JERSEY CENTRAL POWER & LIGHT COMPANY (a New Jersey corporation) $300,000,000 7.35% Senior Notes due 2019 UNDERWRITING AGREEMENT
EXECUTION
VERSION
EXHIBIT
1.1
JERSEY
CENTRAL POWER & LIGHT COMPANY
(a New Jersey
corporation)
$300,000,000 7.35%
Senior Notes due 2019
January 22,
2009
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Greenwich
Capital Markets, Inc.
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& Co. Incorporated
UBS Securities
LLC
Wachovia
Capital Markets, LLC
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
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c/o Greenwich
Capital Markets, Inc.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
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UBS Securities
LLC
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Wachovia
Capital Markets, LLC
One Wachovia
Center, 6th Floor
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Ladies and
Gentlemen:
Jersey Central Power
& Light Company, a corporation organized under the laws of the State of New
Jersey (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the “Underwriters”, which
term, when the context permits, shall also include any underwriters substituted
as hereinafter provided in Section 11), for whom
Greenwich Capital Markets, Inc. (“Greenwich Capital”),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”), UBS
Securities LLC (“UBS”) and Wachovia
Capital Markets, LLC (“Wachovia”) are acting
as representatives (in such capacity, the “Representatives”),
$300,000,000 aggregate principal amount of the Company’s 7.35% Senior Notes due
2019 (the “Notes”), to be issued
under the Company’s Senior Note Indenture, dated as of July 1, 1999, between the
Company and The Bank of New York Mellon Trust Company, N.A., as successor
trustee (the “Trustee”), as
heretofore supplemented (the “Senior Note
Indenture”) and as to be further supplemented, for the issuance of the
Notes, by a Company Order issued pursuant to resolutions of the board of
directors of the Company to be effective on or about January 26, 2009 (the
“Company
Order,” and, together with the Senior Note Indenture, hereinafter
referred to as the “Indenture”) in
accordance with the terms set forth in this underwriting agreement (the “Underwriting
Agreement”). The Notes shall have the series designation,
denominations, issue price, maturities, interest rates, redemption provisions,
if any, and other terms as set forth in the General Disclosure Package
(hereinafter defined).
SECTION
1. Representations and
Warranties.
(a) Representations and Warranties by
the Company. The Company
represents and warrants to and agrees with each Underwriter that:
(i) An “automatic shelf
registration statement” as defined in Rule 405 (“Rule 405”) under the
Securities Act of 1933, as amended (the “Securities Act”), on
Form S-3 (File No. 333-153608-03) to be used in connection with the public
offering and sale of debt securities, including the Notes, and other securities
of the Company under the Securities Act and the rules and regulations
promulgated thereunder (the “Rules and
Regulations”) and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act, has been prepared and filed by the
Company not earlier than three years prior to the date hereof, in conformity
with the requirements of the Securities Act and the Rules and
Regulations. The Company will file with the Securities and Exchange
Commission (the “Commission”) a
prospectus supplement specifically relating to the terms of the Notes pursuant
to Rule 424(b) (“Rule 424(b)”)
under the Securities Act. The Company qualifies for use of Form S-3
for the registration of the Notes and the Notes are registered under the
Securities Act. “Registration
Statement” as of any time means such registration statement in the form
then filed with the Commission, including any amendment thereto, any document
incorporated or deemed to be incorporated by reference therein and any
information in a prospectus or prospectus supplement deemed or retroactively
deemed to be a part thereof pursuant to Rule 430B (“Rule 430B”) or
430C (“Rule 430C”)
under the Securities Act that has not been superseded or
modified. “Registration
Statement” without reference to a time means the Registration Statement
as of the Applicable Time (hereinafter defined), which time shall be considered
the “Effective
Date” of the Registration Statement relating to the Notes. For
purposes of this definition, information contained in a form of prospectus or
prospectus supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430B shall be considered to be included
in the Registration Statement as of the time specified in Rule 430B. At the time
of filing the Registration Statement, at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or
form of prospectus), at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the
Securities Act) made any offer relating to the Notes in reliance on the
exemption of Rule 163 of the Securities Act, and as of the date hereof, the
Company was and is a “well known seasoned issuer” as defined in Rule 405 of
the Securities Act.
(ii)
At the
time the Registration Statement initially became effective, at the time that
each amendment thereto for the purposes of complying with Section 10(a)(3)
of the Securities Act (whether by post-effective amendment, incorporated report
or form of prospectus) became effective and on the Effective Date relating to
the Notes, the Registration Statement conformed and will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture Act
of 1939 (“Trust
Indenture Act”), as the case may be, and the Rules and Regulations and
did not and will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. On the date hereof, on the date of
any filing pursuant to Rule 424(b) and on the Closing Date (hereinafter
defined), the Registration Statement and the Prospectus (as defined in this
paragraph (ii)) will conform in all material respects to the requirements of the
Securities Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents made in reliance
upon and in conformity with information furnished in writing to the Company by
any Underwriter through the Representatives, if any, specifically for use
therein or to any statements in or omissions from the Statement of Eligibility
of the Trustee under the Indenture, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in Section 7(b) hereof,
but nothing contained herein is intended as a waiver of compliance with the
Securities Act or the Rules and Regulations. For purposes of this
Underwriting Agreement, “Statutory Prospectus”
as of any time means the preliminary prospectus supplement (which term includes
the base prospectus) or prospectus relating to the Notes that is included in the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any basic prospectus or prospectus
supplement deemed to be a part thereof pursuant to Rule 430B or 430C that has
not been superseded or modified. For purposes of this definition,
information contained in a form of prospectus (including a prospectus
supplement) that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430B shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of prospectus
(including a prospectus supplement) is filed with the Commission pursuant to
Rule 424(b) and not retroactively. “Prospectus” means the
Statutory Prospectus that discloses the public offering price and other final
terms of the Notes and otherwise satisfies Section 10(a) of the Securities
Act.
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(iii) The documents
incorporated or deemed to be incorporated by reference in the General Disclosure
Package (as hereinafter defined) and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements, as applicable, of the Exchange Act and
the rules and regulations of the Commission thereunder, and, when read together
with other information in the General Disclosure Package or the Prospectus, as
applicable, do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
(iv) (A) At the earliest
time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Notes and (B) on the date
hereof, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405, including (x) the Company or any other subsidiary in the
preceding three years not having been convicted of a felony or misdemeanor or
having been made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or similar
proceeding, not having had a registration statement be the subject of a
proceeding under Section 8 of the Securities Act and not being the subject of a
proceeding under Section 8A of the Securities Act in connection with an offering
of securities, all as described in Rule 405.
(v) As of the Applicable
Time (as defined in this paragraph (v)), neither (A) the Issuer Free Writing
Prospectus(es) (as defined in this paragraph (v)) listed in Schedule II hereto,
the Statutory Prospectus, all considered together (collectively, the “General Disclosure
Package”), nor (B) any individual Issuer Free Writing Prospectus (as
defined in this paragraph (v)), when considered together with the General
Disclosure Package, included any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof. “Applicable Time”
means 2:08 p.m. (Eastern Time) on the date hereof. “Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 (“Rule 433”) under
the Securities Act, relating to the Notes in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g).
(vi) Each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent times through the
completion of the public offering and sale of the Notes or until any earlier
date that the Company notified or notifies the Representatives as described in
the next sentence and in Section 3(j) hereof,
did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained in the
Registration Statement, the General Disclosure Package and the
Prospectus. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b)
hereof.
(vii) The historical
consolidated financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement, the Prospectus and the General Disclosure Package present fairly in
all material respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, except as otherwise
disclosed in the General Disclosure Package.
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(viii) Since the most
recent time as of which information is given in the General Disclosure Package
and the Prospectus, there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the business
prospects, earnings, business, properties, condition (financial or otherwise) or
operations of the Company and its subsidiaries, taken as a whole, other than
changes and developments contemplated by the General Disclosure Package and the
Prospectus, respectively.
(ix)
The
Company has been duly incorporated and is validly subsisting as a corporation in
good standing under the laws of the State of New Jersey, has the corporate power
and authority to own, lease or operate its property and to conduct its business
as described in the Prospectus and the General Disclosure Package and is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a material
adverse effect on the condition (financial or otherwise), business prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole.
(x)
Each
subsidiary of the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease or operate
its property and to conduct its business as described in the Prospectus and the
General Disclosure Package and is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the condition
(financial or otherwise), business prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(xi)
This
Underwriting Agreement has been duly authorized, executed and delivered by the
Company, and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws relating to or affecting
enforcement of creditors’ rights generally, or by general principles of equity
(whether enforcement is considered in a proceeding in equity or at law) and by
an implied covenant of good faith and fair dealing, and except that the
enforcement of rights to indemnification and contribution hereunder may be
limited by applicable law or public policy.
(xii) The Senior Note
Indenture has been, and on the Closing Date, the Indenture will be, (1) duly
qualified under the Trust Indenture Act and (2) duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
enforceable against the Company in accordance with its terms except as may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors’ rights generally, by general equitable principles (whether
enforceability is considered in a proceeding in equity or in law) and by an
implied covenant of good faith and fair dealing.
(xiii) The Notes have been
duly authorized by the Company, and, when they have been duly executed by the
Company, authenticated by the Trustee, and issued and delivered against payment
therefor as provided herein, will constitute valid and binding obligations of
the Company enforceable against the Company in accordance with their terms,
except as may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting the
enforcement of creditors’ rights generally, by general equitable principles
(whether such enforceability is considered in a proceeding in equity or at law)
and by an implied covenant of good faith and fair dealing and will be entitled
to the benefits provided by the Indenture.
(xiv)
The
Notes and the Senior Note Indenture conform, and on the Closing Date, the
Indenture will conform, in all material respects to the descriptions thereof
contained in the Prospectus and the General Disclosure Package.
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(xv) Neither the issuance
and sale of the Notes nor the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Underwriting
Agreement, the Indenture and the Notes will (A) contravene, or (B) result in the
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, (a) any provision of applicable
law, (b) the amended and restated certificate of incorporation or amended and
restated bylaws, or other organizational documents, each as amended, of the
Company or any subsidiary of the Company, (c) any agreement or other instrument
binding upon the Company or any subsidiary of the Company or (d) any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties. Furthermore, neither the Company nor any subsidiary of
the Company is (x) in violation of any applicable law, or (y) in
violation or in default, of its respective amended and restated
certificate of incorporation or amended and restated bylaws, each as amended, or
other organizational documents, or in the performance of any bond, debenture,
note or any other evidence of indebtedness or any indenture, mortgage, deed of
trust or other contract, lease or other instrument to which it is a party or by
which any of them is bound, or to which any of its property or assets is
subject, except such defaults as have been waived or which would not have,
singly or in the aggregate, a material adverse effect on the condition
(financial or otherwise), business prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(xvi) Other than as
disclosed in the Prospectus and the General Disclosure Package, there are no
legal or governmental proceedings pending or, to the knowledge of the Company,
threatened, to which the Company or any subsidiary of the Company is a party or
to which any of the properties of the Company or any subsidiary of the Company
are subject wherein an unfavorable decision, ruling or finding could reasonably
be expected to have a material adverse effect on the condition (financial or
otherwise), business prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under this Underwriting Agreement, or to
consummate the transactions contemplated by the Prospectus and the General
Disclosure Package; and there is no franchise, contract or other document of a
character required to be described in the Registration Statement, the Prospectus
or the General Disclosure Package, or to be filed or incorporated by reference
as an exhibit thereto, which is not described, filed or incorporated as
required.
(xvii) No consent,
approval, authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Securities Act and the Trust
Indenture Act, such as has been obtained from the New Jersey Board of Public
Utilities (“NJBPU”), and such as
may be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Notes by the Underwriters in the manner
contemplated herein and in the General Disclosure Package. The
Company possesses such certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct its business as currently operated, except where the failure to possess
such certificate, authorization or permit would not have a material adverse
effect on the condition (financial or otherwise), business prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole.
(xviii) The Company and each
of its subsidiaries (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) has received all permits, licenses or other approvals required of it
under applicable Environmental Laws to conduct its business and (iii) is in
compliance with all terms and conditions of any such permit, license or
approval, except in cases in which that noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a
whole.
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(xix)
The
Company maintains (x) systems of “internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements
of the Exchange Act and have been designed by, or under the supervision of, its
principal executive and principal financial officers, or persons performing
similar functions, sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; and (y) a system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed
to ensure that information required to be disclosed by the Company in reports
that it files with the Commission pursuant to the Commission’s rules and forms,
including controls and procedures designed to ensure that such information is
accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure, and such disclosure controls and
procedures are effective. The Company’s internal control over
financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting.
(xx)
The
Company is not, and after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus and
the General Disclosure Package will not be, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(xxi) PricewaterhouseCoopers LLP, which has certified certain financial statements of the Company and its subsidiaries, is an independent registered public accounting firm as required by the Securities Act and the Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(xxii) The Company does not
own or control, directly or indirectly, any corporation or other entity other
than the subsidiaries listed on Schedule III hereto.
(xxiii) There is and has
been no failure on the part of the Company and, to the Company’s knowledge
(having made due inquiry), any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 relating
to loans and Sections 302 and 906 relating to certifications.
(b) Officer’s
Certificates. Any certificate signed by any duly authorized
officer of the Company and delivered to the Underwriters or to counsel for the
Underwriters in connection with this offering shall be deemed a representation
and warranty by the Company to the Underwriters as to the matters covered
thereby.
SECTION
2. Sale and Delivery to
Underwriters; Closing.
(a) Purchase and
Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $297,669,000, the principal
amount of the Notes set forth opposite such Underwriter’s name in Schedule I
hereto plus any additional principal amount of Notes which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 11, subject
to such adjustments among the Underwriters as the Representatives, on behalf of
the Underwriters, shall make to eliminate any sales or purchases of fractional
Notes.
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(b) Payment and
Delivery. Payment of the purchase price for, and delivery of
certificates for, the Notes shall be made at the office of Akin Gump ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or
at such other place as shall be agreed upon by the Company and the
Representatives on behalf of the Underwriters, at 10:00 a.m., (Eastern Time), on
the third business day after the date hereof, or such other time not later than
ten business days after such date as shall be agreed upon by the Company and the
Representatives on behalf of the Underwriters (such time and date of payment and
delivery being herein called the “Closing
Date”).
Payment shall be
made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Underwriters for the
account of the Underwriters of the Notes to be purchased by them.
The delivery of the
Notes shall be made in fully registered form, registered in the name of CEDE
& CO., to the offices of The Depository Trust Company (“DTC”) in New York,
New York, or its designee, and the Underwriters shall accept such
delivery.
The certificate(s)
representing the Notes shall be made available for examination by the
Representatives not later than 2:00 p.m. (Eastern Time) on the last business day
prior to the Closing Date at such place as may be agreed upon between the
Representatives and the Company.
SECTION
3. Covenants of the
Company. The Company covenants with the Underwriters as
follows:
(a)
To
promptly file each Statutory Prospectus (including the Prospectus) with the
Commission pursuant to Rule 424(b) under the Securities Act.
(b)
The
Company will advise the Representatives promptly of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof or any order suspending or preventing the use
of the Statutory Prospectus, the Prospectus or any Issuer Free Writing
Prospectus, and will use its best efforts to prevent the issuance of any such
stop order or other such order and to obtain as soon as possible its lifting, if
issued.
(c) To furnish without
charge to the Representatives a signed copy of the Registration Statement,
including all exhibits filed with the Registration Statement and the documents
incorporated by reference therein (other than exhibits which are incorporated by
reference therein) and to each other Underwriter a copy of the Registration
Statement without exhibits and, during the period mentioned in paragraph (e)
below, as many copies of the Prospectus and any documents incorporated by
reference therein at or after the date thereof and any amendments and
supplements thereto as the Representatives may reasonably
request. The terms “supplement” and “amendment” as used in this
Underwriting Agreement shall include all documents filed by the Company with the
Commission subsequent to the date of the Prospectus pursuant to the Exchange Act
which are deemed to be incorporated by reference in the Prospectus.
(d) Before amending or
supplementing the Registration Statement or any Statutory Prospectus or filing
with the Commission any document pursuant to Section 13, 14 or 15(d) of the
Exchange Act, during the period referred to in paragraph (e) below, to furnish
to the Representatives a copy of each such proposed amendment, supplement or
document for the Representatives’ review prior to filing and not to file any
such proposed amendment, supplement or document to which the Representatives
reasonably object.
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(e) The Company will
promptly notify the Underwriters, and confirm such notice in writing (which
notice and confirmation may be satisfied by providing the Underwriters with any
related periodic report filed under the Exchange Act), of (x) any filing
made by the Company of information relating to the offering of the Notes with
any securities exchange or any other regulatory body in the United States or any
other jurisdiction, and (y) any material changes in or affecting the
condition (financial or otherwise), business prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, which
(i) make any statement in the Prospectus as then amended or supplemented
materially false or misleading or (ii) are not disclosed in the Prospectus
as then amended or supplemented. If, at any time when a prospectus
covering the Notes is (or but for the exemption in Rule 172 under the Securities
Act would be) required by law to be delivered in connection with sales of the
Notes by an Underwriter or dealer, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to amend the Registration Statement or
to amend or supplement the Prospectus or modify the information incorporated by
reference therein in order that the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time the Prospectus is (or but for the exemption in Rule 172 under the
Securities Act would be) delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus or modify such information to
comply with the Securities Act and the Rules and Regulations, forthwith to
prepare and file with the Commission and to furnish (subject to the conditions
in paragraph (c) above), at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Notes may have been sold by the Underwriters, and to any other
dealers upon request, such amendments or supplements to the Prospectus or
modifications to the documents incorporated by reference therein, so that the
statements in the Prospectus as so amended, supplemented or modified will not,
in the light of the circumstances existing at the time such Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with the Securities Act and the Rules and Regulations. If, prior to
the Closing Date, there occurs an event or development as a result of which the
General Disclosure Package would include an untrue statement of a material fact
or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when the General Disclosure Package
is delivered to a purchaser, not misleading, the Company promptly will notify
the Representatives so that any use of the General Disclosure Package may cease
until it is amended or supplemented, and will promptly prepare an amendment or
supplement that will correct such statement or omission.
(f)
The
Company will use its best efforts, in cooperation with the Underwriters, to
qualify the Notes for offering and sale under the applicable securities laws of
such jurisdictions as the Underwriters may designate and will maintain such
qualifications in effect as long as required for the sale of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company
will promptly advise the Representatives of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceedings for such purpose. The Company will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Notes for investment under the laws of such jurisdictions as the
Underwriters may reasonably request.
(g) The Company shall
take all reasonable action necessary to enable Standard & Poor’s Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), and
▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) to provide
their respective credit ratings of the Notes.
(h) The Company will use
the proceeds received by it from the sale of the Notes in the manner specified
in the Prospectus under “Use of Proceeds.”
8
(i)
During
a period beginning on the date of this Underwriting Agreement and continuing to
and including the Closing Date, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of, any
other debt securities issued or guaranteed by the Company or any of its
subsidiaries substantially similar to the Notes or securities of the Company or
any of its subsidiaries that are convertible into, or exchangeable for, the
Notes.
(j)
If at
any time following the issuance of an Issuer Free Writing Prospectus there
occurs an event or development as a result of which such Issuer Free Writing
Prospectus would conflict with the information then contained in the
Registration Statement, would include an untrue statement of a material fact or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that time, not
misleading, (A) the Company will promptly notify the Representatives and (B) the
Company will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
SECTION
4. Free Writing
Prospectuses.
(a) Free Writing
Prospectuses. The Company represents and agrees that, unless
it obtains the prior written consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior written
consent of the Company and the Representatives, it has not made and will not
make any offer relating to the Notes that would constitute an Issuer Free
Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the
Commission. The Company represents that it has complied and will
comply with the requirements of Rule 164 under the Securities Act and Rule 433
applicable to any Issuer Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping. The parties
hereto agree that the only Issuer Free Writing Prospectuses issued on or prior
to the Applicable Time and consented to by the Company and the Representatives
are specified on Schedule II hereto (including the final term sheet prepared in
accordance with Section 4(b)
below).
(b) Final Term
Sheet. The Company will prepare a final term sheet relating to
the Notes, containing only information that describes the final terms of the
Notes and otherwise in a form consented to by the Representatives, and will file
such final term sheet within the period required by Rule
433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing
Prospectus for purposes of this Underwriting Agreement and is specified in
Schedule II hereto.
SECTION
5. Payment of
Expenses.
(a) Expenses. The Company will
pay all expenses incident to the performance of its obligations under this
Underwriting Agreement, including (i) the preparation, printing and any
filing of each Statutory Prospectus (including the Prospectus) and each Issuer
Free Writing Prospectus and of each amendment or supplement thereto,
(ii) the preparation, reproduction and delivery to the Underwriters of this
Underwriting Agreement and such other documents as may be required in connection
with the offering, purchase, sale and delivery of the Notes, (iii) the
preparation, issuance and delivery of the certificates for the Notes to the
Underwriters, including any charges of DTC in connection therewith,
(iv) the fees and disbursements of the Company’s counsel, accountants and
other advisors (but not the fees and disbursements of counsel for the
Underwriters), (v) the qualification of the Notes under securities laws in
accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey, any supplement thereto and any legal investment survey
(such fees and disbursements not to exceed $7,500), (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes and (vii) any fees
payable in connection with the rating of the Notes in accordance with Section 3(g)
hereof.
9
(b) Termination of Underwriting
Agreement. If this
Underwriting Agreement is terminated by the Underwriters in accordance with the
provisions of Section
6, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including fees and disbursements of counsel for the
Underwriters which were reasonably incurred.
SECTION 6. Conditions of Underwriters’
Obligations. The obligations of the Underwriters hereunder are
subject to the accuracy of the representations and warranties of the Company
contained in Section
1(a) as of the Applicable Time, the time this Underwriting Agreement is
executed and delivered by the parties hereto and the Closing Date, to the
accuracy of the statements made in certificates of the Company executed by any
officer of the Company or any officer of any of the Company’s subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) No Stop
Orders. Subsequent to the execution and delivery of this
Underwriting Agreement and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall be in
effect, no order of the Commission directed to the adequacy or accuracy of any
document incorporated or deemed to be incorporated by reference in the
Prospectus shall be in effect, and no proceedings for either purpose or pursuant
to Section 8A of the Securities Act against the Company or relating to the
offering of the Notes shall be pending before or threatened by the Commission;
and
(b) No Material Adverse
Change. Subsequent to the execution and delivery of this
Underwriting Agreement and prior to the Closing Date, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the General Disclosure Package and the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the Applicable Time), any
material adverse change in the condition (financial or otherwise), business
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising in the ordinary course of
business.
(c) Officer’s
Certificate. The Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Sections 6(a) and
(b) above and
to the effect that the representations and warranties of the Company in Section 1(a) were
true and correct in all material respects when made and are true and correct in
all material respects with the same force and effect as though expressly made at
and as of the Closing Date, and that the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date. The
officer signing and delivering such certificate may rely upon the best of his or
her knowledge as to proceedings threatened.
(d) Opinions of Counsel for the
Company. At the Closing
Date, the Underwriters shall have received the favorable opinions, each dated as
of the Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Associate General Counsel for
FirstEnergy Corp., ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, special New Jersey Counsel
for the Company and Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to
the Company, each in form and substance reasonably satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letters for
the other Underwriters, to the effect set forth in Exhibits A-▇, ▇-▇ ▇nd A-3 hereto and to
such further effects as counsel to the Underwriters may reasonably
request. In giving her opinion, ▇▇▇▇▇ ▇. ▇▇▇▇▇ may rely, as to all
matters governed by the laws of the State of New York, upon the opinion of Akin
Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and as to all matters governed by the laws of
the State of New Jersey, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius
LLP. Each counsel may state that, insofar as her or its opinion
involves factual matters, such counsel has relied, to the extent she or it deems
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
10
(e) Opinion of Counsel for
Underwriters. At the Closing
Date, the Underwriters shall have received the favorable opinion, dated as of
the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, in form and substance satisfactory to the
Underwriters. In giving such opinion such counsel may rely, as to all
matters governed by the laws of the Commonwealth of Pennsylvania, upon the
opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, and as to all matters governed by the laws of the
State of New Jersey, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
Morristown, New Jersey, and may state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(f) Comfort
Letter.
(i) On or prior to the
date of this Underwriting Agreement, the Underwriters shall have received from
PricewaterhouseCoopers LLP a comfort letter, dated the date hereof, in form and
substance reasonably satisfactory to the Underwriters, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters (of the type ordinarily issued in transactions covered by
registration statements filed under the Securities Act) with respect to the
financial statements and certain financial information contained in the
Registration Statement and any Statutory Prospectus (including the Prospectus)
or incorporated therein by reference, with a specified date not more than three
business days prior to the date hereof.
(ii)
At the
Closing Date, the Underwriters shall have received from PricewaterhouseCoopers
LLP a letter dated as of the Closing Date, confirming, as of a date not more
than three business days prior to the Closing Date, the statements contained in
the letter delivered pursuant to Section 6(f)(i)
hereof.
(g) Maintenance of Rating. At the Closing
Date, the Notes shall be rated at least Baa2 by Moody’s and BBB by S&P, and
the Company shall have delivered to the Underwriters a letter, dated as of the
Closing Date, from each such rating agency, or other evidence reasonably
satisfactory to the Underwriters, confirming that the Notes have been assigned
such ratings; and since the date of this Underwriting Agreement, there shall not
have occurred any downgrading, nor shall any notice have been given of any
surveillance or review for a possible change that either indicates a negative
change or does not indicate the direction of the possible change, in the rating
accorded any of the Company’s securities by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) Clearance and Settlement. At the Closing
Date, the Notes shall be eligible for clearance and settlement through the
facilities of DTC.
(i) Additional Documents. At the Closing
Date, counsel for the Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Notes as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Notes as
herein contemplated shall be reasonably satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(j) Termination of Underwriting
Agreement. If any condition
contemplated by this Section shall not have been fulfilled when and as required
to be fulfilled, or if any of the opinions and certificates mentioned above or
elsewhere in this Underwriting Agreement shall not be reasonably satisfactory in
form and substance to the Representatives and counsel for the Underwriters, this
Underwriting Agreement may be terminated by the Underwriters by notice to the
Company at any time at or prior to the Closing Date, and such termination shall
be without liability of any party to any other party except as provided in Section 5 and
except that Sections
7, 8,
9 and 16(a) shall survive
any such termination and remain in full force and effect.
11
SECTION
7. Indemnification.
(a) Indemnification of
Underwriters. The Company
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement at any time, any Statutory Prospectus at any time, the
Prospectus, the General Disclosure Package or any Issuer Free Writing
Prospectus, or arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each
Underwriter and each such controlling person, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage or liability, except insofar as such
losses, claims, damages or liabilities that arise out of or are based upon any
such untrue statement or omission or alleged untrue statement or omission are
based upon information furnished in writing to the Company by any Underwriter
expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section
7(b) hereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Indemnification of Company,
Directors and Officers. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
controlling the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, any Statutory
Prospectus, the Prospectus, the General Disclosure Package or any Issuer Free
Writing Prospectus. The Company acknowledges that the statements set
forth in the last paragraph of the cover page of the Prospectus regarding the
delivery of the Notes and, under the caption “Underwriting,” (i) the concession
and reallowance figures appearing in the third paragraph, (ii) the third
sentence of the sixth paragraph related to market-making activities, and (iii)
the seventh paragraph relating to stabilization, syndicate and covering
transactions and penalty bids, in the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for use in the
Registration Statement, any Statutory Prospectus, the Prospectus or any Issuer
Free Writing Prospectus. This indemnity agreement will be in addition
to any liability which the Underwriters may otherwise have.
(c) Actions Against Parties;
Notification. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. The
omission so to notify the indemnifying party (i) will not relieve it from any
liability under paragraph (a) or (b) above unless and to the extent such failure
results in the loss by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such action (including
any impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have reasonably concluded upon advice of
counsel that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party or (iii) the indemnifying party fails to assume the
defense of such proceeding or to employ counsel reasonably satisfactory to the
indemnified party. It is understood that, except as provided in the
following sentence, the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate counsel for all such indemnified
parties. Such counsel shall be designated in writing by the
Representatives in the case of parties indemnified pursuant to the second
preceding paragraph, and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph.
12
(d) Settlement. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there has been a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether the indemnified
parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding and (ii) does not include any statement as to, or any admission of,
fault, culpability or failure to act by or on behalf of any indemnified
party.
SECTION
8.
Contribution. In
the event that the indemnity provided for in Section 7 is held by
a court to be unavailable, in whole or in part, to hold harmless an indemnified
party for any reason, the Company and the Underwriters, severally and not
jointly, agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively “Losses”) to which the
Company and any of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other hand from the offering of the
Notes. If the allocation provided by the immediately preceding
sentence is held by a court to be unavailable for any reason, the Company and
the Underwriters, severally and not jointly, agree to contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by the Company, and benefits received by the Underwriters shall be
deemed to be equal to the discounts and commissions received by the
Underwriters. Relative fault shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on the
other hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public were offered to the public exceeds the amounts of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this Section 8,
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this
Section 8, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer that signs the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company. The Underwriters’ respective obligations to contribute
pursuant to this Section 8 are several
in proportion to the principal amount of Notes set forth opposite their
respective names in Schedule I hereto and not joint.
SECTION
9.
Representations, Warranties
and Agreements to Survive Delivery. All representations,
warranties and indemnity and contribution agreements contained in this
Underwriting Agreement or in certificates of the Company submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
termination of this Underwriting Agreement, any investigation made by or on
behalf of the Underwriters or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Notes to the
Underwriters.
13
SECTION
10. Termination of Underwriting
Agreement. The Underwriters may terminate this Underwriting
Agreement by notice given by the Representatives to the Company,
if after the effectiveness of this Underwriting Agreement and prior
to delivery of and payment for the Notes (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq Global Market, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over the counter market, (iii) any
moratorium on commercial banking activities shall have been declared by Federal
or New York State authorities or any material disruption in commercial banking,
securities settlement, payment or clearance services in the United States shall
have occurred, or (iv) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets, any declaration of war by
Congress, or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, singly or together with any
other event specified in this clause (iv), makes it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Notes on the terms and in the manner contemplated in the General
Disclosure Package and the Prospectus. Sections 7, 8, 9 and 16(a) shall survive
any termination under this Section 10 and remain
in full force and effect.
SECTION
11. Default by One or More of
the Underwriters. If one or more of the Underwriters shall
fail at the Closing Date to purchase the Notes which it or they are obligated to
purchase under this Underwriting Agreement (the “Defaulted Notes”),
the Underwriters shall have the right, but not the obligation, within 36 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other Underwriters, to purchase all, but not less than all,
of the Defaulted Notes in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Underwriters shall not have completed such
arrangements within such 36-hour period, then:
(a) if the number of
Defaulted Notes does not exceed 10% of the aggregate principal amount of the
Notes, the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective obligations to purchase hereunder bear to the obligations of all
non-defaulting Underwriters, or
(b) if the number of
Defaulted Notes exceeds 10% of the aggregate principal amount of the Notes, this
Underwriting Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken
pursuant to this Section 11 shall
relieve any defaulting Underwriter from liability in respect of its default
under this Underwriting Agreement.
In the event of any
such default which does not result in a termination of this Underwriting
Agreement, either the Underwriters or the Company shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Prospectus or in any other documents or
arrangements.
SECTION
12. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
Greenwich Capital Markets, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Debt Capital Markets Syndicate,
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Investment
Banking Department, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; to UBS Securities LLC, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Fixed
Income Syndicate, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; and to Wachovia Capital Markets,
LLC, One Wachovia Center, 6th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Transaction Management Group,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; notices to the Company shall be directed to it at ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇.
14
SECTION 13. Parties. This
Underwriting Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement is intended or shall be
construed to give any person, firm or corporation, other than
the Underwriters,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 7 and 8 and their heirs and
legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Underwriting Agreement or any provision herein
contained. This Underwriting Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Notes from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
SECTION
14. Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
(a)
the
Representatives have been retained solely to act as underwriters in connection
with the sale of Notes and that no fiduciary, advisory or
agency
relationship between the Company and the Representatives have been created in
respect of any of the transactions contemplated by this Underwriting Agreement,
irrespective of whether the Representatives have advised or are advising the
Company on other matters;
(b) the price of the
Notes set forth in the final term sheet attached as Annex A to Schedule II
hereto was established by the Company following discussions and arms-length
negotiations with the Representatives and the Company is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions of
the transactions contemplated by this Underwriting Agreement;
(c) the Company has been
advised that the Representatives and their affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of the
Company and that the Representatives have no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory
or agency relationship; and
(d) the Company waives,
to the fullest extent permitted by law, any claims it may have against the
Representatives for breach of fiduciary duty or alleged breach of fiduciary duty
and agrees that the Representatives shall have no liability (whether direct or
indirect) to the Company in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, employees or creditors of the Company.
SECTION 15. Patriot
Act. In accordance with the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the
Underwriters are required to obtain, verify and record information that
identifies their respective clients, including the Company, which information
may include the name and address of their respective clients, as well as other
information that will allow the underwriters to properly identify
their respective clients.
SECTION
16. Miscellaneous.
(a)
GOVERNING LAW AND
TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
The Company and the Underwriters hereby submit to the exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or
proceeding arising out of or relating to this Underwriting Agreement or the
transactions contemplated hereby.
(b)
Waiver of Jury
Trial. The Company and the Underwriters hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Underwriting Agreement or the transactions contemplated hereby.
15
(c) Counterparts. This
Underwriting Agreement may be executed in any number of separate counterparts,
each of which, when so executed and delivered, shall be deemed to be an original
and all of which taken together, shall constitute but one and the same
agreement.
(d) Successors. This
Underwriting Agreement shall inure to the benefit of and be binding upon, each
of the Company, the several Underwriters, and their respective successors and
the officers and directors and controlling persons referred to in Sections 7 and 8
hereof. The term “successor” as used in this Section shall not
include any purchaser, as such, of any Notes from the Underwriters.
(e) Integration. This
Underwriting Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
(f) Effect of
Headings. The section headings herein are for convenience only
and shall not affect the construction hereof.
16
If the foregoing is
in accordance with your understanding of our agreement, please sign counterparts
hereof.
|
Very truly
yours,
|
|
|
JERSEY CENTRAL
POWER & LIGHT COMPANY
|
|
|
as
Issuer
|
|
|
By:__________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
CONFIRMED AND
ACCEPTED,
|
|
as of the date
first above written:
|
|
GREENWICH
CAPITAL MARKETS, INC.
|
|
By:___________________________________
|
|
Name:
|
Title:
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& CO. INCORPORATED
|
|
By:___________________________________
|
Name:
Title:
|
UBS SECURITIES
LLC
|
|
By:___________________________________
|
Name:
Title:
|
By:___________________________________
|
Name:
Title:
|
WACHOVIA
CAPITAL MARKETS, LLC
|
|
By:___________________________________
|
Name:
Title:
Acting as
representatives of the several Underwriters
named in Schedule
I.
Schedule
I
|
Underwriters
|
Principal
Amount
of
Notes
|
|
|
Greenwich
Capital Markets,
Inc.
|
$75,000,000
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co.
Incorporated
|
75,000,000
|
|
|
UBS Securities
LLC
|
75,000,000
|
|
|
Wachovia
Capital Markets,
LLC
|
75,000,000
|
|
|
Total
|
$300,000,000
|
Sch
I
Schedule II
Schedule of Issuer Free
Writing Prospectuses
|
·
|
Final Term
Sheet attached to this Schedule II as Annex A (Issuer Free Writing
Prospectus)
|
Sch.
II
ANNEX
A
TO
SCHEDULE II
Final
Term Sheet
Attached
hereto.
Sch. II, Annex A-1
Filed Pursuant to
Rule 433
Registration No.
333-153608-03
January 22,
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power
& Light Company
Pricing Term
Sheet
|
Issuer
|
Jersey Central
Power & Light Company
|
|
Anticipated
Ratings*
|
Baa2/BBB
(▇▇▇▇▇’▇/S&P)
|
|
Principal
Amount
|
$300,000,000
|
|
Security
Type
|
7.35% Senior
Notes Due 2019
|
|
Trade
Date
|
January 22,
2009
|
|
Settlement
Date
|
January 27,
2009; T+3
|
|
Maturity
Date
|
February 1,
2019
|
|
Coupon
Payment Dates
|
Semi-annual
payments in arrears on February 1 and August 1
of each year,
beginning on August 1, 2009
|
|
Call
Structure
|
Make-whole
call at T+50 bps
|
|
Benchmark
|
3.75% due
November 15, 2018
|
|
Benchmark
Price
|
109-23+
|
|
Benchmark
Yield
|
2.618%
|
|
Reoffer
Spread
|
475
bps
|
|
Reoffer
Yield
|
7.368%
|
|
Coupon
|
7.35%
|
|
Price
|
99.873% of
principal amount
|
|
Net
Proceeds (%)
|
99.223%
|
|
Net
Proceeds ($)
|
$297,669,000
|
|
Joint-Bookrunners
|
Greenwich
Capital Markets, Inc. (25%)
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated (25%)
|
|
|
UBS Securities
LLC (25%)
|
|
|
Wachovia
Capital Markets, LLC (25%)
|
|
|
CUSIP
|
▇▇▇▇▇▇▇▇▇
|
|
ISIN
|
US476556DA05
|
|
*
Note: A securities rating is not a recommendation to buy, sell
or hold securities and may be subject to revision or withdrawal at any
time.
The
issuer has filed a registration statement (including a prospectus) with
the U.S. Securities and Exchange Commission (SEC) for this
offering. Before you invest, you should read the prospectus for
this offering in that registration statement, and other documents the
issuer has filed with the SEC for more complete information about the
issuer and this offering. You may get these documents for free
by searching the SEC online database (▇▇▇▇▇) at
▇▇▇.▇▇▇.▇▇▇. Alternatively, you may obtain a copy of the
prospectus from Greenwich Capital Markets, Inc. by calling toll-free at
▇-▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated by calling toll-free
at 1-866-718-1649, UBS Securities LLC by calling toll-free at
▇-▇▇▇-▇▇▇-▇▇▇▇, ext. 561-3884, or Wachovia Capital Markets, LLC by calling
toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇.
|
|
Sch. II, Annex A-2
Schedule
III
Subsidiaries
|
Name of Subsidiary
|
Business
|
State of Organization
|
% Ownership
|
|
JCP&L
Transition Funding LLC
|
Special-Purpose
Finance
|
Delaware
|
100%
|
|
JCP&L
Transition Funding II LLC
|
Special-Purpose
Finance
|
Delaware
|
100%
|
Sch.
III -1
Exhibit
A-1
FORM OF IN-HOUSE
OPINION
|
Greenwich
Capital Markets, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
UBS Securities
LLC
Wachovia
Capital Markets, LLC
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
|
|
c/o Greenwich
Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
|
|
UBS Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Wachovia
Capital Markets, LLC
One Wachovia
Center, 6th Floor
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
Ladies and
Gentlemen:
I am Associate
General Counsel of FirstEnergy Corp., and have acted as counsel to its
wholly-owned subsidiary, Jersey Central Power & Light Company, a New Jersey
corporation (the “Company”),
in connection with the issuance and sale by the Company pursuant to the
Underwriting Agreement, dated January 22, 2009, among Greenwich Capital Markets,
Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, UBS Securities LLC and Wachovia
Capital Markets, LLC, as Representatives of the Underwriters listed on Schedule
I thereto (collectively, the “Underwriters”),
and the Company (the “Underwriting
Agreement”)
of $300,000,000 aggregate principal amount of the Company’s 7.35% Senior Notes
due 2019 (the “Notes”). The
Notes are to be issued under the Company’s Senior Note Indenture, dated as of
July 1, 1999, between the Company and The Bank of New York Mellon Trust Company,
N.A., as successor trustee (the “Trustee”),
as heretofore supplemented (the “Senior Note
Indenture”) and as to be further supplemented, for the issuance of the
Notes, by a Company Order issued pursuant to resolutions of the board of
directors of the Company to be effective on or about January 26, 2009 (the
“Company
Order,” and, together with the Senior Note Indenture, hereinafter
referred to as the “Indenture”). This
opinion is rendered at the request of the Underwriters pursuant to Section 6(d)
of the Underwriting Agreement. All capitalized terms used in this letter,
without definition, have the meanings assigned to them in the Underwriting
Agreement.
Exh. A-1-1
For purposes
of this opinion, I or persons under my supervision and control have
reviewed:
(a) the Underwriting
Agreement;
(b) the
Indenture;
(c) the form of the
Notes;
( d) the Registration
Statement;
|
(e)
|
the prospectus
dated September 22, 2008 (SEC File No. 333-153608) (together with the
documents incorporated therein by reference, the “Base
Prospectus”) included in the Registration
Statement;
|
|
(f)
|
the
preliminary prospectus supplement, dated January 22, 2009 (together with
the documents incorporated therein by reference, the “Preliminary
Prospectus Supplement,” and together with the Base Prospectus, the
“Preliminary
Prospectus”), relating to the Notes, filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations under the Securities
Act;
|
|
(g)
|
the final term
sheet included as Annex A to Schedule II to the Underwriting Agreement
(together with the Preliminary Prospectus, the “General
Disclosure Package”), relating to the Notes, filed with the
Commission pursuant to Rule 433 of the Rules and Regulations under the
Securities Act; and
|
|
(h)
|
the final
prospectus supplement dated January 22, 2009 (together with the documents
incorporated therein by reference, the “Prospectus
Supplement,” and together with the Base Prospectus, the “Prospectus”),
relating to the Notes, filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations under the Securities
Act.
|
In addition, I or
persons under my supervision and control have reviewed, and relied as to matters
of fact upon, the documents delivered to you at the closing of the transaction
contemplated by the Underwriting Agreement and upon originals or copies,
certified or otherwise identified to my satisfaction, of the Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws of the
Company and of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such other and
further investigations, as I have deemed relevant and necessary as a basis for
this opinion. In such review, I or persons under my supervision have
assumed the due authorization, execution and delivery of each document by, and
the validity, binding nature and enforceability of each document against, each
of the parties thereto (other than the Company), the genuineness of all
signatures, the legal capacity of natural persons, the conformity to original
documents of all documents submitted to me as copies (whether or not certified
and including facsimiles) and the authenticity of such latter documents and of
all documents submitted to me as originals.
Based on the
foregoing and on the qualifications contained herein, I am of the opinion
that:
1. The Company is
validly subsisting and is duly qualified to do business under the laws of the
Commonwealth of Pennsylvania.
2. No consent,
approval, authorization, filing with or order of any Pennsylvania court or
governmental agency is required in connection with the transaction contemplated
by the Underwriting Agreement, except such as has been obtained from the
Pennsylvania Public Utilities Commission and such as may be required under the
securities or blue sky laws of any jurisdiction (other than the federal law of
the United States of America), as to which I express no
opinion.
Exh.
A-1-2
3. Neither the
consummation of the transaction contemplated in the Underwriting Agreement,
including the issuance and sale of the Notes, nor the fulfillment of the terms
thereof, will conflict with, result in breach, default or violation of, or
result in the imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, (A) the Amended and Restated Certificate of
Incorporation or the Amended and Restated Bylaws of the Company, (B) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other material agreement, obligation, condition, covenant or
instrument, to which the Company or any of its subsidiaries is a party or bound
or to which its or their property is subject, (C) any Pennsylvania law,
rule or regulation or (D) any judgment, order or decree known to me to be
applicable to the Company of any Pennsylvania court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties.
4. The Registration
Statement has become effective under the Securities Act and, to my knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the Securities Act or proceedings therefor initiated or threatened
by the Commission.
5. There are no legal
or governmental proceedings involving the Company or any of its subsidiaries or
its or their property pending or, to my knowledge, threatened that could
reasonably be expected to have a material adverse effect on the Company’s
performance of the Underwriting Agreement or the consummation of any of the
transactions contemplated thereby.
In connection with
the preparation by the Company of the Registration Statement, the General
Disclosure Package and the Prospectus, I or persons under my supervision have
had discussions with certain of the Company’s officers, employees and
representatives, with other counsel for the Company and with
PricewaterhouseCoopers LLP, the Company’s independent public accountants who
audited certain of the financial statements included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus. My review of the Registration Statement, the General
Disclosure Package and the Prospectus and the above-mentioned discussions did
not disclose to me any information that gives me reason to believe that (i) the
Registration Statement, as of each Effective Date relating to the Notes,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) the General Disclosure Package, as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (iii) the
Prospectus, as of its date and as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. I do not
express any belief as to the financial statements, including the notes thereto
and any related schedules, and other financial data derived therefrom included
or incorporated by reference in the Registration Statement, the General
Disclosure Package or the Prospectus.
I am a member of the
Bar of the Commonwealth of Pennsylvania, and I have a limited license to
practice law as an in-house counsel pursuant to Rule 1:27 of the Rules Governing
the Courts of the State of New Jersey, and, for purposes of this opinion, I do
not hold myself out as an expert on the laws of any other
jurisdiction. I express no opinion herein as to the application or
effect of the laws of any jurisdiction other than the laws of the Commonwealth
of Pennsylvania except that with respect to all matters covered hereby that are
governed by the federal law of the United States of America or the laws of the
State of New York, I have relied upon the opinion of even date herewith
addressed to you of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and to all matters
covered hereby that are governed by the laws of the State of New Jersey, I have
relied upon the opinion of even date herewith addressed to you of ▇▇▇▇▇▇, ▇▇▇▇▇
& Bockius LLP, Morristown, New Jersey.
Exh.
A-1-3
This letter and the
matters addressed herein are as of the date hereof, 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 Company 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.
The opinion set
forth herein is rendered to you solely for your benefit only in connection with
the transactions contemplated by the Underwriting Agreement and may not be
relied on by you for any other purpose, or furnished or quoted to or relied on
by any other person or entity (including by any person that acquires Notes from
any Underwriter) for any purpose, without my prior written consent.
|
Very truly yours,
|
|
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Counsel for Jersey Central Power & Light
Company
|
Exh.
A-1-4
EXHIBIT
A-2
FORM OF OPINION OF
▇▇▇▇▇▇, ▇▇▇▇▇ & BOCKIUS LLP,
MORRISTOWN, NEW
JERSEY
|
Greenwich
Capital Markets, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
UBS Securities
LLC
Wachovia
Capital Markets, LLC
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
|
|
c/o Greenwich
Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
|
|
UBS Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Wachovia
Capital Markets, LLC
One Wachovia
Center, 6th Floor
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
|
Re: Underwriting
Agreement, dated January 22, 2009, among Greenwich Capital Markets, Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, UBS Securities LLC and Wachovia
Capital Markets, LLC, as Representatives of the Underwriters listed on
Schedule I thereto (collectively, the “Underwriters”),
and Jersey Central Power & Light Company (the “Underwriting
Agreement”)
|
Ladies and
Gentlemen:
We have acted as
special New Jersey counsel to Jersey Central Power & Light Company, a New
Jersey corporation (the “Company”),
in connection with the issuance and sale by the Company pursuant to the
Underwriting Agreement of $300,000,000 aggregate principal amount of the
Company’s 7.35% Senior Notes due 2019 (the “Notes”). The
Notes are to be issued under the Company’s Senior Note Indenture, dated as of
July 1, 1999, between the Company and The Bank of New York Mellon Trust Company,
N.A., as successor trustee (the “Trustee”),
as heretofore supplemented (the “Senior Note
Indenture”) and as to be further supplemented, for the issuance of the
Notes, by a Company Order issued pursuant to resolutions of the board of
directors of the Company to be effective on or about January 26, 2009 (the
“Company
Order,” and, together with the Senior Note Indenture, hereinafter
referred to as the “Indenture”). This
opinion is rendered at the request of the Company pursuant to Section 6(d) of
the Underwriting Agreement. All capitalized terms used in this letter, without
definition, have the meanings assigned to them in the Underwriting
Agreement.
Exh
A-2-1
In connection with
this letter, we have examined executed originals or copies of executed originals
of each of the following documents (collectively, the “Transaction
Documents”):
(a) the Amended and
Restated Certificate of Incorporation of the Company, dated February 14,
2008;
(b) the Company
Order;
(c) the Amended and
Restated By-laws of the Company, dated January 9, 2008;
(d) the Underwriting
Agreement;
(e) the
Indenture;
(f) the form of the
Notes;
(g) the Registration
Statement;
|
(h)
|
the prospectus
dated September 22, 2008 (SEC File No. 333-153608) (together with the
documents incorporated therein by reference, the “Base
Prospectus”) included in the Registration
Statement;
|
|
(i)
|
the
preliminary prospectus supplement, dated January 22, 2009 (together with
the documents incorporated therein by reference, the “Preliminary
Prospectus Supplement,” and together with the Base Prospectus, the
“Preliminary
Prospectus”), relating to the Notes, filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations under the Securities
Act;
|
|
(j)
|
the final term
sheet included as Annex A to Schedule II to the Underwriting Agreement
(together with the Preliminary Prospectus, the “General
Disclosure Package”), relating to the Notes, filed with the
Commission pursuant to Rule 433 of the Rules and Regulations under the
Securities Act;
|
|
(k)
|
the final
prospectus supplement dated January 22, 2009 (together with the documents
incorporated therein by reference, the “Prospectus
Supplement,” and together with the Base Prospectus, the “Prospectus”),
relating to the Notes, filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations under the Securities Act;
and
|
(l) the Order of the
NJBPU dated December 9, 2008 (the “NJBPU
Order”).
We have also
examined such other documents and made such further investigation as we have
deemed necessary as a basis for this opinion. In our examination, we
have assumed the genuineness of all signatures (other than those of the
Company), the authenticity of all documents submitted to us as originals, the
conformity to originals of documents submitted to us as copies and the
authenticity of the originals of such latter documents. As to those
matters stated herein to be “to our knowledge” or “known to us”, our examination
has been limited to discussions with officers of the Company and lawyers within
our firm who have provided substantive attention to such matters, and we have
not conducted any independent investigation or verification or taken any action
beyond such discussions, nor made any search of the records of any governmental
authority with respect to such matters.
We are members of
the Bar of the State of New Jersey, and, for purposes of this opinion, do not
purport to be expert in the laws of any other jurisdiction. This
opinion is limited to matters governed by the laws of the State of New
Jersey.
Exh A-2-2
On the basis of the
foregoing, and subject to the qualifications set forth herein, we are of the
opinion that:
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1.
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The Company is
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with full corporate
power and authority (a) to execute, deliver and perform its obligations
under the Underwriting Agreement; (b) to perform its obligations under the
Indenture; and (c) to own or lease, as the case may be, and operate its
properties and conduct its business as described in the General Disclosure
Package.
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2. The
Indenture has been duly authorized, executed and delivered by the
Company.
3. The
Notes have been duly authorized and executed by the Company.
4. The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
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5.
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No consent,
approval, authorization, filing with or order of any New Jersey court or
governmental agency or body is required in connection with the
transactions contemplated by the Underwriting Agreement, except such as
has been obtained from the NJBPU and such as may be required under the New
Jersey securities or blue sky laws, as to which we express no
opinion. We note, however, that a further order of the NJBPU is
necessary in order for the Company to issue and sell any Notes at rates in
excess of those authorized in the NJBPU Order and we express no opinion as
to whether or not the interest rates on the Notes fall within the
parameters authorized by the NJBPU
Order.
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6.
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Neither the
consummation of the transaction contemplated in the Underwriting
Agreement, including the issuance and sale of the Notes, nor the
fulfillment of the terms thereof, will conflict with, result in breach or
violation of, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to (A) the
Charter or By-Laws, (B) any New Jersey law, rule or regulation or (C) any
judgment, order or decree known to us applicable to the Company of any New
Jersey court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its properties.
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7.
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To our
knowledge, there is no action, suit or proceeding by or before the NJBPU
involving the Company or any of its subsidiaries or its or their property
pending or threatened that (i) could reasonably be expected to have a
material adverse effect on the Company’s performance of the Underwriting
Agreement or the consummation of any of the transactions contemplated
thereby or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), business prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth or incorporated by reference in or
contemplated in the General Disclosure
Package.
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This opinion is
rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior consent, except that ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.,
Associate General Counsel of FirstEnergy Corp., may rely on this opinion, to the
extent it relates to matters that involve the Laws of the State of New Jersey,
in connection with her opinion to you of even date herewith with respect to the
Notes.
Very truly yours,
Exh A-2-3
Exhibit
A-3
FORM OF OPINION OF
AKIN GUMP ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
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Greenwich
Capital Markets, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
UBS Securities
LLC
Wachovia
Capital Markets, LLC
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
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c/o Greenwich
Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
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UBS Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Wachovia
Capital Markets, LLC
One Wachovia
Center, 6th Floor
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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Re: Underwriting
Agreement, dated January 22, 2009, among Greenwich Capital Markets, Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, UBS Securities LLC and Wachovia
Capital Markets, LLC, as Representatives of the Underwriters listed on
Schedule I thereto (collectively, the “Underwriters”),
and Jersey Central Power & Light Company (the “Underwriting
Agreement”)
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Ladies and
Gentlemen:
We have acted as
special counsel to Jersey Central Power & Light Company, a New Jersey
corporation (the “Company”),
in connection with the issuance and sale by the Company pursuant to the
Underwriting Agreement of $300,000,000 aggregate principal amount of the
Company’s 7.35% Senior Notes due 2019 (the “Notes”). The
Notes are to be issued under the Company’s Senior Note Indenture, dated as of
July 1, 1999, between the Company and The Bank of New York Mellon Trust Company,
N.A., as successor trustee (the “Trustee”),
as heretofore supplemented (the “Senior Note
Indenture”) and as to be further supplemented, for the issuance of the
Notes, by a Company Order issued pursuant to resolutions of the board of
directors of the Company to be effective on or about January 26, 2009 (the
“Company
Order,” and, together with the Senior Note Indenture, hereinafter
referred to as the “Indenture”). This
opinion is rendered at the request of the Company pursuant to Section 6(d) of
the Underwriting Agreement. All capitalized terms used in this letter, without
definition, have the meanings assigned to them in the Underwriting
Agreement.
In connection with
this letter, we have examined executed originals or copies of executed originals
of each of the following documents (collectively, the “Transaction
Documents”):
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(a)
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the
Underwriting Agreement;
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(b)
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the
Indenture;
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(c)
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the form of
the Notes;
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Exh. A-3-1
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(d)
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the
Registration Statement;
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(e)
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the prospectus
dated September 22, 2008 (SEC File No. 333-153608) (together with the
documents incorporated therein by reference, the “Base
Prospectus”) included in the Registration
Statement;
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(f)
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the
preliminary prospectus supplement, dated January 22, 2009 (together with
the documents incorporated therein by reference, the “Preliminary
Prospectus Supplement,” and together with the Base Prospectus, the
“Preliminary
Prospectus”), relating to the Notes, filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations under the Securities
Act;
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(g)
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the final term
sheet included as Annex A to Schedule II to the Underwriting Agreement
(together with the Preliminary Prospectus, the “General
Disclosure Package”), relating to the Notes, filed with the
Commission pursuant to Rule 433 of the Rules and Regulations under the
Securities Act; and
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(h)
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the final
prospectus supplement dated January 22, 2009 (together with the documents
incorporated therein by reference, the “Prospectus
Supplement,” and together with the Base Prospectus, the “Prospectus”),
relating to the Notes, filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations under the Securities
Act.
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In addition, we have
examined originals or certified copies of such corporate records of the Company
and other certificates and documents of officials of the Company, public
officials and others as we have deemed appropriate for purposes of this letter,
and relied upon them to the extent we deem appropriate. As to various
questions of fact relevant to this letter, we have relied, without independent
investigation, upon certificates of public officials, certificates of officers
of the Company, and representations and warranties of the Company contained in
the Transaction Documents, all of which we assume to be true, correct and
complete. In addition, we have made no inquiry of the Company or any
other person or entity (including governmental authorities), regarding any
judgments, orders, decrees, franchises, licenses, certificates, permits or other
public records or agreements to which the Company is a party other than those
described herein, and our knowledge of any such matters is accordingly
limited.
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 (a) the due organization, valid existence and good standing
under the laws of its jurisdiction of incorporation of each party to each
Transaction Document, (b) the legal capacity of natural persons, (c) the
corporate or other power and due authorization of each person not a natural
person to execute, deliver and perform its obligations under each Transaction
Document to which it is a party, and to consummate the transactions contemplated
by such Transaction Document, (d) the due execution and delivery of each
Transaction Document by all parties thereto (other than, in the case of the
Transaction Document referred to in paragraph 4 below, the Company), (e) that
each Transaction Document constitutes the valid and binding obligation of each
party thereto (other than, in the case of the Transaction Documents referred to
in paragraphs 2 through 4 below, the Company), enforceable against such
party in accordance with its terms, and (f) notwithstanding any provision
contained in any agreement or instrument listed on Schedule A hereto selecting
any law other than the Included Laws (as defined below) as the governing law
thereof, such agreement or instrument is governed by the Included
Laws.
Based upon the
foregoing and subject to the assumptions, exceptions, qualifications and
limitations set forth herein, we are of the opinion that:
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1.
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The statements
made in the General Disclosure Package and the Prospectus under the
headings “Description of Debt Securities” and “Description of Senior
Notes,” insofar as such statements constitute summaries of the Notes and
the Indenture, are accurate and complete in all material respects and the
Notes are consistent with the information in the General Disclosure
Package and the Prospectus.
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2.
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The Indenture
has been duly qualified under the Trust Indenture Act of 1939, as
amended, and constitutes the valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms.
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Exh. A-3-2
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3.
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When the Notes
have been duly executed by the Company, authenticated by the Trustee in
accordance with the Indenture and delivered by the Company against payment
therefor by the Underwriters pursuant to the Underwriting Agreement, they
will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the
benefits provided by the Indenture.
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4. The Underwriting
Agreement has been duly executed and delivered by the Company.
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5.
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No
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required under any
of the Included Laws for the due execution, delivery and performance of
the Underwriting Agreement by the Company and its transactions
contemplated by the Underwriting Agreement, except (i) such as have
already been obtained and are in full force and effect and (ii) such as
may be required under the securities or blue sky laws of any jurisdiction,
as to which we express no opinion.
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6.
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Neither the
consummation of the transaction contemplated in the Underwriting
Agreement, including the issuance and sale of the Notes, nor the
fulfillment of the terms thereof, will result in breach or violation of,
result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, (i) any agreement or
instrument of the Company listed on Schedule A hereto, (ii) any law,
rule or regulation under any Included Law or, to the best of our
knowledge, any order of any governmental authority or regulatory body
having jurisdiction over the Company or any of its properties under any
Included Law.
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7.
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Each of the
Registration Statement, as of the Effective Date relating to the Notes,
and the Prospectus, as of its date, and any amendment or supplement
thereto, as of its date (except in each case for the financial statements,
including the notes thereto and any related schedules, and other financial
data derived therefrom included or
incorporated by reference therein, as to which we express no opinion),
appeared on its face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the Rules and
Regulations thereunder; and each document or portion thereof filed by the
Company with the Commission pursuant to the Exchange Act, and incorporated
or deemed to be incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3, on the date filed with the Commission, appeared on
its face to be appropriately responsive in all material respects to the
requirements of the Exchange Act pursuant to which it was filed and the
applicable rules and regulations
thereunder.
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8.
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The
Registration Statement has become effective under the Securities Act and,
to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act or
proceedings therefor initiated or threatened by the
Commission.
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9.
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The Company is
not, and after giving effect to the offering and sale of the Notes, and
the application of the proceeds thereof as described in the Prospectus and
the General Disclosure Package will not be, an “investment company” within
the meaning of the Investment Company Act of 1940, as
amended.
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The
opinions and other matters in the letter are qualified in their entirety and
subject to the following:
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A.
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We express no
opinion as to the laws 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 letter, 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 in the Underwriting
Agreement. The term Included Laws specifically excludes (a)
Laws of any counties, cities, towns, municipalities and special political
subdivisions and any agencies thereof and (b) Laws relating to land use,
zoning and building code issues, taxes, environmental issues, intellectual
property Laws, antitrust issues and Federal Reserve Board margin
regulation issues.
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Exh.
A-3-3
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B.
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When used in
the letter, the phrase “best of
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 Transaction Documents, (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 (d) any lawyer in our firm who otherwise devotes
substantive attention to matters of the Company on behalf of this firm and
could reasonably be expected to have information material to the opinions
expressed herein, and (ii) do not require or imply (a) any examination of
any other person’s or entity’s files, (b) that any inquiry be made of the
client (other than as to the existence of any order referred to in
paragraph 6(ii) above), any lawyer (other than the lawyers described
above), or any other person or entity, or (c) any review or examination of
any agreements, documents, certificates, instruments or other papers other
than the Transaction Documents, the corporate records referred to in the
third paragraph of this letter and any agreement or instrument of the
Company listed on Schedule A
hereto.
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C.
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This letter
and the matters addressed herein are as of the date hereof or such earlier
date as is specified herein, and we undertake no, and 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
Company or any other person or entity, or any other
circumstance. This letter 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.
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D.
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The matters
expressed in paragraphs 2 through 4 of this letter 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; (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 and other Laws and public policy
underlying such Laws with respect to rights to indemnification and
contribution. Although it appears the requirements of Section
5-1402 of the New York General Obligations Law have been met, we express
no opinion on whether any choice of law provision in any of the
Transaction Documents referenced in Paragraphs 2 through 4 above 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 such Transaction
Document.
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E.
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We assume that
no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary
duty exists or will exist with respect to any of the matters relevant to
the opinions expressed herein.
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F.
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We express no
opinion as to (i) the compliance of the transactions contemplated by the
Underwriting Agreement with any regulations or governmental requirements
applicable to any party other than the Company; (ii) the financial
condition or solvency of the Company; (iii) the ability (financial or
otherwise) of the Company or any other party to meet their respective
obligations under the Underwriting Agreement; (iv) except to the extent
covered by the last paragraph hereof, the compliance of the Underwriting
Agreement or the transactions contemplated thereby with, or the effect of
any of the foregoing with respect to, the antifraud provisions of Federal
and state securities laws, rules and regulations; or (v) the conformity of
the Underwriting Agreement to any term sheet or commitment
letter.
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G.
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This letter is
solely for your benefit, and no other person or entity shall be entitled
to rely upon this letter, except that ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. may rely on
this opinion, to the extent it relates to matters that involve the Laws of
the State of New York and the Federal Laws of the United States of
America, in connection with her opinion to you of even date herewith with
respect to the Notes. Without our prior written consent, this letter 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 or entity, except for (i) delivery of copies hereof to counsel for
the addressees hereof; (ii) inclusion of copies hereof in a closing file;
and (iii) use hereof in any legal proceeding arising out of the
transactions contemplated by the Underwriting Agreement filed by an
addressee thereof against this law firm or in which any addressee hereof
is a defendant.
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* * *
Exh. A-3-4
Because the primary
purpose of our professional engagement was not to establish or confirm factual
matters or financial or accounting information, and because many determinations
involved in the preparation of the Registration Statement, the General
Disclosure Package and the Prospectus are of a wholly or partially non-legal
character, except as set forth in paragraph 1 of this letter, we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus and we
make no representation that we have independently verified the accuracy,
completeness or fairness of such statements.
However, in the
course of our acting as special counsel to the Company in connection with the
preparation of the Registration Statement, the General Disclosure Package and
the Prospectus, we have reviewed each such document and have participated in
conferences and telephone conversations with representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and representatives of the Underwriters’
counsel, during which conferences and conversations the contents of such
documents and related matters were discussed.
Based on our
participation in such conferences and conversations, our review of the documents
described above, our understanding of the U.S. Federal Securities laws and the
experience we have gained in our practice thereunder, we advise you that no
information has come to our attention that causes us to believe that (i) the
Registration Statement, as of the Effective Date relating to the Notes, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
the General Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading or (iii) the Prospectus, as of its date and
as of the Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in the case of each of the clauses (i)-(iii)
above, we do not express any view as to the financial statements, financial
schedules and other financial, accounting data derived therefrom contained or
incorporated by reference therein.
Very truly yours,
Exh. A-3-5