Contract
Exhibit
4.2
OHIO
EDISON
COMPANY
with
THE
BANK OF
NEW YORK,
As
Trustee
_______________________
Eightieth
Supplemental Indenture
Providing
among other things for
First
Mortgage Bonds
Pledge
Series C of 2005 due 2009
_________
Dated
as of
April 15, 2005
SUPPLEMENTAL
INDENTURE,
dated as of
April 15, 2005 between Ohio
Edison
Company, a
corporation
organized and existing under the laws of the State of Ohio (hereinafter called
the “Company”), party of the first part, and The
Bank of New
York,
a banking corporation organized and existing under the laws of the State
of New
York, as Trustee under the Indenture hereinafter referred to, party of the
second part.
WHEREAS,
the
Company has heretofore executed and delivered to Bankers
trust
company
(hereinafter
called the “Old Trustee”), as trustee, a certain Indenture, dated as of
August 1, 1930, to secure an issue of bonds of the Company, issued
and to
be issued in series, from time to time, in the manner and subject to the
conditions set forth in the said Indenture; and the said Indenture has been
supplemented by seventy nine supplemental indentures, which Indenture as
so
supplemented and to be hereby supplemented is hereinafter referred to as
the
“Indenture”;
WHEREAS,
The Bank
of New York has succeeded the Old Trustee as trustee under the Indenture
(hereinafter called the “Trustee”) pursuant to Article XVI thereof;
WHEREAS,
the
Indenture provides for the issuance of bonds thereunder in one or more series,
the form of each series of bonds and of the coupons to be attached to the
coupon
bonds, if any, to be substantially in the forms set forth therein with such
insertions, omissions and variations as the Board of Directors of the Company
may determine;
WHEREAS,
the
Company, by appropriate corporate action in conformity with the terms of
the
Indenture, has duly determined to create a new series of bonds under the
Indenture, as the basis for the issuance of $258,672,750 in principal amount
of
a series of bonds designated Mortgage Bonds Guarantee Series C of
2005 due
2009 under the Company’s General Mortgage Indenture and Deed of Trust, dated as
of January 1, 1998, to The Bank of New York, as Trustee, as
heretofore
supplemented and as to be supplemented by a Supplemental Indenture to be
dated
as of April 15, 2005 (as so supplemented, the “General Mortgage”),
consisting of $258,672,750 in principal amount to be designated as “First
Mortgage Bonds Pledge Series C of 2005 due 2009” (hereinafter sometimes
referred to as the “bonds of Pledge Series C of 2005”), which shall bear
interest at the rate per annum set forth in, shall be subject to certain
redemption rights and obligations set forth in, and will otherwise be in
the
form and have the terms and provisions provided for in this Supplemental
Indenture and set forth in the form of such bond below:
[Form
of Bond of
Pledge Series C of 2005]
This
Bond is not
transferable except to a successor trustee under the General Mortgage Indenture
and Deed of Trust, dated as of January 1, 1998, as amended and supplemented
between the Company and The Bank of New York, as Trustee, or in connection
with
the exercise of the rights and remedies of the holder hereof consequent upon
a
“default” as defined in the Indenture referred to herein.
1
OHIO
EDISON
COMPANY
First
Mortgage
Bonds, Pledge Series C of 2005 Due 2009
Due
February 15,
2009
$
No.
Ohio
Edison
Company,
a corporation of
the State of Ohio (hereinafter called the Company), for value received, hereby
promises to pay
to
, or registered assigns,
dollars at an office or agency of the Company in the Borough of Manhattan,
The
City of New York, New York or in the City of Akron, Ohio, on February
15,
2009 in any coin or currency of the United States of America which at the
time
of payment is legal tender for public and private debts, and to pay at said
offices or agencies to the registered owner hereof, in like coin or currency,
interest thereon from the Initial Interest Accrual Date (hereinbelow defined)
at
the rate per annum from time to time borne by the Mortgage Bonds, Guarantee
Series C of 2005 due 2009 (the “Mortgage Bonds”) issued by the Company
under the General Mortgage Indenture and Deed of Trust, dated as of
January 1, 1998, as heretofore supplemented (the “General Mortgage”), by
the Company to The Bank of New York, as trustee, on each February
15 and
August 15 commencing on the February 15 or August 15 immediately
succeeding the Initial Interest Accrual Date (each such date herein referred
to
as an “interest payment date”) on and until maturity, or, in the case of any
bonds of this series duly called for redemption, on and until the redemption
date, or in the case of any default by the Company in the payment of the
principal due on any bonds of this series, until the Company’s obligation with
respect to the payment of the principal shall be discharged as provided in
the
Indenture referred to on the reverse hereof. Payments of principal of and
interest on this bond shall be made at an office or agency of the Company
in the
Borough of Manhattan. The City of New York, New York or in
the City of
Akron, Ohio. Payment of principal of, or premium or interest on, the Mortgage
Bonds shall, to the extent thereof, be deemed to satisfy and discharge the
obligation of the Company, if any, to make a payment of principal, premium
or
interest, as the case may be, in respect of this bond which is then
due.
The
provisions of
this bond are continued on the reverse hereof and such continued provisions
shall for all purposes have the same effect as though fully set forth at
this
place.
This
bond shall not
become obligatory until The Bank of New York, the Trustee under the Indenture
referred to on the reverse hereof, or its successor thereunder, shall have
authenticated the form of certificate endorsed hereon.
In
witness whereof,
Ohio Edison
Company has caused this bond to be signed in its name by its President or
a Vice
President, by his signature or a facsimile thereof, and its corporate seal
to be
printed hereon, attested by its Corporate Secretary or an Assistant Corporate
Secretary, by his signature or a facsimile thereof.
2
| Dated, | ||
| OHIO EDISON COMPANY | ||
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| By: | ||
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| Title | ||
| Attest: | |||
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| Title |
3
[Form
of Trustee’s
Authentication Certificate]
Trustee’s
Authentication Certificate
This
bond is one of
the bonds of the series designated therein, described in the within-mentioned
Indenture.
|
THE
BANK OF NEW YORK,
as
Trustee,
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| By: | ||
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| Authorized Officer | ||
4
[Reverse
of Form of
Bond of Pledge Series C]
OHIO
EDISON
COMPANY
First
Mortgage
Bonds, Pledge Series C of 2005 Due 2009
This
bond is one of
an issue of bonds of the Company, issuable in series, and is one of a series
known as its First Mortgage Bonds of the series designated in its title,
all
issued and to be issued under and equally secured (except as to any sinking
fund
established in accordance with the provisions of the Indenture hereinafter
mentioned for the bonds of any particular series) by an Indenture, dated
as of
August 1, 1930, executed by the Company to The Bank of New York, as
Trustee
(the “Trustee”), as amended and supplemented by indentures supplemental thereto,
to which Indenture as so amended and supplemented (herein referred to as
the
“Indenture”) reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the holders
of the
bonds in respect thereof and the terms and conditions upon which the bonds
are
secured.
The
Initial
Interest Accrual Date for the bonds of this series shall be the date that
interest begins to accrue on the Mortgage Bonds.
The
bonds of this
series are subject to mandatory redemption, in whole or in part, as the case
may
be, on each date that the Mortgage Bonds are to be redeemed. The principal
amount of the bonds of this series to be redeemed on any such date shall
be
equal to the principal amount of Mortgage Bonds called for redemption on
that
date. All redemption of bonds of this series shall be at 100% of the principal
amount thereof, plus accrued interest to the redemption date. The bonds of
this
series are not otherwise redeemable prior to their maturity.
Notwithstanding
the
foregoing, bonds of this series shall be deemed to be paid and no longer
outstanding under the Indenture to the extent that Mortgage Bonds are paid
or
deemed to be paid and are no longer outstanding.
The
Trustee may
conclusively presume that the obligation of the Company to pay the principal
of,
and interest, if any, on the bonds of this series as the same shall become
due
and payable (whether at stated maturity or by declaration of acceleration,
call
for redemption or otherwise) shall have been fully satisfied and discharged
unless and until it shall have received a written notice from the trustee
under
the General Mortgage, signed by an authorized officer thereof, stating that
any
such principal of or interest on the Mortgage Bonds has become due and payable
and has not been fully paid and specifying the amount of funds required to
make
such payment.
As
more fully described in the supplemental indenture establishing the terms
and
provisions of the bonds of this series, the Company reserves the right, without
any consent or other action by holders of the bonds of this series, to amend
the
Indenture that (i) additional bonds may be issued against 70% of the
value
of the property which forms the basis for such issuance and (ii) the
charge
against property subject to a prior lien which is used to effectuate the
release
of property under the Indenture be similarly based.
5
The
principal
hereof may be declared or may become due on the conditions, in the manner
and at
the time set forth in the Indenture, upon the occurrence of a completed default
as in the Indenture provided.
No
recourse shall be had for the payment of the principal of or interest on
this
bond against any incorporator or any past, present or future subscriber to
the
capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company
or
a predecessor or successor corporation, under any rule of law, statute or
constitution or by the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers and directors
being released by the registered owner hereof by the acceptance of this bond
and
being likewise waived and released by the terms of the Indenture.
The
bonds of this
series are issuable only as registered bonds without coupons in denominations
of
$1.00. The Company and the Trustee may deem and treat the person in whose
name
this bond is registered as the absolute owner for the purpose of receiving
payment of or on account of the principal and interest due hereon and for
all
other purposes. Registered bonds of this series shall be exchangeable at
said
offices or agencies of the Company for registered bonds of other authorized
denominations having the same aggregate principal amount, in the manner and
upon
the conditions prescribed in the Indenture. Notwithstanding any provision
of the
Indenture, (a) neither the Company nor the Trustee shall be required
to
make transfers or exchanges of bonds of this series during the period between
any interest payment date for such series and the record date next preceding
such interest payment date, and (b) no charge shall be made upon any
transfer or exchange of bonds of this series other than for any tax or taxes
or
other governmental charge required to be paid by the Company.
[end
of form of
bond of pledge series C of 2005]
6
Whereas,
Section 115
of
the Indenture provides that the Company and the Trustee may, from time to
time
and at any time, enter into such indentures supplemental thereto as shall
be
deemed necessary or desirable for one or more purposes, including, among
others,
to describe and set forth the particular terms and the form of additional
series
of bonds to be issued under the Indenture, to add other limitations on the
issue
of bonds, withdrawal of cash or release of property, to add to the covenants
and
agreements of the Company for the protection of the holders of the bonds
and of
the mortgaged and pledged property, to supplement defective or inconsistent
provisions contained in the Indenture, and for any other purpose not
inconsistent with the terms of the Indenture; and
Whereas,
all things
necessary to make the bonds of Pledge Series C of 2005 when authenticated
by the Trustee and issued as in the Indenture provided, the valid, binding
and
legal obligations of the Company, entitled in all respects to the security
of
the Indenture, have been done and performed, and the creation, execution
and
delivery of this Supplemental Indenture have in all respects been duly
authorized; and
Whereas,
the Company and
Trustee deem it advisable to enter into this Supplemental Indenture for the
purposes of describing the bonds of Pledge Series C of 2005 and of
establishing the terms and provisions thereof, confirming the mortgaging
under
the Indenture of additional property for the equal and proportionate benefit
and
security of the holders of all bonds at any time issued thereunder, amplifying
the description of the property mortgaged, adding other limitations to the
Indenture on the issue of bonds, withdrawal of cash or release of property,
and
adding to the covenants and agreements of the Company for the protection
of the
holders of bonds and of mortgaged and pledged property;
Now,
therefore,
this supplemental indenture witnesseth:
That Ohio
Edison
Company, in
consideration of
the premises and of one dollar to it duly paid by the Trustee at or before
the
ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and of the purchase and acceptance of the bonds issued or to
be
issued hereunder by the holders thereof, and in order to secure the payment
both
of the principal and interest of all bonds at any time issued and outstanding
under the Indenture, according to their tenor and effect, and the performance
of
all the provisions of the Indenture and of said bonds, hath granted, bargained,
sold, released, conveyed, assigned, transferred, pledged, set over and confirmed
and by these presents doth grant, bargain, sell, release, convey, assign,
transfer, pledge, set over and confirm unto The
Bank of New
York,
as Trustee, and to its successor or successors in said trust, and to its
and
their assigns forever, all the properties of the Company, now owned or hereafter
acquired, wherever located, described in the Indenture and not therein expressly
excepted;
Together
with
all
and singular the tenements, hereditaments and appurtenances belonging or
in any
wise appertaining to the aforesaid property or any part thereof, with the
reversion and reversions, remainder and remainders and (subject to the
provisions of Article XI of the Indenture) the tolls, rents, revenues,
issues, earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
7
The
Company does
hereby agree and does hereby confirm and reaffirm the agreement made by it
in
the Indenture, dated as of August 1, 1930, that all property, rights
and
franchises acquired by the Company after the date of the Indenture, dated
as of
August 1, 1930 (except any hereinafter expressly excepted), shall
be as
fully embraced within the lien of the Indenture as if such property had been
owned by the Company on the date of the Indenture, dated as of August 1,
1930 and was specifically described therein and conveyed thereby and does
hereby
confirm that the Company will not cause or consent to a partition, whether
voluntary or through legal proceedings, of property, whether herein described
or
heretofore or hereafter acquired, in which its ownership shall be as a tenant
in
common except as permitted by and in conformity with the provisions of the
Indenture and particularly of Article XI thereof.
Provided
that
the following are not and are not intended to be now or hereafter granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed hereunder and are hereby expressly excepted from the
lien
and operation of the Indenture, viz.: cash, shares of stock and obligations
(including bonds, notes and other securities) not heretofore or hereafter
specifically pledged, paid or deposited or delivered under the Indenture
or
covenanted so to be.
To
have and to hold all
such
properties, real, personal and mixed, mortgaged, pledged or conveyed by the
Company as aforesaid, or intended so to be, unto the Trustee and its successors
and assigns forever.
In
trust, nevertheless,
upon the terms
and trusts of the Indenture for those who shall hold the bonds and coupons
issued and to be issued thereunder, or any of them, without preference, priority
or distinction as to lien of any of said bonds and coupons over any others
thereof by reason of priority in the time of the issue or negotiations thereof,
or otherwise howsoever, subject, however, to the provisions in reference
to
extended, transferred or pledged coupons and claims for interest set forth
in
the Indenture (and subject to any sinking funds that may be hereafter created
for the benefit of any particular series).
Provided,
however,
and these
presents are upon the condition that if the Company, its successors or assigns,
shall pay or caused to be paid, the principal of and interest on said bonds,
at
the times and in the manner stipulated therein and herein, and shall keep,
perform and observe all and singular the covenants and promises in said bonds
and in the Indenture expressed to be kept, performed and observed by or on
the
part of the Company, then this Supplemental Indenture and the estate and
rights
hereby granted shall cease, determine and be void, otherwise to be and remain
in
full force and effect.
It
is hereby covenanted, declared and agreed,
by the Company,
that all such bonds and coupons are to be issued, authenticated and delivered,
and that all property subject or to become subject hereto is to be held,
subject
to the further covenants, conditions, uses and trusts in the Indenture set
forth, and the parties hereto mutually agree as follows:
SECTION
1. Bonds
of Pledge
Series C of 2005 shall mature on the date set forth in the form of
bond
hereinbefore set forth and, subject to the provisions of said form, shall
bear
interest at the rate per annum from time to time borne by the Mortgage Bonds
referred to in said form. The bonds of Pledge Series C of 2005 shall
be
designated as the Company’s “First Mortgage Bonds Pledge Series C of 2005
due 2009.” The bonds of Pledge Series C of 2005 shall bear interest from
the Initial Interest Accrual Date (as defined in the form of the bond
hereinabove set forth). Principal or redemption price of and interest on
the
bonds of Pledge Series C of 2005 shall be payable in any coin or currency
of the United States of America which at the time of payment is legal tender
for
public and private debts, at an office or agency of the Company in the Borough
of Manhattan, The City of New York, New York or in the City of Akron,
Ohio.
8
Definitive
bonds of
Pledge Series C of 2005 may be issued, originally or otherwise, only
as
registered bonds, substantially in the form of bond hereinbefore recited,
and in
the denominations of $1.00. Delivery of a bond of Pledge Series C
of 2005
to the Trustee for authentication shall be conclusive evidence that its serial
number has been duly approved by the Company.
SECTION
2. The
bonds of Pledge
Series C of 2005 are subject to mandatory redemption, in whole or in part,
as
the case may be, on each date that the Mortgage Bonds are to be redeemed.
The
principal amount of the bonds of Pledge Series C of 2005 to be redeemed on
any
such date shall be equal to the principal amount of Mortgage Bonds called
for
redemption on that date. All redemption of bonds of Pledge Series C of 2005
shall be at 100 percent of the principal amount thereof, plus accrued interest
to the redemption date. The bonds of Pledge Series C of 2005 are not otherwise
redeemable prior to their maturity.
Notwithstanding
the
foregoing, bonds of Pledge Series C of 2005 shall be deemed to be paid and
no
longer outstanding under the Indenture to the extent that Mortgage Bonds
are
paid or deemed to be paid and are no longer outstanding.
The
Trustee may
conclusively presume that the obligation of the Company to pay the principal
of,
and interest, if any, on the bonds of Pledge Series C of 2005 as the
same
shall become due and payable (whether at stated maturity or by declaration
of
acceleration, call for redemption or otherwise) shall have been fully satisfied
and discharged unless and until it shall have received a written notice from
the
trustee under the General Mortgage referred to in said form of bond of Pledge
Series C hereinbefore set forth, signed by an authorized officer thereof,
stating that any such principal of or interest on the Mortgage Bonds has
become
due and payable and has not been fully paid and specifying the amount of
funds
required to make such payment.
SECTION
3. Bonds
of Pledge
Series C of 2005 may be transferred by the registered owners thereof,
in
person or by attorney duly authorized, at an office or agency of the Company
in
the Borough of Manhattan, The City of New York, New York or in the
City of
Akron, Ohio but only in the manner and upon the conditions prescribed in
the
Indenture and in the form of bond hereinbefore recited. Bonds of Pledge
Series C of 2005 shall be exchangeable for other registered bonds
of the
same series, in the manner and upon the conditions prescribed in the Indenture,
and in the form of bond hereinbefore recited, upon the surrender of such
bonds
at said offices or agencies of the Company. However, notwithstanding the
provisions of Section 14 or 15 of the Indenture, no charge shall be
made
upon any transfer or exchange of bonds of said series other than for any
tax or
taxes or other governmental charge required to be paid by the
Company.
SECTION
4. The
Company
reserves the right, without any consent or other action by the holders of
the
bonds of Pledge Series C of 2005, or any subsequent series of bonds,
to
amend the Indenture by deleting the phrase “sixty per centum (60%)” in
Section 28 of the Indenture and substituting therefor the phrase “seventy
per centum (70%)” and by deleting the phrase “One hundred sixty-six and
two-thirds per cent. (166 2/3%)” in Sections 65 and 67 of the Indenture and
substituting therefor the phrase “One hundred and forty-two and eighty-six
hundredths per cent. (142.86%)”.
9
SECTION
5. Except
as herein
otherwise expressly provided, no duties, responsibilities or liabilities
are
assumed, or shall be construed to be assumed, by the Trustee by reason of
this
Supplemental Indenture; the Trustee shall not be responsible for the recitals
herein or in the bonds (except the Trustee’s authentication certificate), all of
which are made by the Company solely; and this Supplemental Indenture is
executed and accepted by the Trustee, subject to all the terms and conditions
set forth in the Indenture, as fully to all intents and purposes as if the
terms
and conditions of the Indenture were herein set forth at length.
SECTION
6. As
supplemented by
this Supplemental Indenture, the Indenture is in all respects ratified and
confirmed, and the Indenture as herein defined, and this Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
SECTION
7. Nothing
in this
Supplemental Indenture contained shall or shall be construed to confer upon
any
person other than a holder of bonds issued under the Indenture, the Company
and
the Trustee any right or interest to avail himself of any benefit under any
provision of the Indenture or of this Supplemental Indenture.
SECTION
8. This
Supplemental
Indenture may be simultaneously executed in several counterparts and all
such
counterparts executed and delivered, each as an original, shall constitute
but
one and the same instrument.
10
In
Witness Whereof, Ohio Edison Company
and The
Bank of New
York have
caused these
presents to be executed in their respective names by their respective Presidents
or one of their Vice Presidents or Assistant Vice Presidents and their
respective seals to be hereunto affixed and attested by their respective
Corporate Secretaries or one of their Vice Presidents, Assistant Corporate
Secretaries or Assistant Treasurers, all as of the day and year first above
written.
| OHIO EDISON COMPANY | ||
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| Date: | By: | |
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Xxxxxxx
X.
Xxxxx
Senior Vice President
and
Chief Financial
Officer
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[Seal]
| Attest: | |||
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Xxxxx
X.
Xxxxxxxxx
Corporate
Secretary
|
Signed,
Sealed and
Acknowledged on behalf of
Ohio
Edison Company
in
the
presence of:
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| Xxxxxxx X. Xxxxxxx |
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| Xxxxxx X. Xxxxxx |
11
|
THE
BANK OF NEW YORK,
as
Trustee
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| By: | ||
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Xxxxxxxx
Xxxxxxxxx
Vice
President
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[Seal]
| Attest: | |||
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Xxxxxxxx
Xxxxxx
Vice
President
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Signed,
Sealed and
Acknowledged on behalf of
The
Bank of New
York in
the presence
of:
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| Xxx X. Xx |
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| Xxxxx Xxxxxxxxxxx |
12
STATE
OF
OHIO
)
)
ss.:
COUNTY
OF
SUMMIT
)
On
the ___ day of April in the year 2005 before me, the undersigned, personally
appeared Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxxx, personally known to me
or
proved to me on the basis of satisfactory evidence to be the individuals
whose
names are subscribed to the within instrument and acknowledged to me that
they
executed the same in their capacity as Senior Vice President and Chief Financial
Officer and Corporate Secretary, respectively, and that by their signatures
on
the instrument, the individuals, or the person or entity upon behalf of which
the individuals acted, executed the instruments.
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Xxxxx
X.
Xxxxxxx
Notary Public
Residence - Summit
County
Statewide Jurisdiction,
Ohio
My Commission Expires
December 9, 2006
|
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[SEAL]
00
XXXXX
XX XXX
XXXX
)
)
ss.:
COUNTY
OF NEW
YORK )
On
the ___ day of
April in the year 2005 before me, the undersigned, personally appeared Xxxxxxxx
Xxxxxxxxx and Xxxxxxxx Xxxxxx, each personally known to me or proved to me
on
the basis of satisfactory evidence to be the individuals whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their capacity as Vice President and Vice President, respectively,
of The Bank of New York, and that by their signatures on the instrument,
the
individuals, or the person or entity upon behalf of which the individuals
acted,
executed the instruments.
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Xxxxxxx
X.
Xxxxxxx
Notary Public, State
of New
York
No. 01CA5027729
Qualified in Bronx
County
Commission expires
May 18,
2006
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[SEAL]
00
Xxx
Xxxx xx Xxx
Xxxx hereby certifies that its precise name and address as Trustee hereunder
are:
The
Bank of New
York
000
Xxxxxxx
Xxxxxx
Xxxx,
Xxxxxx xxx
Xxxxx xx Xxx Xxxx 00000
| THE BANK OF NEW YORK | ||
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| By: | ||
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Xxxxxxxx
Xxxxxxxxx
Vice
President
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This
instrument was
prepared by FirstEnergy Corp.
15
