Contract
Exhibit
4.5
OHIO
EDISON
COMPANY
with
THE
BANK OF
NEW YORK,
As
Trustee
__________
Twelfth
Supplemental Indenture
Providing
among other things for
Mortgage
Bonds
Guarantee
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”) 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.
WHEREAS,
the
Company has heretofore executed and delivered to The
Bank of New
York,
as Trustee (hereinafter called the “Trustee”), a certain General Mortgage
Indenture and Deed of Trust, dated as of January 1, 1998, to secure
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, which
Indenture as heretofore and hereby supplemented is hereinafter referred to
as
the “Indenture”; and
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, consisting of $258,672,750 in principal amount to be designated
as
“Mortgage Bonds, Guarantee Series C of 2005 due 2009” (hereinafter referred
to as the “bonds of Guarantee Series C”), 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
following form:
[Form
of Bond of
Guarantee Series C]
This
bond is not
transferable except to a successor trustee under the Trust Agreement dated
as of
April 1, 2005 between Energy Acquisition Corporation II and
U.S. Bank,
National Association, as trustee, or in connection with the exercise of the
rights and remedies of the holder hereof consequent upon an “Event of Default”
as defined in the Indenture referred to herein.
OHIO
EDISON
COMPANY
Mortgage
Bond,
Guarantee 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 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 office or agency
to the registered owner hereof, in like coin or currency, interest thereon
from
the Initial Interest Accrual Date (hereinbelow defined) at the EAC Bond Interest
Rate (hereinafter defined) per annum payable semi-annually on February 15
and
August 15 in each year 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.
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 valid or 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 or her signature or a
facsimile thereof, and its corporate seal to be affixed hereto or reproduced
hereon, attested by its Corporate Secretary or an Assistant Corporate Secretary,
by his or her signature or a facsimile thereof.
| Dated, | ||
| OHIO EDISON COMPANY | ||
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| By: | ||
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| Title | ||
| Attest: | |||
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| Title: |
[Form
of Trustee’s
Authentication Certificate]
Trustee’s
Authentication Certificate
This
is one of the
bonds of the series designated therein referred to in the within-mentioned
Indenture.
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THE
BANK OF NEW YORK,
as
Trustee
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| By: | ||
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| Authorized Signatory | ||
2
[Reverse
of Form of
Bond of Guarantee Series C]
OHIO
EDISON
COMPANY
Mortgage
Bond,
Guarantee 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 Mortgage Bonds of the series designated in its title, all issued
and to be issued under and equally secured (except as to any money, obligations
or other instruments, or earnings thereon, deposited with the Trustee in
accordance with the provisions of the Indenture hereinafter mentioned for
the
bonds of any particular series) by a General Mortgage Indenture and Deed
of
Trust, dated as of January 1, 1998, executed by the Company to The
Bank of
New York, as 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.
Bonds
of this
series shall be issuable in denominations of $1.00.
The
bonds of this
series shall be redeemed in whole or in part by payment of the principal
amount
to be redeemed, plus accrued interest thereon, if any, to the date fixed
for
redemption, upon receipt by the Trustee of a written advice from the holder
hereof (i) stating that the Company, after demand therefor, has failed
to
pay amounts it is obligated to pay under (A) the Master Agreement dated as
of
March 31, 2005 by and among the Company, The Cleveland Electric
Illuminating Company, the Energy Acquisition Corporation II (“EAC II”), the Ohio
Schools Council (“OSC”) and U.S. Bank, National Association (“U.S. Bank”), as
trustee; (B) the Master Agreement dated as of March 31, 2005 by and
among
the Company, The Toledo Edison Company, EAC II, OSC and U.S. Bank, as trustee;
and (C) the Master Agreement dated as of March 31, 2005 by and among
the
Company, EAC II, OSC and U.S. Bank, as trustee, (ii) specifying
the
amounts not paid, which amount (rounded up to the nearest $1,000) shall be
the
principal amount of the bonds of this series to be redeemed, and (iii)
establishing a redemption date which shall not be less than 30 nor more than
60
days from the date of such written advice. The date of such written advice
shall
become the initial interest accrual date (the “Initial Interest Accrual Date”)
with respect to the principal amount of the bonds of this series to be redeemed
with respect to such written advice, but shall not constitute the Initial
Interest Accrual Date for any other bonds of this series.
Bonds
of this
series are not otherwise redeemable prior to their maturity.
Bonds
of this
series shall be deemed to be paid and cancelled and no longer outstanding
under
the Indenture to the extent that the aggregate principal amount thereof exceeds
105% of the aggregate principal amount of Energy Acquisition Corporation
II
Electric Energy Acquisition Taxable Revenue Bonds, Series 2005 (Energy for
Education Program II (the “EAC Bonds”)), issued and outstanding from time to
time under the Trust Agreement dated as of April 1, 2005 (the “EAC II Trust
Agreement”), between EAC II and U.S. Bank, National Association, as
trustee.
3
“EAC
Bond Interest
Rate” shall mean the interest rate borne from time to time on the EAC
Bonds.
Unless
and until
the Trustee shall have received the aforesaid written advice, 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 shall not have
arisen.
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 an Event of Default
(as defined in the Indenture) as in the Indenture provided.
No
recourse shall be had for the payment of the principal of or premium, or
interest if any, on this bond, or any part hereof, or for any claim based
hereon
or otherwise in respect hereof, or of the indebtedness represented hereby,
or
upon any obligation, covenant or agreement under the Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future
of the Company or of any predecessor or successor corporation (either directly
or through the Company or a predecessor or successor corporation), whether
by
virtue of any Constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
of
incorporators, 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 a single registered bond without coupons in a
denomination equal to the aggregate principal amount of bonds of this series
outstanding. If and to the extent this bond becomes transferable, the registered
owner hereof, in person or by attorney duly authorized, may effectuate such
transfer at an office or agency of the Company, in the Borough of Manhattan,
The
City of New York, New York or the City of Akron, Ohio, upon surrender
and
cancellation of this bond and thereupon a new registered bond or bonds of
the
same series for a like principal amount, will be issued to the transferee
in
exchange therefor, as provided in the Indenture, and upon payment, if the
Company shall require it, of the transfer charges therein prescribed. 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.
[End
of Form of
Bond of Guarantee Series C]
WHEREAS,
the
Company deems it advisable to enter into this Supplemental Indenture for
the
purposes of establishing the form, terms and provisions of the bonds of the
Guarantee Series C, as provided and contemplated by Sections 2.01(a)
and
3.01(b) of the Indenture, and the Company has requested and hereby requests
the
Trustee to join in the execution of this Supplemental Indenture;
4
NOW,
THEREFORE,
IT
IS
HEREBY COVENANTED, DECLARED AND AGREED, by
the Company,
that all such bonds of Guarantee Series C are to be issued, authenticated
and delivered, subject to this Supplemental Indenture and 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 Guarantee
Series C shall be designated as the Company’s “Mortgage Bonds, Guarantee
Series C of 2005 due 2009.” The bonds of Guarantee Series C shall bear
interest from the Initial Interest Accrual Date as provided in the form of
the
bond hereinabove set forth, and such provisions are incorporated at this
place
as though set forth in their entirety. The interest rate and maturity date
of
the bonds of Guarantee Series C shall be as set forth in the form
the bond
hereinabove set forth. Principal or redemption price of and interest on the
bonds of Guarantee Series C 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 the City of Akron,
Ohio.
Definitive
bonds of
Guarantee Series C may be issued, originally or otherwise, only as
registered bonds, substantially in the form of bond hereinabove set forth,
and
in a single denomination equal to the aggregate principal amount thereof
that is
Outstanding. Delivery of a bond of Guarantee Series C to the Trustee
for
authentication shall be conclusive evidence that its serial number has been
duly
approved by the Company.
The
bonds of
Guarantee Series C shall be redeemable as provided in the form of
bond
hereinabove set forth, and such provisions are incorporated at this place
as
though set forth in their entirety.
SECTION
2. Bonds
of Guarantee
Series C shall be deemed to be paid and cancelled and no longer outstanding
under the Indenture to the extent that the aggregate principal amount thereof
exceeds 105% of the aggregate principal amount of Energy Acquisition
Corporation II Electric Energy Acquisition Taxable Revenue Bonds,
Series 2005 (Energy for Education Program II), issued and outstanding
from time to time under the EAC II Trust Agreement (as defined in
the form
of bond of Guarantee Series C hereinabove set forth). The Trustee may rely
on an
Officer’s Certificate to this effect.
Unless
and until
the Trustee shall have received from the holder of the bond of Guarantee
Series
C any written advice establishing a redemption date, as provided in the form
of
bond of Guarantee Series C hereinabove set forth, the Trustee may
conclusively presume that the obligation of the Company to pay the principal
of,
and interest, if any, on the bonds of Guarantee Series C shall not
have
arisen.
SECTION
3. Bonds
of Guarantee
Series C are not transferable except in connection with the exercise
of the
rights and remedies of the holder thereof consequent upon an “Event of Default”
as defined in the Indenture. If and to the extent bonds of Guarantee
Series C become transferable, such transfer may be accomplished by
the
Holders 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 the City of Akron, Ohio, but only in the manner and upon
the
conditions prescribed in the Indenture and in the form of bond hereinabove
recited.
5
SECTION
4. The
principal
amount of bonds of Guarantee Series C which may be authenticated and delivered
hereunder is limited to the aggregate principal amount of Two Hundred
Fifty-eight Million Six Hundred Seventy-two Thousand Seven Hundred Fifty
Dollars
($258,672,750.00). The bonds of Guarantee Series C shall be issuable
in
denominations of $1.00.
Bonds
of Guarantee
Series C in the aggregate principal amount of Two Hundred Fifty-eight Million
Six Hundred Seventy-two Thousand Seven Hundred Fifty Dollars ($258,672,750)
may
at any time subsequent to the execution hereof be executed by the Company
and
delivered to the Trustee and shall be authenticated by the Trustee and delivered
(either before or after the recording hereof) upon the basis of Unbonded
Class
“A” Bonds issued and delivered to the Trustee for such purpose, pursuant to
a
Company Order referred to in Section 4.01 of the Indenture and upon receipt
by
the Trustee of the opinions and other documents required by Sections 4.01
and
4.02 of the Indenture.
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 in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of 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. Capitalized
terms used herein and not otherwise defined herein shall have the meaning
ascribed to them in the Indenture.
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.
6
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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| 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
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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 |
7
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THE
BANK OF NEW YORK,
as Trustee
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| By: | ||
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Xxxxx
X.
Xxxxx
Vice
President
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[Seal]
| Attest: | |||
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Xxxxx
Xxxxxxxxx-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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| Xxxx Xxxxx |
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| Xxx X. Xx |
8
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]
9
STATE
OF NEW
YORK
)
)
ss.:
COUNTY
OF NEW
YORK
)
On
the ___ day of April in the year 2005 before me, the undersigned, personally
appeared Xxxxx X. Xxxxx and Xxxxx Xxxxxxxxx-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]
10
The
Bank of New
York hereby certifies that its precise name and address as Trustee hereunder
are:
The
Bank of New
York
000
Xxxxxxx
Xxxxxx
City,
County and
State of New York 10286
| THE BANK OF NEW YORK | ||
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| By: | ||
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Xxxxx
X.
Xxxxx
Vice
President
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This
instrument was
prepared by FirstEnergy Corp.
11
