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Exhibit 4b (80)
THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
TO
THE CHASE MANHATTAN BANK,
as Trustee.
Eightieth Supplemental Indenture
Dated as of _________, 1999
First Mortgage Bonds, 6.86% Series A due 2008
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Eightieth Supplemental Indenture, dated as of __________, 1999, made by
and between THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation organized
and existing under the laws of the State of Ohio (the "Company"), and THE CHASE
MANHATTAN BANK (successor by merger to The Chase Manhattan Bank (National
Association), which in turn was successor to Xxxxxx Guaranty Trust Company of
New York, formerly Guaranty Trust Company of New York), a corporation organized
and existing under the laws of the State of New York (the "Trustee"), as Trustee
under the Mortgage and Deed of Trust dated July 1, 1940, hereinafter mentioned:
RECITALS
In order to secure first mortgage bonds of the Company ("Bonds"), the
Company has heretofore executed and delivered to the Trustee the Mortgage and
Deed of Trust dated July 1, 1940 (the "1940 Mortgage") and seventy-nine
supplemental indentures thereto ("Supplemental Indentures"); and
The 1940 Mortgage, as supplemented and modified by said Supplemental
Indentures and by this Eightieth Supplemental Indenture, will be hereinafter
collectively referred to as the "Indenture" and this Eightieth Supplemental
Indenture will be hereinafter referred to as "this Supplemental Indenture"; and
The Indenture provides among other things that the Company, from time
to time, in addition to the Bonds authorized to be executed, authenticated and
delivered pursuant to other provisions therein, may execute and deliver
additional Bonds to the Trustee and the Trustee shall thereupon authenticate and
deliver such Bonds to or upon the order of the Company; and
The Company has determined to create pursuant to the provisions of the
Indenture a new series of first mortgage bonds designated as "First Mortgage
Bonds, 6.86% Series A due 2008" with the denominations, rate of interest, date
of maturity, redemption provisions, exchange provisions and other provisions and
agreements in respect thereof as in this Supplemental Indenture set forth; and
The Bonds of this Series are being issued in order to be exchanged,
pursuant to the terms of a registered exchange offer, for the outstanding First
Mortgage Bonds, 6.86% Series due 2008 issued pursuant to the Seventy-Eighth
Supplemental Indenture (the "Initial Bonds"), which Initial Bonds have the
denominations, rate of interest, date of maturity, redemption provisions,
exchange provisions and other provisions and agreements in respect thereof
identical to the Bonds of this Series (except with respect to transfer
restrictions); and
The Company, in the exercise of the powers and authority conferred upon
and reserved to it under the provisions of the Indenture, and pursuant to
appropriate resolutions of its Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee this Supplemental
Indenture in the form hereof for the purposes herein provided; and
All conditions and requirements necessary to make this Supplemental
Indenture a valid, binding and legal instrument have been done, performed and
fulfilled and the execution and delivery hereof have been in all respects duly
authorized.
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NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That The Cleveland Electric Illuminating Company, in consideration of
the premises and of the mutual covenants herein contained and of the sum of One
Dollar ($1.00) to it duly paid by the Trustee at or before the ensealing and
delivery of these presents and for other valuable considerations, the receipt
whereof is hereby acknowledged, hereby covenants and agrees to and with the
Trustee and its successors in the Trust under the Indenture, for the benefit of
those who shall hold the Bonds and coupons, if any, issued and to be issued
thereunder and under this Supplemental Indenture as hereinafter provided, as
follows:
ARTICLE I
CONFIRMATION OF 1940
MORTGAGE AND SUPPLEMENTAL INDENTURES
------------------------------------
The 1940 Mortgage (as modified in Article V of the Supplemental
Indenture dated December 1, 1947, Article V of the Supplemental Indenture dated
May 1, 1954, Article V of the Supplemental Indenture dated March 1, 1958,
Article V of the Supplemental Indenture dated January 15, 1969, Article III of
the Supplemental Indenture dated November 23, 1976 and Article III of the
Supplemental Indenture dated April 15, 1985) and the Supplemental Indentures
dated July 1, 1940, August 18, 1944, December 1, 1947, September 1, 1950, June
1, 1951, May 1, 1954, March 1, 1958, April 1, 1959, December 20, 1967, January
15, 1969, November 1, 1969, June 1, 1970, November 15, 1970, May 1, 1974, April
15, 1975, April 16, 1975, May 28, 1975, February 1, 1976, November 23, 1976,
July 26, 1977, September 27, 1977, May 1, 1978, September 1, 1979, April 1,
1980, April 15, 1980, May 28, 1980, June 9, 1980, December 1, 1980, July 28,
1981, August 1, 1981, March 1, 1982, July 15, 1982, September 1, 1982, November
1, 1982, November 15, 1982, May 24, 1983, May 1, 1984, May 23, 1984, June 27,
1984, September 4, 1984, November 14, 1984, November 15, 1984, April 15, 1985,
May 28, 1985, August 1, 1985, September 1, 1985, November 1, 1985, April 15,
1986, May 14, 1986, May 15, 1986, February 25, 1987, October 15, 1987, February
24, 1988, September 15, 1988, May 15, 1989, June 13, 1989, October 15, 1989,
January 1, 1990, June 1, 1990, August 1, 1990, May 1, 1991, May 1, 1992, July
31, 1992, January 1, 1993, February 1, 1993, May 20, 1993, June 1, 1993,
September 15, 1994, May 1, 1995, May 2, 1995, June 1, 1995, July 15, 1995,
August 1, 1995, June 15, 1997, August 1, 1997, October 15, 1997, June 1, 1998,
October 1, 1998 and October 1, 1998, respectively, are hereby in all respects
confirmed.
ARTICLE II
CREATION, PROVISIONS, REDEMPTION,
PRINCIPAL AMOUNT AND FORM OF BONDS OF THIS SERIES
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Section 2.01 The Company hereby creates a new series of Bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, 6.86% Series A due 2008" of the Company and hereinabove and
hereinafter called the "Bonds of this Series." The Bonds of this Series shall be
executed, authenticated and delivered in accordance with the
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provisions of, and shall in all respects be subject to, all of the terms,
conditions and covenants of the Indenture.
Section 2.02 The Bonds of this Series shall be issued as fully
registered Bonds only, without coupons, in the denominations of $1,000 or any
multiple thereof.
Section 2.03 (a) The Bonds of this Series shall be dated the date of
authentication, shall mature on October 1, 2008, and shall bear interest from
the time hereinafter provided at the rate of 6.86% per annum payable on April 1
and October 1 in each year starting on October 1, 1999 (each such date
hereinafter called an "interest payment date") on and until maturity, or, in the
case of any such Bonds 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 such Bonds, until the Company's obligation with respect to
the payment of the principal shall be discharged as provided in the Indenture.
If a Bond of this Series is authenticated and delivered in exchange for an
Initial Bond between a record date for the payment of interest on that Initial
Bond and the related interest payment date, the interest that accrues on the
Bond of this Series from the date of authentication thereof to that interest
payment date shall be payable to the Person in whose name such Bond of this
Series was issued on its issuance date.
(b) The Bonds of this Series shall be payable as to principal (and
premium, if any) and interest at the agency of the Company in the Borough of
Manhattan, The City of New York, in any coin or currency of the United States of
America which at the time of payment is legal tender for the payment of public
and private debts, or, at the option of the Company, payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; provided that payment by wire
transfer of immediately available funds shall be required with respect to
principal of, and interest on, all Global Bonds (as hereinafter defined) and all
other Bonds the Holders of which shall have provided written wire transfer
instructions to the Company or the Paying Agent.
(c) Except as hereinafter provided, each Bond of this Series shall bear
interest from the most recent date to which interest has been paid or, if no
interest has been paid, then from ________, 1999, until the principal of such
Bond is paid. Interest on the Bonds of this Series shall be computed on the
basis of twelve 30-day months and a 360-day year.
(d) The interest payable on any interest payment date shall be paid to
the respective persons in whose names the Bonds of this Series shall be
registered at the close of business on the Record Date next preceding such
interest payment date; provided, however, that, if and to the extent the Company
shall default in the payment of the interest due on such interest payment date
(other than an interest payment date that is a redemption date or maturity
date), such defaulted interest shall be paid to the respective persons in whose
names such outstanding Bonds of this Series are registered at the close of
business on a date (the "Subsequent Record Date") not less than 10 days nor more
than 30 days next preceding the date of payment of such defaulted interest, such
Subsequent Record Date to be established by the Company by notice given by mail
by or on behalf of the Company to the registered owners of Bonds of this Series
not less than 10 days next preceding such Subsequent Record Date. If any
interest payment date should fall on a day that is not a business day, then such
interest payment date shall be the next succeeding business day.
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(e) The term "Record Date" shall mean, with respect to any interest
payment date of any Bond of this Series, the close of business on the fifteenth
day (whether or not a business day at the place of payment) of the calendar
month next preceding such interest payment date.
Section 2.04 The Bonds of this Series shall be redeemable as provided
in this Article II, subject to the provisions contained in Article IV of the
Indenture and the form of Bond of this Series.
Section 2.05 (a) The Bonds of this Series will be redeemable as a whole
or in part, at the option of the Company at any time, at a redemption price
equal to the greater of (1) 100% of their principal amount and (2) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate (as
defined below) plus thirty-seven and one-half [37.5] basis points, plus, in the
case of each of clause (1) and (2), accrued interest to the date of redemption.
(b) For purposes of this Section 2.05, the following terms shall have
the meanings set forth below:
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term ("Remaining Life") of the
series of Bonds to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice in
pricing new issues of corporate debt securities of comparable maturity
to the remaining term of such Bonds.
"Independent Investment Banker" means Xxxxxx Xxxxxxx & Co.
Incorporated or, if such firm is unwilling or unable to select the
Comparable Treasury Issue, an independent investment banking
institution of national standing selected by the Company.
"Comparable Treasury Price" means (1) the average of four
Reference Treasury Dealer Quotations for such redemption date after
excluding the highest and lowest Reference Treasury Dealer Quotations,
or (2) if the Independent Investment Banker obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Reference Treasury Dealer" means (1) Xxxxxx Xxxxxxx & Co.
Incorporated, and Credit Suisse First Boston Corporation and their
respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in The
City of New York (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer and (2) any other
Primary Treasury Dealer selected by the Independent Investment Banker
after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue
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(expressed in each case as a percentage of its principal amount) quoted
in writing to the Independent Investment Banker at 5:00 p.m. New York
City time, on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date,
(1) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)", or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and
the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (2)
if such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
Section 2.06 Subject to the applicable provisions of the Indenture,
written notice of redemption of Bonds of this Series pursuant to this
Supplemental Indenture shall be given by the Trustee by mailing to each
registered owner of such Bonds to be redeemed a notice of such redemption, first
class postage prepaid, at its last address as it shall appear upon the books of
the Company for the registration and transfer of such Bonds. Any notice of
redemption shall be mailed at least 30 days, but no more than 60 days, prior to
the redemption date. In the event of partial redemption of Bonds of this Series,
the Trustee shall select the Bonds of this Series to be redeemed, subject to the
provisions of this Supplemental Indenture, in such manner as the Trustee shall
deem appropriate and fair.
Section 2.07 Any Bonds of this Series at any time purchased or
otherwise acquired by the Company shall be surrendered to the Trustee for
cancellation and the Trustee shall forthwith cancel the same.
Section 2.08 All Bonds of this Series redeemed as provided in Sections
2.04, 2.05 and 2.06 shall be surrendered to the Trustee for cancellation and the
Trustee shall forthwith cancel the same. In the event that part of a Bond of
this Series shall be redeemed as provided in said Sections 2.04, 2.05 and 2.06,
the registered owner may, at its option, surrender such Bond to the Trustee for
cancellation, in which event the Trustee shall cancel such Bond and the Company
shall execute and the Trustee shall authenticate and deliver to the registered
owner Bonds of this Series in such authorized denominations as shall be
specified by the registered owner in an aggregate principal amount equal to the
unpaid balance of the principal amount of such surrendered Bond of this Series.
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Section 2.09 The aggregate principal amount of Bonds of this Series
which may be authenticated and delivered hereunder shall not exceed
$125,000,000, except as otherwise provided in the Indenture.
Section 2.10 (a) Bonds of this Series shall be issued initially in the
form of one or more permanent global securities in definitive, fully registered
form without interest coupons with the legend set forth below (each, a "Global
Bond"), which shall be deposited on behalf of the Holders with the Trustee, at
its New York office, as the initial custodian with respect to a Global Bond
("Securities Custodian"), and registered in the name of The Depository Trust
Company, its nominees and their respective successors ("Depository") or a
nominee of the Depository, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of each Global
Bond may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee, as the case may be, as
hereinafter provided.
(b) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Supplemental Indenture or the Indenture with
respect to any Global Bond held on their behalf by the Depository or by the
Trustee as the Securities Custodian or under such Global Bond, and the
Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Bond for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Bond.
(c) Except as provided in this Section 2.10 or Article III, owners of
beneficial interests in Global Bonds will not be entitled to receive physical
delivery of Bonds of this Series.
(d) The form of the fully registered Bonds of this Series, and of the
Trustee's certificate of authentication thereon, shall be substantially as
follows:
[FORM OF FULLY REGISTERED BOND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE CLEVELAND ELECTRIC ILLUMINATING COMPANY ("COMPANY") OR ITS AGENTS
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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TRANSFERS OF THIS GLOBAL BOND SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Incorporated under the laws of the State of Ohio
FIRST MORTGAGE BOND, 6.86% SERIES A Due 2008
No. $125,000,000
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation organized
and existing under the laws of the State of Ohio (hereinafter called the
"Company," which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to __________________________, or registered assigns, the sum of
_____________________________Dollars ($___________) or the aggregate unpaid
principal amount hereof, whichever is less, on October 1, 2008, in any coin or
currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts, and to pay interest on the
unpaid principal amount hereof in like coin or currency from the time
hereinafter provided, at the rate per annum specified in the title hereof, such
interest to be payable on April 1 and October 1 in each year starting on October
1, 1999 (each such date herein called an "interest payment date"), and on and
until the date of maturity of this Bond, or, if this Bond shall be duly called
for redemption, on and until the redemption date, or, if the Company shall
default in the payment of the principal amount of this Bond, until the Company's
obligation with respect to the payment of such principal shall be discharged as
provided in said Indenture. Interest on this Bond shall be computed on the basis
of twelve 30-day months and a 360-day year. Except as hereinafter provided, this
Bond shall bear interest from the most recent date to which interest has been
paid or, if no interest has been paid, then from the date of initial
authentication of this Bond, until the principal of this Bond has been paid or
duly provided for. The interest payable on any interest payment date shall be
paid to the person in whose name this Bond shall be registered at the close of
business on the Record Date (as hereinafter defined) or, in the case of
defaulted interest, on a day preceding the date of payment thereof established
by notice to the registered owner of this Bond in the manner and to the person
as provided in the Supplemental Indenture. If this Bond is authenticated and
delivered in exchange for an Initial Bond between a record date for the payment
of interest on that Initial Bond and the related interest payment date, the
interest that accrues on this Bond from the date of authentication thereof to
that interest payment date shall be payable to the Person in whose name this
Bond was issued on its issuance date.
Principal of and interest on this Bond are payable at the agency of the
Company in the Borough of Manhattan, The City of New York, or, at the option of
the Company, payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register; provided that payment by wire transfer of
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immediately available funds shall be required with respect to principal of and
interest on this Bond if this Bond is held on behalf of the beneficial owners
hereof by a Securities Custodian or Depository or if the Holder of this Bond is
the Holder of Bonds of this Series in the aggregate principal amount of at least
$100,000 and such Holder shall have provided written wire transfer instructions
to the Company or the Paying Agent.
This Bond is one of the duly authorized Bonds of the Company (herein
called the "Bonds"), all issued and to be issued under and equally secured by a
Mortgage and Deed of Trust dated July 1, 1940, executed by the Company to
Guaranty Trust Company of New York (subsequently Xxxxxx Guaranty Trust Company
of New York and then The Chase Manhattan Bank (National Association)), now
succeeded by The Chase Manhattan Bank, as Trustee (herein called the "Trustee"),
and all indentures supplemental thereto (said Mortgage as so supplemented herein
called the "Indenture") to which reference is hereby made for a description of
the properties mortgaged and pledged, the nature and extent of the security, the
rights of the registered owner or owners of the Bonds and of the Trustee in
respect thereof, and the terms and conditions upon which the Bonds are, and are
to be, secured. The Bonds may be issued in series, for various principal sums,
may mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided. This Bond is one of a series
designated as the First Mortgage Bonds, 6.86% Series A due 2008 (herein called
the "Bonds of this Series") limited, except as otherwise provided in the
Indenture, in aggregate principal amount to $125,000,000, issued under and
secured by the Indenture and described in the Eightieth Supplemental Indenture
dated as of ___________, 1999, between the Company and the Trustee (herein
called the "Supplemental Indenture").
This Bond is issued pursuant to a registered exchange offer under which
an Initial Bond of the Company, in like principal amount and having identical
terms to this Bond, except with respect to transfer restrictions, was exchanged
for this Bond.
The Bonds of this Series are redeemable as a whole or in part, at the
option of the Company at any time, as provided in Article II of the Supplemental
Indenture, at a redemption price equal to the greater of (1) 100% of their
principal amount and (2) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined in the Supplemental Indenture)
plus thirty-seven and one-half [37.5] basis points, plus, in the case of each of
clause (1) and (2), accrued interest to the date of redemption.
Any redemption of the Bonds of this Series shall be made after written
notice has been given by the Trustee by mailing to each registered owner of such
Bonds to be redeemed a notice of such redemption, first class postage prepaid,
at its last address as it shall appear upon the books of the Company for the
registration and transfer of such Bonds. Any notice of redemption shall be
mailed at least 30 days, but no more than 60 days, prior to the redemption date.
In the event of partial redemption of Bonds of this Series, the Trustee shall
select the Bonds of this Series to be redeemed, subject to the provisions of the
Indenture, in such manner as the Trustee shall deem appropriate and fair. Any
notice of redemption of the Bonds of this Series may be conditional on the
Company depositing funds with the Trustee, or irrevocably directing the
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Trustee to apply moneys held by it, sufficient to pay the redemption price
thereof, and if such funds are not so deposited or such direction is not given,
such notice shall be of no effect.
To the extent permitted by and as provided in the Indenture,
modifications or alterations of the Indenture, or of any indenture supplemental
thereto, and of the rights and obligations of the Company and of the holders of
the Bonds and coupons may be made with the consent of the Company by an
affirmative vote of not less than 60% in principal amount of the Bonds entitled
to vote then outstanding, at a meeting of Bondholders called and held as
provided in the Indenture, and, in case one or more but less than all of the
series of Bonds then outstanding under the Indenture are so affected, by an
affirmative vote of not less than 60% in principal amount of the Bonds of any
series entitled to vote then outstanding and affected by such modification or
alteration; provided, however, that no such modification or alteration shall be
made which will affect the terms of payment of the principal of or interest on
this Bond. In the Nineteenth Supplemental Indenture dated November 23, 1976
between the Company and the Trustee, the Company has reserved the right to make
certain modifications of the Indenture, not including modifications which will
affect the status of payment of the principal of or interest on this Bond,
without any vote, consent or other action by the holders of Bonds of any series
established in the Nineteenth Supplemental Indenture or in any subsequent
supplemental indenture.
If an event of default, as defined in the Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Indenture may
be declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that such
declaration may in certain events be waived by the holders of a majority in
principal amount of the Bonds outstanding.
The term "Record Date" shall mean, with respect to any interest payment
date of any Bond of this Series, the close of business on the fifteenth day
(whether or not a business day at the place of payment) of the calendar month
next preceding such interest payment date.
Subject to the limitations provided in the Indenture, this Bond, with
or without others of the same series, may be exchanged for one or more new fully
registered Bonds of the same series of other authorized denominations but of the
same aggregate principal amount; without charge except for any tax or taxes or
other governmental charges incidental to such exchange and subject to the terms
and conditions set forth in the Indenture. Except as otherwise provided herein
with respect to the payment of interest, the Company, the agencies of the
Company and the Trustee may deem and treat the person in whose name this Bond is
registered as the absolute owner hereof for the purpose of receiving any payment
and for all other purposes.
No recourse shall be had for the payment of the principal of or the
interest on this Bond, or for any claim based hereon or on the Indenture or any
indenture supplemental thereto, against any incorporator, or against any
stockholder, director or officer, past, present or future, of the Company, or of
any predecessor or successor corporation, as such, either directly or through
the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution or statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner
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hereof by the acceptance of this Bond and as part of the consideration for the
issue hereof, and being likewise released by the terms of the Indenture.
This Bond shall not be entitled to any benefit under the Indenture or
any indenture supplemental thereto, or become valid or obligatory for any
purpose, until the Trustee under the Indenture, or a successor trustee thereto
under the Indenture, shall have signed the form of certificate of authentication
endorsed hereon.
IN WITNESS WHEREOF, The Cleveland Electric Illuminating Company has
caused this Bond to be signed in its name by its President or a Vice President
(whose signature may be manual or a facsimile thereof) and its corporate seal
(or a facsimile thereof) to be hereto affixed and attested by its Secretary or
an Assistant Secretary (whose signature may be manual or a facsimile thereof).
Dated: THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
Attest: By:_________________________________
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Secretary
[FORM OF TRUSTEE'S OF CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated and described in
the within-mentioned Indenture and Supplemental Indenture.
THE CHASE MANHATTAN BANK, TRUSTEE
By: _________________________________
Authorized Officer
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ASSIGNMENT FORM
To assign this Bond, fill in the form below:
I or we assign and transfer this Bond to
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(Print or type assignee's name, address and zip code)
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(Insert assignee's Soc. Sec. or Tax I.D. No.)
And irrevocably appoint ________________________________________________________
agent to transfer this Bond on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date: ________________________ Your Signature: _____________________________
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Sign exactly as your name appears on the other side of this Bond.
[TO BE ATTACHED TO GLOBAL BONDS]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL BOND
The following increases or decreases in this Global Bond have been made:
Amount of Amount of Signature of
decrease in increase in Principal amount of authorized officer
Principal Amount Principal Amount this Global Bond of Trustee or
Date of of this of this Global following such Securities
Exchange Global Bond Bond decrease or increase Custodian
-------- ----------- ---- -------------------- ---------
[END OF FORM OF FULLY REGISTERED BOND]
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ARTICLE III
TRANSFER AND EXCHANGE OF BONDS
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Section 3.01 TRANSFER AND EXCHANGE OF GLOBAL BONDS AND BENEFICIAL
INTERESTS THEREIN.
(a) The transfer and exchange of Global Bonds or beneficial interests
therein shall be effected through the Depository in accordance with this
Supplemental Indenture and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Bond shall deliver to the
Security Registrar a written order given in accordance with the Depository's
procedures containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global Bond. The
Security Registrar shall, in accordance with such instructions instruct the
Depository to credit to the account of the Person specified in such instructions
a beneficial interest in the Global Bond and to debit the account of the Person
making the transfer the beneficial interest in the Global Bond being
transferred.
(b) Notwithstanding any other provisions of this Supplemental Indenture
(other than the provisions set forth in Section 3.05), a Global Bond may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
Section 3.02 CANCELLATION OR ADJUSTMENT OF GLOBAL BOND. At such time as
all beneficial interests in a Global Bond have either been exchanged for
certificated Bonds, redeemed, repurchased or canceled, such Global Bond shall be
returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Bond is exchanged for certificated Bonds, redeemed, repurchased or
canceled, the principal amount of Bonds represented by such Global Bond shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Securities Custodian for such Global Bond) with respect to
such Global Bond, by the Trustee or the Securities Custodian, to reflect such
reduction.
Section 3.03 OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
BONDS.
(a) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Bonds at the Security
Registrar's request.
(b) No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax, assessments, or similar governmental charge payable in connection
therewith.
(c) Prior to the due presentation for registration of transfer of any
Bond, the Company, the Trustee, the Paying Agent or the Security Registrar may
deem and treat the Person in whose name a Bond is registered as the absolute
owner of such Bond for the purpose of receiving payment of principal of and
interest on such Bond and for all other purposes whatsoever, whether or not such
Bond is overdue, and none of the Company, the Trustee, the Paying Agent or the
Security Registrar shall be affected by notice to the contrary.
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(d) All Bonds issued upon any transfer or exchange pursuant to the
terms of this Supplemental Indenture and the Indenture shall evidence the same
debt and shall be entitled to the same benefits under this Supplemental
Indenture and the Indenture as the Bonds surrendered upon such transfer or
exchange.
Section 3.04 NO OBLIGATION OF THE TRUSTEE. At such time as all
beneficial interests in a GlobalThe Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Bond, a member of, or a
participant in the Depository or other Person with respect to the accuracy of
the records of the Depository or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Bonds or with respect to
the delivery to any participant, member, beneficial owner or other Person (other
than the Depository) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Bonds. All notices and
communications to be given to the Holders and all payments to be made to Holders
under the Bonds shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the case of
a Global Bond). The rights of beneficial owners in any Global Bond shall be
exercised only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
members, participants and any beneficial owners.
Section 3.05 ISSUANCE OF DEFINITIVE BONDS.
(a) A Global Bond deposited with the Depository or with the Securities
Custodian pursuant to Section 2.10 shall be transferred to the beneficial owners
thereof in the form of Definitive Bonds in an aggregate principal amount equal
to the principal amount of such Global Bond, in exchange for such Global Bond,
only if (i) the Depository notifies the Company that it is unwilling or unable
to continue as Depository for such Global Bond or if at any time such Depository
ceases to be a "clearing agency" registered under the Securities Exchange Act of
1934 and a successor depositary is not appointed by the Company within 90 days
of such notice, (ii) an Event of Default has occurred and is continuing or (iii)
the Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of Definitive Bonds under this Supplemental
Indenture.
(b) Any Global Bond that is transferable to the beneficial owners
thereof pursuant to this Section 3.05 shall be surrendered by the Depository to
the Trustee located in New York, New York, to be so transferred, in whole or
from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Bond, an equal
aggregate principal amount of Definitive Bonds of authorized denominations. Any
portion of a Global Bond transferred pursuant to this Section 3.05 shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depository shall
direct.
(c) Subject to the provisions of this Section 3.05, the registered
Holder of a Global Bond may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action that a Holder is entitled to take under this
Supplemental Indenture or the Indenture or the Bonds.
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(d) In the event of the occurrence of any of the events specified in
Section 3.05(a), the Company will promptly make available to the Trustee a
reasonable supply of Definitive Bonds in definitive, fully registered form
without interest coupons.
ARTICLE IV
THE TRUSTEE
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Section 4.01 The Trustee hereby accepts the trusts hereby declared and
provided upon the terms and conditions in the Indenture set forth and upon the
terms and conditions set forth in this Article IV.
Section 4.02 The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or the due execution hereof by the Company or for or in respect of the
recitals contained herein, all of which recitals are made by the Company solely.
In general, each and every term and condition contained in Article XIII of the
Indenture shall apply to this Supplemental Indenture with the same force and
effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate.
Section 4.03 The Trustee shall act as initial Paying Agent and as
initial Securities Custodian.
ARTICLE V
MISCELLANEOUS PROVISIONS
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This Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
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EXECUTION
IN WITNESS WHEREOF, said The Cleveland Electric Illuminating Company
has caused this Supplemental Indenture to be executed on its behalf by its
President or one of its Vice Presidents and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by its
Corporate Secretary or an Assistant Secretary, and said The Chase Manhattan
Bank, in evidence of its acceptance of the trust hereby created, has caused this
Supplemental Indenture to be executed on its behalf by one of its Vice
Presidents or one of its Corporate Trust Officers, and its corporate seal to be
hereto affixed and said seal and this Supplemental Indenture to be attested by
one of its Assistant Secretaries, all as of the day and year first above
written.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By:________________________________________
Xxxxxxx X. Xxxxx, Vice President
Attest:
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Xxxxx X. Xxxxxx, Corporate Secretary
Signed, sealed and acknowledged by
The Cleveland Electric Illuminating Company
in the presence of
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Xxxxxx X. Xxxxx
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Xxxxxxx X. XxXxxxx
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THE CHASE MANHATTAN BANK, AS TRUSTEE
By:__________________________________________
Xxxxx X. Xxxxxxx, Assistant Vice President
Attest:
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X. Xxxxxxxx, Senior Trust Officer
Signed, sealed and acknowledged by
The Chase Manhattan Bank
in the presence of
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X. Xxxxxx
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Xxxxxxx Xxxxxxxxx
As witnesses
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XXXXX XX XXXX
XXXXXX XX XXXXXX
Xx this ____ day of ________, 1999, before me personally appeared
Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx, to me personally known, who being by me
severally duly sworn, did say that they are a Vice President and the Corporate
Secretary, respectively, of The Cleveland Electric Illuminating Company, that
the seal affixed to the foregoing instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors; and said officers severally
acknowledged said instrument to the free act and deed of said corporation.
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Notary Public
Xxxxx X. Xxxxxxx
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission expires November 19, 2001
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XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx this ____ day of _________, 1999, before me personally appeared
Xxxxx X. Xxxxxxx and X. Xxxxxxxx, to me personally known, who being by me
severally duly sworn, did say that they are a Vice President and a Senior Trust
Officer, respectively, of The Chase Manhattan Bank, that the seal affixed to the
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said officers severally acknowledged said instrument
to the free act and deed of said corporation.
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Notary Public
Xxxxxxxxx XxXxxx
This instrument prepared by: FirstEnergy Corp., 00 Xxxxx Xxxx Xxxxxx,
Xxxxx, Xxxx 00000.
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