financial position of such
Borrower and its Subsidiaries as at the end of such year and the results of their operations
and their cash flows for the three-year period (or, if such Borrower is not then required to
file reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, the two-year
period) ending as at the end of such year in conformity with GAAP;




(iv) concurrently with the delivery of the financial statements specified in clauses
(ii) and (iii) above a certificate of the chief financial officer, treasurer, assistant
treasurer or controller of such Borrower (A) stating whether such Borrower has any knowledge
of the occurrence and continuance at the date of such certificate of any Event of Default
not theretofore reported pursuant to the provisions of clause (i) of this subsection (g),
and, if so, stating the facts with respect thereto, and (B) setting forth in a true and
correct manner, the calculation of the ratio contemplated by Section 5.02 hereof, as of the
date of the most recent financial statements accompanying such certificate, to show such
Borrower’s compliance with or the status of the financial covenant contained in Section 5.02
hereof;


 


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(v) promptly after the sending or filing thereof, copies of any reports that such
Borrower sends to any of its securityholders, and copies of all reports on Form 10-K, Form
10-Q or Form 8-K, if any, that such Borrower or any of its Subsidiaries files with the SEC;




(vi) as soon as possible and in any event within 20 days after such Borrower or any
member of the Controlled Group knows or has reason to know that any Termination Event with
respect to any Plan has occurred or is reasonably likely to occur, that would reasonably be
expected to result in liability exceeding $100,000,000 to such Borrower or such member of
the Controlled Group, a statement of the chief financial officer of such Borrower describing
such Termination Event and the action, if any, that such Borrower or such member of the
Controlled Group, as the case may be, proposes to take with respect thereto;




(vii) promptly upon reasonable request by the Administrative Agent or any Lender, after
the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each Plan;




(viii) promptly upon request and in any event within five Business Days after receipt
thereof by such Borrower or any member of the Controlled Group from a Multiemployer Plan
sponsor, a copy of each notice received by such Borrower or such member of the Controlled
Group concerning the imposition of withdrawal liability pursuant to Section 4202 of ERISA;




(ix) promptly and in any event within five Business Days after Moody’s or S&P has
changed any relevant Reference Rating, notice of such change; and




(x) such other information respecting the condition or operations, financial or
otherwise, of such Borrower or any of its Subsidiaries, including, without limitation,
copies of all reports and registration statements that such Borrower or any Subsidiary files
with the SEC or any national securities exchange, as the Administrative Agent, any Fronting
Bank, any Swing Line Lender or any Lender (through the Administrative Agent) may from time
to time reasonably request.



The financial statements and reports described in paragraphs (ii), (iii) and (v) above will be
deemed to have been delivered hereunder if publicly available on the SEC’s EDGAR Database or on
FE’s website no later than the date specified for delivery of same under paragraph (ii), (iii) or
(v), as applicable, above. If any financial statements or report described in (ii) and (iii) above
is due on a date that is not a Business Day, then such financial statements or report shall be
delivered on the next succeeding Business Day.



(h) Borrower Approvals. Maintain such Borrower’s Approval in full force and effect and comply
with all terms and conditions thereof until all amounts outstanding under the Loan Documents shall
have been repaid or paid (as the case may be) and the Termination Date has occurred.


 


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(i) Subordination of Certain Affiliate Obligations. Cause all Indebtedness of such Borrower
and its Subsidiaries to any Affiliate, other than to such Borrower or any of its Subsidiaries
(including, without limitation, under the Second Amended and Restated Non-Utility Money Pool
Agreement, dated as of April 6, 2011 (as amended, modified, restated and replaced from time to
time, the “Money Pool”), among FE, the Borrowers and certain other Affiliates of the Borrowers), to
be subordinated to the obligations of such Borrower hereunder on the terms set forth in Exhibit I
hereto.



(j) FES Guarantees. Maintain and cause its applicable Subsidiaries to maintain in full force
and effect each Genco Guarantee to which such Person is a party and not cause, permit or consent
to, or permit its applicable Subsidiaries to cause, permit or consent to, any modification or
waiver of any Genco Guarantee that would reasonably be expected to adversely affect the rights of
the Lenders thereunder.




SECTION 5.02. Debt to Capitalization Ratio.



Unless the Majority Lenders shall otherwise consent in writing, so long as any amount payable
by any Borrower hereunder shall remain unpaid, any Letter of Credit for the account of any Borrower
shall remain outstanding or any Lender shall have any Commitment to any Borrower hereunder, such
Borrower will maintain a Debt to Capitalization Ratio of no more than 0.65 to 1.00 (determined as
of the last day of each fiscal quarter).




SECTION 5.03. Negative Covenants of the Borrowers.



Unless the Majority Lenders shall otherwise consent in writing, so long as any amount payable
by any Borrower hereunder shall remain unpaid, any Letter of Credit for the account of any Borrower
shall remain outstanding or any Lender shall have any Commitment to any Borrower hereunder, such
Borrower will not:



(a) Sales, Etc. (i) Sell, lease, transfer or otherwise dispose of any shares of common stock
of any Significant Subsidiary of such Borrower, whether now owned or hereafter acquired by such
Borrower, or permit any Significant Subsidiary of such Borrower to do so, or (ii) sell, lease,
transfer or otherwise dispose of (whether in one transaction or a series of transactions) or permit
any of its Subsidiaries to sell, lease, transfer or dispose of (whether in one transaction or a
series of transactions) assets located in The United States of America (other than any assets that
are purported to be conveyed in connection with a Permitted Securitization but including assets
purported to be conveyed pursuant to any sale leaseback transaction) having an aggregate book value
(determined as of the date of such transaction for all such transactions since the date hereof)
that is greater than 20% of the book value of all of the consolidated fixed assets of such
Borrower, as reported on the most recent consolidated balance sheet of such Borrower prior to the
date of such sale, lease transfer or disposition to any entity other than such Borrower or any of
its wholly owned direct or indirect Subsidiaries; provided, however, that this provision shall not
in any way restrict, and shall not apply to, (A) the disposition of any Borrower’s direct or
indirect interests in (1) the approximately 700 megawatt Fremont Energy Center in Fremont, Ohio,
(2) the 42 megawatt Richland Peaking Facility in Defiance, Ohio, or (3) the 18 megawatt Stryker
Peaking Facility in Springfield, Ohio or (B) the sale, lease, transfer or other disposition of a
Borrower’s assets to the other Borrower, a Subsidiary of the other Borrower or a newly-formed
Person to which all or substantially all of the assets and liabilities of both
Borrowers or their Subsidiaries are being transferred, in each case, pursuant to a transaction
permitted under subsection (c) below. In addition, Attributable Securitization Obligations of the
Borrowers and their respective Subsidiaries shall not at any time exceed in the aggregate
$500,000,000.


 


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(b) Liens, Etc. Create or suffer to exist, or permit any Significant Subsidiary of such
Borrower to create or suffer to exist, any Lien upon or with respect to any of its properties
(including, without limitation, any shares of any class of equity security of any Significant
Subsidiary of such Borrower), in each case to secure or provide for the payment of Indebtedness,
other than (i) liens consisting of (A) pledges or deposits in the ordinary course of business to
secure obligations under worker’s compensation laws or similar legislation, (B) deposits in the
ordinary course of business to secure, or in lieu of, surety, appeal, or customs bonds to which
such Borrower or Significant Subsidiary is a party, (C) pledges or deposits in the ordinary course
of business to secure performance in connection with bids, tenders or contracts (other than
contracts for the payment of money), or (D) materialmen’s, mechanics’, carriers’, workers’,
repairmen’s or other like Liens incurred in the ordinary course of business for sums not yet due or
currently being contested in good faith by appropriate proceedings diligently conducted, or
deposits to obtain in the release of such Liens; (ii) purchase money liens or purchase money
security interests upon or in any property acquired or held by such Borrower or Significant
Subsidiary in the ordinary course of business, which secure the purchase price of such property or
secure indebtedness incurred solely for the purpose of financing the acquisition of such property;
(iii) Liens existing on property acquired by such Borrower or Significant Subsidiary or on the
property of any Person at the time that such Person becomes a direct or indirect Significant
Subsidiary of such Borrower or Significant Subsidiary or is merged into or consolidated with such
Borrower or Significant Subsidiary; provided, in each case, that such Liens were not created to
secure the acquisition of such Person; (iv) Liens in existence on the date of this Agreement; (v)
Liens created by any FMB Mortgage, so long as under the terms thereof no “event of default”
(howsoever designated) in respect of any bonds issued thereunder will be triggered by reference to
an Event of Default or Unmatured Default; (vi) Liens securing Attributable Securitization
Obligations on the assets purported to be sold in connection with the applicable Permitted
Securitization; (vii) Liens securing Nonrecourse Indebtedness; (viii) Liens on cash or cash
equivalents deposited on behalf of or pledged to counterparties with respect to Permitted
Obligations of such Borrower or any of its Significant Subsidiaries; (ix) Liens on cash or cash
equivalents to defease Indebtedness of such Borrower or any of its Subsidiaries; (x) Liens on cash
or cash equivalents constituting proceeds from a disposition of assets otherwise not prohibited
under subsection (a) above, which proceeds are deposited in escrow accounts for indemnification,
adjustment of purchase price or similar obligations to the purchaser of such assets; (xi) Liens
securing obligations in respect of pollution control or industrial revenue bonds or nuclear fuel
leases, provided that such Liens extend to only the equipment, project, nuclear fuel or other
assets financed with the proceeds of such financing; (xii) Liens arising in connection with leases
that shall have been or should be, in accordance with GAAP, recorded as capital leases in respect
of which such Borrower or Significant Subsidiary is liable as lessee; provided, that no such Lien
shall extend to or cover any assets of such Borrower or Significant Subsidiary other than the
assets of such Borrower or Significant Subsidiary subject to such lease and proceeds thereof; and
(xiii) Liens created for the sole purpose of refinancing, extending, renewing or replacing in whole
or in part Indebtedness secured by any Lien referred to in the foregoing clauses (i) through (xii);
provided, however, that the principal


 


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amount of Indebtedness (or, if greater, the aggregate lending commitment) secured thereby shall not exceed the
principal amount of Indebtedness (or, if greater, the aggregate lending commitment) so secured at
the time of such refinancing, extension, renewal or replacement, and that such refinancing,
extension, renewal or replacement, as the case may be, shall be limited to all or a part of the
property or Indebtedness that secured the Lien so extended, renewed or replaced (and any
improvements on such property). Notwithstanding the foregoing, First Mortgage Bonds may not be
issued or used to secure, or otherwise to assure creditors or counterparties with respect to
payments on other Indebtedness, Commodity Trading Obligations or Hedging Obligations of any
Borrower or any of its Subsidiaries, except that (A) each Genco may issue and use First Mortgage
Bonds in order to secure payment obligations of FES or such Genco to any of FE’s regulated utility
Subsidiaries with respect to FES’s Mark-to-Market Obligations in an amount not greater than the
difference between (x) the amount of First Mortgage Bonds that may at the time of determination be
issued under the applicable issuance tests under the FMB Mortgage of such Genco (as such issuance
tests are in effect on the date hereof) and (y) the amount of First Mortgage Bonds issued by such
Genco and used for the purpose described in clause (B) below, and (B) each Genco and Allegheny may
issue First Mortgage Bonds to secure Indebtedness of such Person or its Subsidiaries to
unaffiliated Persons in an aggregate principal amount outstanding at any time for the Gencos and
Allegheny collectively not in excess of $3.414 billion.



(c) Mergers, Etc. Merge with or into or consolidate with or into any other Person, or permit
any of its Subsidiaries to do so unless (i) immediately after giving effect thereto, no event shall
occur and be continuing that constitutes an Event of Default, (ii) the consolidation or merger
shall not materially and adversely affect the ability of such Borrower (or its successor by merger
or consolidation as contemplated by clause (i) of this subsection (c)) to perform its obligations
hereunder or under any other Loan Document, and (iii) in the case of any merger or consolidation to
which such Borrower is a party, the Person formed by such consolidation or into which such Borrower
shall be merged shall assume such Borrower’s obligations under this Agreement and the other Loan
Documents to which it is a party in a writing reasonably satisfactory in form and substance to the
Administrative Agent. Without limiting the foregoing, (A) each Borrower may merge with or into or
consolidate with or into (x) the other Borrower or into a newly-formed Person into which both
Borrowers are being merged or consolidated (which will become the sole Borrower hereunder) or (y) a
wholly-owned Subsidiary of the other Borrower (in which case such other Borrower will become the
sole Borrower hereunder), and (B) each Borrower may transfer all or substantially all of its assets
and liabilities to the other Borrower, to a wholly-owned Subsidiary of the other Borrower (in which
case such other Borrower will become the sole Borrower hereunder) or to a newly-formed Person to
which all or substantially all of the assets and liabilities of both Borrowers are being
transferred (which will become the sole Borrower hereunder), in each case of clauses (A) and (B),
if (1) the surviving Person, transferee or Person otherwise specified above to become the sole
Borrower hereunder, as applicable, assumes both Borrowers’ obligations under this Agreement and the
other Loan Documents pursuant to an instrument in form and substance reasonably satisfactory to the
Administrative Agent, (2) the Administrative Agent receives evidence reasonably satisfactory to it
that, after giving effect to such transactions, the Genco Guarantees will remain in full force and
effect and will apply (either as a result of such merger, consolidation or transfer or pursuant to
amendments to the Genco Guarantees) to the obligations of Allegheny under this Agreement and the
other Loan Documents (as so transferred or assumed) in the same manner and to the same extent as
they applied to the obligations of FES under this Agreement and the other Loan
Documents on the date hereof, (3) the Reference Ratings of the surviving or resulting Borrower
are not, after giving effect to such transactions, any lower than the Reference Ratings of each
Borrower that was a party to such transactions immediately prior to the consummation of such
transactions, unless the Reference Ratings of such surviving or resulting Borrower are at least
BBB- and Baa3, and (4) the parties to such transaction deliver to the Administrative Agent
certified copies of all corporate or limited liability, equity holder and Governmental Authority
approvals required in connection with such transactions and legal opinions of counsel to such
parties relating to such transactions and the assumption agreement described in clause (1) above.


 


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(d) Compliance with ERISA. (i) Enter into any nonexempt “prohibited transaction” (within the
meaning of Section 4975 of the Code or Section 406 of ERISA) involving any Plan that may result in
any liability of such Borrower to any Person that (in the opinion of the Majority Lenders and the
Fronting Banks) would reasonably be expected to have a Material Adverse Effect with respect to any
Borrower or (ii) allow or suffer to exist any other event or condition known to such Borrower that
results in any liability of such Borrower to the PBGC that would reasonably be expected to have a
Material Adverse Effect with respect to any Borrower. For purposes of this subsection (d),
“liability” shall not include termination insurance premiums payable under Section 4007 of ERISA.



(e) Use of Proceeds. Use the proceeds of any Extension of Credit for any purpose other than
(ii) refinancing the Existing Facilities to which such Borrower is a party and (ii) working capital
and other general corporate purposes of such Borrower and its Subsidiaries; provided, however, that
such Borrower may not use such proceeds in connection with any Hostile Acquisition.



(f) Limitation on Cross-Default Provisions. Incur or permit any Significant Subsidiary to
incur (which for purposes of this subsection (f), shall not include the drawdown of any revolving
credit facility or any letter of credit facility in existence on the date hereof or any other
incurrence of Indebtedness or other obligation under agreements in existence on the date hereof
pursuant to the terms thereof as in effect on the date hereof) after the date hereof any
Indebtedness, Commodity Trading Obligations or Hedging Obligations that shall or may become subject
to acceleration, redemption or mandatory purchase prior to the stated maturity date of such
Indebtedness or the stated or otherwise applicable date for performance of such Commodity Trading
Obligations or Hedging Obligations, as the case may be, upon the occurrence of one or more events
of default or credit event or similar events (howsoever designated) under any document or
instrument evidencing any other such Indebtedness, Commodity Trading Obligations or Hedging
Obligations (any such provision to the effect of the foregoing being a “Cross-Default Provision”)
of FE or any of its Subsidiaries (other than any Borrower and its Subsidiaries); provided however,
that, during the six-month period following the date hereof, each Borrower and its Subsidiaries may
incur Commodity Trading Obligations and Hedging Obligations pursuant to any ISDA Master Agreement
and related schedule that contains such a Cross-Default Provision if and to the extent that such
ISDA Master Agreement and related schedule contained such Cross-Default Provision on the date
hereof; and provided further, that any Cross-Default Provision of any Borrower or any of its
Subsidiaries that relates to the other Borrower or any of its Subsidiaries shall not provide the
applicable creditor or counterparty, as the case may be, rights more extensive than those provided
to the Lenders under Section 6.01(e) below unless an Authorized Officer of the applicable Borrower
shall have delivered a certified
true and correct copy of such Cross-Default Provision to the Administrative Agent, whereupon
the provisions of Section 6.01(e) shall be deemed to be automatically amended without any further
action on the part of any Borrower, the Lenders or any other Person in a manner such that the
Lenders shall receive the benefit of any such more extensive rights to the same extent that any
such creditor or counterparty is entitled thereto.


 


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(g) Restrictions on Lending under Money Pool. At any time an Event of Default or an Unmatured
Default shall have occurred and be continuing, make, or cause or permit any Subsidiary of such
Borrower to make, loans and advances to any other Person under the Money Pool.



ARTICLE VI

EVENTS OF DEFAULT





SECTION 6.01. Events of Default.



If any of the following events shall occur and be continuing with respect to any Borrower (as
to such Borrower, an “Event of Default”):




(a) (i) Any principal of any Advance or any Reimbursement Obligation shall not be paid
by such Borrower when the same becomes due and payable, or (ii) any interest on any Advance
or any fees or other amounts payable hereunder shall not be paid by such Borrower within
three Business Days after the same becomes due and payable; or




(b) Any representation or warranty made by such Borrower (or any of its officers) in
any Loan Document or in connection with any Loan Document shall prove to have been incorrect
or misleading in any material respect when made; or




(c) (i) Such Borrower shall fail to perform or observe any covenant set forth in (A)
Section 5.01(j), Section 5.02 or Section 5.03 on its part to be performed or observed or (B)
Section 5.01(i) and such failure shall remain unremedied for five Business Days, or (ii)
such Borrower shall fail to perform or observe any other term, covenant or agreement (other
than those covenants otherwise covered in clause (a) or (c)(i) of this Section 6.01)
contained in this Agreement or any other Loan Document on its part to be performed or
observed and such failure shall remain unremedied for 30 days after written notice thereof
shall have been given to such Borrower by the Administrative Agent or any Lender; or




(d) Any material provision of this Agreement or any other Loan Document shall at any
time and for any reason cease to be valid and binding upon such Borrower, except pursuant to
the terms thereof, or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested in any manner by such Borrower or any Governmental
Authority, or such Borrower shall deny in any manner that it has any or further liability or
obligation under this Agreement or any other Loan Document; or


 


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(e) Such Borrower or any Significant Subsidiary of such Borrower shall fail to pay any
principal of or premium or interest on any Indebtedness (other than Indebtedness under this
Agreement) that is outstanding in a principal amount in excess of $100,000,000 in the
aggregate when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or




(f) Such Borrower or any Significant Subsidiary of such Borrower shall generally not
pay its debts as such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Borrower or any Significant Subsidiary of
such Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition or
arrangement with creditors, a readjustment of its debts, in each case under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted or acquiesced in by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 consecutive days, or any
of the actions sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or any
Borrower or any Significant Subsidiary of such Borrower shall take any corporate action to
authorize or to consent to any of the actions set forth above in this subsection (f); or




(g) Any judgment or order for the payment of money exceeding any applicable insurance
coverage by more than $100,000,000 shall be rendered by a court of final adjudication
against such Borrower or any Significant Subsidiary of such Borrower and either (i) valid
enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or




(h) Any Termination Event with respect to a Plan or a Multiemployer Plan shall have
occurred, and, 30 days after notice thereof shall have been given to such Borrower by the
Administrative Agent or any Lender, such Termination Event (if correctable) shall not have
been corrected, and either (1) the actual liability in respect of such Termination Event to
such Borrower would reasonably be expected to exceed $100,000,000, or (2) such Borrower or
any member of the Controlled Group as employer
under a Multiemployer Plan shall have made a complete or partial withdrawal from such
Multiemployer Plan and, as a result thereof, such Borrower would reasonably be expected to
incur withdrawal liability in an amount exceeding $100,000,000; or


 


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(i) (i) FE shall fail to own directly or indirectly 100% of the issued and outstanding
 shares of common stock of each Borrower and each Borrower’s Significant Subsidiaries, (ii)
any Person or two or more Persons acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of FE
(or other securities convertible into such securities) representing 30% or more of the
combined voting power of all securities of FE entitled to vote in the election of directors;
or (iii) commencing after the date of this Agreement, individuals who as of the date of this
Agreement were directors shall have ceased for any reason to constitute a majority of the
Board of Directors of FE unless the Persons replacing such individuals were nominated by the
stockholders or the Board of Directors of FE in accordance with FE’s Organizational
Documents (each a “Change of Control”);



then, and in any such event, the Administrative Agent shall at the request, or may with the
consent, of the Majority Lenders, (i) by notice to the defaulting Borrower, declare the obligation
of each Lender to make Advances to such Borrower, the obligation of the Fronting Banks to issue
Letters of Credit for the account of such Borrower and the obligation of the Swing Line Lenders to
make Swing Line Advances to such Borrower, to be terminated, whereupon the same shall forthwith
terminate, and (ii) by notice to such Borrower, declare the Advances made to such Borrower, an
amount equal to the aggregate Stated Amount of all issued but undrawn Letters of Credit issued for
the account of such Borrower, (such amount being the “Letter of Credit Cash Cover”) and all other
amounts payable under this Agreement and the other Loan Documents by such Borrower to be forthwith
due and payable, whereupon such Advances and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by such Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Borrower or any Significant Subsidiary of
such Borrower under the Bankruptcy Code, (A) the obligation of each Lender to make Advances to such
Borrower, the obligation of the Fronting Banks to issue Letters of Credit for the account of such
Borrower, and the obligation of the Swing Line Lenders to make Swing Line Advances to such Borrower
shall automatically be terminated and (B) all Advances made to such Borrower, the Letter of Credit
Cash Cover with respect to such Borrower and all other amounts payable under this Agreement by such
Borrower shall automatically become and be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by such Borrower. In the event
that any Borrower is required to pay the Letter of Credit Cash Cover pursuant to this Section, such
payment shall be made in immediately available funds to the Administrative Agent, which shall hold
such funds as collateral pursuant to arrangements reasonably satisfactory to the Administrative
Agent and the Fronting Banks to secure Reimbursement Obligations in respect of Letters of Credit
then outstanding, for the benefit of the Lenders and the Fronting Banks.


 


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ARTICLE VII

THE ADMINISTRATIVE AGENT





SECTION 7.01. Authorization and Action.



Each Lender, each Fronting Bank and each Swing Line Lender hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly provided for by this
Agreement the Administrative Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all Fronting Banks; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to this Agreement or applicable law. The Administrative
Agent agrees to give to each Lender and each Fronting Bank prompt notice of each notice given to it
by the Borrowers pursuant to the terms of this Agreement and to promptly forward to each Lender,
each Fronting Bank and each Swing Line Lender the financial statements and any other certificates
or statements delivered to the Administrative Agent pursuant to Section 5.01(g).




SECTION 7.02. Administrative Agent’s Reliance, Etc.



Neither the Administrative Agent nor any of its directors, officers, agents or employees shall
be liable to any Lender, any Fronting Bank, any Swing Line Lender or the Borrowers for any action
taken or omitted to be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may treat each Lender listed in the Register as a
“Lender” with a Commitment in the amount recorded in the Register until the Administrative Agent
receives and accepts an Assignment and Assumption entered into by a Lender listed in the Register,
as assignor, and the applicable assignee, as provided in Section 8.08, at which time the
Administrative Agent will make such recordations in the Register as are appropriate to reflect the
assignment effected by such Assignment and Assumption; (ii) may consult with legal counsel
(including counsel for the Borrowers), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender, any Fronting Bank or any Swing Line Lender and shall not be
responsible to any Lender, any Fronting Bank or any Swing Line Lender for any statements,
warranties or representations (whether written or oral) made in or in connection with the Loan
Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of the Loan Documents on the part of the
Borrowers or to inspect the property (including the books and records) of the Borrowers, and,
without limiting the foregoing, shall be deemed not to have knowledge of any Default or Event of
Default unless and until written notice is given by a Lender or a Borrower to the Administrative
Agent in accordance with the terms of this Agreement; (v) shall not be responsible to any Lender,
any Fronting Bank or any Swing Line Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value
of the Loan Documents or any other instrument or document furnished pursuant thereto; and (vi)
shall incur no liability under or in respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier, telegram or cable) believed
by it in good faith to be genuine and signed or sent by the proper party or parties.


 


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SECTION 7.03. JPMCB and the Fronting Banks and Swing Line Lenders.



With respect to its Commitment, the Advances made by it and any Note issued to it, each of
JPMCB and each Lender that is also a Fronting Bank or a Swing Line Lender shall have the same
rights and powers under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent, a Fronting Bank or a Swing Line Lender (as the case may be); and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include each of JPMCB
and each Lender that is also a Fronting Bank as a Swing Line Lender in its individual capacity.
Each of JPMCB and each Lender that is also a Fronting Bank as a Swing Line Lender and its
Affiliates may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, each Borrower, any of its respective subsidiaries
and any Person who may do business with or own securities of such Borrower or any such subsidiary,
all as if JPMCB or such Lender were not the Administrative Agent, a Fronting Bank or a Swing Line
Lender (as the case may be) and without any duty to account therefor to the Lenders or any other
Fronting Bank or Swing Line Lender.




SECTION 7.04. Lender Credit Decision; No Other Duties.



Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Fronting Banks, the Swing Line Lenders or any other Lender (or any such
Person or any Affiliate thereof acting in the capacity of “Joint Lead Arranger”, “Syndication
Agent” or “Documentation Agent”) and based on the financial statements referred to in Section
4.01(g) and such other documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Fronting Banks, the Swing
Line Lenders or any other Lender (or any such Person or any Affiliate thereof acting in the
capacity of “Joint Lead Arranger”, “Syndication Agent” or “Documentation Agent”) and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.



Anything herein to the contrary notwithstanding, none of the Persons listed on the cover page
hereof as a “Joint Lead Arranger”, “Documentation Agent” or “Syndication Agent” shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Fronting Bank, a Swing Line Lender,
or a Lender hereunder.


 


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SECTION 7.05. Indemnification.



The Lenders agree to indemnify the Administrative Agent (to the extent not reimbursed by the
Borrowers), ratably according to the amounts of their respective Commitments, from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Administrative Agent (in its capacity
as such) under this Agreement; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that such expenses are reimbursable by the Borrowers but for which
the Administrative Agent is not reimbursed by the Borrowers.




SECTION 7.06. Successor Administrative Agent.



The Administrative Agent may resign at any time by giving written notice thereof to the
Lenders, the Fronting Banks, the Borrowers and the Swing Line Lenders and may be removed at any
time with or without cause by the Majority Lenders, the Fronting Banks and the Swing Line Lenders.
Upon any such resignation or removal, the Majority Lenders, the Fronting Banks and the Swing Line
Lenders shall have the right, with the prior written consent of the Borrowers (unless an Event of
Default has occurred and is continuing), which consent shall not be unreasonably withheld or
delayed, to appoint a successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Majority Lenders, the Fronting Banks and the Swing Line Lenders, and
shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s
giving of notice of resignation or the Majority Lenders’, the Fronting Banks’ and the Swing Line
Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Lenders, the Fronting Banks and the Swing Line Lenders, appoint a successor
Administrative Agent, which shall be a Lender or an Affiliate of a Lender and (i) a commercial bank
organized under the laws of the United States, or any State thereof or (ii) a commercial bank
organized under the laws of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its “General Arrangements
to Borrow”, or a political subdivision of any such country, provided that such bank is acting
through a branch or agency located in the United States and shall have a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent’s resignation or removal
hereunder as Administrative Agent, the provisions of this Article VII shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. Notwithstanding the foregoing, if no Event of Default or Unmatured Default shall have
occurred and be continuing, then no successor Administrative Agent shall be appointed under this
Section 7.06 without the prior written consent of the Borrowers, which consent shall not be
unreasonably withheld or delayed.


 


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SECTION 7.07. Delegation of Duties.



The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder by or through any one or more sub-agents appointed by the Administrative Agent;
provided that, the appointment of a sub-agent that is not an Affiliate of the Administrative Agent
shall be subject to the prior consent of the Borrowers (unless an Event of Default has occurred and
is continuing), which consent shall not be unreasonably withheld or delayed. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. Each such sub-agent and the Related Parties
of the Administrative Agent shall be entitled to the benefits of all provisions of this Article VII
and Section 8.05, as though such sub-agents were the “Administrative Agent”, as if set forth in
full herein with respect thereto.



ARTICLE VIII

MISCELLANEOUS





SECTION 8.01. Amendments, Etc.



No amendment or waiver of any provision of this Agreement or any Note, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the Lenders affected
thereby (other than, in the case of clause (a), (e) or (f) below, any Defaulting Lender), do any of
the following: (a) waive any of the conditions specified in Section 3.01 or 3.02 increase the
Commitments of the Lenders or subject the Lenders to any additional obligations, (b) change any
provision hereof in a manner that would alter the pro rata sharing of payments or the pro rata
reduction of Commitments among the Lenders, (c) reduce the principal of, or interest (or rate of
interest) on, the Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, the aggregate undrawn amount of outstanding Letters of Credit or
the number of Lenders, that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01 or the definition of “Majority Lenders”; and provided,
further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or Section 2.21; (ii) that no
amendment, waiver or consent that would adversely affect the rights of, or increase the obligations
of, any Fronting Bank, or that would alter any provision hereof relating to or affecting Letters of
Credit issued by such Fronting Bank or modify or waive Section 2.21, shall be effective unless
agreed to in writing by such Fronting Bank or modify or waive Section 2.21; (iii) no amendment,
waiver or consent that would adversely affect the rights of, or increase the obligations of, any
Swing Line Lender, or that would alter provisions hereof relating to or affecting Swing Line
Advances made by such Swing Line Lender or modify or waive Section 2.21, shall be effective unless
agreed to in writing by such Swing Line Lender; and (iv) this Agreement may be amended and restated
without the consent of any Lender, any Fronting Bank,
any Swing Line Lender or the Administrative Agent if, upon giving effect to such amendment and
restatement, such Lender, such Fronting Bank, such Swing Line Lender or the Administrative Agent,
as the case may be, shall no longer be a party to this Agreement (as so amended and restated) or
have any Commitment or other obligation hereunder (including, without limitation, any obligation to
make payment on account of a Drawing) and shall have been paid in full all amounts payable
hereunder to such Lender, such Fronting Bank, such Swing Line Lender or the Administrative Agent,
as the case may be.


 


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SECTION 8.02. Notices, Etc.



Unless specifically provided otherwise in this Agreement, all notices and other communications
provided for hereunder shall be in writing (including telecopier) and delivered by hand or
overnight courier service, mailed or sent by telecopy, if to any Borrower, to it in care of FE at
its address at 76 South Main Street, Akron, Ohio 44308, Attention: Treasurer, Telecopy: (330)
384-3772; if to any Bank (including any Swing Line Lender), at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender (including any Swing Line
Lender), at its Domestic Lending Office specified in the Assignment and Assumption pursuant to
which it became a Lender; if to the Administrative Agent, at its address at JPMorgan Chase Bank,
N.A., 1111 Fannin, 10th Floor, Houston, TX 77002-6925, Attention: Leslie Hill, Telecopy:
713-427-6307, and with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, New York, NY 10179,
Attention: Peter Christensen, Telecopy: 212-270-3897; if to any Fronting Bank identified on
Schedule II hereto, at the address specified opposite its name on Schedule II hereto; if to any
other Fronting Bank, at such address as shall be designated by such Fronting Bank in a written
notice to the other parties; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. Subject to the other notice requirements of
this Agreement, all notices and communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service, mailed or sent by telecopy to such party and received during
the normal business hours of such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this Section. If such notices
and communications are received after the normal business hours of such party, receipt shall be
deemed to have been given upon the opening of the recipient’s next Business Day.




SECTION 8.03. Electronic Communications.



(a) Each Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a conversion of an
existing, Borrowing or other Extension of Credit (including any election of an interest rate or
Interest Period relating thereto), (ii) relates to the payment of any principal or other amount due
under the Credit Agreement prior to the scheduled date therefor, (iii) provides notice of any
Unmatured Default or Event of Default under the Credit Agreement or (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of the Credit Agreement and/or
any Borrowing or other Extension of Credit thereunder (all such non-excluded communications
being referred to herein collectively as “Communications”), by transmitting the Communications
in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent to
leslie.d.hill@chase.com and Peter.Christensen@jpmorgan.com or faxing the Communications to (713)
427-6307 and (212) 270-3897. In addition, each Borrower agrees to continue to provide the
Communications to the Administrative Agent in the manner otherwise specified in this Agreement, but
only to the extent requested by the Administrative Agent.


 


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(b) Each Borrower further agrees that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a substantially similar
electronic transmission systems (the “Platform”). Each Borrower acknowledges that the distribution
of material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution.



(c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO ANY BORROWER, ANY LENDER OR
ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF ANY BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF
THE COMMUNICATIONS THROUGH THE PLATFORM, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS
FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



(d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender
agrees that notice to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such Lender’s e-mail
address to which the foregoing notice may be sent by electronic transmission and that the foregoing
notice may be sent to such e-mail address. Subject to the other notice requirements of this
Agreement, all such notices and Communications given to the Administrative Agent or such Lender in
accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt if delivered by electronic/soft medium to
such party and received during the normal business hours of such party as provided in this Section
or in accordance with the latest unrevoked direction from such party given in accordance with this
Section. If such notices and communications are received after the normal business hours of such
party, receipt shall be deemed to have been given upon the opening of the recipient’s next Business
Day.


 


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(e) Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give
any notice or other communication pursuant to any Loan Document in any other manner specified in
such Loan Document.




SECTION 8.04. No Waiver; Remedies.



No failure on the part of any Lender, any Fronting Bank, any Swing Line Lender or the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.




SECTION 8.05. Costs and Expenses; Indemnification.



(a) Each Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent, each Fronting Bank and each Swing Line Lender in connection
with the preparation, execution, delivery, syndication administration, modification and amendment
of this Agreement, any Note, any Letter of Credit and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent, the Fronting Banks and the Swing Line Lenders with respect thereto
and with respect to advising the Administrative Agent, the Fronting Banks and each Swing Line
Lender as to their rights and responsibilities under this Agreement. Each Borrower further agrees
to pay on demand all reasonable out-of-pocket costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses of counsel), incurred by the Administrative Agent,
the Fronting Banks, the Swing Line Lenders and the Lenders in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Agreement, any Note and the
other documents to be delivered hereunder, including, without limitation, counsel fees and expenses
in connection with the enforcement of rights under this Section 8.05(a).



(b) Except as otherwise expressly provided to the contrary herein, if any payment of principal
of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.11
or 2.14 or a prepayment pursuant to Section 2.12 or acceleration of the maturity of any amounts
owing hereunder pursuant to Section 6.01 or upon an assignment made upon demand of a Borrower
pursuant to Section 8.08(h) or for any other reason, the applicable Borrower shall, upon demand by
any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or redeployment of deposits or other funds acquired by any Lender
to fund or maintain such Advance. Each Borrower’s obligations under this subsection (b) shall
survive the repayment of all other amounts owing to the Lenders and the Administrative Agent under
this Agreement and any Note and the termination of the Commitments.


 


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(c) Each Borrower hereby agrees to indemnify and hold each Lender, each Fronting Bank, the
Administrative Agent and their respective Affiliates and their respective officers, directors,
employees and professional advisors (each, an “Indemnified Person”) harmless from and against any
and all claims, damages, liabilities, costs or expenses (including reasonable attorney’s fees and
expenses, whether or not such Indemnified Person is named as a party to any proceeding or is
otherwise subjected to judicial or legal process arising from any such proceeding) that any of them
may incur or that may be claimed against any of them by any Person (including any Borrower) by
reason of or in connection with or arising out of any investigation, litigation or proceeding
related to the Commitments or the commitment of each Fronting Bank hereunder and any use or
proposed use by any Borrower of the proceeds of any Extension of Credit or the existence or use of
any Letter of Credit or the amounts drawn thereunder, except to the extent such claim, damage,
liability, cost or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Person’s gross negligence or willful
misconduct. Each Borrower’s obligations under this Section 8.05(c) shall survive (x) the repayment
of all amounts owing to the Lenders, the Fronting Banks and the Administrative Agent under this
Agreement and any Note, (y) the termination of the Commitments, the commitment of the Fronting
Banks hereunder and any Letters of Credit and (z) the termination of this Agreement. If and to the
extent that the obligations of the Borrowers under this Section 8.05(c) are unenforceable for any
reason, each Borrower agrees to make the maximum payment in satisfaction of such obligations that
are not unenforceable that is permissible under Applicable Law or, if less, such amount that may be
ordered by a court of competent jurisdiction.



(d) To the extent permitted by law, each Borrower also agrees not to assert any claim against
any Indemnified Person on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) in connection with, arising out of, or otherwise
relating to this Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.



(e) Each Borrower shall be liable for its pro rata share of any payment to be made by the
Borrowers under this Section 8.05, such pro rata share to be determined on the basis of such
Borrower’s Fraction; provided, however, that if and to the extent that any such liabilities are
reasonably determined by the Borrowers (subject to the approval of the Administrative Agent which
approval shall not be unreasonably withheld) to be directly attributable to a specific Borrower,
only such Borrower shall be liable for such payments.


 


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SECTION 8.06. Right of Set-off.



Upon the occurrence and during the continuance of any Event of Default each Lender, each
Fronting Bank and each Swing Line Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, excluding, however, any payroll accounts
maintained by the Borrowers with such Lender, such Fronting Bank or such Swing Line Lender (as
the case may be) if and to the extent that such Lender, such Fronting Bank or such Swing Line
Lender (as the case may be) shall have expressly waived its set-off rights in writing in respect of
such payroll account) at any time held and other indebtedness at any time owing by such Lender,
such Fronting Bank or such Swing Line Lender (as the case may be) to or for the credit or the
account of the Borrowers against any and all of the obligations of the Borrowers now or hereafter
existing under this Agreement and any Note held by such Lender, whether or not such Lender, such
Fronting Bank or such Swing Line Lender (as the case may be) shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each Lender, each Fronting
Bank and each Swing Line Lender agrees promptly to notify the Borrowers after any such set-off and
application made by such Lender, such Fronting Bank or such Swing Line Lender (as the case may be),
provided that the failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and each Fronting Bank and each Swing Line Lender under
this Section 8.06 are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender, such Fronting Bank or such Swing Line Lender (as the
case may be) may have.




SECTION 8.07. Binding Effect.



This Agreement shall become effective when it shall have been executed by the Borrowers and
the Administrative Agent and when the Administrative Agent shall have been notified by each Bank,
each Swing Line Lender and each Fronting Bank that such Bank, such Swing Line Lender or such
Fronting Bank (as the case may be) has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrowers, the Administrative Agent, each Swing Line Lender, each Fronting
Bank and each Lender and their respective successors and permitted assigns, except that the
Borrowers shall not have the right to assign their rights or obligations hereunder or any interest
herein (x) without the prior written consent of the Lenders and the Fronting Banks or (y) pursuant
to Section 5.03(c).




SECTION 8.08. Assignments and Participations.



(a) Successors and Assigns Generally. No Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section 8.08, (ii) by way of participation in accordance with the provisions
of subsection (d) of this Section 8.08, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section 8.08 (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section 8.08 and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


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(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Advances at the time owing to it); provided that any such assignment shall be
subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and/or the Advances at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the amount
specified in subsection (b)(i)(B) of this Section 8.08 in the aggregate or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section 8.08, the
aggregate amount of the Commitment (which for this purpose includes Advances
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Advances of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not
be less than $5,000,000, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrowers otherwise consent
(each such consent not to be unreasonably withheld or delayed); provided that the
Borrowers shall be deemed to have consented to any such assignment unless they shall
object thereto by giving written notice to the Administrative Agent within five
Business Days after having received notice thereof.




(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Advance or the Commitment assigned.




(iii) Required Consents. No consent shall be required for any assignment except to the
extent required by subsection (b)(i)(B) of this Section 8.08 and, in addition:




(A) the consent of the Borrowers (such consent not to be unreasonably withheld
or delayed) shall be required unless (x) an Event of Default has occurred and is
continuing at the time of such assignment, or (y) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be
deemed to have consented to any such assignment unless they shall object thereto by
giving written notice to the Administrative Agent within five Business Days after
having received notice thereof and provided, further, that the Borrowers’ consent
shall not be required during the primary syndication hereof;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender, an Affiliate of such Lender or an
Approved Fund with respect to such Lender; and


 


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(C) the consent of each Fronting Bank and Swing Line Lender shall be required
for all assignments, other than pursuant to subsection (f) below.




(iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 provided that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.




(v) No Assignment to Certain Persons. No such assignment shall be made to (A) the
Borrowers or any of the Borrowers’ Affiliates or Subsidiaries or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B).




(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural
Person.




(vii) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless
and until, in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an aggregate
amount sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrowers and the Administrative Agent,
the applicable pro rata share of Advances previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably
consent), to (x) pay and satisfy in full all payment liabilities then owed by such
Defaulting Lender to the Administrative Agent, each Fronting Bank, each Swing Line Lender
and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as
appropriate) its full pro rata share of all Advances and participations in Letters of Credit
and Swing Line Advances in accordance with its Percentage. Notwithstanding the foregoing,
in the event that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable law without compliance with the provisions
of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 8.08, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.13, 2.16 and 8.05 with
respect to facts and circumstances occurring prior to the effective date of such assignment;
provided, that except to the extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section 8.08.


 


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(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at its offices at 1111 Fannin, 10th Floor, Houston, TX 77002-6925 a copy
of each Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of the Advances owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in
the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.



(d) Participations. Any Lender may at any time, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Advances owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations, and
(iii) the Borrowers, the Administrative Agent, the Fronting Banks and Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the
indemnity under Section 7.05 with respect to any payments made by such Lender to its
Participant(s). Each Lender that sells a participation shall, acting solely for this purpose as an
agent of the Borrower, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each Participant’s interest in the
Loans or other obligations under this Agreement (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any Participant or any information relating to a Participant’s
interest in any Commitments, Advances, Letters of Credit or its obligations under any Loan
Document) except to the Internal Revenue Service and only to the extent that such disclosure is
necessary to establish that such Commitment, Advance, Letter of Credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary.


 


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Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clauses (a) through (f) of
Section 8.01 that affects such Participant. The Borrowers agree that each Participant shall be
entitled to the benefits of Sections 2.13 and 2.16 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section 8.08; provided
that such Participant agrees to be subject to the provisions of Sections 2.16(f) and 8.08(h) as if
it were an assignee under subsection (b) of this Section 8.08. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 8.06 as though it were a
Lender; provided that such Participant agrees to be subject to Section 2.17 as though it were a
Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Sections 2.13 and 2.16 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers’ prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section
2.16 unless the Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 2.16(e) as though it
were a Lender.



(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking
authority; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



(g) Disclosure of Certain Information. Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section 8.08, disclose to
the assignee or participant or proposed assignee or participant, any information relating to the
Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, that prior to any
such disclosure, the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the Borrowers received by
it from such Lender.



(h) Replacement of Lenders. If any Lender shall make demand for payment under Section
2.13(a), 2.13(b) or 2.16, or shall deliver any notice to the Administrative Agent pursuant to
Section 2.14 resulting in the suspension of certain obligations of the Lenders with respect to
Eurodollar Rate Advances, or shall be a Defaulting Lender, then, within 30 days of such demand (if,
and only if, such payment demanded under Section 2.13(a), 2.13(b) or 2.16, as the case may be,
shall have been made by a Borrower) or such notice (if such suspension is still in effect) or such
Lenders’ becoming a Defaulting Lender, as the case may be, such Borrower may demand that such
Lender assign in accordance with this Section 8.08 to one or more assignees designated by such
Borrower and approved by the required Persons under subsection (b)(iii) above all (but not less
than all) of such Lender’s Commitment and the Advances owing to it within the next 15 days. If any
such assignee designated by such Borrower shall fail to consummate such assignment on terms
acceptable to such Lender, or if such Borrower shall fail to designate any such assignee for all of
such Lender’s


 


81









 






Commitment or Advances, then such Lender may assign such Commitment and Advances to any other assignee in accordance with this Section 8.08 during
such 15-day period; it being understood for purposes of this Section 8.08(h) that such assignment
shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall be
compelled to consummate such assignment to an assignee designated by such Borrower, if such
assignee shall agree to such assignment in substantially the form of Exhibit A hereto and shall
offer compensation to such Lender in an amount equal to the sum of the principal amount of all
Advances outstanding to such Lender plus all interest accrued thereon to the date of such payment
plus all other amounts payable by such Borrower to such Lender hereunder (whether or not then due)
as of the date of such payment accrued in favor of such Lender hereunder. Notwithstanding the
foregoing, no Lender shall make any assignment at any time pursuant to this subsection (g) if, at
such time, (i) an Event of Default or Unmatured Default has occurred and is continuing, (ii) any
Borrower has not satisfied all of its obligations hereunder with respect to such Lender or (iii)
such replacement of such Lender is not acceptable to the Administrative Agent, the Fronting Banks
and the Swing Line Lenders, as applicable, pursuant to subsection (b)(iii) above.




SECTION 8.09. Governing Law.



THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.




SECTION 8.10. Consent to Jurisdiction; Waiver of Jury Trial.



(a) To the fullest extent permitted by law, each Borrower hereby irrevocably (i) submits to
the exclusive jurisdiction of any New York State or Federal court sitting in New York City and any
appellate court from any thereof in any action or proceeding arising out of or relating to this
Agreement, any other Loan Document or any Letter of Credit, and (ii) agrees that all claims in
respect of such action or proceeding may be heard and determined in such New York State court or in
such Federal court. Each Borrower hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each
Borrower also irrevocably consents, to the fullest extent permitted by law, to the service of any
and all process in any such action or proceeding by the mailing by certified mail of copies of such
process to such Borrower at its address specified in Section 8.02. Each Borrower agrees, to the
fullest extent permitted by law, that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.



(b) EACH BORROWER, THE ADMINISTRATIVE AGENT, EACH FRONTING BANK, EACH SWING LINE LENDER AND
THE LENDERS HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY LETTER OF CREDIT, OR
ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.


 


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SECTION 8.11. Severability.



Any provision of this Agreement that is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any other jurisdiction.




SECTION 8.12. Entire Agreement.



This Agreement and the Notes issued hereunder constitute the entire contract among the parties
relative to the subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement, except (i) as expressly agreed in any
such previous agreement and (ii) for the Fee Letters and the Fronting Bank Fee Letters. Except as
is expressly provided for herein, nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement.




SECTION 8.13. Execution in Counterparts.



This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.




SECTION 8.14. USA PATRIOT Act Notice.



Each Lender that is subject to the Patriot Act, each Fronting Bank and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers pursuant to the
requirements of the Patriot Act that it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of the Borrower and other
information that will allow such Lender, such Fronting Bank or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the Patriot Act.




SECTION 8.15. No Fiduciary Duty.



The Administrative Agent, each Fronting Bank, each Swing Line Lender, each Lender and their
respective Affiliates (collectively, the “Credit Parties”), may have economic interests that
conflict with those of the Borrowers, their stockholders and/or their affiliates. Each Borrower
agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or other implied duty between any Credit Party, on
the one hand, and such Borrower, its stockholders or its affiliates, on the other. The Borrowers
acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the
exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions
between the Credit Parties, on the one hand, and the Borrowers, on the other, and (ii) in
connection therewith and with the process leading thereto, (x) no Credit Party has assumed an
advisory or fiduciary responsibility in favor of any Borrower, its stockholders or its affiliates
with respect to the transactions contemplated hereby (or the exercise of rights or remedies with
respect thereto) or the process leading thereto (irrespective of whether any Credit Party has
advised, is currently advising or will advise any Borrower, its stockholders or its
Affiliates on other matters) or any other obligation to any Borrower except the obligations
expressly set forth in the Loan Documents and (y) each Credit Party is acting solely as principal
and not as the agent or fiduciary of any Borrower, its management, stockholders, creditors or any
other Person. Each Borrower acknowledges and agrees that it has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is responsible for making its
own independent judgment with respect to such transactions and the process leading thereto. Each
Borrower agrees that it will not claim that any Credit Party has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to such Borrower, in connection with such
transaction or the process leading thereto.



[Signatures to Follow]



 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


S-3









 







	 	 	 	 	 
	 	BARCLAYS BANK PLC, as a Bank

 	 
	 	By:  	/s/ Ann E. Sutton
 	 
	 	 	Name:  	Ann E. Sutton 	 
	 	 	Title:  	Director 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


S-5









 







	 	 	 	 	 
	 	CITIBANK, N.A., as a Bank and as a Fronting Bank

 	 
	 	By:  	/s/ Maureen Maroney
 	 
	 	 	Name:  	Maureen Maroney	 
	 	 	Title:  	Vice President 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


S-9









 







	 	 	 	 	 
	 	UNION BANK, N.A., as a Bank

 	 
	 	By:  	/s/ Eric Otieno
 	 
	 	 	Name:  	Eric Otieno 	 
	 	 	Title:  	Assistant Vice President 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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	 	MORGAN STANLEY BANK, N.A., as a Bank

 	 
	 	By:	 	  /s/ Sherrese Clarke
 
	 	 	 	Name: Sherrese Clarke 	 
	 	 	 	Title:   Authorized Signatory 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-14









 





	 	 	 	 	 
	 	Goldman Sachs Bank USA, as a Bank

 	 
	 	By:  	/s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-15









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Bank

 	 
	 	By:  	/s/ Thomas Casey
 	 
	 	 	Name:  	Thomas Casey 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-17









 





	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD. as a Bank

 	 
	 	By:  	/s/ Leon Mo
 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-18









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Bank

 	 
	 	By:  	/s/ Christian S. Brown
 	 
	 	 	Name:  	Christian S. Brown 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-19









 





	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING CORPORATION, as a Bank

 	 
	 	By:  	/s/ Hiroshi Higuma
 	 
	 	 	Name:  	Hiroshi Higuma 	 
	 	 	Title:  	Joint General Manager 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-20









 





	 	 	 	 	 
	 	U.S. Bank National Association, as a Bank

 	 
	 	By:  	/s/ Eric J. Cosgrove
 	 
	 	 	Name:  	Eric J. Cosgrove 	 
	 	 	Title:  	Vice President 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-22









 





	 	 	 	 	 
	 	CoBank, ACB, as a Bank

 	 
	 	By:  	/s/ Josh Batchelder
 	 
	 	 	Name:  	Josh Batchelder 	 
	 	 	Title:  	Vice President 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-26









 





	 	 	 	 	 
	 	Sovereign Bank, as a Bank

 	 
	 	By:  	/s/ Robert D. Lanigan
 	 
	 	 	Name:  	Robert D. Lanigan 	 
	 	 	Title:  	SVP 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-27









 





	 	 	 	 	 
	 	THE HUNTINGTON NATIONAL BANK, as a Bank

 	 
	 	By:  	/s/ Brian H. Gallagher
 	 
	 	 	Name:  	Brian H. Gallagher 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to FirstEnergy Solutions Corp./Allegheny Energy Supply Company, LLC Credit Agreement]




 


S-28









 







SCHEDULE I




List of Commitments and Lending Offices




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	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









 







SCHEDULE II




List of L/C Fronting Bank Commitments




	 	 	 	 	 	 	 
	 	 	 	 	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









 







SCHEDULE III




List of Swing Line Commitments




	 	 	 	 	 
	Swing Line Lender	 	Swing Line Commitment	 
	 
	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	$	125,000,000	 
	 
	 	 	 	 
	Bank of America, N.A.
	 	$	125,000,000	 






 


 









 







SCHEDULE IV




Letters of Credit




Please see attached.




 


 









 







SCHEDULE V




Existing Facilities





	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.




 


 









 










SCHEDULE VI




Disclosure Documents




None.



 


 









 







EXHIBIT A

Form of Assignment and Assumption




ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]1 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in full.



For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit, guarantees, and swing line
loans included in such facilities), and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except
as expressly provided in this Assignment and Assumption, without representation or warranty by
[the][any] Assignor.




	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






[Page break]



 





	 	 	 
	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









 









Effective Date: ______
 _____, 201____ 
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	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:  	 	 
	 




[Consented to and]12 Accepted:


 





	 	 	 
	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:
	 	 	 	 
	 

	 	 

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.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	ALLEGHENY ENERGY SUPPLY COMPANY, LLC	 	 
	 
	 	 	 	 
	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









 









ANNEX 1




$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



STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting
Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other Loan Document, (ii)
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv)
the performance or observance by the Borrowers, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.



1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.08(b)(iii),
(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 8.08(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
is sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned Interest and either it, or the Person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received
a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section 5.01(g) thereof, as
applicable, and such other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is not a U.S. Person, attached to the Assignment and
Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit
Agreement (including pursuant to Section 2.16(e)(ii) of the Credit Agreement), duly completed and
executed by [the][such] Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.


 


 









 





2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall
make all payments of interest, fees or other amounts paid or payable in kind from and after the
Effective Date to [the][the relevant] Assignee.



3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.



 


 









 







EXHIBIT B

Form of Note




PROMISSORY NOTE




			
	 	 	 
	U.S.$[_____]
	 	
 _____  _____, 20____ 







FOR VALUE RECEIVED, the undersigned, [FIRSTENERGY SOLUTIONS CORP., an Ohio corporation] [ALLEGHENY
ENERGY SUPPLY COMPANY, LLC, a Delaware limited liability company] (the “Borrower”), HEREBY PROMISES
TO PAY to [_____] (the “Lender”) for the account of its Applicable Lending Office (such
term and other capitalized terms herein being used as defined in the Credit Agreement referred to
below), or its registered assigns, the principal sum of U.S.$[_____] or, if less, the
aggregate principal amount of the Advances made by the Lender to the Borrower pursuant to the
Credit Agreement outstanding on the Termination Date, payable on the Termination Date.



The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.



Both principal and interest are payable in lawful money of the United States of America to
JPMorgan Chase Bank, N.A., as Administrative Agent, at [INSERT PAYMENT ADDRESS], in same day funds.
Each Advance made by the Lender to the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory Note.



This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among the Borrower,
[FirstEnergy Solutions Corp.,] [Allegheny Energy Supply Company, LLC,] the banks party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder, the fronting banks
party thereto from time to time and the swing line lenders party thereto from time to time. The
Credit Agreement, among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time outstanding the Dollar
amount first above mentioned, the indebtedness of the Borrower resulting from each such Advance
being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions therein specified.



The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.


 


 









 





THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



	 	 	 	 	 	 	 
	 	 	[FIRSTENERGY SOLUTIONS CORP.]	 	 
	 	 	[ALLEGHENY ENERGY SUPPLY COMPANY, LLC]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 


	 	 
	 

	 	 	 	Name:

Title:	 	 






 


B-2









 







EXHIBIT C

Form of Notice of Pro-Rata Borrowing




JPMorgan Chase Bank, N.A., as Administrative Agent

  for the Lenders party to the Credit Agreement

  referred to below



	 	 	 
	 

	 	
 _____ _____, 200____ 







Ladies and Gentlemen:



The undersigned refers to the Credit Agreement, dated as of June 17, 2011 (the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among the undersigned,
[FirstEnergy Solutions Corp.,] [Allegheny Energy Supply Company, LLC,] the banks party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder, the fronting banks
party thereto from time to time and the swing line lenders party thereto from time to time, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests [a] Pro-Rata Borrowing[s] under the Credit Agreement, and in that
connection sets forth below the information relating to such Pro-Rata Borrowing[s] (the “Proposed
Borrowing[s]”) as required by Section 2.02(a) of the Credit Agreement:




(i) The Business Day of the Proposed Borrowing[s] is
 _____,
 _____.




(ii) The Type of Pro-Rata Advance to be made in connection with the [First] Proposed
Borrowing is [an Alternate Base Rate Pro-Rata Advance] [a Eurodollar Rate Advance]. The
aggregate amount of such Proposed Borrowing is $_____. [The Interest Period for each
Eurodollar Rate Advance made as part of such Proposed Borrowing is
 _____ 
[week][month[s]].]




[(iii) The Type of Pro-Rata Advance to be made in connection with the [Second] Proposed
Borrowing is [an Alternate Base Rate Pro-Rata Advance] [a Eurodollar Rate Advance]. The
aggregate amount of such Proposed Borrowing is $_____. [The Interest Period for each
Eurodollar Rate Advance made as part of such Proposed Borrowing is
 _____ 
[week][month[s]].]




[(iii)][(iv)] The Borrower requesting the Proposed Borrowing[s] is
 _____.


 


 









 






The undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing[s]:




(A) the representations and warranties of such Borrower contained in Section
4.01 [(other than (1) subsection (f) thereof, (2) the first sentence of subsection
(g) thereof (but solely with respect to the unaudited consolidated balance sheet of
such Borrower and its Subsidiaries, as at March 31, 2011, and the related
consolidated statements of income, retained earnings and cash flows for the three
months then ended), and (3) the last sentence of subsection (g) thereof)]* of
the Credit Agreement are correct, before and after giving effect to the Proposed
Borrowing[s] and to the application of the proceeds therefrom, as though made on and
as of such date (other than, as to any such representation or warranty that by its
terms refers to a specific date other than the date of the Proposed Borrowing[s], in
which case, such representation and warranty is true and correct as of such specific
date);




(B) no event has occurred and is continuing, or would result from such Proposed
Borrowing[s] or from the application of the proceeds therefrom, that constitutes an
Event of Default or an Unmatured Default with respect to such Borrower; and




(C) immediately following such Proposed Borrowing[s], (1) the aggregate amount
of Outstanding Credits shall not exceed the aggregate amount of the Commitments then
in effect, (2) the Outstanding Credits of any Lender shall not exceed the amount of
such Lender’s Commitment and (3) the Outstanding Credits for the account of any
Borrower shall not exceed the Borrower Sublimit for such Borrower.




Please transfer or credit the funds to the following account:




Bank:
 _____ 





Address:
 _____ 





ABA #:
 _____ 





Account #:
 _____ 





Beneficiary:
 _____ 




[remainder of page intentionally left blank]



 





	 	 	 
	*	 	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









 









EXHIBIT D

Form of Notice of Swing Line Borrowing




JPMorgan Chase Bank, N.A., as Administrative Agent

  for the Lenders party to the Credit Agreement

  referred to below




	 	 	 
	 

	 	
 _____ _____, 200____ 







Ladies and Gentlemen:



The undersigned refers to the Credit Agreement, dated as of June 17, 2011 (the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among the undersigned,
[FirstEnergy Solutions Corp.,] [Allegheny Energy Supply Company, LLC,] the banks party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder, the fronting banks
party thereto from time to time and the swing line lenders party thereto from time to time, and
hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Swing Line Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Swing Line Borrowing (the “Proposed
Borrowing”) as required by Section 2.03(b) of the Credit Agreement:




(i) The Business Day of the Proposed Borrowing is
 _____,
 _____.




(ii) The aggregate amount of the Proposed Borrowing is
$_____.




(iii) The Borrower requesting the Proposed Borrowing is
 _____.




The undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing:




(A) the representations and warranties of such Borrower contained in Section
4.01 [(other than (1) subsection (f) thereof, (2) the first sentence of subsection
(g) thereof (but solely with respect to the unaudited consolidated balance sheet of
such Borrower and its Subsidiaries, as at March 31, 2011, and the related
consolidated statements of income, retained earnings and cash flows for the three
months then ended), and (3) the last sentence of subsection (g) thereof)]* of
the Credit Agreement are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date (other than, as to any such representation or warranty that
by its terms refers to a specific date other than the date of the Proposed
Borrowing, in which case, such representation and warranty is true and correct as of
such specified date);


 





	 	 	 
	*	 	Delete for initial Extension of Credit.



 


 









 










(B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes an
Event of Default or an Unmatured Default with respect to such Borrower ; and




(C) immediately following such Proposed Borrowing, (1) the aggregate amount of
Outstanding Credits shall not exceed the aggregate amount of the Commitments then in
effect, (2) the Outstanding Credits of any Lender shall not exceed the amount of
such Lender’s Commitment, (3) the Outstanding Credits for the account of any
Borrower shall not exceed the Borrower Sublimit for such Borrower, and (4) the
aggregate principal amount of the Swing Line Advances outstanding shall not exceed
the Swing Line Sublimit.




Please transfer or credit the funds to the following account:




Bank:
 _____ 





Address:
 _____ 





ABA #:
 _____ 





Account #:
 _____ 





Beneficiary:
 _____ 




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[FIRSTENERGY SOLUTIONS CORP.]	 	 
	 	 	[ALLEGHENY ENERGY SUPPLY COMPANY, LLC]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 

	 	 
	 

	 	 	 	Name:

Title:	 	 






 


D-2









 







EXHIBIT E

Form of Letter of Credit Request




	 	 	 
	 

	 	
 _____ _____, 200_____ 







JPMorgan Chase Bank, N.A., as Administrative Agent

[INSERT ADMINISTRATIVE AGENT’S ADDRESS]

Attn:
 _____ 





[_____, as Fronting Bank

[ADDRESS]]



Ladies and Gentlemen:



The undersigned, [FIRSTENERGY SOLUTIONS CORP. an Ohio corporation], [ALLEGHENY ENERGY SUPPLY
COMPANY, LLC, a Delaware limited liability company] (the “Borrower”), refer to that certain Credit
Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among FirstEnergy Solutions Corp.,
Allegheny Energy Supply Company, LLC, the banks party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent for the Lenders thereunder, the fronting banks party thereto from time to time
and the swing line lenders party thereto from time to time. Capitalized terms used herein, and not
otherwise defined herein, shall have their respective defined meanings as set forth in the Credit
Agreement.



Pursuant to Section 2.04(d) of the Credit Agreement, the Borrower irrevocably requests that
the Fronting Bank to which this Letter of Credit Request is addressed issue a Letter of Credit on
the following terms:




1. Date of Issuance:




2. Expiration Date:




3. Stated Amount:




4. Beneficiary:




5. Account Party:



and the terms set forth in the attached application for said Letter of Credit.


 


 









 





The Borrower hereby further certifies that (i) as of the date hereof, (ii) as of the Date of
Issuance and (iii) after the issuance of the Letter of Credit requested hereby:



(A) the representations and warranties of such Borrower contained in Section 4.01 [(other than
(1) subsection (f) thereof, (2) the first sentence of subsection (g) thereof (but solely with
respect to the unaudited consolidated balance sheet of such Borrower and its Subsidiaries, as at
March 31, 2011, and the related consolidated statements of income, retained earnings and cash flows
for the three months then ended), and (3) the last sentence of subsection (g) thereof)]* of
the Credit Agreement are true and correct on and as of the date hereof, before and after giving
effect to the issuance of such Letter of Credit and to the application of the proceeds therefrom,
as though made on and as of such date (other than, as to any such representation or warranty that
by its terms refers to a specific date other than the date of the issuance of such Letter of
Credit, in which case, such representation and warranty is true and correct as of such specified
date);



(B) no event has occurred and is continuing, or would result from the issuance of the Letter
of Credit requested hereby or from the application of the proceeds therefrom, that constitutes an
Event of Default or an Unmatured Default with respect to such Borrower; and



(C) immediately following the issuance of such Letter of Credit, (1) the aggregate amount of
Outstanding Credits shall not exceed the aggregate amount of the Commitments then in effect, (2)
the Outstanding Credits of any Lender shall not exceed the amount of such Lender’s Commitment [and]
[,] (3) the Stated Amount thereof, when aggregated with (x) the Stated Amount of each other Letter
of Credit that is outstanding or with respect to which a Letter of Credit Request has been received
and (y) the outstanding Reimbursement Obligations, shall not exceed the L/C Commitment Amount [and
(2) the aggregate Stated Amount of all outstanding Letters of Credit issued by the Fronting Bank
will not exceed $]**.



If notice of the request for the above referenced Letter of Credit has been given by the
Borrower previously by telephone, then this notice shall be considered a written confirmation of
such telephone notice as required by Section 2.04(d) of the Credit Agreement.



	 	 	 	 	 	 	 
	 	 	[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









 









EXHIBIT F

Form of Opinion of Wendy E. Stark, Associate General Counsel of FE




[LETTERHEAD OF FIRSTENERGY CORP.]




June 17, 2011




To the Banks party to the within-mentioned Credit Agreement,

JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,

the fronting banks party thereto and the swing line lenders party thereto





Re: Credit Agreement, dated as of June 17, 2011



Ladies and Gentlemen:



I am Associate General Counsel of FirstEnergy Corp., an Ohio corporation (“FE”) and have acted
as counsel to its subsidiaries, FirstEnergy Solutions Corp., an Ohio corporation (“FES”), and
Allegheny Energy Supply Company, LLC, a Delaware limited liability company (“Allegheny”, and
together with FES, the “Borrowers” and each a “Borrower”), in connection with the transactions
contemplated by the Credit Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among the
Borrowers, the banks party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent for the
Lenders thereunder, the fronting banks party thereto and the swing line lenders party thereto.
Capitalized terms used herein but not otherwise defined herein shall have the respective meanings
assigned to them in the Credit Agreement. This opinion is being furnished to you pursuant to
Section 3.01(a)(v) of the Credit Agreement. The Credit Agreement and the Notes are sometimes
referred to in this opinion collectively as the “Loan Documents” and each individually as a “Loan
Document”.



For purposes of this opinion, I or persons under my supervision and control have reviewed
executed originals or copies of executed originals of the Credit Agreement and each Note delivered
on the date hereof. I or persons under my supervision and control have also reviewed originals or
copies of such corporate records and other documents and matters and have made such investigation
of fact and law as I have considered relevant or necessary as a basis for this opinion. In such
review, I have assumed the accuracy and completeness of all agreements, documents, records,
certificates and other materials submitted to us, the conformity with the originals of all such
materials submitted to us as copies (whether or not certified and including facsimiles), the
authenticity of the originals of such materials and all materials submitted to us as originals, the
genuineness of all signatures (other than those on behalf of the Borrowers) and the legal capacity
of all natural persons.


 


G-1









 





To the Banks party to the within-mentioned Credit Agreement,

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




I have also assumed (a) the due organization, valid existence and good standing under the laws
of its jurisdiction of incorporation of each party (other than FES) to each Loan Document, (b) the
corporate or other power and due authorization of each Person (other than FES) not a natural person
to execute, deliver and perform its obligations under each Loan Document to which it is a party,
(c) the due execution and delivery of each Loan Document by each party thereto (other than FES),
and (d) that each Loan Document constitutes the valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms. As to various questions of fact
relevant to this opinion, I have relied, without independent investigation, upon certificates of
public officials, certificates of officers of the Borrowers and representations and warranties of
the Borrowers contained in the Credit Agreement.



I am a member of the Bar of the State of Ohio, and, for purposes of this opinion, I do not
hold myself out as an expert on the laws of any jurisdiction other than the laws of the State of
Ohio. I express no opinion herein as to the application or effect of the laws of any jurisdiction
other than the laws of the State of Ohio.



Based on the foregoing and such legal considerations as I have deemed necessary or advisable
to express this opinion, I am of the opinion that:



1. FES is a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Ohio, is duly qualified to do business as a foreign corporation in and is in
good standing under the laws of each other state in which the ownership of its properties or the
conduct of its business makes such qualification necessary, except where the failure to be so
qualified would not have a Material Adverse Effect, and has all corporate powers to carry on its
business as now conducted and to maintain and operate its property and business.



2. No Governmental Action is or will be required under laws of the State of Ohio for (a) the
due execution or delivery by FES of any Loan Document or the performance by FES of its obligations
thereunder or (b) the consummation by FES of any transaction contemplated by the Loan Documents,
other than (1) such Governmental Action as may be required as a condition to the exercise by FES of
its rights under Section 2.06(b) or Section 2.07 of the Credit Agreement and (2) such Governmental
Action as may be required after the date hereof in connection with the performance by FES of the
general covenants set forth in Sections 5.01(a) and (b) of the Credit Agreement.



3. The execution and delivery by FES of each of the Loan Documents to which it is a party, the
performance by FES of its obligations under such Loan Documents, the consummation by FES of the
transactions contemplated by any such Loan Document, and compliance by FES with the provisions
thereof, will not result in (a) a breach or contravention of
any of the provisions of the Organizational Documents of FES or (b) a breach or contravention
of any Applicable Law of the State of Ohio.


 


F-2









 





To the Banks party to the within-mentioned Credit Agreement,

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




4. The execution and delivery by each Borrower of each of the Loan Documents to which it is a
party, the performance by such Borrower of its obligations under such Loan Documents, the
consummation by such Borrower of the transactions contemplated by any such Loan Document, and
compliance by such Borrower with the provisions thereof, will not result in (a) a breach or
contravention of any of the provisions of any indenture, mortgage, lease or other agreement or
instrument to which such Borrower or any Subsidiary of such Borrower is a party or by which any of
its property is bound or (b) the creation or imposition of any Lien upon any property of such
Borrower or of any Subsidiary of such Borrower, except in each case to the extent such breach or
contravention, or the creation or imposition of any such Lien, would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect with respect to such Borrower.



5. The execution, delivery and performance by FES of each of the Loan Documents to which it is
a party are within its corporate powers, have been duly authorized by all necessary corporate
action on the part of FES and do not, and will not, require the consent or approval of FES’s
shareholders, other than such consents and approvals as have been duly obtained, given or
accomplished.



6. The Credit Agreement and each Note executed and delivered by FES on the date hereof has
been duly executed and delivered by FES.



Except as disclosed in any Borrower’s Disclosure Documents, there is no pending or, to the
best of my knowledge, threatened action or proceeding (including, without limitation, any
proceeding relating to or arising out of Environmental Laws) affecting directly such Borrower or
any of its Subsidiaries before any court, governmental agency or arbitrator that would reasonably
be expected to have a material adverse effect on such Borrower’s ability to perform its obligations
under the Loan Documents to which it is a party.




The opinions set forth herein are qualified in their entirety and subject to the following:



A. No examination has been made of, and no opinion is expressed as to the effect of, any
zoning ordinance or permit pertaining to the authority of the Borrowers to operate their properties
or conduct their businesses.



B. I also express no opinion with respect to (i) the solvency of any Borrower; or (ii) the
compliance of the Credit Agreement or any other Loan Document or the transactions contemplated
thereby with, or the effect of any of the foregoing with respect to, Federal and state securities
Laws, rules and regulations.


 


F-3









 





To the Banks party to the within-mentioned Credit Agreement,

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




C. This opinion and the matters addressed herein are as of the date hereof or such earlier
date as is specified herein, and I undertake no, and hereby disclaim any, obligation to advise you
of any change in any matter set forth herein, whether based on a change in the law, a change in any
fact relating to the Borrowers or any other Person, or any other circumstance occurring after the
date hereof.



D. I have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary
duty exists with respect to any of the matters relevant to this opinion.



E. This opinion is limited to the matters expressly set forth herein and no opinion is to be
implied or may be inferred beyond the matters expressly stated herein.



F. This opinion is solely for the benefit of the addressees hereof in connection with the
transactions contemplated by the Credit Agreement and may not be relied on by the addressees hereof
for any other purpose or furnished or quoted to or relied on by any other Person (other than the
permitted successors and assigns of such addressees under the Credit Agreement) for any purpose
without my prior written consent.



	 	 	 
	 

	 	Respectfully submitted,
	 
	 	 
	 

	 	Wendy E. Stark

Associate General Counsel






 


F-4









 







EXHIBIT G

Form of Opinion of Akin Gump Strauss Hauer & Feld LLP




	 	 	 
	 

	 	June 17, 2011






To the Banks party to the within-mentioned Credit Agreement,

JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder,

the fronting banks party thereto and the swing line lenders party thereto





Re: Credit Agreement, dated as of June 17, 2011



Ladies and Gentlemen:



We have acted as special New York counsel to FirstEnergy Solutions Corp., an Ohio corporation
(“FES”), and Allegheny Energy Supply Company, LLC, a Delaware limited liability company
(“Allegheny”, together with FES, the “Borrowers” and each a “Borrower”), in connection with the
execution and delivery of the Credit Agreement, dated as of June 17, 2011 (the “Credit Agreement”),
among the Borrowers, the banks party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders thereunder, the fronting banks party thereto and the swing line lenders party
thereto. Capitalized terms used herein but not otherwise defined herein shall have the respective
meanings assigned to them in the Credit Agreement. This opinion is being furnished to you at the
request of the Borrowers pursuant to Section 3.01(a)(vi) of the Credit Agreement. The Credit
Agreement and the Notes are sometimes referred to in this opinion collectively as the “Loan
Documents” and each individually as a “Loan Document”.



The document listed on Schedule I hereto is hereinafter referred to in this opinion as
the “Certificate of Good Standing.”



In connection with this opinion, we have reviewed executed originals or copies of executed
originals of the Certificate of Good Standing, the Credit Agreement and the form of the Notes
attached thereto. We have also reviewed copies of the Approvals and originals or certified copies
of such corporate and company records of each Borrower and other certificates and documents of
officials of each Borrower and certain of their affiliates, public officials and others as we have
deemed appropriate for purposes of this opinion, and relied upon them to the extent we deem
appropriate. As to various questions of fact relevant to this opinion, we have relied, without
independent investigation, upon certificates of public officials, certificates of officers of each
Borrower, and representations and warranties of each Borrower contained in the Credit Agreement. In
addition, we have made no inquiry of any Borrower or any other Person (including Governmental
Authorities) regarding any judgments, orders, decrees, franchises, licenses, certificates,
registrations, permits or other public records or agreements to which any Borrower is a party other
than those described herein, and our knowledge of any such matters is accordingly limited.


 


G-1









 





To the Banks party to the within-mentioned Credit Agreement,

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




We have assumed the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all copies submitted to
us as conformed, certified or reproduced copies. We have also assumed (i) the due organization,
valid existence and good standing under the laws of its jurisdiction of incorporation of each party
to each Loan Document (other than, with respect to valid existence and good standing, Allegheny),
(ii) the legal capacity of natural persons, (iii) the corporate or other power and due
authorization of each Person (other than Allegheny) not a natural person to execute, deliver and
perform its obligations under each Loan Document to which it is a party, (iv) the due execution and
delivery of each Loan Document by all parties thereto (other than Allegheny), (v) that each Loan
Document constitutes the valid and binding obligation of each party thereto (other than the
Borrowers), enforceable against such party in accordance with its terms, (vi) that the execution,
delivery and performance by each party to the Loan Documents (other than Allegheny) do not, and
will not, require the consent or approval of its shareholders or members, as the case may be, and
will not result in a breach or violation of, or conflict with, any of the provisions of its
Organizational Documents, (vii) that the execution, delivery and performance by any party to the
Loan Documents will not result in (a) a breach or contravention of, or conflict with, any of the
provisions of any indenture, mortgage, lease or other agreement or instrument to which it is a
party or (b) a breach or violation of, or conflict with, any law (other than, in the case of any
Borrower, any Included Law (as defined herein)) or any order, rule, regulation or determination of
any Governmental Authority applicable to it (other than, in the case of any Borrower, its Approval)
and (vii) that all required Governmental Action (other than, in the case of any Borrower, under any
Included Law) for the execution and delivery by each party to any Loan Document, the performance by
it of its obligations thereunder or the consummation by it of any transaction contemplated thereby
have been obtained or taken.



Based upon the foregoing and subject to the assumptions, exceptions, qualifications and
limitations set forth herein, we are of the opinion that:



1. Allegheny is duly existing as a limited liability company, in good standing under the laws
of the State of Delaware, and has the limited liability company power and authority to enter into
and perform its obligations under each of the Loan Documents to which it is a party.



2. Each of the Loan Documents to which Allegheny is a party (a) has been duly authorized by
all necessary limited liability company action by Allegheny and (b) has been duly executed and
delivered by Allegheny.



3. 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 Approvals, 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.


 


G-2









 





To the Banks party to the within-mentioned Credit Agreement,

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




4. 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 (i) any Included Law, (ii) the Approvals, or (iii) the
Organizational Documents of Allegheny listed on Schedule II hereto.



5. The Credit Agreement constitutes a valid and binding obligation of each Borrower,
enforceable against each Borrower in accordance with its terms.



6. 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.




The opinions set forth herein are qualified in their entirety and subject to the following:



A. We express no opinion as to the Laws (as defined below) of any jurisdiction other than the
Included Laws. We have made no special investigation or review of any published constitutions,
treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”), other than a
review of (i) the Laws of the State of New York, (ii) the Delaware Limited Liability Company Act,
as amended, and (iii) the Federal Laws of the United States of America. For purposes of this
opinion, the term “Included Laws” means the items described in (a) clause (ii) of the preceding
sentence and (b) clauses (i) and (iii) of the preceding sentence that are, in our experience,
normally applicable to transactions of the type contemplated by the Loan Documents. The term
Included Laws specifically excludes (i) Laws of any counties, cities, towns, municipalities and
special political subdivisions and any agencies thereof; (ii) zoning, land use, building and
construction Laws; (iii) Federal Reserve Board margin regulations; and (iv) any environmental,
labor, tax, pension, employee benefit, antiterrorism, money laundering, insurance, antitrust,
securities or intellectual property Laws.



B. When used in this opinion, the phrases “known to us”, “to our knowledge” and similar
phrases (i) mean the conscious awareness of facts or other information by (a) the lawyer in our
firm who signed this letter, (b) any lawyer in our firm actively involved in negotiating and
preparing the Loan Documents and (c) solely as to information relevant to a particular opinion,
issue or confirmation regarding a particular factual matter, any lawyer in our firm who is
primarily responsible for providing the response concerning that particular opinion, issue or
confirmation, and (ii) do not require or imply (a) any examination of this firm’s, such lawyer’s or
any other Person’s files, (b) that any inquiry be made of the client, any lawyer (other than the
lawyers described above), or any other Person, or (c) any review or examination of any
agreements, documents, certificates, instruments or other papers (including, but not limited to,
the exhibits and schedules to the Loan Documents and the various papers referred to in or
contemplated by the Loan Documents and the respective exhibits and schedules thereto) other than
the Loan Documents.


 


G-3









 





To the Banks party to the within-mentioned Credit Agreement,

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




C. The opinion expressed in paragraph 1 herein as to the valid existence and good standing of
Allegheny is given solely on the basis of the Certificate of Good Standing and speaks only as of
the date thereof rather than the date hereof. Such opinion is limited to the meaning ascribed to
such Certificate of Good Standing by the State agency or official issuing such Certificate of Good
Standing and applicable Law.



D. The matters expressed in this opinion are subject to and qualified and limited by (i)
applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium
and similar laws affecting creditors’ rights and remedies generally from time to time in effect;
(ii) general principles of equity (regardless of whether enforcement is sought in a proceeding at
law or in equity); (iii) principles of commercial reasonableness and unconscionability and an
implied covenant of good faith and fair dealing; (iv) the power of the courts to award damages in
lieu of equitable remedies; and (v) securities Laws and public policy underlying such Laws with
respect to rights to indemnification and contribution. Although it appears that the requirements
of Section 5-1401 of the New York General Obligations Law have been met, we express no opinion on
whether the choice of law provision in Section 8.09 of the Credit Agreement or in each Note would
raise any issues under the United States constitution or in equity that would affect whether courts
in New York would enforce the choice of New York law to govern the Credit Agreement or such Note.
We have also assumed that the choice of law of the State of New York as the governing law of the
Credit Agreement and each Note would not result in a violation of an important public policy of
another state having greater contacts with the transactions contemplated by the Loan Documents than
the State of New York.



E. The opinions expressed herein are as of the date hereof or such earlier date as is
specified herein, and we undertake no, and hereby disclaim any, obligation to advise you of any
change in any matter set forth herein, whether based on a change in the Law, a change in any fact
relating to any Borrower or any other Person, or any other circumstance occurring after the date
hereof. This opinion is limited to the matters expressly stated herein and no opinions are to be
inferred or may be implied beyond the opinions expressly set forth herein.



F. We have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary
duty exists with respect to any of the matters relevant to the opinions expressed in this letter.



G. We express no opinion as to (i) the compliance of the transactions contemplated by the Loan
Documents with any Laws applicable to any Person other than the Borrowers; (ii) the financial
condition or solvency of any Borrower; (iii) the ability (financial or otherwise) of
any Borrower or any other Person to meet its obligations under the Loan Documents; (iv) the
compliance of the Loan Documents or the transactions contemplated thereby with, or the effect on
any of the opinions expressed herein of, the antifraud provisions of Federal and state securities
Laws; (v) the conformity of the Loan Document to any term sheet or commitment letter; or (vi) any
provision of any Loan Document which would, to the extent not permitted by applicable Law,
restrict, waive access to or vary legal or equitable remedies or defenses (including, but not
limited to, a right to notice of and hearing on matters relating to prejudgment remedies, service
of process, proper jurisdiction and venue, forum non conveniens and the right to trial by jury) or
the right to collect damages (including, but not limited to, actual, consequential, special,
indirect, incidental, exemplary and punitive damages).


 


G-4









 





To the Banks party to the within-mentioned Credit Agreement,

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




H. For purposes of this letter, the phrase “transactions of the type contemplated by the Loan
Documents” and similar phrases mean (i) the making of Advances and the issuance of Letters of
Credit by the banks party to the Credit Agreement and (ii) the performance by the Borrowers of
their respective obligations under the Loan Documents.



I. This letter is solely for your benefit, and no other Person (other than your permitted
successors and assigns under the Credit Agreement) shall be entitled to rely upon this opinion.
Without our prior written consent, this opinion may not be quoted in whole or in part or otherwise
referred to in any document and may not be furnished or otherwise disclosed to or used by any other
Person, except for (i) delivery of copies hereof to counsel for the addressees hereof and (ii)
inclusion of copies hereof in a closing file relating to the Credit Agreement.



	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.






 


G-5









 







SCHEDLE I


CERTIFICATE OF GOOD STANDING




Certificate of Good Standing of Allegeny, issued by the Secretary of State of the State of
Delaware on June 14, 2011.


 


G-6









 





SCHEDLE II


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









 







EXHIBIT H

Form of Opinion of

Special New York Counsel to the Administrative Agent




	 	 	 
	 

	 	June 17, 2011






JPMorgan Chase Bank, N.A., as 

administrative agent, the fronting banks, the 

swing line lenders and the lenders party to 

the Credit Agreement defined below




Re: FirstEnergy Solutions Corp. and Allegheny Energy Supply Company, LLC



Ladies and Gentlemen:



We have acted as special New York counsel to JPMorgan Chase Bank, N.A., individually and as
administrative agent (the “Administrative Agent”), in connection with the preparation, execution
and delivery of the Credit Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among
FirstEnergy Solutions Corp., an Ohio corporation (“FES”), Allegheny Energy Supply Company, LLC, a
Delaware limited liability Company (“Allegheny”, and together with FES, the “Borrowers”), JPMorgan
Chase Bank, N.A., as Administrative Agent for the Lenders thereunder, the fronting banks party
thereto, the swing line lenders party thereto and the Banks party thereto. Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being delivered pursuant to Section 3.01(a)(vii) of the Credit Agreement.



In that connection, we have examined (i) counterparts of the Credit Agreement, executed by the
Borrowers, the Banks, the Swing Line Lenders, the Administrative Agent and the Fronting Banks, (ii)
a form of the Notes and (iii) the other documents furnished to the Administrative Agent pursuant to
Section 3.01(a) of the Credit Agreement, including (without limitation) the opinions of Wendy E.
Stark, Associate General Counsel of FE, counsel to the Borrowers, and Akin Gump Strauss Hauer &
Feld LLP, special counsel to the Borrowers (such opinions referred to hereinafter, collectively, as
the “Borrowers’ Counsel Opinions”).



In our examination of the documents referred to above, we have assumed the authenticity of all
such documents submitted to us as originals, the genuineness of all signatures, the due authority
of the parties executing such documents and the conformity to the originals of all such documents
submitted to us as copies. We have also assumed that each of the Banks, the Swing Line Lenders,
the Fronting Banks and the Administrative Agent have duly executed and delivered, with all
necessary power and authority (corporate and otherwise), the Credit Agreement. We have further
assumed that you have evaluated, and are satisfied with, the creditworthiness of the Borrowers and
the business and financial terms evidenced by the Loan Documents.


 


 









 





To the extent that our opinions expressed below involve conclusions as to matters governed by
law other than the law of the State of New York and the Federal law of the United States, we have
relied upon the Borrowers’ Counsel Opinions and have assumed without independent investigation the
correctness of the matters set forth therein, our opinions expressed below being subject to the
assumptions, qualifications and limitations set forth in the Borrowers’ Counsel Opinions. As to
matters of fact, we have relied solely upon the documents we have examined. We note that we do not
represent the Borrowers, and accordingly, are not privy to the nature or character of their
business. Accordingly, we have assumed that the Borrowers are subject only to statutes, rules,
regulations, judgments, orders and other requirements of law generally applicable to corporations
doing business in the State of New York.



Based upon the foregoing, and subject to the qualifications set forth below, we are of the
opinion that:




	 	(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.







Our opinions are subject to the following qualifications:




	 	(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.






The foregoing opinion is solely for your benefit and may not be relied upon by any other
Person other than any Person that may become a Lender under the Credit Agreement after the date
hereof.



	 	 	 
	 

	 	Very truly yours,






MEO:kty:mg



 


H-3









 







EXHIBIT I




TERMS AND CONDITIONS OF SUBORDINATION

FOR INDEBTEDNESS TO AFFILIATES




All Indebtedness (such term and other capitalized terms used herein, unless otherwise defined
herein, shall have the meaning specified in the Credit Agreement to which this Exhibit I is
attached), including, without limitation, under the Money Pool, incurred by any Borrower and owing
to any Affiliate of such Borrower (other than any Subsidiary of such Borrower) shall be subject to
the following terms and conditions, which shall be incorporated in a written agreement between the
Borrower and any Affiliate to which any such Indebtedness is owed.



Section 1. Subordination of Liabilities. [Name of Company] (the “Company”), for itself, its
successors and assigns, covenants and agrees and each holder of the indebtedness evidenced by
[DESCRIBE INDEBTEDNESS DOCUMENTATION] (the “Subordinated Indebtedness”), by its acceptance thereof
likewise covenants and agrees that the payment of the principal of, and interest on, and all other
amounts owing in respect of, the Subordinated Indebtedness is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, to the prior payment in full of Senior Indebtedness
(as defined in Section 8) in cash. The subordination provisions set forth herein shall constitute
a continuing offer to all persons who, in reliance upon such provisions, become holders of, or
continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are hereby made obligees hereunder to the same extent as
if their names were written herein as such, and they and/or each of them may proceed to enforce
such provisions.



SECTION 2. Company Not to Make Payments with Respect to Subordinated Indebtedness in Certain
Circumstances. (a) Upon the maturity of any Senior Indebtedness (including interest thereon or
fees or any other amounts owing in respect thereof), whether at stated maturity, by acceleration or
otherwise, all principal thereof and premium, if any, and interest thereon or fees or any other
amounts owing in respect thereof, in each case to the extent due and owing at such time, shall
first be paid in full in cash, or such payment duly provided for in cash or in a manner
satisfactory to the holder or holders of such Senior Indebtedness, before any payment is made on
account of the principal of (including installments thereof), or interest on, or any amount
otherwise owing in respect of, the Subordinated Indebtedness. Each holder of the Subordinated
Indebtedness hereby agrees that, so long as any Specified Event of Default (as defined below) has
occurred and is continuing, it will not ask, demand, sue for, or otherwise take, accept or receive,
any amounts owing in respect of the Subordinated Indebtedness. As used herein, the term “Specified
Event of Default” shall mean any Event of Default described in Section 6.01(a), (e), (f) or (j) of
the Credit Agreement, and any Event of Default described in Section 6.01(c) of the Credit Agreement
relating to a breach of Section 5.01(i) or (j), Section 5.02 or Section 5.03(a), (b) or (c) of the
Credit Agreement.


 


 









 





(b) In the event that notwithstanding the provisions of the preceding subsection (a) of this
Section 2, the Company shall make any payment on account of the principal of, or interest on, or
amounts otherwise owing in respect of, the Subordinated Indebtedness at a time when
payment is not permitted by said subsection (a), such payment shall be held by the holder of
the Subordinated Indebtedness, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Indebtedness or their representative or representatives under
the agreements pursuant to which the Senior Indebtedness may have been issued, as their respective
interests may appear, for application pro rata to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in cash in accordance with
the terms of such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.



SECTION 3. Subordinated Indebtedness Subordinated to Prior Payment of all Senior Indebtedness
on Dissolution, Liquidation or Reorganization of Company. Upon any distribution of assets of the
Company upon any dissolution, winding up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):




(a) the holders of all Senior Indebtedness shall first be entitled to receive payment
in full in cash or in a manner satisfactory to the holder or holders of such Senior
Indebtedness of the principal thereof, premium, if any, and interest (including, without
limitation, all interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided in the governing documentation
whether or not such interest is an allowed claim in such proceeding) and all other amounts
due thereon before the holder of the Subordinated Indebtedness is entitled to receive any
payment on account of the principal of or interest on or any other amount owing in respect
of the Subordinated Indebtedness;




(b) any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities to which the holder of the Subordinated Indebtedness
would be entitled in respect of the Subordinated Indebtedness except for the subordination
provisions set forth herein, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee or agent, directly to the
holders of Senior Indebtedness or their representative or representatives under the
agreements pursuant to which the Senior Indebtedness may have been issued, to the extent
necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior Indebtedness;
and




(c) in the event that, notwithstanding the foregoing provisions of this Section 3, any
payment or distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the holder of the Subordinated Indebtedness on
account of principal of, or interest or other amounts due on, the Subordinated Indebtedness
before all Senior Indebtedness is paid in full in cash or in a manner satisfactory to the
holder or holders of such Senior Indebtedness, or effective provisions made for its payment,
such payment or distribution shall be received and held in trust for and shall be paid over
to the holders of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives under the agreements pursuant to which the Senior
Indebtedness may have been issued, for application to the
payment of such Senior Indebtedness until all such Senior Indebtedness shall have been
paid in full in cash or in a manner satisfactory to the holder or holders of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness.


 


2









 





SECTION 4. In Furtherance of Subordination. Each holder of the Subordinated Indebtedness
agrees as follows:




(a) If any proceeding referred to in Section 3 above is commenced by or against the
Company:




(i) the Administrative Agent, acting on behalf of each holder of the Senior
Indebtedness, is hereby irrevocably authorized and empowered (in its own name or in
the name of the holder of the Subordinated Indebtedness or otherwise), but shall
have no obligation, to demand, sue for, collect and receive every payment or
distribution referred to in Section 3(b) and give acquittance therefor and to file
claims and proofs of claim and take such other action (including, without
limitation, voting the claims arising under the Subordinated Indebtedness or
enforcing any security interest or other lien securing payment of the Subordinated
Indebtedness) as it may deem necessary or advisable for the exercise or enforcement
of any of the rights or interests of the holders of the Senior Indebtedness
hereunder; and




(ii) each holder of the Subordinated Indebtedness shall duly and promptly take
such action as the holders of the Senior Indebtedness may request (A) to collect the
Subordinated Indebtedness for the account of the holders of the Senior Indebtedness
and to file appropriate claims or proofs of claim in respect of the Subordinated
Indebtedness, (B) to execute and deliver to the holders of the Senior Indebtedness
such powers of attorney, assignments, or other instruments as the holders of the
Senior Indebtedness may request in order to enable the holders of the Senior
Indebtedness to enforce any and all claims with respect to, and any security
interests and other liens securing payment of, the Subordinated Indebtedness, and
(C) to collect and receive any and all payments or distributions that may be payable
or deliverable upon or with respect to the Subordinated Indebtedness.




(b) The holders of the Senior Indebtedness are hereby authorized to demand specific
performance of this Agreement, whether or not the Company shall have complied with any of
the provisions hereof applicable to it, at any time when the holder of the Subordinated
Indebtedness shall have failed to comply with any of the provisions of this Agreement
applicable to it. The holder of the Subordinated Indebtedness hereby irrevocably waives any
defense based on the adequacy of a remedy at law that might be asserted as a bar to such
remedy of specific performance.


 


3









 





SECTION 5. Subrogation. Subject to the prior payment in full of all Senior Indebtedness in
cash, the holder of the Subordinated Indebtedness shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or distributions of assets of
the Company applicable to the Senior Indebtedness until all amounts owing in respect of the
Subordinated Indebtedness shall be paid in full, and for the purpose of such subrogation no
payments or distributions to the holders of the Senior Indebtedness by or on behalf of the Company
or by or on behalf of the holder of the Subordinated Indebtedness by virtue of the subordination
provisions set forth herein that otherwise would have been made to the holder of the Subordinated
Indebtedness, shall be deemed to be payment by the Company to or on account of the Senior
Indebtedness, it being understood that the subordination provisions set forth herein are and are
intended solely for the purpose of defining the relative rights of the holder of the Subordinated
Indebtedness, on the one hand, and the holders of the Senior Indebtedness, on the other hand.



SECTION 6. Obligation of the Company Unconditional. Nothing contained in the subordination
provisions set forth herein or in the documents evidencing the Subordinated Indebtedness is
intended to or shall impair, as between the Company and the holder of the Subordinated
Indebtedness, the obligation of the Company, which is absolute and unconditional, to pay to the
holder of the Subordinated Indebtedness the principal of, interest on and all other amounts in
respect of the Subordinated Indebtedness as and when the same shall become due and payable in
accordance with its terms, or is intended to or shall affect the relative rights of the holder of
the Subordinated Indebtedness and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the holder of the Subordinated
Indebtedness from exercising all remedies otherwise permitted by applicable law, subject to the
rights, if any, under the subordination provisions set forth herein of the holders of Senior
Indebtedness in respect of cash, property, or securities of the Company received upon the exercise
of any such remedy. Upon any distribution of assets of the Company referred to herein, the holder
of the Subordinated Indebtedness shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or
other person making any distribution to the holder of the Subordinated Indebtedness, for the
purpose of ascertaining the persons entitled to participate in such distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
hereto.



SECTION 7. Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of
Senior Indebtedness. No rights of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by
an act or failure to act on the part of the Company or by any act or failure to act in good faith
by any such holder, or by any noncompliance by the Company with the terms and provisions of the
Subordinated Indebtedness, regardless of any knowledge thereof which any such holder may have or be
otherwise charged with. The holders of the Senior Indebtedness may, without in any way affecting
the obligations of the holder of the Subordinated Indebtedness with respect thereto, at any time or
from time to time and in their absolute discretion, change the manner, place or terms of payment
of, change or extend the time of payment of, or renew or alter, any Senior Indebtedness, or amend,
modify or supplement any agreement or instrument governing or evidencing such Senior Indebtedness
or any other
document referred to therein, or exercise or refrain from exercising any other of their rights
under the Senior Indebtedness including, without limitation, the waiver of a default thereunder and
the release of any collateral securing such Senior Indebtedness, all without notice to or assent
from the holder of the Subordinated Indebtedness.


 


4









 





SECTION 8. Senior Indebtedness. (a) The term “Senior Indebtedness” shall mean all
Obligations (as defined below) of the Company under, or with respect to, the Credit Agreement (as
defined below).



(b) As used in this Agreement, the terms set forth below shall have the respective meanings
provided below:




“Credit Agreement” shall mean the Credit Agreement, dated as of June 17, 2011, among
FES, Allegheny, the various financial institutions from time to time party thereto (the
“Lenders”), JPMCB, as Administrative Agent, and certain other parties thereto acting as
fronting banks and swing line lenders, together with the related documents thereto
(including, without limitation, any guarantees and security documents), as same may be
amended, modified, extended, renewed, restated or supplemented from time to time, and
including any agreement extending the maturity of, refinancing or restructuring all or any
portion of, or increasing the principal amount of, the indebtedness under such agreement or
of any successor agreements.




“Obligations” shall mean any principal, interest, premium, penalties, fees, expenses,
indemnities and other liabilities and obligations payable under the documentation governing
the Senior Indebtedness (including, without limitation, all interest accruing after the
commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate
provided in the governing documentation, whether or not such interest is an allowed claim in
such proceeding).




 


5











 




EXECUTION COPY




U.S. $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 BANKS NAMED HEREIN,

as Banks,




THE ROYAL BANK OF SCOTLAND PLC,

as Administrative Agent,




THE FRONTING BANKS

PARTY HERETO FROM TIME TO TIME

as Fronting Banks




and




THE SWING LINE LENDERS PARTY

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






Joint Lead Arrangers




	 	 	 
	 
	 	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





 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	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









 





SCHEDULES AND EXHIBITS




	 	 	 	 	 
	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









 





CREDIT AGREEMENT




CREDIT AGREEMENT, dated as of June 17, 2011, among FIRSTENERGY CORP. (“FE”), THE CLEVELAND
ELECTRIC ILLUMINATING COMPANY (“CEI”), METROPOLITAN EDISON COMPANY (“Met-Ed”), OHIO EDISON COMPANY
(“OE”), PENNSYLVANIA POWER COMPANY (“Penn”), THE TOLEDO EDISON COMPANY (“TE”), AMERICAN
TRANSMISSION SYSTEMS, INCORPORATED (“ATSI”), JERSEY CENTRAL POWER & LIGHT COMPANY (“JCP&L”),
MONONGAHELA POWER COMPANY (“MP”), PENNSYLVANIA ELECTRIC COMPANY (“Penelec”), THE POTOMAC EDISON
COMPANY (“PE”) and WEST PENN POWER COMPANY (“West-Penn”, and together with FE, CEI, Met-Ed, OE,
Penn, TE, ATSI, JCP&L, MP, Penelec and PE, the “Borrowers”), the banks and other financial
institutions (the “Banks”) listed on the signature pages hereof, The Royal Bank of Scotland plc
(“RBS”), as Administrative Agent (the “Administrative Agent”) for the Lenders hereunder, the
fronting banks party hereto from time to time and the swing line lenders party hereto from time to
time.



PRELIMINARY STATEMENTS




(1) The Borrowers have requested that the Lenders establish a five-year unsecured revolving
credit facility in the amount of $2,000,000,000 in favor of the Borrowers, all of which may be used
for general corporate purposes and $700,000,000 of which may be used for the issuance of Letters of
Credit.



(2) Subject to the terms and conditions of this Agreement, the Lenders severally, to the
extent of their respective Commitments (as defined herein), are willing to establish the requested
revolving credit facility in favor of the Borrowers.




NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS





SECTION 1.01. Certain Defined Terms.



As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):




“Account Party” has the meaning set forth in Section 2.04(a).




“Additional Commitment Lender” has the meaning set forth in Section 2.19(d).




“Administrative Agent” has the meaning set forth in the preamble hereto.


 


 









 






“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.




“Advance” means a Pro-Rata Advance or a Swing Line Advance.




“AESC” means Allegheny Energy Supply Company, LLC, a Delaware limited liability
company, and any successor thereto.




“Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
officer of such Person.




“Agreement” means this Credit Agreement, as amended, modified and supplemented from
time to time.




“Alternate Base Rate” means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be equal to
the highest of (i) the rate of interest per annum announced publicly by RBS from time to
time, as its “prime rate”, (ii) the sum of 1/2 of 1% per annum plus the Federal Funds Rate
in effect from time to time and (iii) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/32 of 1%) appearing on Telerate Page 3750 (or any successor
page) as displaying the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) such day for a term of one month plus 1%; provided,
however, if more than one rate is specified on such service, the applicable rate shall be
the arithmetic mean of all such rates plus 1%.




“Alternate Base Rate Advance” means an Alternate Base Rate Pro-Rata Advance or a Swing
Line Advance.




“Alternate Base Rate Pro-Rata Advance” means a Pro-Rata Advance that bears interest as
provided in Section 2.08(a).




“Anniversary Date” has the meaning set forth in Section 2.19(a).




“Applicable Law” means all applicable laws, statutes, treaties, rules, codes,
ordinances, regulations, permits, certificates, orders, interpretations, licenses and
permits of any Governmental Authority and judgments, decrees, injunctions, writs, orders or
like action of any court, arbitrator or other judicial or quasi-judicial tribunal of
competent jurisdiction (including those pertaining to health, safety or the environment or
otherwise).




“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of an Alternate Base Rate Advance, and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.


 


2









 






“Applicable Margin” means, for any Alternate Base Rate Advance or any Eurodollar Rate
Advance made to any Borrower, the interest rate per annum set forth in the relevant row of
the table below, determined by reference to the Reference Ratings for such Borrower from
time to time in effect:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	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	%







For purposes of the foregoing, (i) if there is a difference of one level in Reference
Ratings of S&P and Moody’s and the higher of such Reference Ratings falls in Level 1, Level
2, Level 3, Level 4 or Level 5, then the higher Reference Rating will be used to determine
the pricing level and (ii) if there is a difference of more than one level in Reference
Ratings of S&P and Moody’s, the Reference Rating that is one level above the lower of such
Reference Ratings will be used to determine the pricing level, unless the lower of such
Reference Ratings falls in Level 6, in which case the lower of such Reference Ratings will
be used to determine the pricing level. If there exists only one Reference Rating, such
Reference Rating will be used to determine the pricing level.




“Approval” means (i) with respect to CEI, the CEI PUCO Order; (ii) with respect to
Met-Ed, the Met-Ed FERC Order; (iii) with respect to OE, the OE PUCO Order; (iv) with
respect to Penn, the Penn FERC Order, subject to any borrowing limitations contained in the
Organizational Documents of Penn; (v) with respect to TE, the TE PUCO Order; (vi) with
respect to ATSI, the ATSI PUCO Order; (vii) with respect to JCP&L, the JCP&L FERC Order,
subject to any borrowing limitations contained in the Organizational Documents of JCP&L;
(viii) with respect to MP, the MP FERC Order; (ix) with respect to Penelec, the Penelec FERC
Order; (x) with respect to PE, the PE FERC Order and (xi) with respect to West-Penn, the
West-Penn FERC Order, in each case as amended, extended, supplemented, replaced or renewed
from time to time to authorize the performance by such Borrower of this Agreement and each
other Loan Document to which it is, or is to become, a party and the consummation by such
Borrower of the transactions contemplated hereby and thereby, including, without limitation,
the Borrowings hereunder.


 


3









 






“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.




“Assignment and Assumption” means an assignment and assumption entered into by a Lender
and an assignee of such Lender, and accepted by the Administrative Agent, in substantially
the form of Exhibit A hereto.




“ATSI” has the meaning set forth in the preamble hereto.




“ATSI PUCO Order” means the order of the PUCO, dated December 8, 2010, that authorizes
ATSI to obtain Extensions of Credit until December 31, 2011, as amended, extended,
supplemented, replaced or renewed from time to time.




“Attributable Securitization Obligations” has the meaning set forth in the definition
of “Permitted Securitization”.




“Authorized Officer” means, with respect to any notice, certificate or other
communication to be delivered by any Borrower hereunder, the chief executive officer,
president, chief financial officer, treasurer, assistant treasurer or controller of such
Borrower, which officer shall have all necessary corporate or limited liability company
authorization to deliver such notice, certificate or other communication.




“Available Commitment” means, for each Lender, the excess of such Lender’s Commitment
over such Lender’s Percentage of the Outstanding Credits. “Available Commitments” shall
refer to the aggregate of the Lenders’ Available Commitments hereunder.




“Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended from time to
time, and any Federal law with respect to bankruptcy, insolvency, reorganization,
liquidation, moratorium or similar laws affecting creditors’ rights generally.




“Bankruptcy Event” means, with respect to any Person, such Person has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with the reorganization or liquidation of its business appointed for it, or, in the
good faith determination of the Administrative Agent, has taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or
appointment, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority or instrumentality thereof, provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Person (or such Governmental Authority or instrumentality) to
reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.


 


4









 






“Banks” has the meaning set forth in the preamble hereto.




“Beneficiary” means any Person designated by an Account Party to whom a Fronting Bank
is to make payment, or on whose order payment is to be made, under a Letter of Credit.




“Borrower” has the meaning set forth in the preamble hereto.




“Borrower Extension Notice Date” has the meaning set forth in Section 2.19(a).




“Borrower Sublimit” means, as to any Borrower, the amount set forth opposite such
Borrower’s name below:



	 	 	 	 	 
	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	 







“Borrowing” means a Pro-Rata Borrowing or a Swing Line Borrowing.




“Business Day” means a day of the year on which banks are not required or authorized to
close in New York City or Akron, Ohio and, if the applicable Business Day relates to any
Eurodollar Rate Advances, a day on which dealings are carried on in the London interbank
market.




“CEI” has the meaning set forth in the preamble hereto.




“CEI PUCO Order” means the order of the PUCO, dated December 8, 2010, that authorizes
CEI to obtain Extensions of Credit until December 31, 2011, as amended, extended,
supplemented, replaced or renewed from time to time.


 


5









 






“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii)
any change (other than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in any law, rule, regulation or treaty
or in the administration, interpretation or application thereof by any Governmental
Authority or (iii) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority;
provided, however, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all
requests, rules, guidelines and directives promulgated thereunder, and all requests, rules,
guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each
case be deemed to have been introduced or adopted after the date of this Agreement,
regardless of the date enacted or adopted.




“Change of Control” has the meaning set forth in Section 6.01(j).




“Code” means the United States Internal Revenue Code of 1986, as amended from time to
time, and the applicable regulations thereunder.




“Commitment” means, as to any Lender, the amount set forth opposite such Lender’s name
on Schedule I hereto or, if such Lender has entered into any Assignment and Assumption, set
forth for such Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.08(c), as such amount may be reduced pursuant to Section 2.06.




“Commodity Trading Obligations” means the obligations of any Person under any commodity
swap agreement, commodity future agreement, commodity option agreement, commodity cap
agreement, commodity floor agreement, commodity collar agreement, commodity hedge agreement,
commodity forward contract or derivative transaction and any put, call or other agreement,
arrangement or transaction, including natural gas, power, emissions forward contracts,
renewable energy credits, or any combination of any such arrangements, agreements and/or
transactions, employed in the ordinary course of such Person’s business, including such
Person’s energy marketing, trading and asset optimization business. The term “commodity”
shall include electric energy and/or capacity, transmission rights, coal, petroleum, natural
gas, fuel transportation rights, emissions allowances, weather derivatives and related
products and by-products and ancillary services.




“Communications” has the meaning set forth in Section 8.03(a).




“Consolidated Debt” means, with respect to any Borrower at any date of determination
the aggregate Indebtedness of such Borrower and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP, but shall not include (i) Nonrecourse
Indebtedness of such Borrower and any of its Subsidiaries, (ii) obligations under leases
that shall have been or should be, in accordance with GAAP, recorded as operating leases in
respect of which such Borrower or any of its Consolidated Subsidiaries is liable as a
lessee, (iii) the aggregate principal and/or face amount of Attributable Securitization
Obligations of such Borrower and its Consolidated Subsidiaries and (iv) the aggregate
principal amount of Trust Preferred Securities and Junior Subordinated Deferred Interest
Obligations not exceeding 15% of the Total Capitalization of such Borrower and its
Consolidated Subsidiaries (determined, for purposes of such calculation, without regard to
the amount of Trust Preferred Securities
and Junior Subordinated Deferred Interest Debt Obligations outstanding of such
Borrower); provided that the amount of any mandatory principal amortization or defeasance of
Trust Preferred Securities or Junior Subordinated Deferred Interest Debt Obligations prior
to the Termination Date shall be included in this definition of Consolidated Debt.


 


6









 






“Consolidated Subsidiary” means, as to any Person, any Subsidiary of such Person the
accounts of which are or are required to be consolidated with the accounts of such Person in
accordance with GAAP.




“Controlled Group” means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control that, together with
any Borrower and its Subsidiaries, are treated as a single employer under Section 414(b),
(c) or (m) or 414(o) of the Code.




“Convert”, “Conversion” and “Converted” each refers to a conversion of Pro-Rata
Advances of one Type into Pro-Rata Advances of another Type or the selection of a new, or
the renewal of the same, Interest Period for Eurodollar Rate Advances pursuant to Section
2.10 or 2.11.




“Credit Parties” has the meaning set forth in Section 8.15 hereto.




“Cross-Default Provision” has the meaning set forth in Section 5.03(f) hereto.




“Date of Issuance” means the date of issuance by a Fronting Bank of a Letter of Credit
under this Agreement.




“Debt to Capitalization Ratio” means, for any Borrower, the ratio of Consolidated Debt
of such Borrower to Total Capitalization of such Borrower.




“Defaulting Lender” means any Lender that (i) has failed, within three Business Days of
the date required to be funded or paid, to (A) fund any portion of its Advances, (B) fund
any portion of its participations in Letters of Credit or Swing Line Advances or (C) pay
over to the Administrative Agent, any Fronting Bank or any Swing Line Lender any other
amount required to be paid by it hereunder, unless, in the case of clause (A) or (B) above,
such Lender notifies the Administrative Agent in writing that such failure is the result of
such Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (ii) has
notified any Borrower or the Administrative Agent, any Fronting Bank or any Swing Line
Lender in writing, or has made a public statement to the effect, that it does not intend or
expect to comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such Lender’s good
faith determination that a condition precedent (specifically identified and including the
particular default, if any) to funding a loan under this Agreement cannot be satisfied) or
generally under other agreements in which it commits to extend credit, (iii) has failed,
within three Business Days after written request by the Administrative Agent, any Fronting
Bank or any Swing Line Lender, acting in good faith, to provide a certification in writing
from an authorized officer of such Lender that it will comply with
its obligations to fund prospective Advances and participations in then outstanding
Letters of Credit and Swing Line Advances under this Agreement, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (iii) upon the Administrative
Agent’s, such Fronting Bank’s or such Swing Line Lender’s (as applicable) receipt of such
certification in form and substance reasonably satisfactory to it and the Administrative
Agent, or (iv) has become the subject of a Bankruptcy Event.


 


7









 






“Disclosure Documents” means (i) with respect to any Borrower that is required to file
reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, such Borrower’s
Annual Report on Form 10-K for the year ended December 31, 2010, Quarterly Report on Form
10-Q for the quarter ended March 31, 2011 and Current Reports on Form 8-K filed in 2011
prior to the date hereof and (ii) with respect to any Borrower that is not required to file
reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, (A) such
Borrower’s consolidated balance sheets as of December 31, 2010, and the related consolidated
statements of income, retained earnings and cash flows for the fiscal year then ended,
certified by PricewaterhouseCoopers LLP or Deloitte & Touche LLP, as applicable, and
unaudited consolidated balance sheets as of March 31, 2011 and related consolidated
statements of income, retained earnings and cash flows for the three-month period then
ended, with, in each case (except for ATSI and Penn), any accompanying notes, all prepared
in accordance with GAAP, and (B) the matters described in the portion of Schedule VI hereto
applicable to such Borrower as indicated thereon.




“Dollars” and “$” each means lawful currency of the United States of America.




“Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Assumption pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Administrative Agent.




“Drawing” means a drawing by a Beneficiary under any Letter of Credit.




“Environmental Laws” means any federal, state or local laws, ordinances or codes,
rules, orders, or regulations relating to pollution or protection of the environment,
including, without limitation, laws relating to hazardous substances, laws relating to
reclamation of land and waterways and laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata) or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of pollution, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.




“ERISA” means the Employee Retirement Income Security Act of 1974, and the regulations
promulgated and rulings issued thereunder, each as amended, modified and in effect from time
to time.


 


8









 






“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to time.




“Eurodollar Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto
or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Administrative Agent.




“Eurodollar Rate” means, for the Interest Period for any Eurodollar Rate Advance made
in connection with any Borrowing, the rate of interest per annum (rounded upward to the
nearest 1/32 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period for a period equal to such
Interest Period. If, for any reason, such rate is not available, the term “Eurodollar Rate”
for such Interest Period shall mean an interest rate per annum equal to the average rate per
annum (rounded upward to the nearest 1/32 of 1%) at which deposits in Dollars are offered by
the Reference Banks to prime banks in the London interbank eurodollar market at 11:00 a.m.
(London time) two Business Days before the first day of such Interest Period in an amount
substantially equal to the Reference Banks’ respective Percentages of such Borrowing to be
outstanding during such Interest Period and for a period equal to such Interest Period.




“Eurodollar Rate Advance” means an Advance that bears interest as provided in Section
2.08(b).




“Eurodollar Rate Reserve Percentage” of any Lender for the Interest Period for any
Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such percentage shall be
so applicable) under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such Interest Period.




“Event of Default” has the meaning set forth in Section 6.01.




“Exchange Act” means the Securities Exchange Act of 1934, and the regulations
promulgated thereunder, in each case as amended and in effect from time to time.


 


9









 






“Excluded Taxes” means, with respect to any Recipient of any payment to be made by or
on account of any obligation of any Borrower hereunder, (i) income or franchise taxes
imposed on (or measured by) the Recipient’s net income by the United States, or by the
jurisdiction under the laws of which such Recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its Applicable
Lending Office is located, (ii) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which such Recipient is located, and
(iii) any withholding taxes that (A) are imposed on amounts payable to such Recipient at the
time such Recipient becomes a Recipient under this Agreement or designates a new lending
office, except in each case to the extent that amounts with respect to such taxes were
payable either (i) to such Recipient’s assignor immediately before such Recipient became a
Recipient under this Agreement, or (ii) to such Recipient immediately before it designated a
new lending office, (B) are attributable to such Recipient’s failure to comply with Section
2.16(e), or (C) are imposed as a result of a failure by such Recipient to satisfy the
conditions for avoiding withholding under FATCA.




“Existing Facilities” means the credit facilities listed on Schedule V hereto.




“Existing Termination Date” has the meaning set forth in Section 2.19(a).




“Expiration Date” means, with respect to a Letter of Credit, its stated expiration
date.




“Extension of Credit” means the making of any Advance or the issuance, extension or
renewal, or any amendment that increases the Stated Amount, of a Letter of Credit.




“FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement
and any current or future regulations or official interpretations thereof.




“FE” has the meaning set forth in the preamble hereto.




“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such average is not such a multiple) of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.




“Fee Letters” means (i) the letter agreement, dated as of April 27, 2011, between FE
and RBS, (ii) the letter agreement, dated as of April 27, 2011, among the Borrowers, RBS,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Bank of America, N.A., Barclays Bank
PLC, J.P. Morgan Securities LLC, JPMorgan Chase Bank, N.A. and RBS Securities Inc., and
(iii) the letter agreement, dated as of May 2, 2011, among the Borrowers, Citigroup Global
Markets Inc., KeyBank National Association, The Bank of Nova Scotia, Union Bank, N.A., The
Bank of Tokyo-Mitsubishi UFJ, Ltd., Wells Fargo Bank, National Association and Wells Fargo
Securities, LLC, in each case, as amended, modified or supplemented from time to time.


 


10









 






“FERC” means the Federal Energy Regulatory Commission or successor organization.




“FES” means FirstEnergy Solutions Corp., an Ohio corporation.




“FES/AESC Credit Agreement” means the Credit Agreement, dated as of June 17, 2011,
among FES, AESC, the financial institutions from time to time party thereto as lenders,
JPMorgan Chase Bank, N.A., as administrative agent, and the fronting banks and swing line
lenders party thereto from time to time, as amended, restated, amended and restated,
supplemented or otherwise modified from time to time.




“First Mortgage Indenture” means a first mortgage indenture pursuant to which any
Borrower or any Subsidiary of a Borrower may issue bonds, notes or similar instruments
secured by a lien on all or substantially all of such Borrower’s or such Subsidiary’s fixed
assets, as the case may be.




“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrowers are resident for tax purposes. For purposes of this
definition, the United States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.




“Fraction” means, for any Borrower at any time, a fraction, the numerator of which
shall be the Borrower Sublimit of such Borrower at such time, and the denominator of which
shall be the sum of the Borrower Sublimits of all Borrowers at such time.




“Fronting Bank” means each Lender identified as a “Fronting Bank” on Schedule II and
any other Lender (in each case, acting directly or through an Affiliate) that delivers an
instrument in form and substance satisfactory to the Borrowers and the Administrative Agent
whereby such other Lender (or its Affiliate) agrees to act as “Fronting Bank” hereunder and
that specifies the maximum aggregate Stated Amount of Letters of Credit that such other
Lender (or its Affiliates) will agree to issue hereunder.




“Fronting Bank Fee Letter” has the meaning set forth in Section 3.01(b).




“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.




“GAAP” means generally accepted accounting principles in the United States in effect
from time to time.




“Governmental Action” means all authorizations, consents, approvals, waivers,
exceptions, variances, orders, licenses, exemptions, publications, filings, notices to and
declarations of or with any Governmental Authority (other than requirements the failure to
comply with which will not affect the validity or enforceability of any Loan Document or
have a material adverse effect on the transactions contemplated by any Loan
Document or any material rights, power or remedy of any Person thereunder or any other
action in respect of any Governmental Authority).


 


11









 






“Governmental Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank) and any group or body charged with setting
financial accounting or regulatory capital rules or standards (including, without
limitation, the Financial Accounting Standards Board, the Bank for International Settlements
or the Basel Committee on Banking Supervision or any successor or similar authority to any
of the foregoing).




“Hedging Obligations” mean, with respect to any Person, the obligations of such Person
under any interest rate or currency swap agreement, interest rate or currency future
agreement, interest rate collar agreement, interest rate or currency hedge agreement, and
any put, call or other agreement or arrangement designed to protect such Person against
fluctuations in interest rates or currency exchange rates.




“Hostile Acquisition” means any Target Acquisition (as defined below) involving a
tender offer or proxy contest that has not been recommended or approved by the board of
directors (or similar governing body) of the Person that is the subject of such Target
Acquisition. As used in this definition, the term “Target Acquisition” means any
transaction, or any series of related transactions, by which any Person directly or
indirectly (i) acquires all or substantially all of the assets or ongoing business of any
other Person, whether through purchase of assets, merger or otherwise, (ii) acquires (in one
transaction or as the most recent transaction in a series of transactions) control of at
least a majority in ordinary voting power of the securities of any such Person that have
ordinary voting power for the election of directors or (iii) otherwise acquires control of
more than a 50% ownership interest in any such Person.




“Indebtedness” of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, or with respect to deposits or advances of
any kind, or for the deferred purchase price of property or services other than trade
accounts payable, (ii) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (iii) all obligations of such Person upon which interest charges are
customarily paid, (iv) all obligations under leases that shall have been or should be, in
accordance with GAAP, recorded as capital leases in respect of which such Person is liable
as lessee, (v) withdrawal liability incurred under ERISA by such Person or any of its
affiliates to any Multiemployer Plan, (vi) reimbursement obligations of such Person (whether
contingent or otherwise) in respect of letters of credit, bankers acceptances, surety or
other bonds and similar instruments, (vii) all Indebtedness of others secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed by such Person and
(viii) obligations of such Person under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to above.


 


12









 






“Indemnified Person” has the meaning set forth in Section 8.05(c) hereto.




“Indemnified Taxes” means all Taxes (including Other Taxes) other than Excluded Taxes.




“Interest Period” means, for each Eurodollar Rate Advance made to any Borrower as part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or
the date of the Conversion of any Pro-Rata Advance into such Eurodollar Rate Advance and
ending on the last day of the period selected by such Borrower pursuant to the provisions
below and, thereafter in the case of Pro-Rata Advances, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be, in the case of any Eurodollar Rate Advance, one week or one,
two, three or six months, in each case, as the applicable Borrower may select by notice to
the Administrative Agent pursuant to Section 2.02(a) or Section 2.11(a); provided, however,
that:




(i) no Borrower may select any Interest Period that ends after the latest
Termination Date;




(ii) Interest Periods commencing on the same date for Advances made as part of
the same Borrowing shall be of the same duration;




(iii) no more than five different Interest Periods shall apply to outstanding
Eurodollar Rate Advances with respect to any Borrower on any date of determination,
and no more than 20 different Interest Periods shall apply to outstanding Eurodollar
Rate Advances with respect to all Borrowers on any date of determination; and




(iv) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided, that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day.




“ISDA Master Agreement” means the printed form of the 1992 ISDA Master Agreement
(Multicurrency — Cross Border) or the 2002 ISDA Master Agreement (Multicurrency — Cross
Border), as applicable, including any Schedule and Credit Support Annex thereto, as
published by the International Swaps and Derivatives Association, Inc.


 


13









 






“JCP&L” has the meaning set forth in the preamble hereto.




“JCP&L FERC Order” means the order of the FERC, dated March 10, 2010, that authorizes
JCP&L to obtain Extensions of Credit until May 31, 2012, as amended, extended, supplemented,
replaced or renewed from time to time.




“Junior Subordinated Deferred Interest Debt Obligations” means subordinated deferrable
interest debt obligations of any Borrower or any of its Subsidiaries (i) for which the
maturity date is subsequent to the Termination Date and (ii) that are fully subordinated in
right of payment to the Indebtedness hereunder.




“L/C Commitment Amount” means $700,000,000 as the same may be reduced permanently from
time to time pursuant to Section 2.06.




“L/C Fronting Bank Commitment” means, with respect to any Fronting Bank, the aggregate
Stated Amount of all Letters of Credit that such Fronting Bank agrees to issue, as modified
from time to time pursuant to an agreement signed by such Fronting Bank. With respect to
each Lender that is a Fronting Bank on the date hereof, such Fronting Bank’s L/C Fronting
Bank Commitment shall equal such Fronting Bank’s “L/C Fronting Bank Commitment” listed on
Schedule II, and (ii) with respect to any Lender that becomes a Fronting Bank after the date
hereof, such Lender’s L/C Fronting Bank Commitment shall equal the amount agreed upon
between the Borrowers and such Lender at the time that such Lender becomes a Fronting Bank,
in each case as such L/C Fronting Bank Commitment may be modified in accordance with the
terms of this Agreement.




“Lender Extension Notice Date” has the meaning set forth in Section 2.19(b).




“Lenders” means the Banks listed on the signature pages hereof and each assignee of a
Bank or another Lender that shall become a party hereto pursuant to Section 8.08 and, as the
context requires, includes the Swing Line Lenders.




“Letter of Credit” has the meaning set forth in Section 2.04(a).




“Letter of Credit Cash Cover” has the meaning set forth in Section 6.01.




“Letter of Credit Request” has the meaning set forth in Section 2.04(c).




“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its Subsidiaries shall be deemed to own, subject to a Lien,
any asset that it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention agreement relating to
such asset.




“Loan Documents” means this Agreement, any Note, the Fee Letters and the Fronting Bank
Fee Letters.


 


14









 






“Majority Lenders” means, at any time prior to the Termination Date, Lenders having in
the aggregate more than 50% of the Commitments (without giving effect to any
termination in whole of the Commitments pursuant to Section 6.01) and at any time on or
after the Termination Date, Lenders having more than 50% of the then aggregate Outstanding
Credits of the Lenders; provided, that for purposes hereof, no Borrower, nor any of its
Affiliates, if a Lender, shall be included in (i) the Lenders having such amount of the
Commitments or the Advances or (ii) determining the total amount of the Commitments or the
Outstanding Credits.




“Margin Stock” has the meaning assigned to that term in Regulation U issued by the
Board of Governors of the Federal Reserve System, and as amended and in effect from time to
time.




“Material Adverse Effect” means, with respect to any Borrower, (i) any material adverse
effect on the business, property, operations or financial condition of such Borrower and its
Consolidated Subsidiaries, taken as a whole, or (ii) any material adverse effect on the
validity or enforceability against such Borrower of this Agreement or any Note.




“Met-Ed” has the meaning set forth in the preamble hereto.




“Met-Ed FERC Order” means the order of the FERC, dated March 10, 2010, that authorizes
Met-Ed to obtain Extensions of Credit until May 31, 2012, as amended, extended,
supplemented, replaced or renewed from time to time.




“Moody’s” means Moody’s Investors Service, Inc.




“MP” has the meaning set forth in the preamble hereto.




“MP FERC Order” means the order of the FERC, dated June 29, 2010, that authorizes MP to
obtain Extensions of Credit until June 29, 2012, as amended, extended, supplemented,
replaced or renewed from time to time.




“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which any Borrower or any member of the Controlled Group is or may reasonably be
expected to have an obligation to make, contributions, or with respect to which any Borrower
may reasonably be expected to incur liability.




“New Fronting Bank” has the meaning set forth in Section 2.04(r).




“Nonconsenting Lender” has the meaning set forth in Section 2.19(b).


 


15









 






“Nonrecourse Indebtedness” means, with respect to any Borrower and its Subsidiaries,
(i) any Indebtedness that finances the acquisition, development, construction or improvement
of an asset in respect of which the Person to which such Indebtedness is owed has no
recourse whatsoever to such Borrower or any of its Affiliates and (ii) any Indebtedness
existing on the date of this Agreement that finances the ownership or operation of an asset
in respect of which the Person to which such Indebtedness is owed has no recourse whatsoever
to such Borrower or any of its Affiliates, in each case of clauses (i) and (ii), other than:




	 	(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.







“Note” means any promissory note issued at the request of a Lender pursuant to Section
2.18 in the form of Exhibit B hereto.




“Notice of Pro-Rata Borrowing” means a notice of a Pro-Rata Borrowing pursuant to
Section 2.02(a), which shall be substantially in the form of Exhibit C.




“Notice of Swing Line Borrowing” means a notice of a Swing Line Borrowing pursuant to
Section 2.03 which, if in writing, shall be substantially in the form of Exhibit D.




“OE” has the meaning set forth in the preamble hereto.




“OE PUCO Order” means the order of the PUCO, dated December 8, 2010, that authorizes OE
to obtain Extensions of Credit until December 31, 2011, as amended, extended, supplemented,
replaced or renewed from time to time.




“OECD” means the Organization for Economic Cooperation and Development.




“Organizational Documents” means, as applicable to any Person, the charter, code of
regulations, articles of incorporation, by-laws, certificate of formation, operating
agreement, certificate of partnership, limited liability company agreement, operating
agreement, partnership agreement, certificate of limited partnership, limited partnership
agreement or other constitutive documents of such Person.


 


16









 






“Original Fronting Banks” has the meaning set forth in Section 2.04(r).




“Other Taxes” means any and all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made hereunder or
under any other Loan Document or from the execution, delivery, performance or enforcement or
registration of, from the receipt or perfection of a security interest under, or otherwise
with respect to, this Agreement or any other Loan Document.




“Outstanding Credits” means, on any date of determination, an amount equal to (i) the
aggregate principal amount of all Advances outstanding on such date plus (ii) the aggregate
undrawn amount of all issued Letters of Credit outstanding on such date plus (iii) the
aggregate amount of Reimbursement Obligations outstanding on such date (excluding
Reimbursement Obligations that, on such date of determination, are repaid with the proceeds
of Advances made in accordance with Sections 2.04 (f) and (g), to the extent the principal
amount of such Advances is included in the determination of the aggregate principal amount
of all outstanding Advances as provided in clause (i) of this definition). The Outstanding
Credits of a Lender on any date of determination shall be an amount equal to the outstanding
Advances made by such Lender plus the amount of such Lender’s participation interest in
outstanding Letters of Credit, Reimbursement Obligations and Swing Line Advances included in
the definition of “Outstanding Credits”.




“Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.




“Participant” has the meaning set forth in Section 8.08(d).




“Participant Register” has the meaning set forth in Section 8.08(d).




“Patriot Act” means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001), as in effect from time to time.




“Payment Date” means the date on which payment of a Drawing is made by a Fronting Bank.




“PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any
or all of its functions under ERISA.




“PE” has the meaning set forth in the preamble hereto.




“PE FERC Order” means the order of the FERC, dated March 22, 2011, that authorizes PE
to obtain Extensions of Credit until May 31, 2012, as amended, extended, supplemented,
replaced or renewed from time to time.




“Penelec” has the meaning set forth in the preamble hereto.




“Penelec FERC Order” means the order of the FERC, dated March 10, 2010, that authorizes
Penelec to obtain Extensions of Credit until May 31, 2012, as amended, extended,
supplemented, replaced or renewed from time to time.


 


17









 






“Penn” has the meaning set forth in the preamble hereto.




“Penn FERC Order” means the order of the FERC, dated March 10, 2010, that authorizes
Penn to obtain Extensions of Credit until May 31, 2012, as amended, extended, supplemented,
replaced or renewed from time to time.




“Percentage” means, in respect of any Lender on any date of determination, the
percentage obtained by dividing such Lender’s Commitment on such day by the total of the
Commitments on such day, and multiplying the quotient so obtained by 100%.




“Permitted Obligations” mean (i) nonspeculative Hedging Obligations of any Person and
its subsidiaries arising in the ordinary course of business and in accordance with such
Person’s established risk management policies that are designed to protect such Person
against, among other things, fluctuations in interest rates or currency exchange rates and
which in the case of agreements relating to interest rates shall have a notional amount no
greater than the payments due with respect to the applicable obligations being hedged and
(ii) Commodity Trading Obligations. For the avoidance of doubt, such transactions shall be
considered nonspeculative if undertaken in conformance with FE’s Corporate Risk Management
Policy then in effect, as approved by FE’s Audit Committee, together with the Approved
Business Unit Risk Management Policies referenced thereunder, including, but not limited to,
the FES Commodity Portfolio Risk Management Policy.




“Permitted Securitization” means, for any Borrower and its Subsidiaries, any sale,
assignment, conveyance, grant and/or contribution, or series of related sales, assignments,
conveyances, grants and/or contributions, by such Borrower or any of its Subsidiaries of
Receivables (or purported sale, assignment, conveyance, grant and/or contribution) to a
trust, corporation or other entity, where the purchase of such Receivables may be funded or
exchanged in whole or in part by the incurrence or issuance by the applicable Securitization
SPV, if any, of Indebtedness or securities (such Indebtedness and securities being
“Attributable Securitization Obligations”) that are to be secured by or otherwise satisfied
by payments from, or that represent interests in, the cash flow derived primarily from such
Receivables (provided, however, that “Indebtedness” as used in this definition shall not
include Indebtedness incurred by a Securitization SPV owed to any Borrower or any of its
Subsidiaries, which Indebtedness represents all or a portion of the purchase price or other
consideration paid by such Securitization SPV for such receivables or interests therein),
where (i) any representation, warranty, covenant, recourse, repurchase, hold harmless,
indemnity or similar obligations of such Borrower or any of its Subsidiaries, as applicable,
in respect of Receivables sold, assigned, conveyed, granted or contributed, or payments made
in respect thereof, are customary for transactions of this type, and do not prevent the
characterization of the transaction as a true sale under applicable laws (including debtor
relief laws) and (ii) any representation, warranty, covenant, recourse, repurchase, hold
harmless, indemnity or similar obligations of any Securitization SPV in respect of
Receivables sold, assigned, conveyed, granted or contributed or payments made in respect
thereof, are customary for transactions of this type.


 


18









 






“Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency thereof.




“Plan” means, at any time, an “employee pension benefit plan” (as defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 or 430 of the Code, (i) that is
(A) maintained by or contributed to by (or to which there is or may be an obligation to
contribute to by) any Borrower or any member of the Controlled Group for employees of any
Borrower or a member of the Controlled Group, or (B) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer makes
contributions, and (ii) each such plan as to which any Borrower or a member of the
Controlled Group has within the preceding five plan years maintained, contributed to or had
an obligation to contribute to.




“Platform” has the meaning set forth in Section 8.03(b).




“Pro-Rata Advance” means an advance by a Lender to any Borrower as part of a Pro-Rata
Borrowing pursuant to Section 2.01 and refers to an Alternate Base Rate Pro-Rata Advance or
a Eurodollar Rate Advance, subject to Conversion pursuant to Section 2.10 or 2.11.




“Pro-Rata Borrowing” means a borrowing consisting of simultaneous Pro-Rata Advances of
the same Type made by each of the Lenders pursuant to Section 2.01 or Converted pursuant to
Section 2.10 or 2.11.




“PUCO” means The Public Utilities Commission of Ohio.




“RBS” has the meaning set forth in the preamble hereto.




“Receivables” means any accounts receivable, payment intangibles, notes receivable,
rights to receive future payments and related rights (whether now existing or arising or
acquired in the future, whether constituting accounts, chattel paper, instruments, general
intangibles or otherwise, and including the right to payment of any interest or finance
charges), including (i) financial transmission rights (“FTRs”) or any other rights to
payment from PJM Interconnection LLC or another regional transmission authority of the
Borrower or any of its Subsidiaries or (ii) the right to impose, charge, collect and receive
special, irrevocable, nonbypassable charges based upon the consumption of electricity
imposed pursuant to Applicable Law on a Borrower’s or any of its Subsidiaries’ ratepayers,
and any supporting obligations and other financial assets related thereto (including all
collateral securing such accounts receivables, FTRs or other assets, contracts and contract
rights, all guarantees with respect thereto, and all proceeds thereof) that are transferred,
or in respect of which security interests are granted in one or more transactions that are
customary for asset securitizations of such Receivables.




“Recipient” means, as applicable, (i) the Administrative Agent, (ii) any Lender, (iii)
any Fronting Bank and (iv) any Swing Line Lender.


 


19









 






“Reference Banks” means RBS and any Lender as may be selected from time to time to act
as a replacement or additional Reference Bank hereunder by the Administrative Agent.




“Reference Ratings” means, with respect to any Borrower, the ratings assigned by S&P
and Moody’s to the senior unsecured non-credit enhanced debt of such Borrower; provided
that, if there is no such rating, “Reference Ratings” shall mean the ratings that are one
level below the ratings assigned by S&P and Moody’s to the senior secured debt of such
Borrower.




“Register” has the meaning set forth in Section 8.08(c).




“Reimbursement Obligation” means the obligation of each Borrower to reimburse a
Fronting Bank for any Drawing paid by such Fronting Bank pursuant to Section 2.04(g).




“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person’s Affiliates.




“Required Reimbursement Date” has the meaning set forth in Section 2.04(f)(i).




“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.




“SEC” means the United States Securities and Exchange Commission.




“Securitization SPV” means any trust, partnership or other Person established by a
Borrower or a Subsidiary of such Borrower to implement a Permitted Securitization.




“Significant Subsidiaries” means (i) with respect to FE, each of CEI, Met-Ed, OE, Penn,
TE, ATSI, JCP&L, MP, Penelec, PE, West-Penn, FES and AESC, and any successor to any of them,
and (ii) with respect to any Borrower, any significant subsidiary (as such term is defined
in Regulation S-X of the SEC (17 C.F.R. §210.1-02(w)), or any successor provision) of such
Borrower (excluding Securitization SPVs).




“Specified Date” has the meaning set forth in Section 2.19(c).




“Stated Amount” means the maximum amount available to be drawn by a Beneficiary under a
Letter of Credit.




“Subsidiary” means, with respect to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar functions are at the
time directly or indirectly owned by such a Person, or one or more Subsidiaries, or by such
Person and one or more of its Subsidiaries.


 


20









 






“Swing Line Advance” means an Advance made by a Swing Line Lender to any Borrower as
part of a Swing Line Borrowing pursuant to Section 2.03.




“Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance made by a
Swing Line Lender pursuant to Section 2.03.




“Swing Line Commitment” means, with respect to any Swing Line Lender, the aggregate
amount of Swing Line Advances that such Swing Line Lender agrees to make, as modified from
time to time pursuant to an agreement signed by such Swing Line Lender. With respect to
each Lender that is a Swing Line Lender on the date hereof, such Swing Line Lender’s Swing
Line Commitment shall equal the “Swing Line Commitment” listed for such Swing Line Lender on
Schedule III and, with respect to any Lender that becomes a Swing Line Lender after the date
hereof, such Lender’s Swing Line Commitment shall equal the amount agreed upon between the
Borrowers and such Lenders at the time such Lender becomes a Swing Line Lender.




“Swing Line Lender” means each of the Lenders identified as a “Swing Line Lender” on
Schedule III and any other Lender or Affiliate thereof that may be appointed from time to
time by the Borrowers to provide Swing Line Advances under this Agreement, that is
reasonably acceptable to the Administrative Agent and that accepts such appointment.




“Swing Line Sublimit” means an amount equal to the lesser of (i) $250,000,000 and (ii)
the aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
aggregate Commitments.




“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
assessments, fees, charges or withholdings imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




“TE” has the meaning set forth in the preamble hereto.




“TE PUCO Order” means the order of the PUCO, dated December 8, 2010, that authorizes TE
to obtain Extensions of Credit until December 31, 2011, as amended, extended, supplemented,
replaced or renewed from time to time.




“Termination Date” means June 17, 2016, subject, for certain Lenders, to the extension
described in Section 2.19 hereof, or, in any case, the earlier date of termination in whole
of the Commitments pursuant to Section 2.06 or Section 6.01 hereof.




“Termination Event” means (i) a Reportable Event described in Section 4043 of ERISA and
the regulations issued thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such regulations), or (ii) the withdrawal of
any member of the Controlled Group from a Plan during a plan year in which it was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination
under Section 4041 or 4042 of ERISA, or (iv) the institution of proceedings to terminate a
Plan by the PBGC, or (v) any other event or condition that might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment by a
court of competent jurisdiction of a trustee to administer, any Plan.


 


21









 






“Total Capitalization” means, with respect to any Borrower at any date of determination
the sum, without duplication, of (i) Consolidated Debt of such Borrower, (ii) the capital
stock (but excluding treasury stock and capital stock subscribed and unissued) and other
equity accounts (including retained earnings and paid in capital but excluding accumulated
other comprehensive income and loss) of such Borrower and its Consolidated Subsidiaries,
(iii) consolidated equity of the preference stockholders of such Borrower and its
Consolidated Subsidiaries, and (iv) the aggregate principal amount of Trust Preferred
Securities and Junior Subordinated Deferred Interest Debt Obligations of such Borrower and
its Consolidated Subsidiaries.




“Trust Preferred Securities” means any securities, however denominated, (i) issued by
any Borrower or any Consolidated Subsidiary of any Borrower, (ii) that are not subject to
mandatory redemption or the underlying securities, if any, of which are not subject to
mandatory redemption, (iii) that are perpetual or mature no less than 30 years from the date
of issuance, (iv) the indebtedness issued in connection with which, including any guaranty,
is subordinate in right of payment to the unsecured and unsubordinated indebtedness of the
issuer of such indebtedness or guaranty, and (v) the terms of which permit the deferral of
the payment of interest or distributions thereon to a date occurring after the Termination
Date.




“Type” means the designation of a Borrowing or an Advance as a Eurodollar Rate
Borrowing or Advance or as an Alternate Base Rate Borrowing or Advance.




“Union Bank Facility” means the $250,000,000 Credit Agreement, dated as of April 30,
2010, among Allegheny Energy, Inc., the banks, financial institutions and other
institutional lenders party thereto, the letter of credit issuing banks party thereto and
Union Bank, N.A., as administrative agent.




“Unmatured Default” means any event that, with the giving of notice or the passage of
time, or both, would constitute an Event of Default.




“U.S. Person” means any Person that is a “United States person” as defined in Section
7701(a)(30) of the Code.




“U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.16(e)(ii)(C).




“West-Penn” has the meaning set forth in the preamble hereto.




“West-Penn FERC Order” means the order of the FERC, dated March 22, 2011, that
authorizes PE to obtain Extensions of Credit until May 31, 2012, as amended, extended,
supplemented, replaced or renewed from time to time.


 


22









 






SECTION 1.02. Computation of Time Periods.



In this Agreement in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including” and the words “to” and “until” each
means “to but excluding”.




SECTION 1.03. Accounting Terms.



All accounting terms not specifically defined herein shall be construed in accordance with
GAAP consistent with those applied in the preparation of the financial statements referred to in
Section 4.01(g).




SECTION 1.04. Terms Generally.



Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be
followed by the phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise, (i) any definition
of or reference to any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended, amended and
restated, supplemented or otherwise modified (subject to any restrictions on such amendments,
restatements, supplements or modifications set forth herein), (ii) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (iii) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provisions hereof, (iv) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, and (v) the definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.



ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT





SECTION 2.01. The Pro-Rata Advances.



Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make
Pro-Rata Advances to each Borrower in Dollars only from time to time on any Business Day during the
period from the date hereof until the Termination Date in an aggregate amount not to exceed at any
time outstanding the Available Commitment of such Lender. Each Pro-Rata Borrowing shall be in an
aggregate amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type and, in the case of Eurodollar Rate Advances, having
the same Interest Period made or Converted on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender’s Available Commitment, and subject
to the conditions set forth in Article III and the other terms and conditions hereof, each Borrower
may from time to time borrow, prepay pursuant to Section 2.12 and reborrow under this Section 2.01;
provided, that in no case shall any Lender be required to make a Pro-Rata Advance to a Borrower
hereunder if (i) the amount of
such Pro-Rata Advance would exceed such Lender’s Available Commitment, (ii) the making of such
Pro-Rata Advance, together with the making of the other Pro-Rata Advances constituting part of the
same Pro-Rata Borrowing, would cause the total amount of all Outstanding Credits to exceed the
aggregate amount of the Commitments or (iii) the amount of such Pro-Rata Advance, together with all
other Outstanding Credits for the account of such Borrower, would exceed such Borrower’s Borrower
Sublimit.


 


23









 






SECTION 2.02. Making the Pro-Rata Advances.



(a) Each Pro-Rata Borrowing shall be made on notice, given (i) in the case of a Pro-Rata
Borrowing comprising Eurodollar Rate Advances, not later than 11:00 a.m. (New York time) on the
third Business Day prior to the date of the proposed Borrowing, and (ii) in the case of a Pro-Rata
Borrowing comprising Alternate Base Rate Pro-Rata Advances, not later than 11:00 a.m. (New York
time) on the date of the proposed Pro-Rata Borrowing, by any Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof. Each such Notice of Pro-Rata Borrowing by a
Borrower shall be by telecopier, in substantially the form of Exhibit C hereto, specifying therein
the requested (A) date of such Pro-Rata Borrowing, (B) Type of Pro-Rata Advances to be made in
connection with such Pro-Rata Borrowing, (C) aggregate amount of such Pro-Rata Borrowing, (D) in
the case of a Pro-Rata Borrowing comprising Eurodollar Rate Advances, the initial Interest Period
for each such Pro-Rata Advance, which Pro-Rata Borrowing shall be subject to the limitations stated
in the definition of “Interest Period” in Section 1.01, and (E) the identity of the Borrower
requesting such Pro-Rata Borrowing. Each Borrower may request that more than one Borrowing be made
on any date. Each Lender shall, before 1:00 p.m. (New York time) on the date of such Pro-Rata
Borrowing, make available for the account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.02, in same day funds, such Lender’s Percentage of
such Pro-Rata Borrowing. After the Administrative Agent’s receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to such Borrower at the Administrative Agent’s aforesaid address.



(b) Each Notice of Pro-Rata Borrowing delivered by any Borrower shall be irrevocable and
binding on such Borrower. In the case of any Notice of Pro-Rata Borrowing delivered by any
Borrower requesting Eurodollar Rate Advances, such Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in such Notice of Pro-Rata Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by such Lender to fund the Pro-Rata Advance to be made by such
Lender as part of such Borrowing when such Pro-Rata Advance, as a result of such failure, is not
made on such date.



(c) Unless the Administrative Agent shall have received written notice via facsimile
transmission from a Lender prior to (A) 5:00 p.m. (New York time) one Business Day prior to the
date of a Pro-Rata Borrowing comprising Eurodollar Rate Advances or (B) 12:00 noon (New York time)
on the date of a Pro-Rata Borrowing comprising Alternate Base Rate Pro-Rata Advances that such
Lender will not make available to the Administrative Agent such Lender’s Percentage of such
Pro-Rata Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such Pro-Rata
Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may,
in reliance upon such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so made such Percentage
of such Pro-Rata Borrowing available to the Administrative Agent, such Lender and such Borrower
severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of
such Borrower, the interest rate applicable at the time to Pro-Rata Advances made in connection
with such Pro-Rata Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender’s Pro-Rata Advance as part of such Pro-Rata Borrowing for purposes of
this Agreement.


 


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(d) The failure of any Lender to make the Pro-Rata Advance to be made by it as part of any
Pro-Rata Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make
its Pro-Rata Advance on the date of such Pro-Rata Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Pro-Rata Advance to be made by such other Lender on the
date of any Borrowing.




SECTION 2.03. Swing Line Advances.



(a) The Swing Line. Subject to the terms and conditions set forth herein, each Swing Line
Lender agrees to make Swing Line Advances to any Borrower in Dollars only from time to time on any
Business Day during the period from the date hereof until the Termination Date in an aggregate
amount not to exceed at any time the amount of such Swing Line Lender’s Swing Line Commitment;
provided, however, no Swing Line Lender shall be required to make a Swing Line Advance hereunder if
(i) the amount of such Swing Line Advance, together with the aggregate principal amount of all
other Swing Line Advances outstanding would exceed the Swing Line Sublimit, (ii) the making of such
Swing Line Advance, together with the making of the other Swing Line Advances constituting part of
the same Swing Line Borrowing, would cause the total amount of all Outstanding Credits to exceed
the aggregate amount of the Commitments or (iii) the amount of such Swing Line Advance would exceed
such Borrower’s Borrower Sublimit. Within the foregoing limits, and subject to the other terms and
conditions hereof, each Borrower may borrow under this Section 2.03, prepay under Section 2.12, and
reborrow under this Section 2.03. Immediately upon the making of a Swing Line Advance, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
applicable Swing Line Lender a risk participation in such Swing Line Advance in an amount equal to
such Lender’s Percentage of the amount of such Swing Line Advance. No more than five Swing Line
Advances may be outstanding hereunder at any time.



(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon any Borrower’s
irrevocable notice to the applicable Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the applicable Swing Line Lender and the
Administrative Agent not later than 11:00 a.m. (New York time) on the date of the proposed Swing
Line Borrowing, or at such later time as a Swing Line Lender may agree, and shall specify (i) the
date of such Swing Line Borrowing, (ii) the amount of such
Swing Line Borrowing, which shall be not less than $1,000,000 or an integral multiple of
$1,000,000 in excess thereof, and (iii) the identity of the Borrower requesting such Swing Line
Borrowing. Each such telephonic notice must be confirmed promptly by delivery to the relevant
Swing Line Lender and the Administrative Agent of a written Notice of Swing Line Borrowing,
appropriately completed and signed by such Borrower. Promptly after receipt by such Swing Line
Lender of any telephonic Notice of Swing Line Borrowing, such Swing Line Lender will confirm with
the Administrative Agent (by telephone or in writing) that the Administrative Agent has also
received such Notice of Swing Line Borrowing and, if not, such Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless such Swing Line
Lender has received notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 12:00 p.m. (New York time) on the date of the proposed Swing
Line Borrowing (A) directing such Swing Line Lender not to make such Swing Line Advance as a result
of the limitations set forth in the first sentence of Section 2.03(a) or (B) that one or more of
the applicable conditions specified in Article III is not then satisfied, then, subject to the
terms and conditions hereof, such Swing Line Lender will, not later than 1:00 p.m. on the borrowing
date specified in such Notice of Swing Line Borrowing, make the amount of its Swing Line Advance
available to the applicable Borrower at its office by crediting the account of such Borrower on the
books of such Swing Line Lender in immediately available funds.


 


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(c) Refinancing of Swing Line Advances.




(i) Each Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of any Borrower (each of which hereby irrevocably authorizes each Swing Line
Lender to so request on its behalf), that each Lender make an Alternate Base Rate Pro-Rata
Advance in an amount equal to such Lender’s Percentage of the amount of Swing Line Advances
made by such Swing Line Lender then outstanding to such Borrower. Such request shall be
made in writing (which written request shall be deemed to be a Notice of Pro-Rata Borrowing
for purposes hereof) and in accordance with the requirements of Sections 2.01 and 2.02,
without regard to the minimum and multiples specified therein for the principal amount of
Alternate Base Rate Pro-Rata Advances, but subject to the unutilized portion of the
Commitments and the conditions set forth in Section 3.02. Such Swing Line Lender shall
furnish such Borrower with a copy of the applicable Notice of Pro-Rata Borrowing promptly
after delivering such notice to the Administrative Agent. Each Lender shall, before 1:00
p.m. (New York time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at its address referred to in Section
8.02, in same day funds, such Lender’s Percentage of such Pro-Rata Borrowing. After the
Administrative Agent’s receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such funds available
to such Borrower at the Administrative Agent’s aforesaid address, whereupon, subject to
Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made
an Alternate Base Rate Pro-Rata Advance to such Borrower in such amount. The Administrative
Agent shall remit the funds so received to the applicable Swing Line Lender.




(ii) If for any reason any Swing Line Advance cannot be refinanced by a Pro-Rata
Borrowing in accordance with Section 2.03(c)(i), the request for Alternate Base
Rate Pro-Rata Advances submitted by a Swing Line Lender as set forth herein shall be
deemed to be a request by such Swing Line Lender that each Lender fund its risk
participation in the relevant Swing Line Advances, and each Lender’s payment to the
Administrative Agent for the account of such Swing Line Lender pursuant to Section
2.03(c)(i) shall be deemed payment in respect of such participation.


 


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(iii) If any Lender fails to make available to the Administrative Agent for the account
of any Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(i), such Swing Line Lender shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to such Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by such Swing Line Lender in accordance with
banking industry rules on interbank compensation. A certificate of such Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.




(iv) Each Lender’s obligation to make Pro-Rata Advances or to purchase and fund risk
participations in Swing Line Advances pursuant to this Section 2.03(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right that such Lender may have against any Swing
Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of an Unmatured Default or Event of Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however, that
each Lender’s obligation to make Pro-Rata Advances pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 3.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line
Advances, together with interest as provided herein.




(d) Repayment of Participations.




(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Advance, if the applicable Swing Line Lender receives any payment on account of
such Swing Line Advance, such Swing Line Lender will distribute to such Lender its
Percentage of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s risk participation was funded) in the
same funds as those received by such Swing Line Lender.




(ii) If any payment received by any Swing Line Lender in respect of principal or
interest on any Swing Line Advance is required to be returned by such Swing Line Lender
under any of the circumstances described in Section 2.15(g) (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to such Swing Line Lender its Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of such Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full of the
obligations hereunder and the termination of this Agreement.


 


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(e) Interest for Account of Swing Line Lenders. Each Swing Line Lender shall be responsible
for invoicing the applicable Borrower for interest on the Swing Line Advances made to such
Borrower. Until each Lender funds its Alternate Base Rate Pro-Rata Advance or risk participation
pursuant to this Section 2.03 to refinance such Lender’s Percentage of any Swing Line Advance,
interest in respect of such Percentage interest shall be solely for the account of such Swing Line
Lender.



(f) Payments Directly to Swing Line Lenders. Each Borrower with outstanding Swing Line
Advances shall make all payments of principal and interest in respect of such Swing Line Advances
directly to the Swing Line Lender that made such Advances.




SECTION 2.04. Letters of Credit.



(a) Agreement of Fronting Banks. Subject to the terms and conditions of this Agreement, each
Fronting Bank agrees to issue and amend (including, without limitation, to extend or renew) for the
account of any Borrower or any Subsidiary thereof (each such Person, an “Account Party”) one or
more standby letters of credit (individually, a “Letter of Credit” and collectively, the “Letters
of Credit”) from and including the date hereof to the third Business Day preceding the Termination
Date, in an aggregate Stated Amount at any time outstanding not to exceed such Fronting Bank’s LC
Fronting Bank Commitment, up to a maximum aggregate Stated Amount of all Letters of Credit at any
one time outstanding equal to the L/C Commitment Amount minus Reimbursement Obligations outstanding
at such time. Each Letter of Credit may be renewable (if so requested by the applicable Borrower),
shall have a Stated Amount not less than $100,000 and shall have an Expiration Date of no later
than the earlier of (x) the third Business Day preceding the latest Termination Date and (y) the
date occurring one year after the Date of Issuance of such Letter of Credit; provided, however,
that no Fronting Bank will issue or amend a Letter of Credit if, immediately following such
issuance or amendment, (i) the Stated Amount of such Letter of Credit would (A) exceed the
Available Commitments or (B) when aggregated with (1) the Stated Amounts of all other outstanding
Letters of Credit and (2) the outstanding Reimbursement Obligations, exceed the L/C Commitment
Amount or (ii) the total amount of all Outstanding Credits would exceed the aggregate amount of the
Commitments. Letters of Credit shall be denominated in Dollars only. Notwithstanding that any
Letter of Credit issued or outstanding hereunder may be in support of any obligations of, or for
the account of, a Subsidiary of a Borrower, any Borrower that requests the issuance of any such
Letter of Credit in support of any obligations of, or for the account of, any of its Subsidiaries
shall be obligated to reimburse the applicable Fronting Bank for any and all drawings under such
Letter of Credit. Each Borrower that requests the issuance of any such Letter of Credit hereby
acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to
such Borrower’s benefit and that such Borrower’s business derives substantial benefits from the
businesses of such Subsidiary. No Fronting Bank shall be under any obligation to issue any Letter
of Credit if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such Fronting Bank from issuing such Letter of Credit, (B)
any law
applicable to such Fronting Bank or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over such Fronting Bank shall prohibit,
or request that such Fronting Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Fronting Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such Fronting Bank is
not otherwise compensated hereunder) not in effect on the date hereof, or shall impose upon such
Fronting Bank any unreimbursed loss, cost or expense that was not applicable on the date hereof and
that such Fronting Bank in good faith deems material to it, (C) the issuance of such Letter of
Credit would violate one or more policies of such Fronting Bank or (D) such Fronting Bank is not
required to make any Extension of Credit in connection with a Letter of Credit under Section
2.21(d).


 


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(b) Forms. Each Letter of Credit shall be in a form customarily used by the Fronting Bank
that is to issue such Letter of Credit or in such other form as has been approved by such Fronting
Bank. At the time of issuance or amendment, subject to the terms and conditions of this Agreement,
the amount and the terms and conditions of each Letter of Credit shall be subject to approval by
the applicable Fronting Bank and the applicable Borrower.



(c) Notice of Issuance; Application. The applicable Borrower shall give the applicable
Fronting Bank and the Administrative Agent written notice, or telephonic notice confirmed in
writing, in any case, at least two Business Days (or such shorter period as such Fronting Bank may
agree in its sole discretion) prior to the requested Date of Issuance of a Letter of Credit, such
notice to be in substantially the form of Exhibit E hereto (a “Letter of Credit Request”). Such
Borrower shall also execute and deliver such customary letter of credit application forms as
requested from time to time by such Fronting Bank. Such application forms shall indicate the
identity of the Account Party and that such Borrower is the “Applicant” or shall otherwise indicate
that such Borrower is the obligor in respect of any Letter of Credit to be issued thereunder. If
the terms or conditions of the application forms conflict with any provision of this Agreement, the
terms of this Agreement shall govern.



(d) Issuance. Provided that the applicable Borrower has given the notice prescribed by
Section 2.04(c) and subject to the other terms and conditions of this Agreement, including the
satisfaction of the applicable conditions precedent set forth in Article III, the applicable
Fronting Bank shall issue the requested Letter of Credit on the requested Date of Issuance as set
forth in the applicable Letter of Credit Request for the benefit of the stipulated Beneficiary and
shall deliver the original of such Letter of Credit to the Beneficiary at the address specified in
the notice. At the request of the applicable Borrower, such Fronting Bank shall deliver a copy of
each Letter of Credit to such Borrower within a reasonable time after the Date of Issuance thereof.
Upon the request of such Borrower, such Fronting Bank shall deliver to such Borrower a copy of any
Letter of Credit proposed to be issued hereunder prior to the issuance thereof.



(e) Notice of Drawing. Each Fronting Bank shall promptly notify the applicable Borrower by
telephone, facsimile or other telecommunication of any Drawing under a Letter of Credit issued for
the account of such Borrower by such Fronting Bank.


 


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(f) Payments. Each Borrower hereby agrees to pay to each Fronting Bank, in the manner
provided in subsection (g) below:




(i) on the date of receipt by such Borrower of notice of any Drawing pursuant to a
subsection (e) above, if such notice is received not later than 11:00 a.m. (New York City
time), or on the first Business Day following receipt of such notice by such Borrower, if
such notice is received later than 11:00 a.m. (New York City time), an amount equal to the
amount paid by such Fronting Bank in connection with such Drawing (such date being the
“Required Reimbursement Date”); and




(ii) if any Drawing shall be reimbursed to any Fronting Bank after 12:00 noon (New York
time) on the applicable Payment Date, interest on any and all amounts required to be paid
pursuant to clause (i) of this subsection (f) from and after such Payment Date until payment
in full, payable on demand, at the annual rate of interest applicable to Alternate Base Rate
Advances as in effect from time to time, provided, however, that from and after the Required
Reimbursement Date with respect to such Drawing until payment in full, such interest rate
shall be increased by 2.00%.



(g) Method of Reimbursement. Each Borrower shall reimburse each Fronting Bank for each
Drawing under any Letter of Credit issued for the account of such Borrower by such Fronting Bank
pursuant to subsection (f) above in the following manner:




(i) such Borrower shall reimburse such Fronting Bank in the manner described in
subsection (f) above and Section 2.15; or




(ii) if (A) such Borrower has not reimbursed such Fronting Bank pursuant to paragraph
(i) above, (B) the applicable conditions to Borrowing set forth in Articles II and III have
been fulfilled, and (C) the Available Commitments in effect at such time exceed the amount
of the Drawing to be reimbursed, such Borrower may reimburse such Fronting Bank for such
Drawing with the proceeds of an Alternate Base Rate Pro-Rata Advance or, if the conditions
specified in the foregoing clauses (A), (B) and (C) have been satisfied and a Notice of
Borrowing requesting a Eurodollar Rate Advance has been given in accordance with Section
2.02 three Business Days prior to the relevant Payment Date, with the proceeds of a
Eurodollar Rate Advance.



(h) Nature of Fronting Banks’ Duties. In determining whether to honor any Drawing under any
Letter of Credit issued by any Fronting Bank, such Fronting Bank shall be responsible only to
determine that the documents and certificates required to be delivered under such Letter of Credit
have been delivered and that they comply on their face with the requirements of such Letter of
Credit. Each Borrower otherwise assumes all risks of the acts and omissions of, or misuse of any
Letter of Credit issued by any Fronting Bank for the account of such Borrower by, the Beneficiary
of such Letter of Credit. In furtherance and not in limitation of the foregoing, but consistent
with applicable law, no Fronting Bank shall be responsible, absent gross negligence or willful
misconduct, (i) for the form, validity, sufficiency, accuracy, genuineness or legal effects of any
document submitted by any party in connection with the application for and issuance of any drawing
honored under a Letter of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign any such Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (iii) for errors,
omissions, interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, facsimile or otherwise, whether or not they be in cipher; (iv) for errors
in interpretation of technical terms; (v) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any such Letter of Credit, or the proceeds
thereof; (vi) for the misapplication by the Beneficiary of any such Letter of Credit or of the
proceeds of any drawing honored under such Letter of Credit; and (vii) for any consequences arising
from causes beyond the control of such Fronting Bank. None of the above shall affect, impair or
prevent the vesting of any of such Fronting Bank’s rights or powers hereunder. Not in limitation
of the foregoing, any action taken or omitted to be taken by any Fronting Bank under or in
connection with any Letter of Credit shall not create against such Fronting Bank any liability to
the Borrowers or any Lender, except for actions or omissions resulting from the gross negligence or
willful misconduct of such Fronting Bank or any of its agents or representatives, and such Fronting
Bank shall not be required to take any action that exposes such Fronting Bank to personal liability
or that is contrary to this Agreement or applicable law.


 


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(i) Obligations of Borrowers Absolute. The obligation of each Borrower to reimburse each
Fronting Bank for Drawings honored under the Letters of Credit issued for the account of such
Borrower by such Fronting Bank shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances including, without limitation,
the following circumstances:




(i) any lack of validity or enforceability of any Letter of Credit;




(ii) the existence of any claim, set-off, defense or other right that any Borrower, any
Account Party or any Affiliate of any Borrower or any Account Party may have at any time
against a Beneficiary or any transferee of any Letter of Credit (or any Persons or entities
for whom any such Beneficiary or transferee may be acting), such Fronting Bank or any other
Person, whether in connection with this Agreement, the transactions contemplated herein or
any unrelated transaction;




(iii) any draft, demand, certificate or any other documents presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;




(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Loan Documents;




(v) any non-application or misapplication by the Beneficiary of the proceeds of any
Drawing under a Letter of Credit; or




(vi) the fact that an Event of Default or an Unmatured Default shall have occurred and
be continuing.



No payment made under this Section shall be deemed to be a waiver of any claim any Borrower may
have against any Fronting Bank or any other Person.


 


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(j) Participations by Lenders. By the issuance of a Letter of Credit and without any further
action on the part of any Fronting Bank or any Lender in respect thereof, each Fronting
Bank shall hereby be deemed to have granted to each Lender, and each Lender shall hereby be
deemed to have acquired from such Fronting Bank, an undivided interest and participation in such
Letter of Credit (including any letter of credit issued by such Fronting Bank in substitution or
exchange for such Letter of Credit pursuant to the terms thereof) equal to such Lender’s Percentage
of the Stated Amount of such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to such Fronting Bank, in accordance with this subsection (j), such
Lender’s Percentage of each payment made by such Fronting Bank in respect of an unreimbursed
Drawing under a Letter of Credit. Such Fronting Bank shall notify the Administrative Agent of the
amount of such unreimbursed Drawing honored by it not later than (x) 12:00 noon (New York time) on
the date of payment of a draft under a Letter of Credit, if such payment is made at or prior to
11:00 a.m. (New York time) on such day, and (y) the close of business (New York time) on the date
of payment of a draft under a Letter of Credit, if such payment is made after 11:00 a.m. (New York
time) on such day, and the Administrative Agent shall notify each Lender of the date and amount of
such unreimbursed Drawing under such Letter of Credit honored by such Fronting Bank and the amount
of such Lender’s Percentage therein no later than (1) 1:00 p.m. (New York time) on such day, if
such payment is made at or prior to 11:00 a.m. (New York time) on such day, and (2) 11:00 a.m. (New
York time) on the next following Business Day, if such payment is made after 11:00 a.m. (New York
time) on such day. Not later than 2:00 p.m. (New York time) on the date of receipt of a notice of
an unreimbursed Drawing by a Lender, such Lender agrees to pay to such Fronting Bank an amount
equal to the product of (A) such Lender’s Percentage and (B) the amount of the payment made by such
Fronting Bank in respect of such unreimbursed Drawing.



If payment of the amount due pursuant to the preceding sentence from a Lender is received by
such Fronting Bank after the close of business on the date it is due, such Lender agrees to pay to
such Fronting Bank, in addition to (and along with) its payment of the amount due pursuant to the
preceding sentence, interest on such amount at a rate per annum equal to (i) for the period from
and including the date such payment is due to but excluding the second succeeding Business Day, the
Federal Funds Rate, and (ii) for the period from and including the second Business Day succeeding
the date such payment is due to but excluding the date on which such amount is paid in full, the
Federal Funds Rate plus 2.00%.



(k) Obligations of Lenders Absolute. Each Lender acknowledges and agrees that (i) its
obligation to acquire a participation in any Fronting Bank’s liability in respect of the Letters of
Credit and (ii) its obligation to make the payments specified herein, and the right of each
Fronting Bank to receive the same, in the manner specified herein, are absolute and unconditional
and shall not be affected by any circumstances whatsoever, including, without limitation, (A) the
occurrence and continuance of any Event of Default or Unmatured Default; (B) any other breach or
default by any Borrower, the Administrative Agent or any Lender hereunder; (C) any lack of validity
or enforceability of any Letter of Credit or any Loan Document; (D) the existence of any claim,
setoff, defense or other right that the Lender may have at any time against any Borrower, any other
Account Party, any Beneficiary, any Fronting Bank or any other Lender; (E) the existence of any
claim, setoff, defense or other right that any Borrower may have at any time against any
Beneficiary, any Fronting Bank, the Administrative Agent, any Lender or any other Person, whether
in connection with this Agreement or any other documents contemplated hereby or any unrelated
transactions; (F) any amendment or waiver of,
or consent to any departure from, all or any of the Letters of Credit or this Agreement; (G)
any statement or any document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (H) payment by any Fronting Bank under any Letter of Credit against
presentation of a draft or certificate that does not comply with the terms of such Letter of
Credit, so long as such payment is not the consequence of such Fronting Bank’s gross negligence or
willful misconduct in determining whether documents presented under a Letter of Credit comply with
the terms thereof; (I) the occurrence of the Termination Date; or (J) any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing. Nothing herein shall prevent
the assertion by any Lender of a claim by separate suit or compulsory counterclaim, nor shall any
payment made by a Lender under Section 2.04 hereof be deemed to be a waiver of any claim that a
Lender may have against any Fronting Bank or any other Person.


 


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(l) Proceeds of Reimbursements. Upon receipt of a payment from a Borrower pursuant to
subsection (f) hereof, the applicable Fronting Bank shall promptly transfer to each Lender that has
funded its participation in the applicable Drawing pursuant to subsection (j) above, such Lender’s
pro rata share (determined in accordance with such Lender’s Percentage) of such payment. All
payments due to the Lenders from any Fronting Bank pursuant to this subsection (l) shall be made to
the Lenders if, as, and, to the extent possible, when such Fronting Bank receives payments in
respect of Drawings under the Letters of Credit pursuant to subsection (f) hereof, and in the same
funds in which such amounts are received; provided that if any Lender to which such Fronting Bank
is required to transfer any such payment (or any portion thereof) pursuant to this subsection (l)
does not receive such payment (or portion thereof) prior to (i) the close of business on the
Business Day on which such Fronting Bank received such payment from such Borrower, if such Fronting
Bank received such payment prior to 1:00 p.m. (New York time) on such day, or (ii) 1:00 p.m. (New
York time) on the Business Day next succeeding the Business Day on which such Fronting Bank
received such payment from the Borrower, if such Fronting Bank received such payment after 1:00
p.m. (New York time) on such day, such Fronting Bank agrees to pay to such Lender, along with its
payment of the portion of such payment due to such Lender, interest on such amount at a rate per
annum equal to (A) for the period from and including the Business Day when such payment was
required to be made to the Lenders to but excluding the second succeeding Business Day, the Federal
Funds Rate and (B) for the period from and including the second Business Day succeeding the
Business Day when such payment was required to be made to the Lenders to but excluding the date on
which such amount is paid in full, the Federal Funds Rate plus 2.00%.



(m) Concerning the Fronting Banks. Each Fronting Bank will exercise and give the same care
and attention to the Letters of Credit issued by it as it gives to its other letters of credit and
similar obligations, and each Lender agrees that each Fronting Bank’s sole liability to such Lender
shall be (i) to distribute promptly, as and when received by such Fronting Bank, and in accordance
with the provisions of subsection (l) above, such Lender’s Percentage of any payments to such
Fronting Bank by the Borrowers pursuant to subsection (f) above in respect of Drawings under the
Letters of Credit issued by such Fronting Bank, (ii) to exercise or refrain from exercising any
right or to take or to refrain from taking any action under this Agreement or any Letter of Credit
issued by such Fronting Bank as may be directed in writing by the Majority Lenders (or, when
expressly required by the terms of this Agreement, all of the Lenders) or the Administrative Agent
acting at the direction and on behalf of the Majority Lenders (or, when
expressly required by the terms of this Agreement, all of the Lenders), except to the extent
required by the terms hereof or thereof or by applicable law, and (iii) as otherwise expressly set
forth in this Section 2.04. No Fronting Bank shall be liable for any action taken or omitted at
the request or with approval of the Majority Lenders (or, when expressly required by the terms of
this Agreement, all of the Lenders) or of the Administrative Agent acting on behalf of the Majority
Lenders (or, when expressly required by the terms of this Agreement, all of the Lenders) or for the
nonperformance of the obligations of any other party under this Agreement, any Letter of Credit or
any other document contemplated hereby or thereby. Without in any way limiting any of the
foregoing, each Fronting Bank may rely upon the advice of counsel concerning legal matters and upon
any written communication or any telephone conversation that it believes to be genuine or to have
been signed, sent or made by the proper Person and shall not be required to make any inquiry
concerning the performance by any Borrower, any Beneficiary or any other Person of any of their
respective obligations and liabilities under or in respect of this Agreement, any Letter of Credit
or any other documents contemplated hereby or thereby. No Fronting Bank shall have any obligation
to make any claim, or assert any Lien, upon any property held by such Fronting Bank or assert any
offset thereagainst in satisfaction of all or any part of the obligations of the Borrowers
hereunder; provided that each Fronting Bank shall, if so directed by the Majority Lenders or the
Administrative Agent acting on behalf of and with the consent of the Majority Lenders, have an
obligation to make a claim, or assert a Lien, upon property held by such Fronting Bank in
connection with this Agreement, or assert an offset thereagainst.


 


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Each Fronting Bank may accept deposits from, make loans or otherwise extend credit to, and
generally engage in any kind of banking or trust business with the Borrowers or any of their
Affiliates, or any other Person, and receive payment on such loans or extensions of credit and
otherwise act with respect thereto freely and without accountability in the same manner as if it
were not a Fronting Bank hereunder.



Each Fronting Bank makes no representation or warranty and shall have no responsibility with
respect to: (i) the genuineness, legality, validity, binding effect or enforceability of this
Agreement or any other documents contemplated hereby; (ii) the truthfulness, accuracy or
performance of any of the representations, warranties or agreements contained in this Agreement or
any other documents contemplated hereby; (iii) the collectibility of any amounts due under this
Agreement; (iv) the financial condition of the Borrowers or any other Person; or (v) any act or
omission of any Beneficiary with respect to its use of any Letter of Credit or the proceeds of any
Drawing under any Letter of Credit.



(n) Indemnification of Fronting Banks by Lenders. To the extent that any Fronting Bank is not
reimbursed and indemnified by the Borrowers under Section 8.05 hereof, each Lender agrees to
reimburse and indemnify such Fronting Bank on demand, pro rata in accordance with such Lender’s
Percentage, for and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against such Fronting Bank, in any way relating to or
arising out of this Agreement, any Letter of Credit or any other document contemplated hereby or
thereby, or any action taken or omitted by such Fronting Bank under or in connection with this
Agreement, any Letter of Credit or any other document contemplated hereby or thereby; provided,
however, that such Lender shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Fronting Bank’s gross negligence or
willful misconduct; and provided further, however, that such Lender shall not be liable to such
Fronting Bank or any other Lender for the failure of any Borrower to reimburse such Fronting Bank
for any drawing made under a Letter of Credit issued for the account of such Borrower with respect
to which such Lender has paid such Fronting Bank such Lender’s pro rata share (determined in
accordance with such Lender’s Percentage), or for such Borrower’s failure to pay interest thereon.
Each Lender’s obligations under this subsection (n) shall survive the payment in full of all
amounts payable by such Lender under subsection (j) above, and the termination of this Agreement
and the Letters of Credit. Nothing in this subsection (n) is intended to limit any Lender’s
reimbursement obligation contained in subsection (j) above.


 


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(o) Representations of Lenders. As between any Fronting Bank and the Lenders, by its
execution and delivery of this Agreement each Lender hereby represents and warrants solely to such
Fronting Bank that (i) it is duly organized and validly existing in good standing under the laws of
the jurisdiction of its formation, and has full corporate power, authority and legal right to
execute, deliver and perform its obligations to such Fronting Bank under this Agreement; and (ii)
this Agreement constitutes its legal, valid and binding obligation enforceable against it in
accordance with the terms hereof, except as such enforceability may be limited by applicable bank
organization, moratorium, conservatorship or other laws now or hereafter in effect affecting the
enforcement of creditors rights in general and the rights of creditors of banks, and except as such
enforceability may be limited by general principles of equity (whether considered in a proceeding
at law or in equity).



(p) The Letters of Credit listed in Schedule IV shall be deemed “Letters of Credit” upon
fulfillment of the conditions precedent listed in Sections 3.01 and 3.02.



(q) Successor Fronting Bank. Any Fronting Bank may resign at any time by giving written
notice thereof to the Lenders, the other Fronting Banks and the Borrowers, as long as such Fronting
Bank has no Letters of Credit outstanding under this Agreement. Upon such resignation, the
Borrowers may designate one or more Lenders as Fronting Banks to replace the retiring Fronting
Bank. If a Fronting Bank has any Letters of Credit outstanding under this Agreement and delivers a
written notice of its intent to resign to the Lenders, the other Fronting Banks and the Borrowers,
such Fronting Bank shall continue to honor its obligations under this Agreement, but shall have no
obligation to issue any new Letter of Credit. Upon receipt of such notice of intent to resign, the
Borrowers and such Fronting Bank may agree to replace or terminate the outstanding Letters of
Credit issued by such Fronting Bank and to designate one or more Lenders as Fronting Banks to
replace such Fronting Bank.



(r) Reallocation of L/C Fronting Bank Commitments. If any Lender becomes a Fronting Bank
after the date hereof (a “New Fronting Bank”), the L/C Fronting Bank Commitments of the Lenders
that are Fronting Banks on the date hereof (the “Original Fronting Banks”) shall be reduced by an
aggregate amount equal to such New Fronting Bank’s L/C Fronting Banks Commitment, with such
reduction to be allocated among the Original Fronting Banks ratably in accordance such Original
Fronting Banks’ respective L/C Fronting Bank Commitments on the date of such reduction.


 


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SECTION 2.05. Fees.



(a) FE agrees to pay to the Administrative Agent for the account of each Lender a commitment
fee on the amount of such Lender’s Percentage of the unused aggregate Commitments at such time from
the date hereof in the case of each Bank and from the effective date specified in the Assignment
and Assumption pursuant to which it became a Lender in the case of each other Lender until the
Termination Date applicable to such Lender, payable on the last day of each March, June, September
and December during such period, and on such Termination Date, at the rate per annum set forth
below determined by reference to the Reference Ratings of FE from time to time in effect:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	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&P or	 	 	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	%






For purposes of the foregoing, if (i) there is a difference of one level in Reference Ratings of
S&P and Moody’s and the higher of such Reference Ratings falls in Level 1, Level 2, Level 3, Level
4 or Level 5, then the higher Reference Rating will be used to determine the commitment fee, and
(ii) there is a difference of more than one level in Reference Ratings of S&P and Moody’s, the
Reference Rating that is one level above the lower of such Reference Ratings will be used to
determine the commitment fee, unless the lower of such Reference Ratings falls in Level 6, in which
case the lower of such Reference Ratings will be used to determine the commitment fee. If there
exists only one Reference Rating, such Reference Rating will be used to determine the commitment
fee.



(b) FE agrees to pay the fees payable by the Borrowers in such amounts and payable on such
terms as set forth in the Fee Letters.



(c) FE agrees to pay to the Administrative Agent, for the account of the Lenders, a fee in an
amount equal to the then Applicable Margin for Eurodollar Rate Advances for each Borrower
multiplied by the Stated Amount of each Letter of Credit issued for the account of such Borrower,
in each case for the number of days that such Letter of Credit is issued and outstanding, payable
quarterly in arrears on the last day of each March, June, September and December and on the date
such Letter of Credit expires.



(d) FE agrees to pay to each Fronting Bank, for its own account, certain fees payable by each
applicable Borrower in such amounts and payable on such terms as set forth in the Fronting Bank Fee
Letter to which such Fronting Bank is a party.


 


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SECTION 2.06. Reduction of the Commitments; Borrower Sublimits.



The Borrowers shall have the right, upon at least three Business Days’ notice to the
Administrative Agent, to terminate in whole or, upon same day notice, from time to time to
permanently reduce ratably in part the unused portion of the Commitments; provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or in an integral multiple of
$1,000,000 in excess thereof; provided, further, that the Commitments may not be reduced to an
amount that is less than the aggregate Stated Amount of outstanding Letters of Credit. Subject to
the foregoing, any reduction of the Commitments to an amount below $700,000,000 shall also result
in a reduction of the L/C Commitment Amount to the extent of such deficit. Each such notice of
termination or reduction shall be irrevocable; provided, further, that, if, after giving effect to
any reduction of the Commitments, the Swing Line Sublimit or any Borrower Sublimit exceeds the
amount of the aggregate Commitments, such sublimit shall be automatically reduced by the amount of
such excess. Any Commitment reduced or terminated pursuant to this Section may not be reinstated.




SECTION 2.07. Repayment of Advances.



Each Borrower agrees to repay the principal amount of each Advance made by each Lender to such
Borrower no later than the earlier of (i) 364 days after the date such Advance is made (or in the
case of a Swing Line Advance, 10 days after the date such Swing Line Advance is made) and (ii) the
latest Termination Date applicable to such Lender; provided, however, that if any Borrower shall
deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent
(including, without limitation, certified copies of governmental approvals and legal opinions) that
such Borrower is authorized under Applicable Law to incur Indebtedness hereunder maturing more than
364 days after the date of incurrence of such Indebtedness, such Borrower shall repay each Advance
made to it by a Lender no later than the latest Termination Date applicable to such Lender.




SECTION 2.08. Interest on Advances.



Each Borrower agrees to pay interest on the unpaid principal amount of each Advance made by
each Lender to such Borrower from the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum, subject to Section 2.15(f):



(a) Alternate Base Rate Pro-Rata Advances. If such Advance is an Alternate Base Pro-Rata Rate
Advance, a rate per annum equal at all times to the Alternate Base Rate in effect from time to time
plus the Applicable Margin for such Alternate Base Rate Pro-Rata Advance in effect from time to
time, payable quarterly in arrears on the last day of each March, June, September and December, on
the Termination Date and on the date such Alternate Base Rate Pro-Rata Advance shall be Converted
or be paid in full and as provided in Section 2.12;



(b) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during the Interest Period for such Advance to the sum of the Eurodollar Rate
for such Interest Period plus the Applicable Margin for such Eurodollar Rate Advance in effect from
time to time, payable on the last day of each Interest Period for such Eurodollar Rate Advance
(and, in the case of any Interest Period of six months, on the last day of
the third month of such Interest Period), on the Termination Date and on the date such
Eurodollar Rate Advance shall be Converted or be paid in full and as provided in Section 2.12; and


 


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(c) Swing Line Advances. If such Advance is a Swing Line Advance, a rate per annum equal to
the sum of the Alternate Base Rate in effect from time to time plus the Applicable Margin for such
Swing Line Advance payable on the date such Swing Line Advance is paid in full and as provided in
Section 2.12.




SECTION 2.09. Additional Interest on Advances.



Each Borrower agrees to pay to each Lender, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate Advance made by such Lender to such
Borrower, from the date of such Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate
for the Interest Period for such Advance from (ii) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such Advance; provided,
that no Lender shall be entitled to demand additional interest under this Section 2.09 more than 90
days following the last day of the Interest Period in respect of which such demand is made;
provided further, however, that the foregoing proviso shall in no way limit the right of any Lender
to demand or receive such additional interest to the extent that such additional interest relates
to the retroactive application by the Board of Governors of the Federal Reserve System of any
regulation described above if such demand is made within 90 days after the implementation of such
retroactive regulation. Such additional interest shall be determined by such Lender and notified
to the applicable Borrower through the Administrative Agent, and such determination shall be
conclusive and binding for all purposes, absent manifest error.




SECTION 2.10. Interest Rate Determination.



(a) The Administrative Agent shall give prompt notice to the applicable Borrower and the
Lenders of the applicable interest rate determined by the Administrative Agent for purposes of
Section 2.08(a), (b) or (c).



(b) If, with respect to any Eurodollar Rate Advances, the Majority Lenders notify the
Administrative Agent that (i) Dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate
Advances, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate or
(iii) the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Majority Lenders of making or funding their respective Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the Borrowers and the
Lenders, whereupon


 


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(i) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into an Alternate Base Rate Pro-Rata Advance, and




(ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers
and the Lenders that the circumstances causing such suspension no longer exist.



(c) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
thereofor, Convert into a Base Rate Advance, and the obligation of the Lenders to make or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.




SECTION 2.11. Conversion of Advances.



(a) Voluntary. Any Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 11:00 a.m. (New York time) on the third Business Day prior to the date of any
proposed Conversion into Eurodollar Rate Advances, and on the date of any proposed Conversion into
Alternate Base Rate Pro-Rata Advances, and subject to the provisions of Sections 2.10 and 2.14,
Convert all Pro-Rata Advances of one Type made to such Borrower in connection with the same
Borrowing into Pro-Rata Advances of another Type or Types or Pro-Rata Advances of the same Type
having the same or a new Interest Period; provided, however, that any Conversion of, or with
respect to, any Eurodollar Rate Advances into Pro-Rata Advances of another Type or Pro-Rata
Advances of the same Type having the same or new Interest Periods, shall be made on, and only on,
the last day of an Interest Period for such Eurodollar Rate Advances, unless the applicable
Borrower shall also reimburse the Lenders in respect thereof pursuant to Section 8.05(b) on the
date of such Conversion. Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Pro-Rata Advances to be Converted, and
(iii) if such Conversion is into, or with respect to, Eurodollar Rate Advances, the duration of the
Interest Period for each such resulting Pro-Rata Advance.



(b) Mandatory. If any Borrower shall fail to select the Type of any Pro-Rata Advance or the
duration of any Interest Period for any Borrowing comprising Eurodollar Rate Advances in accordance
with the provisions contained in the definition of “Interest Period” in Section 1.01 and Section
2.11(a), or if any proposed Conversion of a Borrowing that is to comprise Eurodollar Rate Advances
upon Conversion shall not occur as a result of the circumstances described in paragraph (c) below,
the Administrative Agent will forthwith so notify such Borrower and the Lenders, and such Advances
will automatically, on the last day of the then existing Interest Period therefor, Convert into
Alternate Base Rate Pro-Rata Advances.



(c) Failure to Convert. Each notice of Conversion given by any Borrower pursuant to
subsection (a) above shall be irrevocable and binding on such Borrower. In the case of any
Borrowing that is to comprise Eurodollar Rate Advances upon Conversion, the Borrower agrees to
indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any
failure of such Conversion to occur pursuant to the provisions of Section 2.10(c), including,
without limitation, any loss, cost or expense incurred by reason of the liquidation or
redeployment of deposits or other funds acquired by such Lender to fund such Eurodollar Rate
Advances upon such Conversion, when such Conversion does not occur. Each Borrower’s obligations
under this subsection (c) shall survive the repayment of all other amounts owing by such Borrower
to the Lenders and the Administrative Agent under this Agreement and any Note and the termination
of the Commitments.


 


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SECTION 2.12. Prepayments.



(a) Optional. Any Borrower may at any time prepay the outstanding principal amounts of the
Advances made to such Borrower as part of the same Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount prepaid, upon notice
thereof given to the Administrative Agent by such Borrower not later than 11:00 a.m. (New York
time) (i) on the date of any such prepayment in the case of Alternate Base Rate Advances and (ii)
on the second Business Day prior to any such prepayment in the case of Eurodollar Rate Advances;
provided, however, that (x) each partial prepayment of any Borrowing shall be in an aggregate
principal amount not less than $5,000,000 with respect to Pro-Rata Borrowings and $1,000,000 with
respect to Swing Line Borrowings and (y) in the case of any such prepayment of a Eurodollar Rate
Advance, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.05(b) on the date of such prepayment.



(b) Mandatory. (i) If and to the extent that the Outstanding Credits on any date hereunder
shall exceed the aggregate amount of the Commitments hereunder on such date, each Borrower agrees
to (A) prepay on such date a principal amount of Advances and/or (B) pay to the Administrative
Agent an amount in immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to all or a portion of the amount
available for drawing under the Letters of Credit outstanding at such time, which prepayment under
clause (A) and payment under clause (B) shall, when taken together result in the amount of
Outstanding Credits minus the amount paid to the Administrative Agent pursuant to clause (B) being
less than or equal to the aggregate amount of the Commitments hereunder on such date.




(ii) If at any time the Outstanding Credits with respect to a Borrower on any date
hereunder shall exceed the Borrower Sublimit for such Borrower, such Borrower agrees to (A)
prepay on such date Advances in a principal amount equal to such excess and/or (B) pay to
the Administrative Agent an amount in immediately available funds (which funds shall be held
as collateral pursuant to arrangements satisfactory to the Administrative Agent) equal to
all or a portion of the amount available for drawing under the Letters of Credit outstanding
to such Borrower at such time, which prepayment under clause (A) and payment under clause
(B) shall, when taken together, result in the amount of Outstanding Credits minus the amount
paid to the Administrative Agent pursuant to clause (B) being less than or equal to the
aggregate amount of the applicable Borrower Sublimit hereunder on such date.




(iii) If at any time the aggregate principal amount of the Swing Line Advances exceeds
the Swing Line Sublimit, each Borrower agrees to prepay the Swing Line
Advances outstanding to such Borrower in a principal amount equal to such Borrower’s
pro-rata amount of such excess, determined on the basis of the percentage of the aggregate
principal amount of Swing Line Advances outstanding to such Borrower.


 


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Any prepayment of Advances shall be accompanied by accrued interest on the amount prepaid to the
date of such prepayment and, in the case of any such prepayment of Eurodollar Rate Advances, the
applicable Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.05(b).




SECTION 2.13. Increased Costs.



(a) If, due to any Change in Law, there shall be any increase in the cost (other than in
respect of Taxes, which are addressed exclusively in Section 2.16) to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances or any increase in the cost to any
Fronting Bank or any Lender of issuing, maintaining or participating in Letters of Credit, other
than, in each case, relating to Taxes, then each Borrower shall from time to time, upon demand by
such Lender or such Fronting Bank (as the case may be) (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Lender or such
Fronting Bank (as the case may be) additional amounts sufficient to compensate such Lender or such
Fronting Bank (as the case may be) for such increased cost. A certificate as to the amount of such
increased cost and the basis therefor, submitted to each Borrower and the Administrative Agent by
such Lender or such Fronting Bank (as the case may be), shall constitute such demand and shall be
conclusive and binding for all purposes, absent manifest error.



(b) If any Lender or any Fronting Bank determines that any Change in Law affects or would
affect the amount of capital required or expected to be maintained by such Lender or such Fronting
Bank (as the case may be) or any corporation controlling such Lender or such Fronting Bank (as the
case may be) and that the amount of such capital is increased by or based upon the existence of (i)
such Lender’s commitment to lend or participate in Letters of Credit hereunder and other
commitments of this type or (ii) the Advances made by such Lender or (iii) the participations in
Letters of Credit acquired by such Lender or (iv) in the case of any Fronting Bank, such Fronting
Bank’s commitment to issue, maintain and honor drawings under Letters of Credit hereunder, or (v)
the honoring of Letters of Credit by any Fronting Bank hereunder, then, upon demand by such Lender
or such Fronting Bank (as the case may be) (with a copy of such demand to the Administrative
Agent), each Borrower shall immediately pay to the Administrative Agent for the account of such
Lender or such Fronting Bank (as the case may be), from time to time as specified by such Lender or
such Fronting Bank (as the case may be), additional amounts sufficient to compensate such Lender,
such Fronting Bank or such corporation in the light of such circumstances, to the extent that such
Lender or such Fronting Bank (as the case may be) determines such increase in capital to be
allocable to (i) in the case of such Lender, the existence of such Lender’s commitment to lend
hereunder or the Advances made by such Lender or (ii) the participations in Letters of Credit
acquired by such Lender or (iii) in the case of any Fronting Bank, such Fronting Bank’s Commitment
to issue, maintain and honor drawings under Letters of Credit hereunder, or (iv) the honoring of
Letters of Credit by any Fronting Bank hereunder. A certificate as to such amounts submitted to
each Borrower and the Administrative Agent by such Lender or such Fronting Bank (as the case may
be) shall
constitute such demand and shall be conclusive and binding for all purposes, absent manifest
error.


 


41









 





(c) Each Borrower shall be liable for its pro rata share of each payment to be made by the
Borrowers under subsections (a) and (b) of this Section 2.13, determined on the basis of such
Borrower’s Fraction; provided, however, that if and to the extent that any such liabilities are
reasonably determined by the Borrowers (subject to the approval of the Administrative Agent, which
approval shall not be unreasonably withheld) to be directly attributable to Advances made to a
specific Borrower, then only such Borrower shall be liable for such payments.



(d) Failure or delay on the part of any Lender or Fronting Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or Fronting Bank’s right to
demand such compensation, provided that the Borrowers shall not be required to compensate a Lender
or Fronting Bank pursuant to this Section for any increased costs or additional amounts incurred
more than 180 days prior to the date that such Lender or Fronting Bank notifies the Borrowers of
such Lender’s or Fronting Bank’s intention to claim such compensation (except that, if such Change
in Law giving rise to such increased costs is retroactive, then the 180-day period referred to
above shall be extended to include the period of retroactive effect thereof).




SECTION 2.14. Illegality.



Notwithstanding any other provision of this Agreement, if any Lender shall notify the
Administrative Agent that the introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or any central bank or other governmental authority asserts that
it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer exist and (ii) the Borrowers shall
forthwith prepay in full all Eurodollar Rate Advances of all Lenders then outstanding, together
with interest accrued thereon, unless (A) the Borrowers, within five Business Days of notice from
the Administrative Agent, Converts all Eurodollar Rate Advances of all Lenders then outstanding
into Advances of another Type in accordance with Section 2.11 or (B) the Administrative Agent
notifies the Borrowers that the circumstances causing such prepayment no longer exist. Any Lender
that becomes aware of circumstances that would permit such Lender to notify the Administrative
Agent of any illegality under this Section 2.14 shall use its best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such change would avoid or eliminate such illegality and would not,
in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.


 


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SECTION 2.15. Payments and Computations.



(a) Each Borrower shall make each payment hereunder and under any Note not later than 12:00
noon (New York time) on the day when due in Dollars to the Administrative Agent or, with respect to
payments made in respect of Reimbursement Obligations, to the applicable
Fronting Bank, at its address referred to in Section 8.02 in same day funds, without set-off,
counterclaim or defense and any such payment to the Administrative Agent or any Fronting Bank (as
the case may be) shall constitute payment by such Borrower hereunder or under any Note, as the case
may be, for all purposes, and upon such payment the Lenders shall look solely to the Administrative
Agent or such Fronting Bank (as the case may be) for their respective interests in such payment.
The Administrative Agent or such Fronting Bank (as the case may be) will promptly after any such
payment cause to be distributed like funds relating to the payment of principal or interest or
commitment fees or Reimbursement Obligations ratably (other than amounts payable pursuant to
Section 2.02(c), 2.05, 2.09, 2.11(c), 2.13, 2.16, 2.21 or 8.05(b)) (according to the Lenders’
respective Commitments) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be applied in accordance
with the terms of this Agreement. Upon its acceptance of an Assignment and Assumption and
recording of the information contained therein in the Register pursuant to Section 8.08(d), from
and after the effective date specified in such Assignment and Assumption, the Administrative Agent
and each Fronting Bank shall make all payments hereunder and under any Note in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and
Assumption shall make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.



(b) Each Borrower hereby authorizes each Lender, each Swing Line Lender and each Fronting
Bank, if and to the extent payment owed to such Lender, such Swing Line Lender or such Fronting
Bank (as the case may be) is not made by such Borrower to the Administrative Agent, such Swing Line
Lender or such Fronting Bank (as the case may be) when due hereunder or under any Note held by such
Lender, to charge from time to time against any or all of such Borrower’s accounts (other than any
payroll account maintained by such Borrower with such Lender, such Swing Line Lender or such
Fronting Bank (as the case may be) if and to the extent that such Lender, such Swing Line Lender or
such Fronting Bank (as the case may be) shall have expressly waived its set-off rights in writing
in respect of such payroll account) with such Lender, such Swing Line Lender or such Fronting Bank
(as the case may be) any amount so due.



(c) All computations of interest based on the Alternate Base Rate (based upon RBS’s “prime
rate”) shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of commitment fees and of interest based on the Alternate Base
Rate (based upon the Federal Funds Rate or upon clause (iii) of the definition of Alternate Base
Rate), the Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative Agent, and
all computations of interest pursuant to Section 2.09 shall be made by a Lender, on the basis of a
year of 360 days, in each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such commitment fees or interest are payable. Each
determination by the Administrative Agent (or, in the case of Section 2.09, by a Lender) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.



(d) Whenever any payment hereunder or under any Note shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of
interest or commitment fees, as the case may be; provided, however, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.


 


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(e) Unless the Administrative Agent shall have received notice from any Borrower prior to the
date on which any payment is due to the Lenders hereunder that such Borrower will not make such
payment in full, the Administrative Agent may assume that each Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that a Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.



(f) The principal amount of any Advance (or any portion thereof) payable by a Borrower
hereunder or under any Note that is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall (to the fullest extent permitted by law) bear interest from the date when due
until paid in full at a rate per annum equal at all times to the rate otherwise applicable to such
Advance plus 2% per annum, payable upon demand. Any other amount payable by a Borrower hereunder
or under any Note that is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall (to the fullest extent permitted by law) bear interest from the date when due
until paid in full at a rate per annum equal at all times to the rate of interest applicable to
Alternate Base Rate Advances plus 2% per annum, payable upon demand.



(g) To the extent that any payment by or on behalf of a Borrower is made to the Administrative
Agent, any Fronting Bank or any Lender, or the Administrative Agent, any Fronting Bank or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, such
Fronting Bank or such Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise, then (i) to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred, and (ii) each Lender
and each Fronting Bank severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders and the Fronting Banks under clause (ii) of the preceding sentence shall
survive the payment in full of any amounts hereunder and the termination of this Agreement.


 


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SECTION 2.16. Taxes.



(a) Any and all payments by each Borrower hereunder and under any Note or any other Loan
Document shall be made, in accordance with Section 2.15, free and clear of and without deduction or
withholding for any Indemnified Taxes, and all liabilities with respect thereto. If a Borrower
shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note or any other Loan Document to any Recipient, (i) if such Taxes are Indemnified
Taxes, the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.16) such Recipient
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall timely pay or cause to be
timely paid the full amount deducted to the relevant Governmental Authority in accordance with
Applicable Law.



(b) In addition, each Borrower agrees to timely pay or cause to be timely paid any Other Taxes
in accordance with Applicable Law.



(c) Each Borrower agrees to indemnify each Recipient, within 30 days after written demand
therefore, for the full amount of Indemnified Taxes (including, without limitation, any Indemnified
Taxes imposed by any jurisdiction on amounts payable under this Section 2.16) paid or payable by
such Recipient and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability delivered to FE by or on behalf of the
applicable Recipient shall be conclusive, absent manifest error.



(d) As soon as practicable after any payment of Indemnified Taxes by any Borrower to a
Governmental Authority, such Borrower shall deliver to the Administrative Agent an original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.




(e) Tax Forms.




(i) Any Lender that is a U.S. Person shall deliver to each Borrower and the
Administrative Agent, on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of such
Borrower or the Administrative Agent), duly executed originals of IRS Form W-9 (or copies
thereof) certifying, to the extent such Lender is legally entitled to do so, that such
Lender is exempt from U.S. federal backup withholding tax.


 


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(ii) Any Lender that is not a U.S. Person and that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United States is a
party with respect to payments under this Agreement shall deliver to each Borrower and the
Administrative Agent, at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably requested by
such Borrower or the Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding, as applicable. Without limiting the
generality of the foregoing, each Lender that is not a
U.S. Person shall, to the extent it is legally entitled to do so, (w) on or prior to
the date such Lender becomes a Lender under this Agreement, (x) on or prior to the date on
which any such form or certification expires or becomes obsolete, (y) after the occurrence
of any event requiring a change in the most recent form or certification previously
delivered by it pursuant to this subsection, and (z) from time to time upon the reasonable
request by any Borrower or the Administrative Agent, deliver to such Borrower and the
Administrative Agent (in such number of copies as shall be requested by such Borrower or the
Administrative Agent), whichever of the following is applicable:




(A) if such Lender is claiming eligibility for benefits of an income tax treaty
to which the United States is a party (x) with respect to payments of interest under
any Loan Document, duly executed originals of IRS Form W-8BEN, or any successor form
thereto, establishing an exemption from, or reduction of, U.S. federal withholding
tax pursuant to the “interest” article of such tax treaty, and (y) with respect to
any other payments under any Loan Document, duly executed originals of IRS Form
W-8BEN, or any successor form thereto, establishing an exemption from, or reduction
of, U.S. federal withholding tax pursuant to the “business profits” or “other
income” article of such tax treaty;




(B) duly executed originals of IRS Form W-8ECI, or any successor form thereto,
certifying that the payments received by such Lender are effectively connected with
such Lender’s conduct of a trade or business in the United States;




(C) if such Lender is claiming the benefits of the exemption for “portfolio
interest” under Section 871(h) or Section 881(c) of the Code, duly executed
originals of IRS Form W-8BEN, or any successor form thereto, together with a
certificate (a “U.S. Tax Compliance Certificate”) upon which such Lender certifies
that (1) such Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code,
or the obligation of the Borrower hereunder is not, with respect to such Lender, a
loan agreement entered into in the ordinary course of its trade or business, within
the meaning of that Section of the Code, (2) such Lender is not a 10% shareholder of
the Borrower within the meaning of Section 871(h)(3) or Section 881(c)(3)(B) of the
Code, (3) such Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Section 881(c)(3)(C) of the Code, and (4) the
interest payments in question are not effectively connected with a U.S. trade or
business conducted by such Lender; or




(D) if such Lender is not the beneficial owner (for example, a partnership or a
Lender granting a participation), duly executed originals of IRS Form W-8IMY, or any
successor form thereto, accompanied by IRS Form W-9, IRS Form W-8ECI, IRS Form
W-8BEN, a U.S. Tax Compliance Certificate, and/or other certification documents from
each beneficial owner, as applicable.




(iii) Each Lender agrees that if any form or certification it previously delivered
under this Section 2.16(e) expires or becomes obsolete or inaccurate in any respect and such
Lender is not legally entitled to provide an updated form or certification, it shall
promptly notify the Borrowers and the Administrative Agent of its inability to update
such form or certification.


 


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(f) If a payment made to a Lender hereunder or under any other Loan Document would be subject
to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to each Borrower and the Administrative
Agent, at the time or times prescribed by law and at such time or times reasonably requested by any
Borrower or the Administrative Agent, such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by such Borrower or the Administrative Agent as may be necessary for each of the
Borrowers and the Administrative Agent to comply with its obligations under FATCA, to determine
that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment.



(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.16 shall use
its best efforts (consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.



(h) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the
agreements and obligations of the Borrowers contained in this Section 2.16 shall survive the
payment in full of principal and interest hereunder and under any Note.




SECTION 2.17. Sharing of Payments, Etc.



(a) If any Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the Advances made by it or
participations in Letters of Credit acquired by it (other than pursuant to Section 2.02(c), 2.09,
2.11(c), 2.13, 2.16, 2.21 or 8.05(b)) in excess of its ratable share of payments on account of the
Advances or Letters of Credit (as the case may be) obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Advances made by them or
participations in Letters of Credit acquired by them (as the case may be) as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender’s ratable share (according to the proportion of (a) the amount of such
Lender’s required repayment to (b) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of the total amount so
recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.17 may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.


 


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(b) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.02(c), 2.03(c), 2.04(j) or 7.05, then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender for the benefit of the Administrative Agent,
any Swing Line Lender or any Fronting Bank to satisfy such Lender’s obligations to it under such
Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in
a segregated account as cash collateral for, and application to, any future funding obligations of
such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order
as determined by the Administrative Agent in its discretion.




SECTION 2.18. Noteless Agreement; Evidence of Indebtedness.



(a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Lender resulting from each Advance made by
such Lender from time to time, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.



(b) The Administrative Agent shall also maintain accounts in which it will record (i) the
amount of each Advance made hereunder, the Borrower thereof, the Type thereof and the Interest
Period (if any) with respect thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from such Borrower to each Lender hereunder, and (iii) the amount of
any sum received by the Administrative Agent hereunder from each Borrower and each Lender’s share
thereof.



(c) Subject to Section 8.08(c), the entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of the Administrative Agent or
any Lender to maintain such accounts or any error therein shall not in any manner affect the
obligation of each Borrower to repay such obligations in accordance with their terms.



(d) Any Lender may request that its Advances be evidenced by a Note. In such event, each
Borrower shall prepare, execute and deliver to such Lender a Note payable to such Lender and its
registered assigns. Thereafter, the Advances evidenced by such Note and interest thereon shall at
all times (including after any assignment pursuant to Section 8.08) be represented by one or more
Notes payable to the payee named therein, or to its registered assigns pursuant to Section 8.08,
except to the extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Borrowings once again be evidenced as described in subsections
(a) and (b) above.




SECTION 2.19. Extension of Termination Date.



(a) The Borrowers may, by notice to the Administrative Agent (which shall promptly notify the
Lenders) not earlier than 45 days prior to any anniversary of the date of this Agreement (the
“Anniversary Date”) but no later than 30 days prior to such anniversary of the Closing Date
(the date of delivery of any such notice being the “Borrower Extension Notice Date”), request
that each Lender extend such Lender’s Termination Date for an additional one year after the
Termination Date then in effect for such Lender hereunder (the “Existing Termination Date”). The
Borrowers may request no more than two extensions pursuant to this Section.


 


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(b) Each Lender, acting in its sole and individual discretion, shall, by notice to the
Administrative Agent given not earlier than 30 days prior to the applicable Anniversary Date and
not later than the date (the “Lender Extension Notice Date”) that is 20 days prior to the
Applicable Anniversary Date, advise the Administrative Agent whether or not such Lender agrees to
such extension (and each Lender that determines not to so extend its Existing Termination Date (a
“Nonconsenting Lender”) shall notify the Administrative Agent of such fact promptly after such
determination (but in any event no later than the Lender Extension Notice Date), and any Lender
that does not so advise the Administrative Agent on or before the Lender Extension Notice Date
shall be deemed to be a Nonconsenting Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.



(c) The Administrative Agent shall notify the Borrowers of each Lender’s determination under
this Section no later than the date 15 days prior to the applicable Anniversary Date, or, if such
date is not a Business Day, on the next preceding Business Day (the “Specified Date”).



(d) The Borrowers shall have the right on or before the fifth Business Day after the Specified
Date to replace each Nonconsenting Lender (i) with an existing Lender, and/or (ii) by adding as
“Lenders” under this Agreement in place thereof, one or more Persons (each Lender in clauses (i)
and (ii), an “Additional Commitment Lender”), in each case, with the approval of the Administrative
Agent, the Swing Line Lenders and the Fronting Banks (which approvals shall not be unreasonably
withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form
and substance satisfactory to the Borrowers and the Administrative Agent pursuant to which such
Additional Commitment Lender shall, effective as of the Specified Date, undertake a Commitment
(and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender’s Commitment hereunder on such date); provided that the aggregate amount of
the Commitments for all Additional Commitment Lenders shall be no more than the aggregate amount of
the Commitments of all Nonconsenting Lenders; provided, further, that the existing Lenders shall
have the right to increase their Commitments up to the amount of the Nonconsenting Lenders’
Commitments before the Borrowers shall have the right to substitute any other Person for any
Nonconsenting Lender.



(e) If (and only if) the aggregate amount of the Commitments of the Lenders that have agreed
to extend their Existing Termination Dates plus the aggregate additional Commitments of the
Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments in
effect immediately prior to the Specified Date, then, effective as of the Specified Date, the
Existing Termination Date of each Lender agreeing to an extension and of each Additional Commitment
Lender shall be extended to the date that is one year after the Existing Termination Date, and each
Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.




 


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(f) Notwithstanding the foregoing, the extension of a Lender’s Existing Termination Date
pursuant to this Section shall be effective with respect to such Lender on the Specified Date but
only if (i) the following statements shall be true: (A) no event has occurred and is continuing, or
would result from the extension of the Existing Termination Date, that constitutes an Event of
Default or an Unmatured Default and (B) the representations and warranties contained in Section
4.01 (other than the first sentence of subsection (g) thereof but solely with respect to the
unaudited consolidated balance sheet of such Borrower and its Subsidiaries, as at March 31, 2011,
and the related consolidated statements of income, retained earnings and cash flows for the three
months then ended) are correct in all material respects on and as of the Specified Date, before and
after giving effect to such extension, as though made on and as of such date, except for those made
specifically as of another date, in which case such representations and warranties shall be true as
of such other date, provided that, for purposes of the representations and warranties in Sections
4.01(f) and the last sentence of 4.01(g), the Disclosure Documents shall include all the SEC
filings made by FE and the Borrowers prior to the applicable Borrower Extension Notice Date and
(ii) on or prior to the Specified Date the Administrative Agent shall have received the following,
each dated the Specified Date and in form and substance satisfactory to the Administrative Agent:
(x) a certificate of an Authorized Officer of each Borrower to the effect that as of the Specified
Date the statements set forth in clauses (A) and (B) above are true, (y) certified copies of the
resolutions of the Board of Directors of each Borrower authorizing such extension and the
performance of this Agreement on and after the Specified Date, and of all documents evidencing
other necessary corporate action and Governmental Action with respect to this Agreement and such
extension of the Existing Termination Date and (z) an opinion of counsel to the Borrowers, as to
such matters related to the foregoing as the Administrative Agent or the Lenders through the
Administrative Agent may reasonably request.



(g) Subject to subsection (d) above, the Commitment of any Nonconsenting Lender shall
automatically terminate on its Existing Termination Date (without regard to any extension by any
other Lender).



(h) Each Swing Line Lender and Fronting Bank may, in its sole discretion, elect not to serve
in such capacity following any extension of the Termination Date; provided that, (i) the Borrowers
and the Administrative Agent may appoint a replacement for any such resigning Swing Line Lender or
Fronting Bank and (ii) the extension of the Termination Date may become effective without regard to
whether such replacement is found.




SECTION 2.20. Several Obligations.



Each Borrower’s obligations hereunder are several and not joint. Any action taken by or on
behalf of the Borrowers shall not result in one Borrower being held responsible for the actions,
debts or liabilities of the other Borrowers. Nothing contained herein shall be interpreted as
requiring the Borrowers to effect Borrowings jointly.


 


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SECTION 2.21. Defaulting Lenders.



Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:



(a) fees shall cease to accrue on the Percentage of such Defaulting Lender in the unused
portion of each Borrower’s Borrower Sublimit pursuant to Section 2.05(a);



(b) the Commitment and Outstanding Credits of such Defaulting Lender shall not be included in
determining whether (i) the Majority Lenders have taken or may take any action under this Agreement
or (ii) all Lenders affected thereby have taken or may take any action under this Agreement, except
to the extent Section 8.01 requires the consent of all Lenders affected thereby (and does not
otherwise exclude the Defaulting Lenders from such required consent) to an amendment, waiver or
other modification;



(c) if any Swing Line Advance, Letter of Credit or Reimbursement Obligation is outstanding at
the time such Lender becomes a Defaulting Lender then:




(i) all or any part of the obligation of such Defaulting Lender to participate in such
Swing Line Advance, Letter of Credit or Reimbursement Obligation shall be reallocated among
the non-Defaulting Lenders in accordance with their respective Percentages but only to the
extent that (x) the sum of all non-Defaulting Lenders’ Outstanding Credits does not exceed
the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in
Section 3.02 are satisfied at such time;




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, each Borrower shall within one Business Day following notice by the
Administrative Agent (x) first, prepay its Swing Line Advances, if any, and (y) second, cash
collateralize for the benefit of the applicable Fronting Banks only such Borrower’s
obligations, if any, corresponding to such Defaulting Lender’s obligation to participate in
Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i)
above) in a manner reasonably satisfactory to the Administrative Agent and such Fronting
Banks for so long as such LC Exposure is outstanding;




(iii) if and to the extent that any Borrower cash collateralizes any portion of such
Defaulting Lender’s obligation to participate in Letters of Credit pursuant to clause (ii)
above, such Borrower shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 2.05(c) with respect to such Defaulting Lender’s Percentage of the
Stated Amount of all Letters of Credit during the period such Defaulting Lender’s obligation
is cash collateralized;




(iv) if the obligation of the non-Defaulting Lenders to participate in Letters of
Credit is reallocated pursuant to clause (i) above, then the fees payable to the Lenders
pursuant to Section 2.05(c) shall be adjusted in accordance with such non-Defaulting
Lenders’ Percentages; and




(v) if all or any portion of the obligation of the non-Defaulting Lenders to
participate in Letters of Credit is neither reallocated nor cash collateralized pursuant to
clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Fronting
Bank or any other Lender hereunder, all fees payable under Section 2.05(c) with respect to
such Defaulting Lender’s Percentage of the Stated Amount of all Letters of Credit shall
be payable to the applicable Fronting Banks until and to the extent that such
obligation is reallocated and/or cash collateralized; and


 


51









 





(d) so long as such Lender is a Defaulting Lender, no Swing Line Lender shall be required to
fund any Swing Line Advance, and no Fronting Bank shall be required to make any Extension of Credit
in connection with a Letter of Credit, unless it is satisfied that the related exposure and the
Defaulting Lender’s then outstanding obligations to participate in such Letter of Credit will be
100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the applicable Borrower in accordance with subsection (c) above, and participating
interests in any newly made Swing Line Advance or any new Extension of Credit relating to a Letter
of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with subsection
(c)(i) above (and such Defaulting Lender shall not participate therein).



If a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date
hereof and for so long as such event shall continue, then no Swing Line Lender shall be required to
fund any Swing Line Advance, and no Fronting Bank shall be required to issue, amend or increase any
Letter of Credit, unless such Swing Line Lender or Fronting Bank, as the case may be, shall have
entered into arrangements with the applicable Borrower or such Lender reasonably satisfactory to
such Swing Line Lender or Fronting Bank, as the case may be, to defease any risk to it in respect
of such Lender hereunder.



In the event that the Administrative Agent, the applicable Borrower, the Swing Line Lenders
and the Fronting Banks all agree that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the obligation of such Lender to participate in
Swing Line Advances made to such Borrower and Letters of Credit for the account of such Borrower
shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such
Lender shall purchase at par such of the Advances of the other Lenders (other than Swing Line
Advances) as the Administrative Agent shall determine may be necessary in order for such Lender to
hold such Advances in accordance with its Percentage.



ARTICLE III

CONDITIONS OF LENDING AND ISSUING LETTERS OF CREDIT





SECTION 3.01. Conditions Precedent to Initial Extension of Credit.



The obligation of each Lender and each Swing Line Lender to make its initial Advance to any
Borrower, and the obligation of each Fronting Bank to issue its initial Letter of Credit, are
subject to the conditions precedent that on or before the date of any such Extension of Credit:



(a) The Administrative Agent shall have received the following, each dated the same date
(except for the financial statements referred to in paragraph (iv)), in form and substance
satisfactory to the Administrative Agent and (except for any Note) with one copy for each Swing
Line Lender, each Fronting Bank and each Lender:




(i) This Agreement, duly executed by each of the parties hereto, and Notes requested by
any Lender pursuant to Section 2.18(d), duly completed and executed by each Borrower and
payable to the order of such Lender;


 


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(ii) Certified copies of the resolutions of the Board of Directors of each Borrower (or
the equivalent authorization, in the case of Allegheny) approving this Agreement and the
other Loan Documents to which it is, or is to be, a party and of all documents evidencing
any other necessary corporate action with respect to this Agreement and such Loan Documents;




(iii) A certificate of the Secretary or an Assistant Secretary of each Borrower
certifying (A) the names and true signatures of the officers of such Borrower authorized to
sign each Loan Document to which such Borrower is, or is to become, a party and the other
documents to be delivered hereunder; (B) that attached thereto are true and correct copies
of the Organizational Documents of such Borrower, in each case as in effect on such date,
and (C) that attached thereto are true and correct copies of all governmental and regulatory
authorizations and approvals (including such Borrower’s Approval) required for the due
execution, delivery and performance by such Borrower of this Agreement and each other Loan
Document to which such Borrower is, or is to become, a party;




(iv) Copies of all the Disclosure Documents (it being agreed that those Disclosure
Documents publicly available on the SEC’s EDGAR Database or on FE’s website no later than
the Business Day immediately preceding the date of such Extension of Credit will be deemed
to have been delivered under this clause (iv));




(v) An opinion of Wendy E. Stark, Associate General Counsel of FE, counsel for the
Borrowers, substantially in the form of Exhibit F hereto;




(vi) An opinion of Akin Gump Strauss Hauer & Feld LLP, special counsel for the
Borrowers, substantially in the form of Exhibit G hereto;




(vii) A favorable opinion of King & Spalding LLP, special New York counsel for the
Administrative Agent, substantially in the form of Exhibit H hereto; and




(viii) Such other certifications, opinions, financial or other information, approvals
and documents as the Administrative Agent, any Fronting Bank, any Swing Line Lender or any
other Lender may reasonably request, all in form and substance satisfactory to the
Administrative Agent, such Fronting Bank, such Swing Line Lender or such other Lender (as
the case may be).



(b) FE and each Fronting Bank shall have entered into an agreement, in form and substance
satisfactory to such Fronting Bank, concerning fees payable by the Borrowers to such Fronting Bank
for its own account (the “Fronting Bank Fee Letters”).



(c) FE shall have paid all of the fees payable in accordance with the Fee Letters, and FE
shall have paid all the fees payable in accordance with the Fronting Bank Fee Letters.



(d) All amounts outstanding under the Existing Facilities and the Union Bank Facility, in each
case, whether for principal, interest, fees or otherwise, shall have been paid in full, all
commitments to lend thereunder shall have been terminated, and the Existing Facilities and the
Union Bank Facility shall have been terminated.


 


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(e) The Administrative Agent shall have received all documentation and information required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the Patriot Act, to the extent such documentation or
information is requested by the Administrative Agent on behalf of the Lenders prior to the date
hereof.




SECTION 3.02. Conditions Precedent to Each Extension of Credit.



The obligation of each Lender and each Swing Line Lender to make an Advance to any Borrower as
part of any Borrowing (including the initial Borrowing) that would increase the aggregate principal
amount of Advances outstanding hereunder, and the obligation of each Fronting Bank to issue, amend,
extend or renew a Letter of Credit (including the initial Letter of Credit for the account of such
Borrower), in each case, as part of an Extension of Credit, shall be subject to the further
conditions precedent that on the date of such Extension of Credit:




(i) The following statements shall be true (and each of the giving of the applicable
Notice of Pro-Rata Borrowing, Notice of Swing Line Borrowing or Letter of Credit Request and
the acceptance by such Borrower of the proceeds of such Borrowing or the acceptance of a
Letter of Credit by the Beneficiary thereof, as the case may be, shall constitute a
representation and warranty by such Borrower that on the date of such Extension of Credit
such statements are true):




(A) The representations and warranties of such Borrower contained in Section
4.01 (other than (1) subsection (f) thereof, (2) the first sentence of subsection
(g) thereof (but solely with respect to the unaudited consolidated balance sheet of
FE and its Subsidiaries, as at March 31, 2011, and the related consolidated
statements of income, retained earnings and cash flows for the three months then
ended), and (3) the last sentence of subsection (g) thereof with respect to any
Extension of Credit following the initial Extension of Credit) hereof are true and
correct on and as of the date of such Extension of Credit, before and after giving
effect to such Extension of Credit and to the application of the proceeds therefrom,
as though made on and as of such date (other than, as to any such representation or
warranty that by its terms refers to a specific date other than the date of such
Extension of Credit, in which case, such representation and warranty shall be true
and correct as of such specific date);




(B) No event has occurred and is continuing, or would result from such
Extension of Credit or from the application of the proceeds therefrom, that
constitutes an Event of Default or an Unmatured Default with respect to such
Borrower; and




(C) Immediately following such Extension of Credit, (1) the aggregate amount of
Outstanding Credits shall not exceed the aggregate amount of the Commitments then in
effect, (2) the Outstanding Credits of any Lender shall not exceed the amount of
such Lender’s Commitment, (3) the aggregate principal amount of Advances outstanding
for such Borrower shall not exceed the amounts authorized under such Borrower’s
Approval, (4) the Outstanding Credits for the
account of any Borrower shall not exceed the Borrower Sublimit for such
Borrower, (5) the aggregate principal amount of the Swing Line Advances outstanding
shall not exceed the Swing Line Sublimit, and (6) if such Extension of Credit
relates to a Letter of Credit, the Stated Amount thereof, when aggregated with (x)
the Stated Amount of each other Letter of Credit that is outstanding or with respect
to which a Letter of Credit Request has been received and (y) the outstanding
Reimbursement Obligations, shall not exceed the L/C Commitment Amount; and


 


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(ii) Such Borrower shall have delivered to the Administrative Agent copies of such
other approvals and documents as the Administrative Agent, any Fronting Bank, any Swing Line
Lender or any other Lender (through the Administrative Agent) may reasonably request.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES





SECTION 4.01. Representations and Warranties of the Borrowers.




Each Borrower represents and warrants as follows:



(a) Existence and Power. It is a corporation or limited liability company, as the case may
be, duly formed, validly existing and in good standing under the laws of the jurisdiction of its
formation, is duly qualified to do business as a foreign corporation or limited liability company
in and is in good standing under the laws of each state in which the ownership of its properties or
the conduct of its business makes such qualification necessary, except where the failure to be so
qualified would not reasonably be expected to have a Material Adverse Effect with respect to such
Borrower, and has all corporate or limited liability company powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted except
where the failure to do so, in each case, would not reasonably be expected to have a Material
Adverse Effect.



(b) Due Authorization. The execution, delivery and performance by it of each Loan Document to
which it is, or is to become, a party, have been duly authorized by all necessary corporate action
on its part and do not, and will not, require the consent or approval of its shareholders or
members, as the case may be, other than such consents and approvals as have been duly obtained,
given or accomplished.



(c) No Violation, Etc. Neither the execution, delivery or performance by it of this Agreement
or any other Loan Document to which it is, or is to become, a party, nor the consummation by it of
the transactions contemplated hereby or thereby, nor compliance by it with the provisions hereof or
thereof, contravenes or will contravene, or results or will result in a breach of, any of the
provisions of its Organizational Documents, any Applicable Law, or any indenture, mortgage, lease
or any other agreement or instrument to which it or any of its Subsidiaries is party or by which
its property or the property of any of its Subsidiaries is bound, or results or will result in the
creation or imposition of any Lien upon any of its property or the property of any of its
Subsidiaries except as provided herein, except to the extent such
contravention or breach, or the creation or imposition of any such Lien, individually or in
the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect
with respect to such Borrower. Each Borrower and each of its Subsidiaries is in compliance with
all laws (including, without limitation, ERISA and Environmental Laws), regulations and orders of
any Governmental Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to do so, individually
or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse
Effect with respect to such Borrower.


 


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(d) Governmental Actions. No Governmental Action is or will be required in connection with
the execution, delivery or performance by it, or the consummation by it of the transactions
contemplated by this Agreement or any other Loan Document to which it is, or is to become, a party
other than such Borrower’s Approval, as applicable, which has been duly issued and is in full force
and effect.



(e) Execution and Delivery. This Agreement and the other Loan Documents to which it is, or is
to become, a party have been or will be (as the case may be) duly executed and delivered by it, and
this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the
legal, valid and binding obligation of it enforceable against it in accordance with its terms,
subject, however, to the application by a court of general principles of equity and to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally.



(f) Litigation. Except as disclosed in such Borrower’s Disclosure Documents, there is no
pending or, to such Borrower’s knowledge, threatened action or proceeding (including, without
limitation, any proceeding relating to or arising out of Environmental Laws) affecting such
Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that would
reasonably be expected to have a Material Adverse Effect with respect to such Borrower.



(g) Financial Statements; Material Adverse Change. The consolidated balance sheets of such
Borrower and its Subsidiaries, as at December 31, 2010, and the related consolidated statements of
income, retained earnings and cash flows of such Borrower and its Subsidiaries, certified by
PricewaterhouseCoopers LLP or Deloitte & Touche LLP, as applicable, independent public accountants,
and the unaudited consolidated balance sheet of such Borrower and its Subsidiaries, as at March 31,
2011, and the related consolidated statements of income, retained earnings and cash flows of such
Borrower and its Subsidiaries, for the three months then ended, copies of which have been furnished
to each Lender, each Swing Line Lender and each Fronting Bank, in all cases as amended and restated
to the date hereof, present fairly in all material respects the consolidated financial position of
such Borrower and its Subsidiaries as at the indicated dates and the consolidated results of the
operations of such Borrower and its Subsidiaries for the periods ended on the indicated dates, all
in accordance with GAAP consistently applied (in the case of such statements that are unaudited,
subject to year-end adjustments and the exclusion of detailed footnotes). Except as disclosed in
such Borrower’s Disclosure Documents, there has been no change, event or occurrence since December
31, 2010 that has had a Material Adverse Effect with respect to such Borrower.


 


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(h) ERISA. Except as would not reasonably be expected to have a Material Adverse Effect:




(i) No Termination Event has occurred or is reasonably expected to occur with respect
to any Plan.




(ii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500
Series) with respect to each Plan, copies of which have been filed with the Internal Revenue
Service and furnished (or made available) to the Banks, (A) is complete and accurate, (B)
fairly presents the funding status of such Plan, and (C) since the date of such Schedule B
there has been no change in such funding status.




(iii) Neither it nor any member of the Controlled Group has incurred or reasonably
expects to incur any withdrawal liability under ERISA to any Multiemployer Plan.



(i) Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25%
of the value of the assets of such Borrower and its Subsidiaries subject to the restrictions of
Section 5.03(a) or (b) will consist of or be represented by Margin Stock. Such Borrower is not
engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock,
and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin Stock.



(j) Investment Company. Such Borrower is not an “investment company” or a company
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.



(k) No Event of Default. No event has occurred and is continuing that constitutes an Event of
Default or an Unmatured Default in each case with respect to such Borrower.



(l) No Material Misstatements. The reports, financial statements and other written
information furnished by or on behalf of such Borrower to the Administrative Agent, any Fronting
Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions
contemplated thereby, when taken together with such Borrower’s Disclosure Documents, do not contain
and will not contain, when taken as a whole, any untrue statement of a material fact and do not
omit and will not omit, when taken as a whole, to state any fact necessary to make the statements
therein, in the light of the circumstances under which they were or will be made, not misleading in
any material respect.


 


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ARTICLE V

COVENANTS OF THE BORROWERS





SECTION 5.01. Affirmative Covenants of the Borrowers.



Unless the Majority Lenders shall otherwise consent in writing, so long as any amount payable
by any Borrower hereunder shall remain unpaid, any Letter of Credit shall remain outstanding or any
Lender shall have any Commitment hereunder, such Borrower will:



(a) Preservation of Corporate Existence, Etc. (i) Without limiting the right of such Borrower
to merge with or into or consolidate with or into any other corporation or entity in accordance
with the provisions of Section 5.03(c) hereof, preserve and maintain its corporate or limited
liability company (as the case may be) existence, (ii) qualify and remain qualified as a foreign
corporation or limited liability company (as the case may be) in each jurisdiction in which such
qualification is reasonably necessary in view of its business and operations or the ownership of
its properties and (iii) preserve, renew and keep in full force and effect the rights, privileges
and franchises necessary or desirable in the normal conduct of its business, except, in the case of
clauses (ii) and (iii) above, to the extent that failure to do so would not reasonably be expected
to result in a Material Adverse Effect with respect to such Borrower; provided, however, that any
Borrower may change its form of organization from a corporation to a limited liability company or
from a limited liability company to a corporation if the Administrative Agent is reasonably
satisfied that such change shall not affect any obligations of such Borrower under the Loan
Documents.



(b) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all
material respects with all applicable laws, rules, regulations, and orders of any Governmental
Authority, the noncompliance with which would not reasonably be expected to result in a Material
Adverse Effect with respect to such Borrower, such compliance to include, without limitation,
compliance with the Patriot Act, regulations promulgated by the U.S. Treasury Department Office of
Foreign Assets Control, Environmental Laws and ERISA and paying before the same become delinquent
all material taxes, assessments and governmental charges imposed upon it or upon its property,
except to the extent compliance with any of the foregoing is then being contested in good faith by
appropriate legal proceedings.



(c) Maintenance of Insurance, Etc. Maintain insurance with responsible and reputable
insurance companies or associations or through its own program of self-insurance in such amounts
and covering such risks as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which such Borrower operates.


 


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(d) Inspection Rights. At any reasonable time and from time to time as the Administrative
Agent, any Swing Line Lender, any Fronting Bank or any Lender may reasonably request (upon five
Business Days’ prior notice delivered to the applicable Borrower and no more than once a year,
unless an Event of Default has occurred and is continuing), permit the Administrative Agent, such
Fronting Bank or such Lender or any agents or representatives thereof to examine and make copies of
and abstracts from the records and books of account of, and visit the properties of, such Borrower
and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Borrower and any of its Subsidiaries with any of their
respective officers or directors; provided, however, that (x) such Borrower reserves the right to
restrict access to any of its Subsidiaries’ facilities in accordance with reasonably adopted
procedures relating to safety and security and (y) neither Borrower nor any of its Subsidiaries
shall be required to disclose to the Administrative Agent, any Swingline Lender, any Fronting Bank
or any Lender or any agents or representatives thereof any information that is the subject of
attorney-client privilege or attorney work-product privilege properly asserted by the applicable
Person to prevent the loss of such privilege in connection with such information or that is
prevented from disclosure pursuant to a confidentiality agreement with third parties (provided that
such Borrower agrees to use commercially reasonable efforts to obtain any required third-party
consent to such disclosure, subject to customary nondisclosure restrictions applicable to the
Administrative Agent, any Swingline Lender, any Fronting Bank or the Lenders, as applicable). The
Administrative Agent, each Swing Line Lender, each Fronting Bank and each Lender agree to use
reasonable efforts to ensure that any information concerning such Borrower or any of its
Subsidiaries obtained by the Administrative Agent, such Fronting Bank or such Lender pursuant to
this subsection (d) or subsection (g) that is not contained in a report or other document filed
with the SEC, distributed by such Borrower or FE to its security holders or otherwise generally
available to the public, will, to the extent permitted by law and except as may be required by
valid subpoena or in the normal course of the Administrative Agent’s, such Swing Line Lender’s,
such Fronting Bank’s or such Lender’s business operations be treated confidentially by the
Administrative Agent, such Swing Line Lender, such Fronting Bank or such Lender, as the case may
be, and will not be distributed or otherwise made available by the Administrative Agent, such Swing
Line Lender, such Fronting Bank or such Lender, as the case may be, to any Person, other than the
Administrative Agent’s, such Swing Line Lender’s, such Fronting Bank’s or such Lender’s employees,
authorized agents or representatives (including, without limitation, attorneys and accountants).



(e) Keeping of Books. Keep, and cause each Subsidiary to keep, proper books of record and
account in which entries shall be made of all financial transactions and the assets and business of
such Borrower and each of its Subsidiaries in accordance with GAAP.



(f) Maintenance of Properties. Maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, all of its properties (except such properties the failure of which to
maintain or preserve would not have, individually or in the aggregate, a Material Adverse Effect
with respect to such Borrower) that are used or that are useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and in accordance with prudent
industry practices applicable to the industry of such Borrower, in all material respects, and
(subject to (b) above) applicable law it being understood that this covenant relates only to the
good working order and condition of such properties and shall not be construed as a covenant of
such Borrower or any of its Subsidiaries not to dispose of such properties by sale, lease, transfer
or otherwise.



(g) Reporting Requirements. Furnish, or cause to be furnished, to the Administrative Agent,
with sufficient copies for each Lender and each Fronting Bank, the following:




(i) promptly after becoming aware of the occurrence of any Event of Default with
respect to such Borrower continuing on the date of such statement, the statement of
an Authorized Officer of such Borrower setting forth details of such Event of Default
and the action that such Borrower has taken or proposes to take with respect thereto;


 


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(ii) as soon as available and in any event within 60 days after the close of each of
the first three quarters in each fiscal year of such Borrower, consolidated balance sheets
of such Borrower and its Subsidiaries as at the end of such quarter and consolidated
statements of income of such Borrower and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, fairly presenting
in all material respects the financial condition of such Borrower and its Subsidiaries as at
such date and the results of operations of such Borrower and its Subsidiaries for such
period and setting forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding fiscal year, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the chief financial officer, treasurer,
assistant treasurer or controller of such Borrower as having been prepared in accordance
with GAAP consistently applied (in the case of such statements that are unaudited, subject
to year-end adjustments and the exclusion of detailed footnotes);




(iii) as soon as available and in any event within 105 days after the end of each
fiscal year of such Borrower, a copy of the annual report for such year for such Borrower
and its Subsidiaries, containing consolidated and consolidating financial statements of such
Borrower and its Subsidiaries for such year certified by PricewaterhouseCoopers LLP,
Deloitte & Touche LLP or other independent public accountants of recognized national
standing as fairly presenting, in all material respects, the financial position of such
Borrower and its Subsidiaries as at the end of such year and the results of their operations
and their cash flows for the three-year period (or, if such Borrower is not then required to
file reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, the two-year
period) ending as at the end of such year in conformity with GAAP;




(iv) concurrently with the delivery of the financial statements specified in clauses
(ii) and (iii) above a certificate of the chief financial officer, treasurer, assistant
treasurer or controller of such Borrower (A) stating whether such Borrower has any knowledge
of the occurrence and continuance at the date of such certificate of any Event of Default
not theretofore reported pursuant to the provisions of clause (i) of this subsection (g),
and, if so, stating the facts with respect thereto, and (B) setting forth in a true and
correct manner, the calculation of the ratio contemplated by Section 5.02 hereof, as of the
date of the most recent financial statements accompanying such certificate, to show such
Borrower’s compliance with or the status of the financial covenant contained in Section 5.02
hereof;




(v) promptly after the sending or filing thereof, copies of any reports that such
Borrower sends to any of its securityholders, and copies of all reports on Form 10-K, Form
10-Q or Form 8-K, if any, that such Borrower or any of its Subsidiaries files with the SEC;


 


60









 






(vi) as soon as possible and in any event within 20 days after such Borrower or any
member of the Controlled Group knows or has reason to know that any Termination
Event with respect to any Plan has occurred or is reasonably likely to occur, that
would reasonably be expected to result in liability exceeding $100,000,000 to such Borrower
or such member of the Controlled Group, a statement of the chief financial officer of such
Borrower describing such Termination Event and the action, if any, that such Borrower or
such member of the Controlled Group, as the case may be, proposes to take with respect
thereto;




(vii) promptly upon reasonable request by the Administrative Agent or any Lender, after
the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each Plan;




(viii) promptly upon request and in any event within five Business Days after receipt
thereof by such Borrower or any member of the Controlled Group from a Multiemployer Plan
sponsor, a copy of each notice received by such Borrower or such member of the Controlled
Group concerning the imposition of withdrawal liability pursuant to Section 4202 of ERISA;




(ix) promptly and in any event within five Business Days after Moody’s or S&P has
changed any relevant Reference Rating, notice of such change; and




(x) such other information respecting the condition or operations, financial or
otherwise, of such Borrower or any of its Subsidiaries, including, without limitation,
copies of all reports and registration statements that such Borrower or any Subsidiary files
with the SEC or any national securities exchange, as the Administrative Agent, any Fronting
Bank, any Swing Line Lender or any Lender (through the Administrative Agent) may from time
to time reasonably request.



The financial statements and reports described in paragraphs (ii), (iii) and (v) above will be
deemed to have been delivered hereunder if publicly available on the SEC’s EDGAR Database or on
FE’s website no later than the date specified for delivery of same under paragraph (ii), (iii) or
(v), as applicable, above. If any financial statements or report described in (ii) and (iii) above
is due on a date that is not a Business Day, then such financial statements or report shall be
delivered on the next succeeding Business Day.



(h) Borrower Approvals. Maintain such Borrower’s Approval in full force and effect and comply
with all terms and conditions thereof until all amounts outstanding under the Loan Documents shall
have been repaid or paid (as the case may be) and the Termination Date has occurred.




SECTION 5.02. Debt to Capitalization Ratio.



Unless the Majority Lenders shall otherwise consent in writing, so long as any amount payable
by any Borrower hereunder shall remain unpaid, any Letter of Credit for the account of any Borrower
shall remain outstanding or any Lender shall have any Commitment to any Borrower hereunder, such
Borrower will maintain a Debt to Capitalization Ratio of no more than 0.65 to 1.00 (determined as
of the last day of each fiscal quarter).


 


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SECTION 5.03. Negative Covenants of the Borrowers.



Unless the Majority Lenders shall otherwise consent in writing, so long as any amount payable
by any Borrower hereunder shall remain unpaid, any Letter of Credit for the account of any Borrower
shall remain outstanding or any Lender shall have any Commitment to any Borrower hereunder, such
Borrower will not:



(a) Sales, Etc. (i) Sell, lease, transfer or otherwise dispose of any shares of common stock
of any Significant Subsidiary of such Borrower, whether now owned or hereafter acquired by such
Borrower, or permit any Significant Subsidiary of such Borrower to do so, or (ii) sell, lease,
transfer or otherwise dispose of (whether in one transaction or a series of transactions) or permit
any of its Subsidiaries to sell, lease, transfer or dispose of (whether in one transaction or a
series of transactions) assets located in The United States of America (other than any assets that
are purported to be conveyed in connection with a Permitted Securitization but including assets
purported to be conveyed pursuant to any sale leaseback transaction) having an aggregate book value
(determined as of the date of such transaction for all such transactions since the date hereof)
that is greater than 20% of the book value of all of the consolidated fixed assets of such
Borrower, as reported on the most recent consolidated balance sheet of such Borrower prior to the
date of such sale, lease transfer or disposition to any entity other than such Borrower or any of
its wholly owned direct or indirect Subsidiaries; provided, however, that this provision shall not
in any way restrict, and shall not apply to, (A) the disposition of any Borrower’s direct or
indirect interests in (1) the approximately 700 megawatt Fremont Energy Center in Fremont, Ohio,
(2) Signal Peak Energy, LLC, (3) the 42 megawatt Richland Peaking Facility in Defiance, Ohio, or
(4) the 18 megawatt Stryker Peaking Facility in Springfield, Ohio or (B) the sale, lease, transfer
or other disposition of a Borrower’s assets to another Borrower, a Subsidiary of another Borrower
or a newly-formed Person to which all or substantially all of the assets and liabilities of such
Borrowers or their Subsidiaries are being transferred, in each case, pursuant to a transaction
permitted under subsection (c) below.



(b) Liens, Etc. Create or suffer to exist, or permit any Significant Subsidiary of such
Borrower (other than FES, AESC and their respective Subsidiaries) to create or suffer to exist, any
Lien upon or with respect to any of its properties (including, without limitation, any shares of
any class of equity security of any Significant Subsidiary of such Borrower (other than FES, AESC
and their respective Subsidiaries)), in each case to secure or provide for the payment of
Indebtedness, other than (i) liens consisting of (A) pledges or deposits in the ordinary course of
business to secure obligations under worker’s compensation laws or similar legislation, (B)
deposits in the ordinary course of business to secure, or in lieu of, surety, appeal, or customs
bonds to which such Borrower or Significant Subsidiary is a party, (C) pledges or deposits in the
ordinary course of business to secure performance in connection with bids, tenders or contracts
(other than contracts for the payment of money), or (D) materialmen’s, mechanics’, carriers’,
workers’, repairmen’s or other like Liens incurred in the ordinary course of business for sums not
yet due or currently being contested in good faith by appropriate proceedings diligently conducted,
or deposits to obtain in the release of such Liens; (ii) purchase money liens or purchase money
security interests upon or in any property acquired or held by such Borrower or Significant
Subsidiary in the ordinary course of business, which secure the purchase price of such property or
secure indebtedness incurred solely for the purpose of financing the acquisition of such property;
(iii) Liens existing on property acquired by such


 


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Borrower or Significant Subsidiary or on the property of any Person at the time that such Person becomes a direct or
indirect Significant Subsidiary of such Borrower or Significant Subsidiary or is merged into or
consolidated with such Borrower or Significant Subsidiary; provided, in each case, that such Liens
were not created to secure the acquisition of such Person; (iv) Liens in existence on the date of
this Agreement; (v) Liens created by any First Mortgage Indenture, so long as under the terms
thereof no “event of default” (howsoever designated) in respect of any bonds issued thereunder will
be triggered by reference to an Event of Default or Unmatured Default; (vi) Liens securing
Attributable Securitization Obligations on the assets purported to be sold in connection with the
applicable Permitted Securitization; (vii) Liens securing Nonrecourse Indebtedness; (viii) Liens
on cash or cash equivalents deposited on behalf of or pledged to counterparties with respect to
Permitted Obligations of such Borrower or any of its Significant Subsidiaries; (ix) Liens on cash
or cash equivalents to defease Indebtedness of such Borrower or any of its Subsidiaries; (x) Liens
on cash or cash equivalents constituting proceeds from a disposition of assets otherwise not
prohibited under subsection (a) above, which proceeds are deposited in escrow accounts for
indemnification, adjustment of purchase price or similar obligations to the purchaser of such
assets; (xi) Liens securing obligations in respect of pollution control or industrial revenue bonds
or nuclear fuel leases, provided that such Liens extend to only the equipment, project, nuclear
fuel or other assets financed with the proceeds of such financing; (xii) Liens arising in
connection with leases that shall have been or should be, in accordance with GAAP, recorded as
capital leases in respect of which such Borrower or Significant Subsidiary is liable as lessee;
provided, that no such Lien shall extend to or cover any assets of such Borrower or Significant
Subsidiary other than the assets of such Borrower or Significant Subsidiary subject to such lease
and proceeds thereof; and (xiii) Liens created for the sole purpose of refinancing, extending,
renewing or replacing in whole or in part Indebtedness secured by any Lien referred to in the
foregoing clauses (i) through (xii); provided, however, that the principal amount of Indebtedness
(or, if greater, the aggregate lending commitment) secured thereby shall not exceed the principal
amount of Indebtedness (or, if greater, the aggregate lending commitment) so secured at the time of
such refinancing, extension, renewal or replacement, and that such refinancing, extension, renewal
or replacement, as the case may be, shall be limited to all or a part of the property or
Indebtedness that secured the Lien so extended, renewed or replaced (and any improvements on such
property).



(c) Mergers, Etc. Merge with or into or consolidate with or into any other Person, or permit
any of its Subsidiaries to do so unless (i) immediately after giving effect thereto, no event shall
occur and be continuing that constitutes an Event of Default, (ii) the consolidation or merger
shall not materially and adversely affect the ability of such Borrower (or its successor by merger
or consolidation as contemplated by clause (i) of this subsection (c)) to perform its obligations
hereunder or under any other Loan Document, and (iii) in the case of any merger or consolidation to
which such Borrower is a party, the Person formed by such consolidation or into which such Borrower
shall be merged shall assume such Borrower’s obligations under this Agreement and the other Loan
Documents to which it is a party in a writing reasonably satisfactory in form and substance to the
Administrative Agent. Without limiting the foregoing, (A) any Borrower may merge with or into or
consolidate with or into (x) another Borrower or into a newly-formed Person into which one or more
Borrowers are being merged or consolidated (which Person will become a Borrower hereunder and a
wholly-owned Subsidiary of FE) or (y) a wholly-owned Subsidiary of another Borrower (in which case
only such


 


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 other Borrower will continue as a Borrower hereunder), and (B) any Borrower may transfer
all or substantially all of its assets and liabilities to another Borrower, to a wholly-owned Subsidiary of another
Borrower (in which case only such other Borrower will continue as a Borrower hereunder) or to a
newly-formed Person to which all or substantially all of the assets and liabilities of one or more
Borrowers are being transferred (which Person will become a Borrower hereunder and a wholly-owned
Subsidiary of FE), in each case of clauses (A) and (B), if (1) the surviving Person, transferee or
Person otherwise specified above to become a Borrower hereunder, as applicable, assumes such
Borrower’s or Borrowers’, as applicable, obligations under this Agreement and the other Loan
Documents pursuant to an instrument in form and substance reasonably satisfactory to the
Administrative Agent, (2) the Reference Ratings of the surviving or resulting Borrower are not,
after giving effect to such transactions, any lower than the Reference Ratings of each Borrower
that was a party to such transactions immediately prior to the consummation of such transactions,
unless the Reference Ratings of such surviving or resulting Borrower are at least BBB- and Baa3,
and (3) the parties to such transaction deliver to the Administrative Agent certified copies of all
corporate or limited liability, equity holder and Governmental Authority approvals required in
connection with such transactions and legal opinions of counsel to such parties relating to such
transactions and the assumption agreement described in clause (1) above. For the avoidance of
doubt, nothing in this Section 5.03(c) shall restrict any (i) merger or consolidation of FES, AESC
or any of their respective Subsidiaries with or into any Person or (ii) transfer of all or
substantially all of the assets and liabilities of FES, AESC or any of their respective
Subsidiaries to any Person, in each case, to the extent such merger, consolidation or transfer is
permitted under the FES/AESC Credit Agreement.



(d) Compliance with ERISA. (i) Enter into any nonexempt “prohibited transaction” (within the
meaning of Section 4975 of the Code or Section 406 of ERISA) involving any Plan that may result in
any liability of such Borrower to any Person that (in the opinion of the Majority Lenders and the
Fronting Banks) would reasonably be expected to have a Material Adverse Effect with respect to any
Borrower or (ii) allow or suffer to exist any other event or condition known to such Borrower that
results in any liability of such Borrower to the PBGC that would reasonably be expected to have a
Material Adverse Effect with respect to any Borrower. For purposes of this subsection (d),
“liability” shall not include termination insurance premiums payable under Section 4007 of ERISA.



(e) Use of Proceeds. Use the proceeds of any Extension of Credit for any purpose other than
(ii) refinancing the Existing Facilities to which such Borrower is a party and (ii) working capital
and other general corporate purposes of such Borrower and its Subsidiaries; provided, however, that
such Borrower may not use such proceeds in connection with any Hostile Acquisition.



(f) Limitation on Cross-Default Provisions. Incur or permit any Significant Subsidiary (other
than FES, AESC and their respective Subsidiaries) to incur (which for purposes of this subsection
(f), shall not include the drawdown of any revolving credit facility or any letter of credit
facility in existence on the date hereof or any other incurrence of Indebtedness or other
obligation under agreements in existence on the date hereof pursuant to the terms thereof as in
effect on the date hereof) after the date hereof any Indebtedness, Commodity Trading Obligations or
Hedging Obligations that shall or may become subject to acceleration, redemption or mandatory
purchase prior to the stated maturity date of such Indebtedness or the stated or otherwise
applicable date for performance


 


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 of
such Commodity Trading Obligations or Hedging Obligations, as the case may be, upon the occurrence of one or more events of default or
credit event or similar events (howsoever designated) under any document or instrument evidencing
any other such Indebtedness, Commodity Trading Obligations or Hedging Obligations (any such
provision to the effect of the foregoing being a “Cross-Default Provision”) of FES, AESC or any of
their respective Subsidiaries; provided however, that, during the six-month period following the
date hereof, each Borrower and its Subsidiaries may incur Commodity Trading Obligations and Hedging
Obligations pursuant to any ISDA Master Agreement and related schedule that contains such a
Cross-Default Provision if and to the extent that such ISDA Master Agreement and related schedule
contained such Cross-Default Provision on the date hereof.



ARTICLE VI

EVENTS OF DEFAULT





SECTION 6.01. Events of Default.



If any of the following events shall occur and be continuing with respect to any Borrower (as
to such Borrower, an “Event of Default”):




(a) (i) Any principal of any Advance or any Reimbursement Obligation shall not be paid
by such Borrower when the same becomes due and payable, or (ii) any interest on any Advance
or any fees or other amounts payable hereunder shall not be paid by such Borrower within
three Business Days after the same becomes due and payable; or




(b) Any representation or warranty made by such Borrower (or any of its officers) in
any Loan Document or in connection with any Loan Document shall prove to have been incorrect
or misleading in any material respect when made; or




(c) (i) Such Borrower shall fail to perform or observe any covenant set forth in
Section 5.02 or Section 5.03 on its part to be performed or observed, or (ii) such Borrower
shall fail to perform or observe any other term, covenant or agreement (other than those
covenants otherwise covered in clause (a) or (c)(i) of this Section 6.01) contained in this
Agreement or any other Loan Document on its part to be performed or observed and such
failure shall remain unremedied for 30 days after written notice thereof shall have been
given to such Borrower by the Administrative Agent or any Lender; or




(d) Any material provision of this Agreement or any other Loan Document shall at any
time and for any reason cease to be valid and binding upon such Borrower, except pursuant to
the terms thereof, or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested in any manner by such Borrower or any Governmental
Authority, or such Borrower shall deny in any manner that it has any or further liability or
obligation under this Agreement or any other Loan Document; or


 


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(e) Such Borrower or any Significant Subsidiary of such Borrower (other than FES, AESC
and their respective Subsidiaries) shall fail to pay any principal of or premium or interest
on any Indebtedness (other than Indebtedness of such Borrower
under this Agreement, but including, with respect to FE, Indebtedness of its
Significant Subsidiaries under this Agreement) that is outstanding in a principal amount in
excess of $100,000,000 in the aggregate when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or




(f) Such Borrower or any Significant Subsidiary of such Borrower (other than FES, AESC
and their respective Subsidiaries) shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or
against any Borrower or any Significant Subsidiary of such Borrower (other than FES, AESC
and their respective Subsidiaries) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition or arrangement with creditors, a readjustment of its debts, in each
case under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not instituted
or acquiesced in by it), either such proceeding shall remain undismissed or unstayed for a
period of 60 consecutive days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any substantial part
of its property) shall occur; or any Borrower or any Significant Subsidiary of such Borrower
(other than FES, AESC and their respective Subsidiaries) shall take any corporate action to
authorize or to consent to any of the actions set forth above in this subsection (f); or




(g) Any judgment or order for the payment of money exceeding any applicable insurance
coverage by more than $100,000,000 shall be rendered by a court of final adjudication
against such Borrower or any Significant Subsidiary of such Borrower and either (i) valid
enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or




(h) Any Termination Event with respect to a Plan or a Multiemployer Plan shall have
occurred, and, 30 days after notice thereof shall have been given to such Borrower by the
Administrative Agent or any Lender, such Termination Event (if correctable) shall not have
been corrected, and either (1) the actual liability in respect of such Termination Event to
such Borrower would reasonably be expected to exceed
$100,000,000, or (2) such Borrower or any member of the Controlled Group as employer
under a Multiemployer Plan shall have made a complete or partial withdrawal from such
Multiemployer Plan and, as a result thereof, such Borrower would reasonably be expected to
incur withdrawal liability in an amount exceeding $100,000,000; or


 


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(i) (i) FE shall fail to own directly or indirectly 100% of the issued and outstanding
 shares of common stock of each Significant Subsidiary (with any such failure constituting an
Event of Default with respect to FE and any such Significant Subsidiary that is also a
Borrower), (ii) any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended), directly or indirectly,
of securities of FE (or other securities convertible into such securities) representing 30%
or more of the combined voting power of all securities of FE entitled to vote in the
election of directors; or (iii) commencing after the date of this Agreement, individuals who
as of the date of this Agreement were directors shall have ceased for any reason to
constitute a majority of the Board of Directors of FE unless the Persons replacing such
individuals were nominated by the stockholders or the Board of Directors of FE in accordance
with FE’s Organizational Documents (each a “Change of Control”);



then, and in any such event, the Administrative Agent shall at the request, or may with the
consent, of the Majority Lenders, (i) by notice to the defaulting Borrower, declare the obligation
of each Lender to make Advances to such Borrower, the obligation of the Fronting Banks to issue
Letters of Credit for the account of such Borrower and the obligation of the Swing Line Lenders to
make Swing Line Advances to such Borrower, to be terminated, whereupon the same shall forthwith
terminate, and (ii) by notice to such Borrower, declare the Advances made to such Borrower, an
amount equal to the aggregate Stated Amount of all issued but undrawn Letters of Credit issued for
the account of such Borrower, (such amount being the “Letter of Credit Cash Cover”) and all other
amounts payable under this Agreement and the other Loan Documents by such Borrower to be forthwith
due and payable, whereupon such Advances and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by such Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Borrower or any Significant Subsidiary of
such Borrower under the Bankruptcy Code, (A) the obligation of each Lender to make Advances to such
Borrower, the obligation of the Fronting Banks to issue Letters of Credit for the account of such
Borrower, and the obligation of the Swing Line Lenders to make Swing Line Advances to such Borrower
shall automatically be terminated and (B) all Advances made to such Borrower, the Letter of Credit
Cash Cover with respect to such Borrower and all other amounts payable under this Agreement by such
Borrower shall automatically become and be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by such Borrower. In the event
that any Borrower is required to pay the Letter of Credit Cash Cover pursuant to this Section, such
payment shall be made in immediately available funds to the Administrative Agent, which shall hold
such funds as collateral pursuant to arrangements reasonably satisfactory to the Administrative
Agent and the Fronting Banks to secure Reimbursement Obligations in respect of Letters of Credit
then outstanding, for the benefit of the Lenders and the Fronting Banks.


 


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ARTICLE VII

THE ADMINISTRATIVE AGENT





SECTION 7.01. Authorization and Action.



Each Lender, each Fronting Bank and each Swing Line Lender hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly provided for by this
Agreement the Administrative Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all Fronting Banks; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to this Agreement or applicable law. The Administrative
Agent agrees to give to each Lender and each Fronting Bank prompt notice of each notice given to it
by the Borrowers pursuant to the terms of this Agreement and to promptly forward to each Lender,
each Fronting Bank and each Swing Line Lender the financial statements and any other certificates
or statements delivered to the Administrative Agent pursuant to Section 5.01(g).




SECTION 7.02. Administrative Agent’s Reliance, Etc.



Neither the Administrative Agent nor any of its directors, officers, agents or employees shall
be liable to any Lender, any Fronting Bank, any Swing Line Lender or the Borrowers for any action
taken or omitted to be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may treat each Lender listed in the Register as a
“Lender” with a Commitment in the amount recorded in the Register until the Administrative Agent
receives and accepts an Assignment and Assumption entered into by a Lender listed in the Register,
as assignor, and the applicable assignee, as provided in Section 8.08, at which time the
Administrative Agent will make such recordations in the Register as are appropriate to reflect the
assignment effected by such Assignment and Assumption; (ii) may consult with legal counsel
(including counsel for the Borrowers), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender, any Fronting Bank or any Swing Line Lender and shall not be
responsible to any Lender, any Fronting Bank or any Swing Line Lender for any statements,
warranties or representations (whether written or oral) made in or in connection with the Loan
Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of the Loan Documents on the part of the
Borrowers or to inspect the property (including the books and records) of the Borrowers, and,
without limiting the foregoing, shall be deemed not to have knowledge of any Default or Event of
Default unless and until written notice is given by a Lender or a Borrower to the Administrative
Agent in accordance with the terms of this Agreement; (v) shall not be responsible to any Lender,
any Fronting Bank or any Swing Line Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value
of the Loan Documents or any other instrument or document furnished pursuant thereto; and (vi)
shall incur no liability under or in respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier, telegram or cable) believed
by it in good faith to be genuine and signed or sent by the proper party or parties.


 


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SECTION 7.03. RBS and the Fronting Banks and Swing Line Lenders.



With respect to its Commitment, the Advances made by it and any Note issued to it, each of RBS
and each Lender that is also a Fronting Bank or a Swing Line Lender shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as though it were not the
Administrative Agent, a Fronting Bank or a Swing Line Lender (as the case may be); and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated, include each of RBS and each
Lender that is also a Fronting Bank as a Swing Line Lender in its individual capacity. Each of RBS
and each Lender that is also a Fronting Bank as a Swing Line Lender and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind
of business with, each Borrower, any of its respective Subsidiaries and any Person who may do
business with or own securities of such Borrower or any such Subsidiary, all as if RBS or such
Lender were not the Administrative Agent, a Fronting Bank or a Swing Line Lender (as the case may
be) and without any duty to account therefor to the Lenders or any other Fronting Bank or Swing
Line Lender.




SECTION 7.04. Lender Credit Decision; No Other Duties.



Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Fronting Banks, the Swing Line Lenders or any other Lender (or any such
Person or any Affiliate thereof acting in the capacity of “Joint Lead Arranger”, “Syndication
Agent” or “Documentation Agent”) and based on the financial statements referred to in Section
4.01(g) and such other documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Fronting Banks, the Swing
Line Lenders or any other Lender (or any such Person or any Affiliate thereof acting in the
capacity of “Joint Lead Arranger”, “Syndication Agent” or “Documentation Agent”) and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.



Anything herein to the contrary notwithstanding, none of the Persons listed on the cover page
hereof as a “Joint Lead Arranger”, “Documentation Agent” or “Syndication Agent” shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Fronting Bank, a Swing Line Lender,
or a Lender hereunder.


 


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SECTION 7.05. Indemnification.



The Lenders agree to indemnify the Administrative Agent (to the extent not reimbursed by the
Borrowers), ratably according to the amounts of their respective Commitments, from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Administrative Agent (in its capacity
as such) under this Agreement; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that such expenses are reimbursable by the Borrowers but for which
the Administrative Agent is not reimbursed by the Borrowers.




SECTION 7.06. Successor Administrative Agent.



The Administrative Agent may resign at any time by giving written notice thereof to the
Lenders, the Fronting Banks, the Borrowers and the Swing Line Lenders and may be removed at any
time with or without cause by the Majority Lenders, the Fronting Banks and the Swing Line Lenders.
Upon any such resignation or removal, the Majority Lenders, the Fronting Banks and the Swing Line
Lenders shall have the right, with the prior written consent of the Borrowers (unless an Event of
Default has occurred and is continuing), which consent shall not be unreasonably withheld or
delayed, to appoint a successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Majority Lenders, the Fronting Banks and the Swing Line Lenders, and
shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s
giving of notice of resignation or the Majority Lenders’, the Fronting Banks’ and the Swing Line
Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Lenders, the Fronting Banks and the Swing Line Lenders, appoint a successor
Administrative Agent, which shall be a Lender or an Affiliate of a Lender and (i) a commercial bank
organized under the laws of the United States, or any State thereof or (ii) a commercial bank
organized under the laws of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its “General Arrangements
to Borrow”, or a political subdivision of any such country, provided that such bank is acting
through a branch or agency located in the United States and shall have a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent’s resignation or removal
hereunder as Administrative Agent, the provisions of this Article VII shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. Notwithstanding the foregoing, if no Event of Default or Unmatured Default shall have
occurred and be continuing, then no successor Administrative Agent shall be appointed under this
Section 7.06 without the prior written consent of the Borrowers, which consent shall not be
unreasonably withheld or delayed.


 


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SECTION 7.07. Delegation of Duties.



The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder by or through any one or more sub-agents appointed by the Administrative Agent;
provided that, the appointment of a sub-agent that is not an Affiliate of the Administrative Agent
shall be subject to the prior consent of the Borrowers (unless an Event of Default has occurred and
is continuing), which consent shall not be unreasonably withheld or delayed. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. Each such sub-agent and the Related Parties
of the Administrative Agent shall be entitled to the benefits of all provisions of this Article VII
and Section 8.05, as though such sub-agents were the “Administrative Agent”, as if set forth in
full herein with respect thereto.



ARTICLE VIII

MISCELLANEOUS





SECTION 8.01. Amendments, Etc.



No amendment or waiver of any provision of this Agreement or any Note, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the Lenders affected
thereby (other than, in the case of clause (a), (e) or (f) below, any Defaulting Lender), do any of
the following: (a) waive any of the conditions specified in Section 3.01 or 3.02 increase the
Commitments of the Lenders or subject the Lenders to any additional obligations, (b) change any
provision hereof in a manner that would alter the pro rata sharing of payments or the pro rata
reduction of Commitments among the Lenders, (c) reduce the principal of, or interest (or rate of
interest) on, the Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, the aggregate undrawn amount of outstanding Letters of Credit or
the number of Lenders, that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01 or the definition of “Majority Lenders”; and provided,
further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or Section 2.21; (ii) that no
amendment, waiver or consent that would adversely affect the rights of, or increase the obligations
of, any Fronting Bank, or that would alter any provision hereof relating to or affecting Letters of
Credit issued by such Fronting Bank or modify or waive Section 2.21, shall be effective unless
agreed to in writing by such Fronting Bank or modify or waive Section 2.21; (iii) no amendment,
waiver or consent that would adversely affect the rights of, or increase the obligations of, any
Swing Line Lender, or that would alter provisions hereof relating to or affecting Swing Line
Advances made by such Swing Line Lender or modify or waive Section 2.21, shall be effective unless
agreed to in writing by such Swing Line Lender; and (iv) this Agreement may be amended and restated
without the consent of any Lender, any Fronting Bank,
any Swing Line Lender or the Administrative Agent if, upon giving effect to such amendment and
restatement, such Lender, such Fronting Bank, such Swing Line Lender or the Administrative Agent,
as the case may be, shall no longer be a party to this Agreement (as so amended and restated) or
have any Commitment or other obligation hereunder (including, without limitation, any obligation to
make payment on account of a Drawing) and shall have been paid in full all amounts payable
hereunder to such Lender, such Fronting Bank, such Swing Line Lender or the Administrative Agent,
as the case may be.


 


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SECTION 8.02. Notices, Etc.



Unless specifically provided otherwise in this Agreement, all notices and other communications
provided for hereunder shall be in writing (including telecopier) and delivered by hand or
overnight courier service, mailed or sent by telecopy, if to any Borrower, to it in care of FE at
its address at 76 South Main Street, Akron, Ohio 44308, Attention: Treasurer, Telecopy: (330)
384-3772; if to any Bank (including any Swing Line Lender), at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender (including any Swing Line
Lender), at its Domestic Lending Office specified in the Assignment and Assumption pursuant to
which it became a Lender; if to the Administrative Agent, at its address at, The Royal Bank of
Scotland plc, 600 Washington Boulevard, Stamford, Connecticut 06901, Attention: John Ferrante /
Juan Zuniga, Telecopy: (203) 873-5300 / (212) 401-1494; if to any Fronting Bank identified on
Schedule II hereto, at the address specified opposite its name on Schedule II hereto; if to any
other Fronting Bank, at such address as shall be designated by such Fronting Bank in a written
notice to the other parties; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. Subject to the other notice requirements of
this Agreement, all notices and communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service, mailed or sent by telecopy to such party and received during
the normal business hours of such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this Section. If such notices
and communications are received after the normal business hours of such party, receipt shall be
deemed to have been given upon the opening of the recipient’s next Business Day.




SECTION 8.03. Electronic Communications.



(a) Each Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a conversion of an
existing, Borrowing or other Extension of Credit (including any election of an interest rate or
Interest Period relating thereto), (ii) relates to the payment of any principal or other amount due
under the Credit Agreement prior to the scheduled date therefor, (iii) provides notice of any
Unmatured Default or Event of Default under the Credit Agreement or (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of the Credit Agreement and/or
any Borrowing or other Extension of Credit thereunder (all such non-excluded communications being
referred to herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the Administrative Agent
to gbmnaagency@rbs.com or faxing the Communications to (203) 873-5300 / (212) 401-1494. In
addition, each Borrower agrees to continue to provide the Communications to the Administrative
Agent in the manner otherwise specified in this Agreement, but only to the extent requested by the
Administrative Agent.


 


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(b) Each Borrower further agrees that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a substantially similar
electronic transmission systems (the “Platform”). Each Borrower acknowledges that the distribution
of material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution.



(c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO ANY BORROWER, ANY LENDER OR
ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF ANY BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF
THE COMMUNICATIONS THROUGH THE PLATFORM, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS
FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



(d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender
agrees that notice to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such Lender’s e-mail
address to which the foregoing notice may be sent by electronic transmission and that the foregoing
notice may be sent to such e-mail address. Subject to the other notice requirements of this
Agreement, all such notices and Communications given to the Administrative Agent or such Lender in
accordance with the provisions of this Agreement shall be deemed to have been given on the date of
receipt if delivered by electronic/soft medium to
such party and received during the normal business hours of such party as provided in this
Section or in accordance with the latest unrevoked direction from such party given in accordance
with this Section. If such notices and communications are received after the normal business hours
of such party, receipt shall be deemed to have been given upon the opening of the recipient’s next
Business Day.


 


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(e) Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give
any notice or other communication pursuant to any Loan Document in any other manner specified in
such Loan Document.




SECTION 8.04. No Waiver; Remedies.



No failure on the part of any Lender, any Fronting Bank, any Swing Line Lender or the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.




SECTION 8.05. Costs and Expenses; Indemnification.



(a) Each Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent, each Fronting Bank and each Swing Line Lender in connection
with the preparation, execution, delivery, syndication administration, modification and amendment
of this Agreement, any Note, any Letter of Credit and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent, the Fronting Banks and the Swing Line Lenders with respect thereto
and with respect to advising the Administrative Agent, the Fronting Banks and each Swing Line
Lender as to their rights and responsibilities under this Agreement. Each Borrower further agrees
to pay on demand all reasonable out-of-pocket costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses of counsel), incurred by the Administrative Agent,
the Fronting Banks, the Swing Line Lenders and the Lenders in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Agreement, any Note and the
other documents to be delivered hereunder, including, without limitation, counsel fees and expenses
in connection with the enforcement of rights under this Section 8.05(a).



(b) Except as otherwise expressly provided to the contrary herein, if any payment of principal
of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.11
or 2.14 or a prepayment pursuant to Section 2.12 or acceleration of the maturity of any amounts
owing hereunder pursuant to Section 6.01 or upon an assignment made upon demand of a Borrower
pursuant to Section 8.08(h) or for any other reason, the applicable Borrower shall, upon demand by
any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by any Lender
to fund or maintain such Advance. Each Borrower’s obligations under this subsection (b) shall
survive the repayment of all other amounts owing to the Lenders and the Administrative Agent under
this Agreement and any Note and the termination of the Commitments.


 


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(c) Each Borrower hereby agrees to indemnify and hold each Lender, each Fronting Bank, the
Administrative Agent and their respective Affiliates and their respective officers, directors,
employees and professional advisors (each, an “Indemnified Person”) harmless from and against any
and all claims, damages, liabilities, costs or expenses (including reasonable attorney’s fees and
expenses, whether or not such Indemnified Person is named as a party to any proceeding or is
otherwise subjected to judicial or legal process arising from any such proceeding) that any of them
may incur or that may be claimed against any of them by any Person (including any Borrower) by
reason of or in connection with or arising out of any investigation, litigation or proceeding
related to the Commitments or the commitment of each Fronting Bank hereunder and any use or
proposed use by any Borrower of the proceeds of any Extension of Credit or the existence or use of
any Letter of Credit or the amounts drawn thereunder, except to the extent such claim, damage,
liability, cost or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Person’s gross negligence or willful
misconduct. Each Borrower’s obligations under this Section 8.05(c) shall survive (x) the repayment
of all amounts owing to the Lenders, the Fronting Banks and the Administrative Agent under this
Agreement and any Note, (y) the termination of the Commitments, the commitment of the Fronting
Banks hereunder and any Letters of Credit and (z) the termination of this Agreement. If and to the
extent that the obligations of the Borrowers under this Section 8.05(c) are unenforceable for any
reason, each Borrower agrees to make the maximum payment in satisfaction of such obligations that
are not unenforceable that is permissible under Applicable Law or, if less, such amount that may be
ordered by a court of competent jurisdiction.



(d) To the extent permitted by law, each Borrower also agrees not to assert any claim against
any Indemnified Person on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) in connection with, arising out of, or otherwise
relating to this Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.



(e) Each Borrower shall be liable for its pro rata share of any payment to be made by the
Borrowers under this Section 8.05, such pro rata share to be determined on the basis of such
Borrower’s Fraction; provided, however, that if and to the extent that any such liabilities are
reasonably determined by the Borrowers (subject to the approval of the Administrative Agent which
approval shall not be unreasonably withheld) to be directly attributable to a specific Borrower,
only such Borrower shall be liable for such payments.


 


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SECTION 8.06. Right of Set-off.



Upon the occurrence and during the continuance of any Event of Default each Lender, each
Fronting Bank and each Swing Line Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, excluding, however, any payroll accounts maintained by the
Borrowers with such Lender, such Fronting Bank or such Swing Line Lender
(as the case may be) if and to the extent that such Lender, such Fronting Bank or such Swing
Line Lender (as the case may be) shall have expressly waived its set-off rights in writing in
respect of such payroll account) at any time held and other indebtedness at any time owing by such
Lender, such Fronting Bank or such Swing Line Lender (as the case may be) to or for the credit or
the account of the Borrowers against any and all of the obligations of the Borrowers now or
hereafter existing under this Agreement and any Note held by such Lender, whether or not such
Lender, such Fronting Bank or such Swing Line Lender (as the case may be) shall have made any
demand under this Agreement or such Note and although such obligations may be unmatured. Each
Lender, each Fronting Bank and each Swing Line Lender agrees promptly to notify the Borrowers after
any such set-off and application made by such Lender, such Fronting Bank or such Swing Line Lender
(as the case may be), provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of each Lender and each Fronting Bank and each Swing
Line Lender under this Section 8.06 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender, such Fronting Bank or such Swing
Line Lender (as the case may be) may have.




SECTION 8.07. Binding Effect.



This Agreement shall become effective when it shall have been executed by the Borrowers and
the Administrative Agent and when the Administrative Agent shall have been notified by each Bank,
each Swing Line Lender and each Fronting Bank that such Bank, such Swing Line Lender or such
Fronting Bank (as the case may be) has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrowers, the Administrative Agent, each Swing Line Lender, each Fronting
Bank and each Lender and their respective successors and permitted assigns, except that the
Borrowers shall not have the right to assign their rights or obligations hereunder or any interest
herein (x) without the prior written consent of the Lenders and the Fronting Banks or (y) pursuant
to Section 5.03(c).




SECTION 8.08. Assignments and Participations.



(a) Successors and Assigns Generally. No Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section 8.08, (ii) by way of participation in accordance with the provisions
of subsection (d) of this Section 8.08, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section 8.08 (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section 8.08 and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


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(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Advances at the time owing to it); provided that any such assignment shall be
subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and/or the Advances at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the amount
specified in subsection (b)(i)(B) of this Section 8.08 in the aggregate or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section 8.08, the
aggregate amount of the Commitment (which for this purpose includes Advances
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Advances of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not
be less than $5,000,000, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrowers otherwise consent
(each such consent not to be unreasonably withheld or delayed); provided that the
Borrowers shall be deemed to have consented to any such assignment unless they shall
object thereto by giving written notice to the Administrative Agent within five
Business Days after having received notice thereof.




(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Advance or the Commitment assigned.




(iii) Required Consents. No consent shall be required for any assignment except to the
extent required by subsection (b)(i)(B) of this Section 8.08 and, in addition:




(A) the consent of the Borrowers (such consent not to be unreasonably withheld
or delayed) shall be required unless (x) an Event of Default has occurred and is
continuing at the time of such assignment, or (y) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be
deemed to have consented to any such assignment unless they shall object thereto by
giving written notice to the Administrative Agent within five Business Days after
having received notice thereof and provided, further, that the Borrowers’ consent
shall not be required during the primary syndication hereof;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender, an Affiliate of such Lender or an
Approved Fund with respect to such Lender; and


 


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(C) the consent of each Fronting Bank and Swing Line Lender shall be required
for all assignments, other than pursuant to subsection (f) below.




(iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 provided that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.




(v) No Assignment to Certain Persons. No such assignment shall be made to (A) the
Borrowers or any of the Borrowers’ Affiliates or Subsidiaries or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B).




(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural
Person.




(vii) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless
and until, in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an aggregate
amount sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrowers and the Administrative Agent,
the applicable pro rata share of Advances previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably
consent), to (x) pay and satisfy in full all payment liabilities then owed by such
Defaulting Lender to the Administrative Agent, each Fronting Bank, each Swing Line Lender
and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as
appropriate) its full pro rata share of all Advances and participations in Letters of Credit
and Swing Line Advances in accordance with its Percentage. Notwithstanding the foregoing,
in the event that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable law without compliance with the provisions
of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 8.08, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.13, 2.16 and 8.05 with
respect to facts and circumstances occurring prior to the effective date of such assignment;
provided, that except to the extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section 8.08.


 


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(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at its offices at 600 Washington Boulevard, Stamford, Connecticut 06901 a
copy of each Assignment and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and principal amounts of the Advances
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.



(d) Participations. Any Lender may at any time, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Advances owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations, and
(iii) the Borrowers, the Administrative Agent, the Fronting Banks and Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the
indemnity under Section 7.05 with respect to any payments made by such Lender to its
Participant(s). Each Lender that sells a participation shall, acting solely for this purpose as an
agent of the Borrower, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each Participant’s interest in the
Loans or other obligations under this Agreement (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any Participant or any information relating to a Participant’s
interest in any Commitments, Advances, Letters of Credit or its obligations under any Loan
Document) except to the Internal Revenue Service and only to the extent that such disclosure is
necessary to establish that such Commitment, Advance, Letter of Credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary.


 


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Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clauses (a) through (f) of
Section 8.01 that affects such Participant. The Borrowers agree that each Participant shall be
entitled to the benefits of Sections 2.13 and 2.16 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section 8.08; provided
that such Participant agrees to be subject to the provisions of Sections 2.16(f) and 8.08(h) as if
it were an assignee under subsection (b) of this Section 8.08. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 8.06 as though it were a
Lender; provided that such Participant agrees to be subject to Section 2.17 as though it were a
Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Sections 2.13 and 2.16 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers’ prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section
2.16 unless the Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 2.16(e) as though it
were a Lender.



(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking
authority; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



(g) Disclosure of Certain Information. Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section 8.08, disclose to
the assignee or participant or proposed assignee or participant, any information relating to the
Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, that prior to any
such disclosure, the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the Borrowers received by
it from such Lender.



(h) Replacement of Lenders. If any Lender shall make demand for payment under Section
2.13(a), 2.13(b) or 2.16, or shall deliver any notice to the Administrative Agent pursuant to
Section 2.14 resulting in the suspension of certain obligations of the Lenders with respect to
Eurodollar Rate Advances, or shall be a Defaulting Lender, then, within 30 days of such demand (if,
and only if, such payment demanded under Section 2.13(a), 2.13(b) or 2.16, as the case may be,
shall have been made by a Borrower) or such notice (if such suspension is still in effect) or such
Lenders’ becoming a Defaulting Lender, as the case may be, such Borrower may demand that such
Lender assign in accordance with this Section 8.08 to one or more assignees designated by such
Borrower and approved by the required Persons under subsection (b)(iii) above all (but not less
than all) of such Lender’s Commitment and the Advances owing to it within the next 15 days. If any
such assignee designated by such Borrower shall fail to consummate such assignment on terms
acceptable to such Lender, or if such Borrower shall fail to designate any such assignee for all of
such Lender’s


 


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Commitment or Advances, then such Lender may assign such Commitment and Advances to any other assignee in accordance with this Section 8.08 during
such 15-day period; it being understood for purposes of this Section 8.08(h) that such assignment
shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall be
compelled to consummate such assignment to an assignee designated by such Borrower, if such
assignee shall agree to such assignment in substantially the form of Exhibit A hereto and shall
offer compensation to such Lender in an amount equal to the sum of the principal amount of all
Advances outstanding to such Lender plus all interest accrued thereon to the date of such payment
plus all other amounts payable by such Borrower to such Lender hereunder (whether or not then due)
as of the date of such payment accrued in favor of such Lender hereunder. Notwithstanding the
foregoing, no Lender shall make any assignment at any time pursuant to this subsection (g) if, at
such time, (i) an Event of Default or Unmatured Default has occurred and is continuing, (ii) any
Borrower has not satisfied all of its obligations hereunder with respect to such Lender or (iii)
such replacement of such Lender is not acceptable to the Administrative Agent, the Fronting Banks
and the Swing Line Lenders, as applicable, pursuant to subsection (b)(iii) above.




SECTION 8.09. Governing Law.



THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.




SECTION 8.10. Consent to Jurisdiction; Waiver of Jury Trial.



(a) To the fullest extent permitted by law, each Borrower hereby irrevocably (i) submits to
the exclusive jurisdiction of any New York State or Federal court sitting in New York City and any
appellate court from any thereof in any action or proceeding arising out of or relating to this
Agreement, any other Loan Document or any Letter of Credit, and (ii) agrees that all claims in
respect of such action or proceeding may be heard and determined in such New York State court or in
such Federal court. Each Borrower hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each
Borrower also irrevocably consents, to the fullest extent permitted by law, to the service of any
and all process in any such action or proceeding by the mailing by certified mail of copies of such
process to such Borrower at its address specified in Section 8.02. Each Borrower agrees, to the
fullest extent permitted by law, that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.



(b) EACH BORROWER, THE ADMINISTRATIVE AGENT, EACH FRONTING BANK, EACH SWING LINE LENDER AND
THE LENDERS HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY LETTER OF CREDIT, OR
ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.


 


81









 






SECTION 8.11. Severability.



Any provision of this Agreement that is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any other jurisdiction.




SECTION 8.12. Entire Agreement.



This Agreement and the Notes issued hereunder constitute the entire contract among the parties
relative to the subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement, except (i) as expressly agreed in any
such previous agreement and (ii) for the Fee Letters and the Fronting Bank Fee Letters. Except as
is expressly provided for herein, nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement.




SECTION 8.13. Execution in Counterparts.



This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.




SECTION 8.14. USA PATRIOT Act Notice.



Each Lender that is subject to the Patriot Act, each Fronting Bank and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers pursuant to the
requirements of the Patriot Act that it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of the Borrower and other
information that will allow such Lender, such Fronting Bank or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the Patriot Act.


 


82









 






SECTION 8.15. No Fiduciary Duty.



The Administrative Agent, each Fronting Bank, each Swing Line Lender, each Lender and their
respective Affiliates (collectively, the “Credit Parties”), may have economic interests that
conflict with those of the Borrowers, their stockholders and/or their affiliates. Each Borrower
agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or other implied duty between any Credit Party, on
the one hand, and such Borrower, its stockholders or its affiliates, on the other. The Borrowers
acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the
exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions
between the Credit Parties, on the one hand, and the Borrowers, on the other, and (ii) in
connection therewith and with the process leading thereto, (x) no Credit Party has assumed an
advisory or fiduciary responsibility in favor of any Borrower, its stockholders or its affiliates
with respect to the transactions contemplated hereby (or the exercise of rights or remedies with
respect thereto) or the process leading thereto (irrespective of whether any Credit Party has
advised, is currently advising or will advise any Borrower, its stockholders or its
Affiliates on other matters) or any other obligation to any Borrower except the obligations
expressly set forth in the Loan Documents and (y) each Credit Party is acting solely as principal
and not as the agent or fiduciary of any Borrower, its management, stockholders, creditors or any
other Person. Each Borrower acknowledges and agrees that it has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is responsible for making its
own independent judgment with respect to such transactions and the process leading thereto. Each
Borrower agrees that it will not claim that any Credit Party has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to such Borrower, in connection with such
transaction or the process leading thereto.



[Signatures to Follow]



 


83









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-2









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Bank

 	 
	 	By:  	/s/ Mike Mason
 	 
	 	 	Name:  	Mike Mason 	 
	 	 	Title:  	Director 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-5









 







	 	 	 	 	 
	 	CITIBANK, N.A., as a Bank

 	 
	 	By:  	/s/ Maureen Maroney
 	 
	 	 	Name:  	Maureen Maroney 	 
	 	 	Title:  	Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-6









 







	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Bank

 	 
	 	By:  	/s/ Sherrie I. Manson
 	 
	 	 	Name:  	Sherrie I. Manson 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-7









 







	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as a Bank

 	 
	 	By:  	/s/ Thane Rattew
 	 
	 	 	Name:  	Thane Rattew 	 
	 	 	Title:  	Managing Director 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-8









 







	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank

 	 
	 	By:  	/s/ Bradford Joyce
 	 
	 	 	Name:  	Bradford Joyce 	 
	 	 	Title:  	Director 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-9









 







	 	 	 	 	 
	 	UNION BANK, N.A., as a Bank

 	 
	 	By:  	/s/ Eric Otieno
 	 
	 	 	Name:  	Eric Otieno 	 
	 	 	Title:  	Assistant Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-10









 







	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Bank

 	 
	 	By:  	/s/ Frederick W. Price
 	 
	 	 	Name:  	Frederick W. Price 	 
	 	 	Title:  	Managing Director 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-11









 





	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Bank

 	 
	 	By:  	/s/ Sherrese Clarke
 	 
	 	 	Name:  	Sherrese Clarke 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]



 


S-14









 







	 	 	 	 	 
	 	Goldman Sachs Bank USA, as a Bank

 	 
	 	By:  	/s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-15









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Bank

 	 
	 	By:  	/s/ Thomas Casey
 	 
	 	 	Name:  	Thomas Casey 	 
	 	 	Title:  	Authorized Signatory 	 




[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-17









 





	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD, as a Bank

 	 
	 	By:  	/s/ Leon Mo
 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-18









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Bank

 	 
	 	By:  	/s/ Christian S. Brown
 	 
	 	 	Name:  	Christian S. Brown 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-19









 





	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING CORPORATION, as a Bank

 	 
	 	By:  	/s/ Hiroshi Higuma
 	 
	 	 	Name:  	Hiroshi Higuma 	 
	 	 	Title:  	Joint General Manager 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-20









 





	 	 	 	 	 
	 	U.S. Bank National Association, as a Bank

 	 
	 	By:  	/s/ Eric J. Cosgrove
 	 
	 	 	Name:  	Eric J. Cosgrove 	 
	 	 	Title:  	Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-22









 





	 	 	 	 	 
	 	CoBank, ACB, as a Bank

 	 
	 	By:  	/s/ Josh Batchelder
 	 
	 	 	Name:  	Josh Batchelder 	 
	 	 	Title:  	Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


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 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-26









 





	 	 	 	 	 
	 	Sovereign Bank, as a Bank

 	 
	 	By:  	/s/ Robert D. Lanigan
 	 
	 	 	Name:  	Robert D. Lanigan 	 
	 	 	Title:  	SVP 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-27









 





	 	 	 	 	 
	 	THE HUNTINGTON NATIONAL BANK, as a Bank

 	 
	 	By:  	/s/ Brian H. Gallagher
 	 
	 	 	Name:  	Brian H. Gallagher 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to FirstEnergy Corp. Credit Agreement]




 


S-28









 











SCHEDULE I




List of Commitments and Lending Offices




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	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









 







SCHEDULE II




List of L/C Fronting Bank Commitments




	 	 	 	 	 	 	 
	 	 	 	 	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	 






 


 









 







SCHEDULE III




List of Swing Line Commitments




	 	 	 	 	 
	Swing Line Lender	 	Swing Line Commitment	 
	 
	 	 	 	 
	The Royal Bank of Scotland plc
	 	$	125,000,000	 
	 
	 	 	 	 
	Barclays Bank PLC
	 	$	125,000,000	 






 


 









 







SCHEDULE IV




Letters of Credit




Please see attached.




 


 









 







SCHEDULE V




Existing Facilities





	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.






 


 









 







SCHEDULE VI




Disclosure Documents





	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.






 


 









 







EXHIBIT A

Form of Assignment and Assumption




ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]1 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in full.



For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit, guarantees, and swing line
loans included in such facilities), and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except
as expressly provided in this Assignment and Assumption, without representation or warranty by
[the][any] Assignor.



	 	 	 	 	 	 	 
	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









 





Effective Date:                           , 201    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	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









 









ANNEX 1




$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



STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting
Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other Loan Document, (ii)
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv)
the performance or observance by the Borrowers, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.



1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.08(b)(iii),
(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 8.08(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
is sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned Interest and either it, or the Person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received
a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section 5.01(g) thereof, as
applicable, and such other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is
not a U.S. Person, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement (including pursuant to Section
2.16(e)(ii) of the Credit Agreement), duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any]
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.


 


 









 





2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall
make all payments of interest, fees or other amounts paid or payable in kind from and after the
Effective Date to [the][the relevant] Assignee.



3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.




 


 












 




EXHIBIT B

Form of Note




PROMISSORY NOTE




			
	 	 	 
	U.S.$[                    ]
	 	                          , 20     






FOR VALUE RECEIVED, the undersigned, [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], a[n] [                    ] corporation (the “Borrower”), HEREBY PROMISES TO PAY
to [                    ] (the “Lender”) for the account of its Applicable Lending Office (such term and
other capitalized terms herein being used as defined in the Credit Agreement referred to below), or
its registered assigns, the principal sum of U.S.$[                    ] or, if less, the aggregate
principal amount of the Advances made by the Lender to the Borrower pursuant to the Credit
Agreement outstanding on the Termination Date, payable on the Termination Date.



The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.



Both principal and interest are payable in lawful money of the United States of America to The
Royal Bank of Scotland plc, as Administrative Agent, at [INSERT PAYMENT ADDRESS], in same day
funds. Each Advance made by the Lender to the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note.



This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among the Borrower,
[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,]
the banks party thereto, The Royal Bank of Scotland plc, as Administrative Agent for the Lenders
thereunder, the fronting banks party thereto from time to time and the swing line lenders party
thereto from time to time. The Credit Agreement, among other things, (i) provides for the making
of Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the Dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and conditions therein
specified.


 


 









 





The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.



THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



	 	 	 	 	 
	 	[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









 







EXHIBIT C

Form of Notice of Pro-Rata Borrowing




The Royal Bank of Scotland plc, as Administrative Agent

for the Lenders party to the Credit Agreement

referred to below






                , 200     



Ladies and Gentlemen:



The undersigned refers to the Credit Agreement, dated as of June 17, 2011 (the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among the undersigned,
[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,]
the banks party thereto, The Royal Bank of Scotland plc, as Administrative Agent for the Lenders
thereunder, the fronting banks party thereto from time to time and the swing line lenders party
thereto from time to time, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement that the undersigned hereby requests [a] Pro-Rata Borrowing[s] under the
Credit Agreement, and in that connection sets forth below the information relating to such Pro-Rata
Borrowing[s] (the “Proposed Borrowing[s]”) as required by Section 2.02(a) of the Credit Agreement:




(i) The Business Day of the Proposed Borrowing[s] is                     ,      .




(ii) The Type of Pro-Rata Advance to be made in connection with the [First] Proposed
Borrowing is [an Alternate Base Rate Pro-Rata Advance] [a Eurodollar Rate Advance]. The
aggregate amount of such Proposed Borrowing is $                    . [The Interest Period for each
Eurodollar Rate Advance made as part of such Proposed Borrowing is            [week][month[s]].]




[(iii) The Type of Pro-Rata Advance to be made in connection with the [Second] Proposed
Borrowing is [an Alternate Base Rate Pro-Rata Advance] [a Eurodollar Rate Advance]. The
aggregate amount of such Proposed Borrowing is $                    . [The Interest Period for each
Eurodollar Rate Advance made as part of such Proposed Borrowing is            [week][month[s]].]


 


 









 






[(iii)][(iv)] The Borrower requesting the Proposed Borrowing[s] is                     .




The undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing[s]:




(A) the representations and warranties of such Borrower contained in Section
4.01 [(other than (1) subsection (f) thereof, (2) the first sentence of subsection
(g) thereof (but solely with respect to the unaudited consolidated balance sheet of
such Borrower and its Subsidiaries, as at March 31, 2011, and the related
consolidated statements of income, retained earnings and cash flows for the three
months then ended), and (3) the last sentence of subsection (g) thereof)]* of
the Credit Agreement are correct, before and after giving effect to the Proposed
Borrowing[s] and to the application of the proceeds therefrom, as though made on and
as of such date (other than, as to any such representation or warranty that by its
terms refers to a specific date other than the date of the Proposed Borrowing[s], in
which case, such representation and warranty is true and correct as of such specific
date);




(B) no event has occurred and is continuing, or would result from such Proposed
Borrowing[s] or from the application of the proceeds therefrom, that constitutes an
Event of Default or an Unmatured Default with respect to such Borrower; and




(C) immediately following such Proposed Borrowing[s], (1) the aggregate amount
of Outstanding Credits shall not exceed the aggregate amount of the Commitments then
in effect, (2) the Outstanding Credits of any Lender shall not exceed the amount of
such Lender’s Commitment and (3) the Outstanding Credits for the account of any
Borrower shall not exceed the Borrower Sublimit for such Borrower.




Please transfer or credit the funds to the following account:




Bank:                     




Address:                     




ABA #:                     




Account #:                     




Beneficiary:                     



[remainder of page intentionally left blank]



 





	 	 	 
	*	 	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









 









EXHIBIT D

Form of Notice of Swing Line Borrowing




The Royal Bank of Scotland plc, as Administrative Agent

for the Lenders party to the Credit Agreement

referred to below






                , 200     



Ladies and Gentlemen:



The undersigned refers to the Credit Agreement, dated as of June 17, 2011 (the “Credit
Agreement”, the terms defined therein being used herein as therein defined), among the undersigned,
[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,]
the banks party thereto, The Royal Bank of Scotland plc, as Administrative Agent for the Lenders
thereunder, the fronting banks party thereto from time to time and the swing line lenders party
thereto from time to time, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of
the Credit Agreement that the undersigned hereby requests a Swing Line Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to such Swing Line
Borrowing (the “Proposed Borrowing”) as required by Section 2.03(b) of the Credit Agreement:




(i) The Business Day of the Proposed Borrowing is                     ,      .




(ii) The aggregate amount of the Proposed Borrowing is $                    .




(iii) The Borrower requesting the Proposed Borrowing is                     .




The undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing:




(A) the representations and warranties of such Borrower contained in Section
4.01 [(other than (1) subsection (f) thereof, (2) the first sentence of subsection
(g) thereof (but solely with respect to the unaudited consolidated balance sheet of
such Borrower and its Subsidiaries, as at March 31, 2011, and the related
consolidated statements of income, retained earnings and cash flows for
the three months then ended), and (3) the last sentence of subsection (g)
thereof)]* of the Credit Agreement are correct, before and after giving effect
to the Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date (other than, as to any such representation or
warranty that by its terms refers to a specific date other than the date of the
Proposed Borrowing, in which case, such representation and warranty is true and
correct as of such specified date);


 


 









 






(B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes an
Event of Default or an Unmatured Default with respect to such Borrower ; and




(C) immediately following such Proposed Borrowing, (1) the aggregate amount of
Outstanding Credits shall not exceed the aggregate amount of the Commitments then in
effect, (2) the Outstanding Credits of any Lender shall not exceed the amount of
such Lender’s Commitment, (3) the Outstanding Credits for the account of any
Borrower shall not exceed the Borrower Sublimit for such Borrower, and (4) the
aggregate principal amount of the Swing Line Advances outstanding shall not exceed
the Swing Line Sublimit.




Please transfer or credit the funds to the following account:




Bank:                     




Address:                     




ABA #:                     




Account #:
 _____ 





Beneficiary:                     



[remainder of page intentionally left blank]



 





	 	 	 
	*	 	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









 







EXHIBIT E

Form of Letter of Credit Request






                , 200     



The Royal Bank of Scotland plc, as

Administrative Agent

[INSERT ADMINISTRATIVE AGENT’S ADDRESS]

Attn:                                         




[                                        , as Fronting Bank

[ADDRESS]]



Ladies and Gentlemen:



The undersigned, [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], a[n] [                    ] corporation (the “Borrower”), refer to that certain Credit
Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among the Borrower, [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,] the banks
party thereto, The Royal Bank of Scotland plc, as Administrative Agent for the Lenders thereunder,
the fronting banks party thereto from time to time and the swing line lenders party thereto from
time to time. Capitalized terms used herein, and not otherwise defined herein, shall have their
respective defined meanings as set forth in the Credit Agreement.



Pursuant to Section 2.04(d) of the Credit Agreement, the Borrower irrevocably requests that
the Fronting Bank to which this Letter of Credit Request is addressed issue a Letter of Credit on
the following terms:




1. Date of Issuance:



2. Expiration Date:


 


 









 





3. Stated Amount:



4. Beneficiary:



5. Account Party:



and the terms set forth in the attached application for said Letter of Credit.



The Borrower hereby further certifies that (i) as of the date hereof, (ii) as of the Date of
Issuance and (iii) after the issuance of the Letter of Credit requested hereby:



(A) the representations and warranties of such Borrower contained in Section 4.01 [(other than
(1) subsection (f) thereof, (2) the first sentence of subsection (g) thereof (but solely with
respect to the unaudited consolidated balance sheet of such Borrower and its Subsidiaries, as at
March 31, 2011, and the related consolidated statements of income, retained earnings and cash flows
for the three months then ended), and (3) the last sentence of subsection (g) thereof)]* of
the Credit Agreement are true and correct on and as of the date hereof, before and after giving
effect to the issuance of such Letter of Credit and to the application of the proceeds therefrom,
as though made on and as of such date (other than, as to any such representation or warranty that
by its terms refers to a specific date other than the date of the issuance of such Letter of
Credit, in which case, such representation and warranty is true and correct as of such specified
date);



(B) no event has occurred and is continuing, or would result from the issuance of the Letter
of Credit requested hereby or from the application of the proceeds therefrom, that constitutes an
Event of Default or an Unmatured Default with respect to such Borrower; and



(C) immediately following the issuance of such Letter of Credit, (1) the aggregate amount of
Outstanding Credits shall not exceed the aggregate amount of the Commitments then in effect, (2)
the Outstanding Credits of any Lender shall not exceed the amount of such Lender’s Commitment [and]
[,] (3) the Stated Amount thereof, when aggregated with (x) the Stated Amount of each other Letter
of Credit that is outstanding or with respect to which a Letter of Credit Request has been received
and (y) the outstanding Reimbursement Obligations, shall not exceed the L/C Commitment Amount [and
(2) the aggregate Stated Amount of all outstanding Letters of Credit issued by the Fronting Bank
will not exceed $]**.



If notice of the request for the above referenced Letter of Credit has been given by the
Borrower previously by telephone, then this notice shall be considered a written confirmation of
such telephone notice as required by Section 2.04(d) of the Credit Agreement.



[remainder of page intentionally left blank]



 





	 	 	 
	*	 	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









 







EXHIBIT F

Form of Opinion of Wendy E. Stark, Associate General Counsel of FE




[LETTERHEAD OF FIRSTENERGY CORP.]




June 17, 2011




To the Banks party to the within-mentioned Credit Agreement,

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






Re: Credit Agreement, dated as of June 17, 2011



Ladies and Gentlemen:



I am Associate General Counsel of FirstEnergy Corp., an Ohio corporation (“FE”) and have acted
as counsel to FE, and its subsidiaries, The Cleveland Electric Illuminating Company, an Ohio
corporation (“CEI”), Metropolitan Edison Company, a Pennsylvania corporation (“Met-Ed”), Ohio
Edison Company, an Ohio corporation (“OE”), Pennsylvania Power Company, a Pennsylvania corporation
(“Penn”), The Toledo Edison Company, an Ohio corporation (“TE”), American Transmission Systems,
Incorporated, an Ohio corporation (“ATSI”), Monongahela Power Company, an Ohio corporation (“MP”),
Pennsylvania Electric Company, a Pennsylvania corporation (“Penelec”) and West Penn Power Company,
a Pennsylvania corporation (“West-Penn”, and together with FE, CEI, Met-Ed, OE, Penn, TE, ATSI, MP
and Penelec, the “Specified Borrowers” and each a “Specified Borrower”), in connection with the
transactions contemplated by the Credit Agreement, dated as of June 17, 2011 (the “Credit
Agreement”), among the Specified Borrowers, Jersey Central Power & Light Company, The Potomac
Edison Company, the banks 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. Capitalized terms used herein but not otherwise defined herein shall have the respective
meanings assigned to them in the Credit Agreement. This opinion is being furnished to you pursuant
to Section 3.01(a)(v) of the Credit Agreement. The Credit Agreement and the Notes are sometimes
referred to in this opinion collectively as the “Loan Documents” and each individually as a “Loan
Document”.



For purposes of this opinion, I or persons under my supervision and control have reviewed
executed originals or copies of executed originals of the Credit Agreement and each Note delivered
on the date hereof. I or persons under my supervision and control have also reviewed originals or
copies of the Approvals and such corporate records and other documents and matters and have made
such investigation of fact and law as I have considered relevant or necessary as a basis for this
opinion. In such review, I have assumed the accuracy and completeness of all agreements,
documents, records, certificates and other materials submitted to us, the conformity with the
originals of all such materials submitted to us as copies (whether or
not certified and including facsimiles), the authenticity of the originals of such materials
and all materials submitted to us as originals, the genuineness of all signatures (other than those
on behalf of the Specified Borrowers) and the legal capacity of all natural persons.


 


 









 





To the Banks party to the within-mentioned Credit Agreement,

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




I have also assumed (a) the due organization, valid existence and good standing under the laws
of its jurisdiction of incorporation of each party (other than the Specified Borrowers) to each
Loan Document, (b) the corporate or other power and due authorization of each Person (other than
the Specified Borrowers) not a natural person to execute, deliver and perform its obligations under
each Loan Document to which it is a party, (c) the due execution and delivery of each Loan Document
by each party thereto (other than the Specified Borrowers), and (d) that each Loan Document
constitutes the valid and binding obligation of each party thereto, enforceable against such party
in accordance with its terms. As to various questions of fact relevant to this opinion, I have
relied, without independent investigation, upon certificates of public officials, certificates of
officers of the Specified Borrowers and representations and warranties of the Specified Borrowers
contained in the Credit Agreement.



I am a member of the Bars of the State of Ohio and the Commonwealth of Pennsylvania, and, for
purposes of this opinion, I do not hold myself out as an expert on the laws of any jurisdiction
other than the laws of the State of Ohio and the Commonwealth of Pennsylvania. I express no opinion
herein as to the application or effect of the laws of any jurisdiction other than the laws of the
State of Ohio or the Commonwealth of Pennsylvania.



Based on the foregoing and such legal considerations as I have deemed necessary or advisable
to express this opinion, I am of the opinion that:



1. Each Specified Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, is duly qualified to do business
as a foreign corporation in and is in good standing under the laws of each other state in which the
ownership of its properties or the conduct of its business makes such qualification necessary,
except where the failure to be so qualified would not have a Material Adverse Effect, and has all
corporate powers to carry on its business as now conducted and to maintain and operate its property
and business.



2. No Governmental Action is or will be required under laws of the State of Ohio or the
Commonwealth of Pennsylvania for (a) the due execution or delivery by any Specified Borrower of any
Loan Document or the performance by any Specified Borrower of its obligations thereunder or (b) the
consummation by any Specified Borrower of any transaction contemplated by the Loan Documents, other
than (1) the CEI PUCO Order, the OE PUCO Order, the TE PUCO Order and the ATSI PUCO Order, which
are in full force and effect as of the date hereof, (2) such Governmental Action as may be required
as a condition to the exercise by any Specified Borrower of its rights under Section 2.07 of the
Credit Agreement and (3) such Governmental Action as may be required after the date hereof in
connection with the
performance by the Specified Borrowers of the general covenants set forth in Sections 5.01(a)
and (b) of the Credit Agreement.


 


F-2









 





To the Banks party to the within-mentioned Credit Agreement,

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




3. The execution and delivery by each Specified Borrower of the Loan Documents to which it is
a party, the performance by such Specified Borrower of its obligations under such Loan Documents,
the consummation by such Specified Borrower of the transactions contemplated by any such Loan
Document, and compliance by such Specified Borrower with the provisions thereof, will not result
in (a) a breach or contravention of any of the provisions of the Organizational Documents of such
Specified Borrower, (b) a breach or contravention of any Applicable Law of the State of Ohio or the
Commonwealth of Pennsylvania, (c) a breach or contravention of any of the provisions of any
indenture, mortgage, lease or any other agreement or instrument to which any Specified Borrower is
a party or by which any of its property is bound, or (d) the creation or imposition of any Lien
upon any property of such Specified Borrower, except in the case of (c) and (d) to the extent such
breach or contravention, or the creation or imposition of any such Lien, would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to such
Specified Borrower.



4. The execution, delivery and performance by each Specified Borrower of each of the Loan
Documents to which it is a party are within its corporate powers, have been duly authorized by all
necessary corporate action on the part of such Specified Borrower and do not, and will not, require
the consent or approval of such Specified Borrower’s shareholders, other than such consents and
approvals as have been duly obtained, given or accomplished.



5. The Credit Agreement and each Note delivered on the date hereof by any Specified Borrower
has been duly executed and delivered by each Specified Borrower.



Except as disclosed in any Specified Borrower’s Disclosure Documents, there is no pending or,
to the best of my knowledge, threatened action or proceeding (including, without limitation, any
proceeding relating to or arising out of Environmental Laws) affecting directly such Specified
Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that would
reasonably be expected to have a material adverse effect on such Specified Borrower’s ability to
perform its obligations under the Loan Documents to which it is a party.




The opinions set forth herein are qualified in their entirety and subject to the following:



A. No examination has been made of, and no opinion is expressed as to the effect of, any
zoning ordinance or permit pertaining to the authority of the Specified Borrowers to operate their
properties or conduct their businesses.



B. I also express no opinion with respect to (i) the solvency of any Specified Borrower; or
(ii) the compliance of the Credit Agreement or any other Loan Document or the transactions
contemplated thereby with, or the effect of any of the foregoing with respect to, Federal and state
securities Laws, rules and regulations.


 


F-3









 





To the Banks party to the within-mentioned Credit Agreement,

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




C. This opinion and the matters addressed herein are as of the date hereof or such earlier
date as is specified herein, and I undertake no, and hereby disclaim any, obligation to advise you
of any change in any matter set forth herein, whether based on a change in the law, a change in any
fact relating to the Specified Borrowers or any other Person, or any other circumstance occurring
after the date hereof.



D. I have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary
duty exists with respect to any of the matters relevant to this opinion.



E. This opinion is limited to the matters expressly set forth herein and no opinion is to be
implied or may be inferred beyond the matters expressly stated herein.



F. This opinion is solely for the benefit of the addressees hereof in connection with the
transactions contemplated by the Credit Agreement and may not be relied on by the addressees hereof
for any other purpose or furnished or quoted to or relied on by any other Person (other than the
permitted successors and assigns of such addressees under the Credit Agreement) for any purpose
without my prior written consent.




Respectfully submitted,




Wendy E. Stark, Esq.

Associate General Counsel



 


F-4









 







EXHIBIT G

Form of Opinion of Akin Gump Strauss Hauer & Feld LLP




June 17, 2011




To the Banks party to the within-mentioned Credit Agreement,

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





Re: Credit Agreement, dated as of June 17, 2011



Ladies and Gentlemen:



We have acted as special New York counsel to FirstEnergy Corp., an Ohio corporation (“FE”),
and its subsidiaries, The Cleveland Electric Illuminating Company, an Ohio corporation (“CEI”),
Metropolitan Edison Company, a Pennsylvania corporation (“Met-Ed”), Ohio Edison Company, an Ohio
corporation (“OE”), Pennsylvania Power Company, a Pennsylvania corporation (“Penn”), The Toledo
Edison Company, an Ohio corporation (“TE”), American Transmission Systems, Incorporated, an Ohio
corporation (“ATSI”), Jersey Central Power & Light Company, a New Jersey corporation (“JCP&L”),
Monongahela Power Company, an Ohio corporation (“MP”), Pennsylvania Electric Company, a
Pennsylvania corporation (“Penelec”), The Potomac Edison Company, a Maryland and Virginia
corporation (“PE”) and West Penn Power Company, a Pennsylvania corporation (together with FE, CEI,
Met-Ed, OE, Penn, TE, ATSI, JCP&L, MP, Penelec and PE, the “Borrowers” and each a “Borrower”), in
connection with the execution and delivery of the Credit Agreement, dated as of June 17, 2011 (the
“Credit Agreement”), among the Borrowers, the banks 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. Capitalized terms used herein but not otherwise defined herein shall
have the respective meanings assigned to them in the Credit Agreement. This opinion is being
furnished to you at the request of the Borrowers pursuant to Section 3.01(a)(vi) of the Credit
Agreement. The Credit Agreement and the Notes are sometimes referred to in this opinion
collectively as the “Loan Documents” and each individually as a “Loan Document”.



In connection with this opinion, we have reviewed executed originals or copies of executed
originals of the Credit Agreement and the form of the Notes attached thereto. We have also
reviewed copies of the Approvals and originals or certified copies of such corporate records of
each Borrower and other certificates and documents of officials of each Borrower and certain of
their affiliates, public officials and others as we have deemed appropriate for purposes of this
opinion, and relied upon them to the extent we deem appropriate. As to various questions of fact
relevant to this opinion, we have relied, without independent investigation, upon certificates of
public officials, certificates of officers of each Borrower, and representations and warranties of
each Borrower contained in the Credit Agreement. In addition, we have made no inquiry of any
Borrower or any other Person (including Governmental Authorities) regarding any judgments,
orders, decrees, franchises, licenses, certificates, registrations, permits or other public
records or agreements to which any Borrower is a party other than those described herein, and our
knowledge of any such matters is accordingly limited.


 


 









 





To the Banks party to the within-mentioned Credit Agreement,

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




We have assumed the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all copies submitted to
us as conformed, certified or reproduced copies. We have also assumed (i) the due organization,
valid existence and good standing under the laws of its jurisdiction of incorporation of each party
to each Loan Document, (ii) the legal capacity of natural persons, (iii) the corporate or other
power and due authorization of each Person not a natural person to execute, deliver and perform its
obligations under each Loan Document to which it is a party, (iv) the due execution and delivery of
each Loan Document by all parties thereto, (v) that each Loan Document constitutes the valid and
binding obligation of each party thereto (other than the Borrowers), enforceable against such party
in accordance with its terms, (vi) that the execution, delivery and performance by each party to
the Loan Documents do not, and will not, require the consent or approval of its shareholders and
will not result in (a) a breach or violation of, or conflict with, any of the provisions of its
Organizational Documents or (b) a breach or contravention of, or conflict with, any of the
provisions of any indenture, mortgage, lease or other agreement or instrument to which it is a
party or (c) a breach or violation of, or conflict with, any law (other than, in the case of any
Borrower, any Included Law (as defined herein)) or any order, rule, regulation or determination of
any Governmental Authority applicable to it (other than, in the case of any Borrower, its
Regulatory Order), (vii) that all required Governmental Action (other than, in the case of any
Borrower, under any Included Law) for the execution and delivery by each party to any Loan
Document, the performance by it of its obligations thereunder or the consummation by it of any
transaction contemplated thereby have been obtained or taken and (viii) that the Approvals (other
than the Met-Ed FERC Order, the Penn FERC Order, the JCP&L FERC Order, the MP FERC Order, the
Penelec FERC Order, the PE FERC Order and the West-Penn FERC Order (collectively, the “Regulatory
Orders”)) are in full force and effect. We also note that, under their applicable Regulatory Orders
as currently in effect, certain Borrowers may not borrow up to their respective full Borrower
Sublimits. Accordingly, we have assumed that Borrowings by any Borrower shall not at any time
exceed amounts authorized by its Regulatory Order as then in effect.



Based upon the foregoing and subject to the assumptions, exceptions, qualifications and
limitations set forth herein, we are of the opinion that:




	 	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.




 


G-2









 










To the Banks party to the within-mentioned Credit Agreement,

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.






The opinions set forth herein are qualified in their entirety and subject to the following:



A. We express no opinion as to the Laws (as defined below) of any jurisdiction other than the
Included Laws. We have made no special investigation or review of any published constitutions,
treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”), other than a
review of (i) the Laws of the State of New York, and (ii) the Federal Laws of the United States of
America. For purposes of this opinion, the term “Included Laws” means the items described in
clauses (i) and (ii) of the preceding sentence that are, in our experience, normally applicable to
transactions of the type contemplated by the Loan Documents. The term Included Laws specifically
excludes (i) Laws of any counties, cities, towns, municipalities and special political subdivisions
and any agencies thereof; (ii) zoning, land use, building and construction Laws; (iii) Federal
Reserve Board margin regulations; and (iv) any environmental, labor, tax, pension, employee
benefit, antiterrorism, money laundering, insurance, antitrust, securities or intellectual property
Laws.



B. When used in this opinion, the phrases “known to us”, “to our knowledge” and similar
phrases (i) mean the conscious awareness of facts or other information by (a) the lawyer in our
firm who signed this letter, (b) any lawyer in our firm actively involved in negotiating and
preparing the Loan Documents and (c) solely as to information relevant to a particular opinion,
issue or confirmation regarding a particular factual matter, any lawyer in our firm who is
primarily responsible for providing the response concerning that particular opinion, issue or
confirmation and (ii) do not require or imply (a) any examination of this firm’s, such lawyer’s or
any other Person’s files, (b) that any inquiry be made of the client, any lawyer (other than the
lawyers described above), or any other Person or (c) any review or examination of any agreements,
documents, certificates, instruments or other papers (including, but not limited to, the exhibits
and schedules to the Loan Documents and the various papers referred to in or contemplated by the
Loan Documents and the respective exhibits and schedules thereto) other than the Loan Documents.


 


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To the Banks party to the within-mentioned Credit Agreement,

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




C. The matters expressed in this opinion are subject to and qualified and limited by (i)
applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium
and similar laws affecting creditors’ rights and remedies generally from time to time in effect;
(ii) general principles of equity (regardless of whether enforcement is sought in a proceeding at
law or in equity); (iii) principles of commercial reasonableness and unconscionability and an
implied covenant of good faith and fair dealing; (iv) the power of the courts to award damages in
lieu of equitable remedies; and (v) securities Laws and public policy underlying such Laws with
respect to rights to indemnification and contribution. Although it appears that the requirements
of Section 5-1401 of the New York General Obligations Law have been met, we express no opinion on
whether the choice of law provision in Section 8.09 of the Credit Agreement or in each Note would
raise any issues under the United States constitution or in equity that would affect whether courts
in New York would enforce the choice of New York law to govern the Credit Agreement or such Note.
We have also assumed that the choice of law of the State of New York as the governing law of the
Credit Agreement and each Note would not result in a violation of an important public policy of
another state having greater contacts with the transactions contemplated by the Loan Documents than
the State of New York.



D. The opinions expressed herein are as of the date hereof or such earlier date as is
specified herein, and we undertake no, and hereby disclaim any, obligation to advise you of any
change in any matter set forth herein, whether based on a change in the law, a change in any fact
relating to any Borrower or any other Person, or any other circumstance occurring after the date
hereof. This opinion is limited to the matters expressly stated herein and no opinions are to be
inferred or may be implied beyond the opinions expressly set forth herein.



E. We have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary
duty exists with respect to any of the matters relevant to the opinions expressed in this letter.



F. We express no opinion as to (i) the compliance of the transactions contemplated by the Loan
Documents with any Laws applicable to any Person other than the Borrowers; (ii) the financial
condition or solvency of any Borrower; (iii) the ability (financial or otherwise) of any Borrower
or any other Person to meet its obligations under the Loan Documents; (iv) the compliance of the
Loan Documents or the transactions contemplated thereby with, or the effect on any of the opinions
expressed herein of, the antifraud provisions of Federal and state securities Laws; (v) the
conformity of the Loan Document to any term sheet or commitment letter; or (vi) any provision of
any Loan Document which would, to the extent not permitted by applicable Law, restrict, waive
access to or vary legal or equitable remedies or defenses (including, but not limited to, a right
to notice of and hearing on matters relating to prejudgment remedies, service of process, proper
jurisdiction and venue, forum non conveniens and the right to trial by jury) or the right to
collect damages (including, but not limited to, actual, consequential, special, indirect,
incidental, exemplary and punitive damages).


 


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To the Banks party to the within-mentioned Credit Agreement,

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




G. For purposes of this letter, the phrase “transactions of the type contemplated by the Loan
Documents” and similar phrases mean (i) the making of Advances and the issuance of Letters of
Credit by the banks party to the Credit Agreement and (ii) the performance by the Borrowers of
their respective obligations under the Loan Documents.



H. This letter is solely for your benefit, and no other Person (other than your permitted
successors and assigns under the Credit Agreement) shall be entitled to rely upon this opinion.
Without our prior written consent, this opinion may not be quoted in whole or in part or otherwise
referred to in any document and may not be furnished or otherwise disclosed to or used by any other
Person, except for (i) delivery of copies hereof to counsel for the addressees hereof and (ii)
inclusion of copies hereof in a closing file relating to the Credit Agreement.




Very truly yours,




AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.



 


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EXHIBIT H

Form of Opinion of

Special New York Counsel to the Administrative Agent





June 17, 2011



The
Royal Bank of Scotland plc, as

administrative agent, the fronting banks, the

swing line lenders and the lenders party to

the Credit Agreement defined below




Re: 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



Ladies and Gentlemen:



We have acted as special New York counsel to The Royal Bank of Scotland plc, individually and
as administrative agent (the “Administrative Agent”), in connection with the preparation, execution
and delivery of the Credit Agreement, dated as of June 17, 2011 (the “Credit Agreement”), among
FirstEnergy Corp., an Ohio corporation (“FE”), The Cleveland Electric Illuminating Company, an Ohio
corporation (“CEI”), Metropolitan Edison Company, a Pennsylvania corporation (“Met-Ed”), Ohio
Edison Company, an Ohio corporation (“OE”), Pennsylvania Power Company, a Pennsylvania corporation
(“Penn”), The Toledo Edison Company, an Ohio corporation (“TE”), American Transmission Systems,
Incorporated, a an Ohio corporation (“ATSI”), Jersey Central Power & Light Company, a New Jersey
corporation (“JCP&L”), Monongahela Power Company, an Ohio corporation (“MP”), Pennsylvania Electric
Company, a Pennsylvania corporation (“Penelec”), The Potomac Edison Company, a Maryland and
Virginia corporation (“PE”) and West Penn Power Company, a Pennsylvania corporation (“West-Penn”,
and together with FE, CEI, Met-Ed, OE, Penn, TE, ATSI, JCP&L, MP, Penelec and PE, the “Borrowers”
and each a “Borrower”), The Royal Bank of Scotland plc, as Administrative Agent for the Lenders
thereunder, the fronting banks party thereto, the swing line lenders party thereto and the Banks
party thereto. Unless otherwise defined herein, terms defined in the Credit Agreement are used
herein as therein defined. This opinion is being delivered pursuant to Section 3.01(a)(vii) of the
Credit Agreement.



In that connection, we have examined (i) counterparts of the Credit Agreement, executed by the
Borrowers, the Banks, the Swing Line Lenders, the Administrative Agent and the Fronting Banks, (ii)
a form of the Notes and (iii) the other documents furnished to the Administrative Agent pursuant to
Section 3.01(a) of the Credit Agreement, including (without limitation) the opinions of (i) Wendy
E. Stark, Associate General Counsel of FE, counsel to the Borrowers, (ii) DLA Piper LLP (US),
special counsel to PE, (iii) Hunton & Williams LLP, special counsel to PE, (iv) Morgan, Lewis &
Bockius LLP, special counsel to JCP&L, and (v) Akin Gump Strauss
Hauer & Feld LLP, special counsel to the Borrowers (such opinions referred to hereinafter,
collectively, as the “Borrowers’ Counsel Opinions”).


 


 









 





In our examination of the documents referred to above, we have assumed the authenticity of all
such documents submitted to us as originals, the genuineness of all signatures, the due authority
of the parties executing such documents and the conformity to the originals of all such documents
submitted to us as copies. We have also assumed that each of the Banks, the Swing Line Lenders,
the Fronting Banks and the Administrative Agent have duly executed and delivered, with all
necessary power and authority (corporate and otherwise), the Credit Agreement. We have further
assumed that you have evaluated, and are satisfied with, the creditworthiness of the Borrowers and
the business and financial terms evidenced by the Loan Documents.



To the extent that our opinions expressed below involve conclusions as to matters governed by
law other than the law of the State of New York and the Federal law of the United States, we have
relied upon the Borrowers’ Counsel Opinions and have assumed without independent investigation the
correctness of the matters set forth therein, our opinions expressed below being subject to the
assumptions, qualifications and limitations set forth in the Borrowers’ Counsel Opinions. As to
matters of fact, we have relied solely upon the documents we have examined. We note that we do not
represent the Borrowers, and accordingly, are not privy to the nature or character of their
business. Accordingly, we have assumed that the Borrowers are subject only to statutes, rules,
regulations, judgments, orders and other requirements of law generally applicable to corporations
doing business in the State of New York.



Based upon the foregoing, and subject to the qualifications set forth below, we are of the
opinion that:




	 	(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.







Our opinions are subject to the following qualifications:




	 	(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.






The foregoing opinion is solely for your benefit and may not be relied upon by any other
Person other than any Person that may become a Lender under the Credit Agreement after the date
hereof.




Very truly yours,



MEO:kty:mg




 


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