THE TOLEDO EDISON COMPANY (an Ohio corporation) $300,000,000 7.25% Senior Secured Notes due 2020 AMENDED AND RESTATED UNDERWRITING AGREEMENT
EXHIBIT
1.1
THE
TOLEDO EDISON COMPANY
(an Ohio
corporation)
$300,000,000 7.25%
Senior Secured Notes due 2020
AMENDED AND RESTATED
UNDERWRITING AGREEMENT
April 24,
2009
|
Credit Suisse
Securities (USA) LLC
Citigroup
Global Markets Inc.
▇.▇. ▇▇▇▇▇▇
Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
|
|
c/o Credit
Suisse Securities (USA) LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Citigroup
Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇
Securities Inc.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
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Ladies and
Gentlemen:
The
Toledo Edison Company, a corporation organized under the laws of the State of
Ohio (the “Company”), and 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 Credit Suisse Securities (USA)
LLC (“Credit
Suisse”), Citigroup Global Markets Inc. (“Citi”), ▇.▇. ▇▇▇▇▇▇
Securities Inc. (“▇.▇.
▇▇▇▇▇▇”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) are
acting as representatives (in such capacity, the “Representatives”),
are parties to that certain Underwriting Agreement (the “Original Underwriting
Agreement”) dated April 21, 2009, related to the Company’s proposed
issuance and sale to the Underwriters of $300,000,000 aggregate principal amount
of the
Company’s 7.25%
Senior Secured Notes due 2020 (the “Senior Notes”), to be
issued under an indenture dated November 1, 2006, as supplemented (the “Base Indenture”),
between the Company and The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A.) as trustee (the
“Trustee”), as
amended and supplemented by the First Supplemental Indenture, dated April 24,
2009 (the “First
Supplemental Indenture”) and an officer’s certificate, dated April 24,
2009 (the “Senior
Notes Officer Certificate,” together with the Base Indenture and the
First Supplemental Indenture being hereinafter referred to as the “Indenture”). The
Company and the Underwriters have agreed to make certain modifications to, and
to amend and restate in its entirety, the Original Underwriting Agreement on the
terms and conditions as set forth in this Amended and Restated Underwriting
Agreement (the “Amended and Restated
Underwriting Agreement”). The Senior Notes will be secured
ratably by a series of the Company’s first mortgage bonds (the “Bonds”), which will
be issued under an Indenture of Mortgage and Deed of Trust, dated as of April 1,
1947 (the “Mortgage
and Deed of Trust”), under which The Bank of New York Mellon Trust
Company, N.A. is successor trustee (the “Mortgage Trustee”),
as previously supplemented and modified by various supplemental indentures,
including the fifty-sixth supplemental indenture (the “Prior Supplemental
Indentures”), and as further amended and supplemented by the
fifty-seventh supplemental indenture relating to the Bonds (the “Fifty-Seventh Supplemental
Indenture,” and, together with the Mortgage and Deed of Trust and the
Prior Supplemental Indentures, the “First
Mortgage”). The Bonds shall have the same stated interest rate
and maturity date and other terms as the Senior Notes. The Senior
Notes (and the Bonds securing such Senior 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) to be used in connection with the public offering
and sale of debt securities, including the Senior 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 Senior 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 Senior Notes and the Senior 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
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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 Senior
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 Senior 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
Senior 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 Amended and Restated Underwriting
Agreement, “Statutory
Prospectus” as of any time means the preliminary prospectus supplement
(which term includes the base prospectus) or prospectus relating to the Senior
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
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424(b) and not
retroactively. “Prospectus” means the
Statutory Prospectus that discloses the public offering price and other final
terms of the Senior Notes and otherwise satisfies Section 10(a) of the
Securities Act.
(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 Senior 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 the
offering of the Senior Notes, 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 10:30 a.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 Senior 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 Senior 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
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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.
(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 existing as a corporation in good standing
under the laws of the State of Ohio, 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 Amended and
Restated 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,
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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 Base 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 Mortgage and
Deed of Trust has been, and on the Closing Date, the First Mortgage 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, and the laws of the United
States and the laws of the State of Ohio and the Commonwealth of Pennsylvania,
where the property covered thereby is located, affecting the remedies for the
enforcement of the security provided for therein.
(xiv) The Senior 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.
(xv) T he Bonds have been
duly authorized by the Company and, when the Bonds have been issued and
delivered pursuant to the First Mortgage, such Bonds will have been duly
executed, authenticated, issued and delivered, will constitute valid and legally
binding obligations of the Company entitled to the security afforded by the
First Mortgage, and will be owned and held by the Trustee, in trust, for the
benefit of the holders of the Senior Notes.
(xvi) The Senior Notes and
the Base 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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(xvii) The Bonds and the
Mortgage and Deed of Trust conform, and on the Closing Date, the First Mortgage
will conform, in all material respects to the descriptions thereof contained in
the Prospectus and the General Disclosure Package.
(xviii) Neither the issuance
and sale of the Senior Notes and the issuance of the Bonds, nor the execution
and delivery by the Company of, and the performance by the Company of its
obligations under, this Amended and Restated Underwriting Agreement, the
Indenture, the First Mortgage, the Senior Notes and the Bonds 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 articles of
incorporation or amended and restated code of regulations, 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 articles of incorporation or amended and restated code of regulations,
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.
(xix) 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 Amended and Restated 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.
(xx)
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 Public Utilities
Commission of Ohio, and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Senior
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
7
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.
(xxi) 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.
(xxii) The Company
maintains (x) systems of internal controls and processes 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) disclosure controls and procedures (as defined in
accordance with Rules 13a-15 and 15d-15 under the Exchange Act).
(xxiii) The Company is not,
and after giving effect to the offering and sale of the Senior 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.
(xxiv) 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.
(xxv) The Company does not
own or control, directly or indirectly, any corporation or other entity other
than the subsidiaries listed on Schedule III hereto.
(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.
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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 $297,421,500, the principal
amount of the Senior Notes set forth opposite such Underwriter’s name in
Schedule I hereto plus any additional principal amount of Senior 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 Senior Notes.
(b) Payment and
Delivery. Payment of the purchase price for, and delivery of
certificates for, the Senior Notes shall be made at the office of ▇▇▇▇▇▇, Halter
& ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Company and the Representatives
on behalf of the Underwriters, at 1:00 p.m., (Eastern Time), on 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 Senior Notes to be purchased by
them.
The delivery of the
Senior Notes shall be made in fully registered form, registered in the name of
CEDE & CO., to the offices of The Depository Trust Company in New York, New
York, or its designee, and the Underwriters shall accept such
delivery.
The certificate(s)
representing the Senior Notes shall be made available for examination by the
Representatives on 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,
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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
Amended and Restated 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.
(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 Senior 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 Senior 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 Senior 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 Senior 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
10
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 Senior
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 Senior 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 Senior 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
Senior 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 Senior 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 Senior Notes.
(h)
The Company will use
the proceeds received by it from the sale of the Senior Notes in the manner
specified in the Prospectus under “Use of Proceeds.”
(i) During a period
beginning on the date of this Amended and Restated 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 Senior Notes or securities of
the Company or any of its subsidiaries that are convertible into, or
exchangeable for, the Senior 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.
11
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 Senior 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 Rules 164 and 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 Senior Notes, containing only information that describes the final terms of
the Senior 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 Amended and Restated 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
Amended and Restated 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 Amended and Restated Underwriting Agreement and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Senior Notes, (iii) the preparation, issuance and delivery
of the certificates for the Senior Notes to the Underwriters, including any
charges of DTC in connection therewith, and the preparation, issuance and
delivery of the certificates for the Bonds to the Trustee, (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 Senior 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 and the Mortgage
Trustee, including the fees and disbursements of counsel for the Trustee and
Mortgage Trustee in connection with the Indenture, the First Mortgage, the
Senior Notes and the Bonds and (vii) any fees payable in connection with
the rating of the Senior Notes in accordance with Section 3(g)
hereof.
(b) Termination of Amended and Restated
Underwriting Agreement. If this Amended
and Restated Underwriting Agreement is terminated by the Underwriters in
accordance with the
12
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 Amended and Restated
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
Amended and Restated Underwriting Agreement and prior to the Closing
Date:
(i) 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 Senior Notes shall be pending before or threatened by the
Commission; and
(ii) 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 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 in the
ordinary course of business.
(b) 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 Section 6(a)(i) and
(ii) 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.
(c) 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇, Associate General Counsel for the
Company’s parent, FirstEnergy Corp., and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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-1 and A-2 hereto and to
such further effects as counsel to the Underwriters may reasonably
request. In
13
giving her opinion,
▇▇▇▇▇ ▇. ▇▇▇▇▇ may rely, as to all matters governed by the laws of the State of
New York, upon the opinion of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
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.
(d) 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 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.
(e) Comfort
Letter.
(i) On or prior to the
date of this Amended and Restated 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(e)(i) hereof.
(f) Maintenance of Rating. At the Closing
Date, the Senior Notes shall be rated at least Baa2 by ▇▇▇▇▇’▇ 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 Senior Notes
have been assigned such ratings; and since the date of this Amended and Restated
Underwriting Agreement, there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that 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.
(g) Clearance and Settlement. At the Closing
Date, the Senior Notes shall be eligible for clearance and settlement through
the facilities of DTC.
(h) 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 Senior Notes as herein
14
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 Senior
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(i) Termination of Amended and Restated
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 Amended and Restated Underwriting Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Amended and Restated 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 and
9 shall survive
any such termination and remain in full force and effect.
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 Senior Notes and, under the caption “Underwriting,” (i) the
concession and reallowance figures appearing in the third paragraph, (ii) the
second sentence
15
of the fourth
paragraph related to market-making activities, and (iii) the sixth 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.
(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,
16
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 Senior
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 Senior 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 Senior 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
17
Amended and Restated
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 Amended and Restated 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 Senior Notes
to the Underwriters.
SECTION
10.
Termination of Amended and
Restated Underwriting Agreement. The Underwriters may
terminate this Amended and Restated Underwriting Agreement by notice given by
the Representatives to the Company, if after the effectiveness of
this Amended and Restated Underwriting Agreement and prior to delivery of and
payment for the Senior 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 Senior Notes on the terms and in the manner contemplated in the
General Disclosure Package and the Prospectus. Sections 7, 8 and 9 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 Senior Notes which it or they are
obligated to purchase under this Amended and Restated 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
Senior 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 Senior
Notes, this Amended and Restated 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 Amended and Restated Underwriting
Agreement.
18
In the event of any
such default which does not result in a termination of this Amended and Restated
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
Credit Suisse Securities (USA) Inc., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: LCD-IBD, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; to ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: High Grade Syndicate Desk - 8th
Floor, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; notices to the Company shall be directed to it
at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇.
SECTION
13.
Parties. This
Amended and Restated 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 Amended and
Restated 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 Amended
and Restated Underwriting Agreement or any provision herein
contained. This Amended and Restated 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 Senior 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
Senior 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 ▇▇▇▇▇▇▇ and Restated Underwriting Agreement,
irrespective of whether the Representatives have advised or are advising the
Company on other matters;
(b) the price of the
Senior 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 Amended and Restated
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
19
(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.
Miscellaneous.
(a) GOVERNING LAW AND
TIME. THIS AMENDED AND RESTATED UNDERWRITING 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 Amended and Restated 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 Amended
and Restated Underwriting Agreement or the transactions contemplated
hereby.
(c) Counterparts. This
Amended and Restated 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
Amended and Restated 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, 8 and 9
hereof. The term “successor” as used in this section shall not
include any purchaser, as such, of any Senior Notes from the
Underwriters.
(e) Integration. This
Amended and Restated 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.
20
If the foregoing is
in accordance with your understanding of our agreement, please sign counterparts
hereof.
Very truly yours,
THE TOLEDO EDISON COMPANY
as Issuer
|
|
By:__________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
CONFIRMED AND
ACCEPTED,
|
|
|
as of the date
first above written:
|
CREDIT SUISSE
SECURITIES (USA) LLC
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
CITIGROUP
GLOBAL MARKETS INC.
|
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
▇.▇. ▇▇▇▇▇▇
SECURITIES INC.
|
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& CO. INCORPORATED
|
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
Acting as
representatives of the several Underwriters
named in Schedule
I.
Schedule
I
|
Underwriters
|
Principal
Amount
of Senior Notes
|
|
Credit Suisse
Securities (USA)
LLC .......................................................................
|
$102,000,000
|
|
Citigroup
Global Markets Inc.
.................................................................................
|
$66,000,000
|
|
▇.▇. ▇▇▇▇▇▇
Securities
Inc. .......................................................................................
|
$66,000,000
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
............................................................................
|
$66,000,000
|
|
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)
|
|
·
|
Free Writing
Prospectus dated April 21, 2009 attached to this Schedule II as Annex B
(Issuer Free Writing Prospectus)
|
Sch. II
ANNEX
A
TO
SCHEDULE II
Final
Term Sheet
Attached
hereto.
Sch. III -1
Filed Pursuant to
Rule 433
Registration No.
333-153608-04
April 24,
2009
The Toledo Edison
Company
Pricing Term
Sheet
|
Issuer
|
The Toledo
Edison Company
|
|
Ratings*
|
Baa2/BBB+
(▇▇▇▇▇’▇/S&P)
|
|
Principal
Amount
|
$300,000,000
|
|
Security
Type
|
7.25% Senior Secured Notes due 2020
|
|
Trade
Date
|
April 21,
2009
|
|
Settlement
Date
|
April 24,
2009; T+3
|
|
Maturity
Date
|
May 1,
2020
|
|
Coupon
Payment Dates
|
Semi-annual payments in arrears on May 1st and November
1st of each year,
beginning on November 1, 2009
|
|
Benchmark
|
UST 2.750% due
Feb 15, 2019
|
|
Benchmark
Price
|
98-23
|
|
Benchmark
Yield
|
2.901%
|
|
Reoffer
Spread
|
+ 437.5
bps
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
7.276%
|
|
Coupon
|
7.25%
|
|
Price
|
99.803%
|
|
Net
Proceeds (%)
|
99.141%
|
|
Net
Proceeds ($)
|
$297,421,500
|
|
Bookrunners
|
Credit Suisse
Securities (USA) LLC
|
|
Citigroup
Global Markets Inc.
|
|
|
▇.▇. ▇▇▇▇▇▇
Securities Inc.
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
|
|
|
CUSIP
|
▇▇▇▇▇▇▇▇▇
|
|
Pro
Forma Ratio of Earnings to Fixed Charges for the Fiscal Year Ended
December 31, 2007
|
2.10
|
|
Pro
Forma Ratio of Earnings to Fixed Charges for the Fiscal Year Ended
December 31, 2008
|
2.03
|
*
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.
Recent
Development
On
April 21, 2009, during a scheduled refueling outage as part of the routine
inspection by our affiliate, FirstEnergy Nuclear Operating Company (“FENOC”), a
small area of degradation was identified in the steel liner inside the
containment building at the Beaver Valley Power Station Unit 1. On
April 23, 2009, as the area was cleaned and further inspected by FENOC, a
penetration was revealed in the steel liner in an area approximately one inch by
three-eighths of an inch. The surrounding reinforced concrete wall
(approximately four feet thick) remained intact. No release of
radiation occurred.
FENOC notified the
Nuclear Regulatory Commission, and FENOC is in the process of further
investigating the cause and developing a repair plan. Other nuclear
plants have experienced similar kinds of corrosion in steel liners and addressed
them by using established industry repair procedures. While ▇▇▇▇▇
currently anticipates that the repair will be completed in the ordinary course
within the current outage for costs that are not material, FENOC is unable at
this time to confirm the cost or the duration of
Sch. III -
2
the
repair.
Until FENOC’s
investigation is completed, FirstEnergy cannot predict the ultimate outcome of
the continuing inspection and whether this will have a material impact on its
financial or operational results. While this matter is not expected
to have a direct financial or operational impact on First Energy’s other utility
subsidiaries or us -- as we do not own or operate the plant -- we cannot predict
how any negative impact on FirstEnergy could adversely impact us.
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 Credit Suisse Securities (USA) LLC by calling toll-free at
▇-▇▇▇-▇▇▇-▇▇▇▇, Citigroup Global Markets Inc. by calling
▇-▇▇▇-▇▇▇-▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ Securities Inc. by calling at ▇-▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated by calling
▇-▇▇▇-▇▇▇-▇▇▇▇.
Sch. III - 3
ANNEX
B
TO
SCHEDULE II
Free
Writing Prospectus
Attached
hereto.
Sch. III - 4
Filed Pursuant to
Rule 433
Registration No.
333-153608-04
April 21,
2009
The Toledo Edison
Company
Pricing Term
Sheet
|
Issuer
|
The Toledo
Edison Company
|
|
Ratings*
|
Baa2/BBB
(▇▇▇▇▇’▇/S&P)
|
|
Principal
Amount
|
$300,000,000
|
|
Security
Type
|
7.25% Senior
Secured Notes due 2020
|
|
Trade
Date
|
April 21,
2009
|
|
Settlement
Date
|
April 24,
2009; T+3
|
|
Maturity
Date
|
May 1,
2020
|
|
Coupon
Payment Dates
|
Semi-annual payments in arrears on May 1st and
November
1st of each year,
beginning on November 1, 2009
|
|
Benchmark
|
UST 2.750% due
Feb 15, 2019
|
|
Benchmark
Price
|
98-23
|
|
Benchmark
Yield
|
2.901%
|
|
Reoffer
Spread
|
+ 437.5
bps
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
7.276%
|
|
Coupon
|
7.25%
|
|
Price
|
99.803%
|
|
Net
Proceeds (%)
|
99.141%
|
|
Net
Proceeds ($)
|
$297,421,500
|
|
Bookrunners
|
Credit Suisse
Securities (USA) LLC
|
|
Citigroup
Global Markets Inc.
|
|
|
▇.▇. ▇▇▇▇▇▇
Securities Inc.
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
|
|
|
CUSIP
|
▇▇▇▇▇▇▇▇▇
|
|
ISIN
|
US889175BE40
|
|
Pro
Forma Ratio of Earnings to Fixed Charges for the Fiscal Year Ended
December 31, 2007
|
2.10
|
|
Pro
Forma Ratio of Earnings to Fixed Charges for the Fiscal Year Ended
December 31, 2008
|
2.03
|
|
*
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 Credit Suisse Securities (USA) LLC by calling toll-free at
▇-▇▇▇-▇▇▇-▇▇▇▇, Citigroup Global Markets Inc. by calling
▇-▇▇▇-▇▇▇-▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ Securities Inc. by calling at ▇-▇▇▇-▇▇▇-▇▇▇▇
or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated by calling
▇-▇▇▇-▇▇▇-▇▇▇▇.
|
|
Sch. III -
5
Schedule
III
Subsidiaries
|
Name of Subsidiary
|
Business
|
State of Organization
|
% Ownership
|
|
The Toledo
Edison Capital Corporation
|
Special-Purpose
Finance
|
Delaware
|
90%
|
Sch. III - 6
Exhibit
A-1
FORM OF IN-HOUSE
OPINION
|
Credit Suisse
Securities (USA) LLC
Citigroup
Global Markets Inc.
▇.▇. ▇▇▇▇▇▇
Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
|
|
c/o Credit
Suisse Securities (USA) LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Citigroup
Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇
Securities Inc.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
Ladies and
Gentlemen:
I am Associate
General Counsel of FirstEnergy Corp., and have acted as counsel to its
wholly-owned subsidiary, The Toledo Edison Company, an Ohio corporation (the
“Company”),
in connection with the issuance and sale by the Company pursuant to the Amended
and Restated Underwriting Agreement, dated April 24, 2009, among Credit Suisse
Securities (USA) LLC, Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as Representatives of the
Underwriters listed on Schedule I thereto (collectively, the “Underwriters”),
and the Company (the “Amended and
Restated Underwriting Agreement”)
of $300,000,000 aggregate principal amount of the Company’s 7.25% Senior Secured
Notes due 2020 (the “Senior
Notes”). The Senior Notes will be issued under an indenture
dated as of November 1, 2006, as supplemented (the “Base
Indenture”), between the Company and The Bank of New York Mellon Trust
Company, N.A., as successor trustee (the “Trustee”),
as amended and supplemented by a supplemental indenture dated as of April 24,
2009 (the “First
Supplemental Indenture”) and an officer’s certificate, dated April 24,
2009 (the “Senior Notes
Officer Certificate,” together
Exh.
A-1-1
with the Base
Indenture and the First Supplemental Indenture being hereinafter referred to as
the “Indenture”). The
Senior Notes will be secured ratably by a series of the Company’s first mortgage
bonds (the “Bonds”),
issued under an Indenture of Mortgage and Deed of Trust, dated as of April 1,
1947 (the “Mortgage and Deed
of Trust”), under which The Bank of New York Mellon Trust Company, N.A.
is successor trustee (the “Mortgage
Trustee”), as previously supplemented and modified by various
supplemental indentures, including the fifty-sixth supplemental indenture (the
“Prior
Supplemental Indentures”), and as to be further amended and supplemented
by the fifty-seventh supplemental indenture relating to the Bonds (the “Fifty-Seventh
Supplemental Indenture,” and, together with the Mortgage and Deed of
Trust and the Prior Supplemental Indentures, the “First
Mortgage”). This opinion is rendered at the request of the
Underwriters pursuant to Section 6(c) of the Amended and Restated Underwriting
Agreement. All capitalized terms used in this letter, without definition, have
the meanings assigned to them in the Amended and Restated Underwriting
Agreement.
For purposes of this
opinion, I or persons under my supervision and control have
reviewed:
|
|
the Amended
and Restated Underwriting
Agreement;
|
|
|
the
Indenture;
|
|
|
the First
Mortgage;
|
|
|
the form of
the Senior Notes;
|
|
|
the form of
the Bonds;
|
|
|
the
Registration Statement;
|
|
|
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;
|
|
|
the
preliminary prospectus supplement, dated April 21, 2009 (the “Preliminary
Prospectus Supplement,” and together with the Base Prospectus, the
“Preliminary
Prospectus”), relating to the Senior Notes, filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations under the
Securities Act;
|
|
|
the final term
sheet included as Annex A to Schedule II to the Amended and Restated
Underwriting Agreement (together with the Preliminary Prospectus, the
“General
Disclosure Package”), relating to the Senior Notes, filed with the
Commission pursuant to Rule 433 of the Rules and Regulations under the
Securities Act; and
|
Exh.A-1-2
|
|
the final
prospectus supplement dated April 24, 2009 (the “Prospectus
Supplement,” and together with the Base Prospectus, the “Prospectus”),
relating to the Senior 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 Amended and Restated Underwriting Agreement and upon
originals or copies, certified or otherwise identified to my satisfaction, of
the Amended and Restated Articles of Incorporation and Amended and Restated Code
of Regulations 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 was duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Ohio and the Commonwealth of Pennsylvania, with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the General
Disclosure Package, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction.
2. The Indenture and
the First Mortgage have been duly authorized, executed and delivered by the
Company and constitute valid and binding agreements of the Company enforceable
against the Company in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other similar laws relating to or affecting the enforcement of
creditors’ rights generally, by general equitable principles (whether considered
in a proceeding in equity or at law), by an implied covenant of good faith, fair
dealing and reasonableness and the laws of the United States and the laws of the
State of Ohio and the Commonwealth of Pennsylvania, where the property covered
thereby is located, affecting the remedies for the enforcement of the security
provided for therein.
3. The Senior Notes
have been duly authorized and executed by the Company and, when authenticated by
the Trustee in accordance with the Indenture and delivered by the
Exh.
A-1-3
Company against
payment therefor by the Underwriters pursuant to the Amended and Restated
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, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
other similar laws relating to or affecting the enforcement of creditors’ rights
generally, by general equitable principles (whether considered in a proceeding
in equity or at law) and by an implied covenant of good faith, fair dealing and
reasonableness.
4. The Bonds have been
duly authorized and executed by the Company and, when authenticated by the
Mortgage Trustee and delivered by the Company in accordance with the First
Mortgage, 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 First Mortgage, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
other similar laws relating to or affecting the enforcement of creditors’ rights
generally, by general equitable principles (whether considered in a proceeding
in equity or at law) and by an implied covenant of good faith, fair dealing and
reasonableness and the laws of the United States and the laws of the State of
Ohio, where the property covered thereby is located, affecting the remedies for
the enforcement of the security provided for therein.
5. The Amended and
Restated Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
6. No consent,
approval, authorization, filing with or order of any Ohio court or governmental
agency is required in connection with the transaction contemplated by the
Amended and Restated Underwriting Agreement, except such as has been obtained
from the Public Utilities Commission of Ohio 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.
7. Neither the
consummation of the transaction contemplated in the Amended and Restated
Underwriting Agreement, including the issuance and sale of the Senior Notes and
the issuance of the Bonds, 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 Amended and Restated Articles of Incorporation or the
Amended and Restated Code of Regulations 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 Ohio law, rule or
regulation or (D) any judgment, order or decree known to me to be applicable to
the Company of any Ohio court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its properties.
8. To the best of 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.
Exh.
A-1-4
9. 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 Senior 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 and statistical 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 State of Ohio and the Commonwealth of Pennsylvania, and, for purposes
of this opinion, I do not hold myself out as an expert on the laws of any 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 State of Ohio
and 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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP.
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 Amended and Restated 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 Senior Notes from any Underwriter) for any purpose, without my prior
written consent.
Exh.
A-1-5
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇
Exh. A-1-6
Exhibit
A-2
FORM OF OPINION OF
AKIN GUMP ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
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Credit Suisse
Securities (USA) LLC
Citigroup
Global Markets Inc.
▇.▇. ▇▇▇▇▇▇
Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
As
Representatives of the Underwriters
named
in Schedule I to the Underwriting
Agreement
(as defined below)
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c/o Credit
Suisse Securities (USA) LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Citigroup
Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇
Securities Inc.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
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|
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Re: Amended
and Restated Underwriting Agreement, dated April 24, 2009, among Credit
Suisse Securities (USA) LLC, Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇
Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as
Representatives of the Underwriters listed on Schedule I thereto
(collectively, the “Underwriters”)
and The Toledo Edison Company (the “Amended and
Restated Underwriting
Agreement”)
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Ladies and
Gentlemen:
We have acted as
special counsel to The Toledo Edison Company, an Ohio corporation (the “Company”),
in connection with the issuance and sale by the
Exh.
A-1-7
Company pursuant to
the Amended and Restated Underwriting Agreement of $300,000,000 aggregate
principal amount of the Company’s 7.25% Senior Secured Notes due 2020 (the
“Senior
Notes”), to be issued under an indenture dated November 1, 2006, as
supplemented (the “Base
Indenture”), between the Company and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.) as
trustee (the “Trustee”),
as to be amended and supplemented by the First Supplemental Indenture, dated as
of April 24, 2009 (the “First
Supplemental Indenture”) and an officer’s certificate, dated April 24,
2009 (the “Senior Notes
Officer Certificate,” together with the Base Indenture and the First
Supplemental Indenture, including the provisions of the Trust Indenture Act of
1939 that are deemed pursuant to Section 318(c) thereof to be part of and govern
such instrument, being hereinafter referred to as the “Indenture”)
in accordance with the terms set forth in the Amended and Restated Underwriting
Agreement. The Indenture provides that the Senior Notes will be
secured ratably by $300,000,000 aggregate principal amount of the Company’s
First Mortgage Bonds, 7.25% Series of 2009 Due 2020 (the “Bonds”),
which will be issued under an Indenture of Mortgage and Deed of Trust, dated as
of April 1, 1947 (the “Mortgage and Deed
of Trust”), under which The Bank of New York Mellon Trust Company, N.A.
is successor trustee, as previously supplemented and modified by various
supplemental indentures filed as exhibits to the Company’s Registration
Statement (SEC File No. 333-153608) (the “Registration
Statement”) and by the fifty-sixth supplemental indenture (the “Fifty-Sixth
Supplemental Indenture” and, together with such various other
supplemental indentures, the “Prior
Supplemental Indentures”), and as to be further amended and supplemented
by the fifty-seventh supplemental indenture relating to the Bonds (the “Fifty-Seventh
Supplemental Indenture,” and, together with the Mortgage and Deed of
Trust and the Prior Supplemental Indentures including the provisions of the
Trust Indenture Act of 1939 that are deemed pursuant to Section 318(c) thereof
to be part of and govern such instrument, the “First
Mortgage”). This opinion is rendered at the request of the
Company pursuant to Section 6(c) of the Amended and Restated Underwriting
Agreement. All capitalized terms used in this letter, without
definition, have the meanings assigned to them in the Amended and Restated
Underwriting Agreement.
Exh.
A-1-8
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 Amended
and Restated Underwriting
Agreement;
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(b)
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the
Indenture;
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(c)
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the First
Mortgage;
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(d)
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the form of
the Senior Notes;
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(e)
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the form of
the Bonds;
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(f)
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the
Registration Statement;
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(g)
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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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(h)
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the
preliminary prospectus supplement, dated April 21, 2009 (the “Preliminary
Prospectus Supplement,” and together with the Base Prospectus, the
“Preliminary
Prospectus”), relating to the Senior Notes, filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations under the
Securities Act;
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(i)
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the final term
sheet included as Annex A to Schedule II to the Amended and Restated
Underwriting Agreement (together with the Preliminary Prospectus, the
“General
Disclosure Package”), relating to the Senior Notes, filed with the
Commission pursuant to Rule 433 of the Rules and Regulations under the
Securities Act; and
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(j)
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the final
prospectus supplement dated April 24, 2009 (the “Prospectus
Supplement,” and together with the Base Prospectus, the “Prospectus”),
relating to the Senior Notes, filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations under the Securities
Act.
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Exh.
A-1-9
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, the conformity to authentic original documents of all copies
submitted to us as conformed, certified or reproduced copies and that the Senior
Notes will conform to the form we have reviewed. 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 Amended and Restated
Underwriting Agreement, the Company), (e) that each Transaction Document
constitutes the valid and binding obligation of each party thereto (other than,
in the case of the Indenture and the Senior Notes, the Company), enforceable
against such party in accordance with its terms, (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, and (g) that the Bonds have been duly issued in accordance with the First
Mortgage and delivered to the Trustee in accordance with the
Indenture.
Exh.A-1-10
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 Base Prospectus under the headings “Description of Senior
Unsecured Debt Securities” and “Description of Senior Secured Debt
Securities” (except to the extent replaced by statements in the Prospectus
Supplement under the headings “Description of Senior Notes” and
“Description of Senior Notes Mortgage Bonds”) and in the Prospectus
Supplement under the headings “Description of Senior Notes” and
“Description of Senior Note Mortgage Bonds,” except under the subheading
“— Security for the Senior Note Mortgage Bonds,” insofar as such
statements constitute summaries of the Senior Notes, the Bonds, the
Indenture and the First Mortgage, are accurate in all material
respects.
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2.
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The Indenture
and the First Mortgage have been duly qualified under the Trust Indenture
Act of 1939 and the Indenture constitutes a valid and binding agreement of
the Company enforceable against the Company in accordance with its
terms. The Indenture and the First Mortgage each complies in
all material respects with the requirements of the Trust Indenture
Act.
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3.
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When the
Senior Notes have been duly authorized and 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 Amended and Restated 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.
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The Amended
and Restated 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 and delivery of the Amended and
Restated Underwriting Agreement by the Company and the performance by the
Company of its transactions contemplated by the Amended and Restated
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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Exh.
A-1-11
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6.
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Neither the
consummation by the Company of the transaction contemplated in the Amended
and Restated Underwriting Agreement, including the issuance and sale of
the Senior Notes and the issuance and delivery by the Company of the Bonds
in connection therewith, nor the fulfillment by the Company of the terms
thereof, will 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, (i) any agreement or instrument of the Company listed
on Schedule A hereto, or (ii) any law, rule or regulation under any
Included Law or, to 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 Senior
Notes, and the Prospectus, as of its date, and any amendment or supplement
thereto, as of its date 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 (except in each case for the financial
statements, including the notes thereto and any related schedules, and
other financial and statistical data derived therefrom included or
incorporated by reference therein and the statement of Eligibility of the
Trustee on Form T-1, as to which we express no opinion), 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 Senior Notes
and the issuance of the Bonds, 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:
Exh.
A-1-12
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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 Amended and Restated
Underwriting Agreement. The term Included Laws specifically
excludes (a) Laws of any counties, cities, towns, municipalities and
special political subdivisions and any agencies thereof (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 and (c) state or, except as specified in
paragraphs 1, 2, 7, 8 and 9 and the last paragraph of this letter, Federal
securities or blue sky laws.
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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
this firm’s, such lawyer’s or any other person’s or entity’s files, (b)
that any inquiry be made of the client, 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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Exh.
A-1-13
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D.
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The matters
expressed in paragraphs 2, 3, 5 and 6 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, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief (regardless of
whether considered in a proceeding in equity or at law), (iii) the power
of the courts to award damage in lieu of equitable remedies; and (vi)
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 and 3 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. With respect to our opinions in paragraphs 1 and 2,
we express no opinion as to any obligations of the Company under the
Indenture with respect to any series of Securities (as defined in the
Indenture) other than the Senior Notes or under the First Mortgage with
respect to any series of bonds (as defined in the First Mortgage) other
than the Bonds.
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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 any
Transaction Document 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 any Transaction Document; (iv) except to the extent
covered by the last paragraph hereof, the compliance of any Transaction
Document 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; (v) the conformity of
any Transaction Document to any term sheet or commitment letter; (vi) any
provision of any of the Transaction Documents referenced in paragraphs 2
and 3 above which would, to the extent not permitted by applicable law,
restrict, waive access to or vary legal or equitable remedies or defenses
(including, but not limited to, a right to notice of and hearing on
matters relating to prejudgment remedies, service of process, proper
jurisdiction and venue, forum non conveniens and
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Exh.
A-1-14
the right to trial by jury) or the right to collect damages
(including, but not limited to, actual, consequential, special, indirect,
incidental, exemplary and punitive damages); (vii) the value of any security
provided to secure the payment of obligations contemplated by any Transaction
Document; or (viii) the validity, enforceability, attachment, perfection, effect
of perfection or nonperfection or priority of any lien or security
interest.
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G.
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We understand,
and have assumed, that upon consummation of the sale of the Senior Notes
pursuant to the Amended and Restated Underwriting Agreement, the Company
will file with the Commission a Current Report on Form 8-K, including as
exhibits opinions with respect to the validity of the Senior Notes and the
Bonds and copies of the First Supplemental Indenture, the Senior Notes
Officer’s Certificate, the Fifty-Sixth Supplemental Indenture, and
Fifty-Seventh Supplemental Indenture, the Senior Notes and the
Bonds.
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▇.
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Our opinion in
paragraph 8 herein concerning our knowledge regarding the issuance of a
stop order suspending the effectiveness of the Registration Statement or
the initiation or threat of any proceedings therefor is given in reliance
upon telephonic confirmation from the staff of the Commission received on
April 24, 2009.
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I.
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This letter is
solely for your benefit, and, without our prior written consent, 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 Senior 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
Amended and Restated Underwriting Agreement filed by an addressee thereof
against this law firm or in which any addressee hereof is a
defendant.
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* * *
Because the primary
purpose of our professional engagement was not to establish or confirm factual
matters or financial, accounting or statistical information, and because many
determinations involved in the preparation of the Registration Statement, the
General Disclosure
Exh.
A-1-15
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 United States 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 Senior
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
and statistical data derived therefrom contained or
incorporated by reference therein.
Very truly yours,
Exh.
A-1-16
SCHEDULE
A
The
Toledo Edison Company
Exh. A-2-1