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EXHIBIT 4.3
DRAFT
8/9/95
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________,
1995, among (i) Ohio Edison Company, an Ohio corporation (the "Depositor" or
"Ohio Edison"), (ii) The Bank of New York, a banking corporation duly organized
and existing under the laws of New York, as trustee (the "Property Trustee"),
(iii) The Bank of New York (Delaware), a banking corporation duly organized
under the laws of Delaware, as Delaware trustee (the "Delaware Trustee"), (iv)
R.H. Marsh, an individual, and T.F. Struck II, an individual, as trustees, each
of whose address is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio
44308 (each an "Administrative Trustee" and together the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the Administrative
Trustees referred to collectively as the "Trustees") and (v) the several
Holders, as hereinafter defined,
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and the Administrative Trustees have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by the
entering into of that certain Trust Agreement, dated August __, 1995 (the
"Original Trust Agreement"), and by the execution by the Property Trustee, the
Delaware Trustee and the Administrative Trustees and filing with the Secretary
of State of the State of Delaware of the Certificate of Trust, dated August __,
1995, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, the
Administrative Trustees and the Delaware Trustee desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide
for, among other things, (i) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Debentures, (ii) the issuance of
the Common Securities by the Trust to the Depositor, and (iii) the issuance and
sale of the Preferred Securities by the Trust pursuant to the Underwriting
Agreement;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
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ARTICLE I.
DEFINED TERMS
Section 1.01 Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor on a
Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in their capacities as Administrative Trustees of the Trust
and not in their individual capacities, or such trustee's successor in interest
in such capacity, or any successor trustee or any Special Administrative
Trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Appointment Event" has the meaning specified in Section
6.01(d).
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"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under Federal
bankruptcy law or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of such Person or of all or substantially all of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to the institution
of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under Federal
bankruptcy law or any other applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or similar official of such Person
or of all or substantially all of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the Trustees.
"Book Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (z) a day on which the
principal corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
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"Certificate Depository Agreement" means the agreement among
the Trust and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the First Time of Delivery as defined in
the Underwriting Agreement, which date is also the date of execution and
delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit
C.
"Corporate Trust Office" means the principal corporate
office of the Property Trustee located in New York, New York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of the Trust or
the Trust's Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Ohio Edison Company, an Ohio
corporation, in its capacity as issuer of the Debentures.
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"Debenture Redemption Date" means "Redemption Date" as defined
in the Subordinated Indenture.
"Debenture Trustee" means The Bank of New York, a banking
corporation duly organized and existing under the laws of New York, as trustee
under the Subordinated Indenture.
"Debentures" means the $[__________] aggregate principal
amount [(or up to $[__________] aggregate principal amount if and to the extent
the overallotment option granted by the Trust to the underwriters of the
Preferred Securities is exercised)] of Ohio Edison's ___% Junior Subordinated
Debentures, Series A, Due [2025], issued pursuant to the Subordinated
Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust and not in its individual capacity,
or its successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement and includes Ohio Edison Company in its capacity as Holder of
the Common Securities.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 10 days; or
(iii) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in whose performance or
breach is dealt with in clause (ii) or (iii), above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the
Holders of at least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(v) the occurrence of a Bankruptcy Event with respect to
the Property Trustee.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities, dated as of ________, 1995, between Ohio Edison and the Trust,
substantially in the form attached as Exhibit D, as amended from time to time.
"Global Certificate" has the meaning specified in Section 5.11.
"Guarantee" means the Guarantee Agreement, dated as of
________, 1995, executed and delivered by Ohio Edison and The Bank of New York,
a New York banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the
Preferred Securityholders, as amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee, or any employee or agent
of the Trust or its Affiliates.
"Investment Company Event" means the receipt by the
Administrative Trustees of an opinion of counsel experienced in practice under
the Investment Company Act of 1940, as amended (the "1940 Act"), to the effect
that as a result of the occurrence of a change in law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), the Trust is or will be considered an "investment company"
which is required to be registered under the
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1940 Act, which Change in 1940 Act Law becomes effective on or after the date
of the issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of
which will be used to pay the Redemption Price of such Trust Securities, or
(ii) Debentures having a principal amount equal to the Liquidation Amount of
the Trust Securities of the Holder to whom such Debentures are distributed, as
the case may be.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, a Vice
President or the Comptroller, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer upon which the
statements or opinions of such officer contained in such Officers' Certificate
are based;
(c) a statement that, in each such officer's opinion,
such officer has made such examination or investigation as is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, any of the Trustees or the Depositor, but not an
employee of the Trust or any of the Trustees, and who shall be reasonably
acceptable to the Trustees.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities;
provided that, if such Preferred Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities which have been exchanged for or
in lieu of which other Preferred Securities have been authenticated and
delivered pursuant to Section 5.05 of this Trust Agreement; provided, however,
that in determining whether the Holders of the requisite Liquidation Amount of
the Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Preferred Securities which such Trustee knows to be so
owned shall be so disregarded and (b) the foregoing shall not apply at any time
when all of the Outstanding Preferred Securities are owned by the Depositor,
one or more of the Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency
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Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be The Bank of New York.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee in its trust
department for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with Sections
4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
assets of the Trust, having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form
attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security, plus accumulated and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
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"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Special Administrative Trustee" shall have the meaning
specified in Section 8.10.
"Special Event" means a Tax Event or an Investment Company
Event.
"Subordinated Indenture" means the Indenture, dated as of
_________ ___, 1995, between Ohio Edison and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Tax Event" means the receipt by the Administrative Trustees
of an opinion of counsel experienced in such matters to the effect that, as a
result of (a) any amendment to, or change (including any announced prospective
change) in, the laws or treaties (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
any amendment to or change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of
any judicial decision or regulatory determination on or after the date of the
issuance of the Preferred Securities), (c) any interpretation or pronouncement
of any such body, court, agency or authority, that provides for a position with
respect to such laws or regulations that differs from the theretofore generally
accepted position, or (d) any action taken by any governmental agency or
regulatory authority, which amendment or change is enacted, promulgated or
effective, or which interpretation or pronouncement is issued or announced, or
which action is taken, in each case on or after the date of the issuance of the
Preferred Securities, there is more than an insubstantial risk that (i) the
Trust is, or will be, subject to United States Federal income tax with respect
to income accrued or received on the Debentures, (ii) interest payable on the
Debentures is not, or will not be, fully deductible by Ohio Edison for United
States Federal income tax purposes or (iii) the Trust is, or will be, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges (a "Dissolution Tax Opinion").
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
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"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto,
including, for all purposes of this Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the time
being held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of ____________, 1995, among the Trust, Ohio Edison and the
underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
Section 2.01 Name. The Trust created and continued hereby
shall be known as "Ohio Edison Financing Trust," as such name may be modified
from time to time by the Administrative Trustees following written notice to
the Holders of Trust Securities, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.02 Office of the Delaware Trustee; Principal Place
of Business. The office of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711, or at such other address
in Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of business of the
Trust is c/o Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308.
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Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt in trust
from the Depositor in connection with the Original Trust Agreement of the sum
of [$10], which constituted the initial Trust Property. The Depositor shall
pay organizational expenses of the Trust as they arise or shall, upon request
of any Trustee, promptly reimburse such Trustee for any such expenses paid by
such Trustee. The Depositor shall make no claim upon the Trust Property for
the payment of such expenses.
Section 2.04 Issuance of the Preferred Securities. On
______, 1995 the Depositor, on behalf of the Trust and pursuant to the Original
Trust Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute and deliver to
the underwriters named therein Preferred Securities Certificates, registered in
the name of the nominee of the initial Clearing Agency, in an aggregate amount
of [__________] Preferred Securities having an aggregate Liquidation Amount of
$[__________] against receipt of the aggregate purchase price of such Preferred
Securities of $[__________] which amount the Administrative Trustees shall
promptly deliver to the Property Trustee. [In the event and to the extent the
overallotment option granted by the Trust pursuant to the Underwriting
Agreement is exercised by such underwriters, the Administrative Trustees, on
behalf of the Trust, shall execute and deliver to such underwriters Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of up to [__________] Preferred
Securities having an aggregate Liquidation Amount of up to $[__________],
against receipt of the aggregate purchase price of such Preferred Securities of
up to $[__________], which amount the Administrative Trustees shall promptly
deliver to the Property Trustee, on the date specified pursuant to the
Underwriting Agreement.]
Section 2.05 Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the Holders of the
Trust Securities and having an aggregate principal amount equal to
$[__________], and, in satisfaction of the purchase price for such Debentures,
(x) the Administrative Trustees, on behalf of the Trust, shall execute and
deliver to the Depositor Common Securities Certificates, registered in the name
of the Depositor, in an aggregate amount of [__________] Common Securities
having an aggregate Liquidation Amount of $[__________], and (y) the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$[__________]. [In the event the overallotment option granted by the Trust
with respect to the Preferred Securities pursuant to the Underwriting Agreement
is
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exercised by the underwriters named therein, the Administrative Trustees, on
behalf of the Trust, in amounts determined on a pro rata basis to the extent
the overallotment is exercised, and contemporaneously with the delivery to the
underwriters of such Preferred Securities, shall subscribe to and purchase from
the Depositor Debentures, registered in the name of the Property Trustee on
behalf of the Holders of the Trust Securities and having an aggregate principal
amount up to $[__________], and, in satisfaction of the purchase price for such
Debentures, (x) the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities Certificates, registered
in the name of the Depositor, in an aggregate amount of up to [__________]
Common Securities having an aggregate Liquidation Amount of up to
$[__________], and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of up to $[__________].]
Section 2.06 Declaration of Trust. The exclusive purposes
and functions of the Trust are (a) to issue and sell Trust Securities and use
the proceeds from such sale to acquire the Debentures, and (b) to engage in
those activities necessary, convenient or incidental thereto. The Depositor
hereby appoints the Trustees as trustees of the Trust, to have all the rights,
powers and duties to the extent set forth herein. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Securityholders. The
Trustees shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the purposes of
the Trust. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of the Delaware
Business Trust Act, and notwithstanding the foregoing or any other provision of
this Trust Agreement, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein.
Section 2.07 Authorization to Enter into Certain
Transactions. (a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section and Article VIII of this Trust
Agreement, and in accordance with the following provisions (A) and (B), the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
(A) As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
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(i) the issuance and sale of the Trust Securities;
(ii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the Expense Agreement and
the Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the consummation hereof;
(iii) assisting in the registration of the
Preferred Securities under the Securities Act of 1933, and under state
securities or blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(iv) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(v) the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust Agreement;
(vi) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with this Trust
Agreement;
(vii) registering transfers of the Trust Securities
in accordance with this Trust Agreement in their capacity as initial Securities
Registrar;
(viii) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of cancellation with
the Secretary of State of the State of Delaware;
(ix) unless otherwise determined by the Depositor
or the Property Trustee, or as otherwise required by the Delaware Business
Trust Act or the Trust Indenture Act, to execute and deliver on behalf of
the Trust (either acting alone or together with any or all of the
Administrative Trustees) any documents that the Administrative Trustees have
the power to execute and deliver pursuant to this Trust Agreement; and
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without
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consideration of the effect of any such action on any particular
Securityholder).
(B) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any
other payments made in respect of the Debentures in the Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(vii) to exercise all of the rights, powers and
privileges of a holder of Debentures under the Subordinated Indenture and, if
an Event of Default occurs and is continuing, the Property Trustee shall, for
the benefit of Holders of the Trust Securities, enforce its rights as holder of
the Debentures subject to the rights of the Holder pursuant to the terms of
such Trust Securities;
(viii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the Certificate Depository
Agreement;
(ix) as provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the execution of
the certificate of cancellation to be prepared and filed by the Administrative
Trustees with the Secretary of State of the State of Delaware; and
(x) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time determine is necessary
or advisable to protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall
have none of the duties, powers or authority of the
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Administrative Trustees set forth in Section 2.07(a)(A) or the Depositor set
forth in Section 2.07(c).
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to be treated as an association taxable as a corporation for United
States Federal income tax purposes, (iv) incur any indebtedness for borrowed
money or (v) take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. The Trustees shall defend all claims
and demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issue and sale of the
Preferred Securities, the Depositor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust, the
following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(ii) to determine the States in which to take
appropriate action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must be
taken by or on behalf of the Trust, and advise the Trustees of actions they
must take on behalf of the Trust, and prepare for execution and filing any
documents to be executed and filed by the Trust or on behalf of the Trust, as
the Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to the registration of
the Preferred Securities under Section 12(b) of the Securities Exchange Act of
1934, including any amendments thereto;
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(v) to negotiate the terms of, and execute and
deliver, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be
an "investment company" required to be registered under the Investment Company
Act of 1940, as amended, or treated as an association taxable as a corporation
for United States Federal income tax purposes and so that the Debentures will
be treated as indebtedness of the Depositor for United States Federal income
tax purposes. In this connection, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the
Depositor and the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee
for the benefit of the Securityholders and the Trust in accordance with this
Trust Agreement.
ARTICLE III.
Section 3.01 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment Account
for the exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or
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interest on, and any other payments or proceeds with respect to, the
Debentures. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue from
____________, 1995, and, except in the event that Ohio Edison exercises its
right to extend the interest payment period for the Debentures pursuant to
Section 3.01 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on _________ __, 1995. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such Distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date (each date on which distributions are payable in accordance with
this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall
be fixed at a rate of __% per annum of the Liquidation Amount of the Trust
Securities. Distributions that are in arrears for more than one quarter
(whether due to an extension of the interest payment period for the Debentures
under Section 301 of the Subordinated Indenture or otherwise) will accrue
interest at the rate per annum set forth above and the interest so accrued at
the end of each quarter and remaining unpaid will itself bear interest
thereafter (to the extent permitted by applicable law) until paid on the same
basis. The term "Distributions" as used herein includes any such interest
payable, unless otherwise stated. The amount of Distributions payable (and the
amount, if any, of interest payable, including interest on overdue interest)
for any full quarterly period shall be computed on the basis of twelve 30-day
months and a 360-day year.
(c) Distributions on the Trust Securities shall be made
and shall be deemed payable on each Distribution Date only to the extent that
the Trust has funds legally available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders thereof as
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they appear on the Securities Register for the Trust Securities on the relevant
record date, which shall be one Business Day prior to such Distribution Date;
provided, however, that in the event that the Preferred Securities do not
remain in book-entry-only form, the relevant record date shall be the date
(whether or not a Business Day) 15 days prior to the relevant Distribution
Date.
Section 4.02 Redemption. (a) On each Debenture Redemption
Date and at Maturity (as defined in the Subordinated Indenture), the Trust
will be required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b) Notice of redemption shall be given by the
Administrative Trustees by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing in the
Security Register. All notices of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds immediately
available in the Payment Account for the payment of such Redemption Price.
(d) If the Administrative Trustees give a notice of
redemption in respect of any Preferred Securities, then, by 12:00 noon, New
York time, on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Preferred Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and shall give such Clearing
Agency irrevocable instructions and authority to pay the Redemption Price to
the holders thereof. If the Preferred Securities are no longer in
book-entry-only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit
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with the Paying Agent funds sufficient to pay the applicable Redemption Price
and will give the Paying Agent irrevocable instructions to pay the Redemption
Price to the holders thereof. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, all rights of Securityholders holding Trust Securities so called for
redemption will cease, except the right of such Securityholders to receive the
Redemption Price, but without interest, and such Trust Securities will cease to
be outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, payment of
such distribution shall be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the
event that payment of the Redemption Price in respect of any Trust Securities
called for redemption is improperly withheld or refused and not paid either by
the Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities
to the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the Securityholders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to the relevant Redemption Date; provided,
however, that in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the fifteenth day
(whether or not a Business Day) prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated 3% to the Common Securities
and 97% to the Preferred Securities. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, by such method as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiple thereof) of the
Liquidation Amount of
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Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the Security Registrar in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or Redemption
Date a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if applicable) on,
or Redemption Price of, any Common Security, and no other payment on account of
the redemption, liquidation or other acquisition of Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event
of Default, the Holder of Common Securities will be deemed to have waived any
right to act with respect to any Event of Default under this Trust Agreement
until the effect of all such Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise eliminated. Until any such
Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities
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are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency, which shall credit the relevant Persons' accounts at such Clearing
Agency on the applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
Section 4.05 Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), and file, on behalf of the
Trust, all applicable United States Federal, state and local tax returns and
tax information reports that are required to be filed with respect to the
Trust. The Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns, reports and schedules
promptly after such filing or furnishing. The Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership. Upon the formation of the
Trust and the contribution by the Depositor pursuant to Section 2.03 and until
the issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
Section 5.02 The Trust Securities Certificates. The
Preferred Securities Certificates shall be issued in minimum denominations of
$1,000 Liquidation Amount and integral multiples of $25 in excess thereof, and
the Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
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Section 5.03 Delivery of Trust Securities Certificates. On
the Closing Date and on any date on which Preferred Securities are required to
be delivered pursuant to the exercise of the overallotment option provided for
in the Underwriting Agreement, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
or upon the written order of the Depositor signed by its chairman of the board,
its president or any vice president, without further corporate action by the
Depositor, in authorized denominations.
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 5.08,
a Securities Register in which, subject to such reasonable regulations as it
may prescribe, the Securities Registrar shall provide for the registration of
Preferred Securities Certificates and the Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. Until such time as they have appointed a Securities Registrar
under Section 2.07(a)(A)(vi) hereof, the Administrative Trustees, acting
together, shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by the Administrative
Trustee or Trustees. The Securities Registrar shall not be required to
register the transfer of or exchange (i) Preferred Securities during a period
of 15 days immediately preceding the date on which notice identifying the
serial numbers for the Preferred Securities called for redemption is mailed, or
(ii) any Preferred Securities that have been called for redemption. At the
option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Administrative
Trustees and the Securities Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange
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shall be cancelled and subsequently disposed of by the Administrative Trustees
in accordance with customary practice by trustees generally.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction, loss
or theft of any Trust Securities Certificate and (b) there shall be delivered
to the Securities Registrar and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees or any one of
them on behalf of the Trust shall execute and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer,
the Trustees or the Securities Registrar shall treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities Register
as the owner of such Trust Securities Certificate for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to be furnished
a list (x) to the Depositor, within 15 days after receipt by any Administrative
Trustee of a request therefor in such form as such Administrative Trustees may
reasonably require, of the names and addresses of the Securityholders as of the
most recent Record Date and (y) to the Property Trustee,
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promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in order to enable the Property Trustee to discharge its
obligations under this Trust Agreement. If three or more Securityholders or
one or more Holders of Trust Securities Certificates evidencing not less than
25% in outstanding Liquidation Amount apply in writing to any Administrative
Trustee, and such application states that the applicants desire to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Securityholders. Each Holder, by
receiving and holding a Trust Securities Certificate, shall be deemed to have
agreed not to hold either the Depositor or the Trustees accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 5.08 Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of Manhattan, The City of
New York, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate The Bank of New York, 101 Barclay Street, Floor 21 West, New York,
New York 10286 as their principal trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor, the
Property Trustee and the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent
shall make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be The Bank of New York, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as a Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that The Bank of New York shall no longer be the
Paying Agent or a successor Paying Agent shall resign or its authority to act
be revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to
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act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Bank also in its
role as Paying Agent, for so long as the Bank shall act as Paying Agent and, to
the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On
the Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record ownership
of the Common Securities. Any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11 Book-entry Preferred Securities Certificates;
Common Securities Certificate. (a) The Preferred Securities Certificates,
upon original issuance, will be issued in the form of a typewritten Global
Preferred Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates (each a "Global Certificate"), to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall
be in full force and effect;
(ii) the Securities Registrar and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities Certificates
(including the payment of Distributions on the Book-Entry Preferred Securities
and the
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giving of instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and shall
have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control;
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements between
such Owners and the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants; and
(v) whenever this Trust Agreement requires or
permits actions to be taken based upon instructions or directions of Holders of
Trust Certificates evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
applicable class of Trust Certificates and has delivered such instructions to
the Administrative Trustees.
(b) Common Securities Certificates representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a
notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees shall give
all such notices and communications specified herein to be given to Owners to
the Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Preferred Securities Certificates, and the Depositor is unable
to locate a qualified successor, (ii) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
interests
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aggregating at least a majority of the Liquidation Amount of Preferred
Securities advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interest
of the Owners of Preferred Securities Certificates, then the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the Trustees
of the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to such Owners requesting the same. Upon
surrender to the Administrative Trustees of the typewritten Preferred
Securities Certificate or Certificates representing the Book Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred Securities Certificates
as Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to
the Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders
shall not have any right or title therein other than the undivided beneficial
interest in the assets of the Trust conferred by their Trust Securities, and
they shall have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth
therein and in this Trust Agreement. The Trust Securities shall have no
preemptive rights and when issued and delivered to Securityholders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Trust. Except as otherwise provided in the Expense Agreement and Section
10.01 hereof, the Holders of the Trust Securities, in their capacities as such,
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
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ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights. (a) Except as
provided in this Section, in Sections 10.03 and 8.10 hereof, and in the
Subordinated Indenture and the Guarantee, and as otherwise required by law, no
Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of
an association.
(b) The holders of a majority in aggregate liquidation
amount of the Preferred Securities will have the right to (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power conferred upon
the Property Trustee under the Trustee Agreement, including the right to
direct the Property Trustee to exercise the remedies available to it as a
holder of the Subordinated Debentures under the Indenture; (ii) waive any past
Indenture Event of Default that is waivable under the Indenture; or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Debentures shall be due and payable; provided, however, that
where a consent under the Indenture (as defined herein) requires the consent of
all holders of the Subordinated Debentures affected thereby, the Property
Trustee may only give such consent at the direction of all holders of the
Preferred Securities. If the Property Trustee fails to enforce its rights
under the Subordinated Debentures, to the fullest extent permitted by law, a
holder of Preferred Securities may, after such holder's written request to the
Property Trustee to enforce such rights, institute a legal proceeding directly
against Ohio Edison to enforce the Property Trustee's rights under the
Subordinated Debentures without first instituting any legal proceeding against
the Property Trustee or any other person or entity. The Property Trustee shall
notify all holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Subordinated
Debentures. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Property Trustee shall not take any
of the actions described in clauses (i), (ii) or (iii), unless it shall receive
an opinion of counsel experienced in such matters to the effect that the Issuer
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement
provides for, or the Trustees otherwise propose to effect, other than pursuant
to the terms of this Trust Agreement, (i) any action that would adversely
affect the powers, preferences or special rights of the Holders of the
Preferred Securities,
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whether by way of amendment to this Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, then the Holders of
Outstanding Preferred Securities will be entitled to vote as a class on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least 66 2/3% in Liquidation
Amount of the Outstanding Preferred Securities. No amendment to this Trust
Agreement may be made if, as a result of such amendment, the Trust would be
classified as an association taxable as a corporation for United States Federal
income tax purposes, and the Trustees shall be entitled to receive and shall be
fully protected in relying upon an Opinion of Counsel experienced in such
matters to such effect.
(d) If (i) the Trust fails to make Distributions in full
on the Preferred Securities for six (6) consecutive quarterly Distribution
periods, or (ii) an Event of Default occurs and is continuing (each of (i) and
(ii) being an "Appointment Event"), then the Holders of the Preferred
Securities, acting as a single class, will be entitled by the vote of a
majority in Liquidation Amount of the Preferred Securities to appoint a Special
Administrative Trustee in accordance with Section 8.10 of this Trust Agreement.
Any Holder of Preferred Securities (other than the Depositor, or any entity
directly or indirectly controlling or controlled, by or under direct or
indirect common control with the Depositor) will be entitled to nominate any
person to be appointed as Special Administrative Trustee. For purposes of
determining whether the Trust has failed to make Distributions in full on the
Preferred Securities for six (6) consecutive quarterly Distribution periods,
Distributions shall be deemed to remain in arrears, notwithstanding any
payments in respect thereof, until full cumulative Distributions have been or
are contemporaneously are paid with respect to all quarterly Distribution
periods terminating on or prior to the date of payment of such cumulative
Distributions. Not later than 30 days after such right to appoint a Special
Administrative Trustee arises, the Administrative Trustees will convene a
meeting of the Holders of the Preferred Securities for the purpose of
appointing a Special Administrative Trustee. If the Administrative Trustees
fail to convene such meeting within such 30-day period, the Holders of 10% in
Liquidation Amount of the Preferred Securities will be entitled to convene
such a meeting in accordance with Section 6.03 of this Trust Agreement.
Notwithstanding the appointment of a Special Administrative Trustee, Ohio
Edison as issuer of the Debentures shall retain all rights under the Indenture,
including the right to extend the interest payment period on the Debentures.
Section 6.02 Notice of Meetings. Notice of all meetings of
the Preferred Securityholders, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section
10.08 to each Preferred Securityholder of record, at his registered address, at
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least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may be held
as adjourned without further notice.
Any and all notices to which any Preferred Securityholder
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Preferred
Securityholder of record at his last known address as recorded on the
Securities Register.
Section 6.03 Meetings of Preferred Securityholders. No
annual meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders if directed to do so
in writing by the Holders of at least 25% in Liquidation Amount of the
Preferred Securities, and the Administrative Trustees or the Property Trustee
may, at any time in their discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which the Preferred
Securityholders are entitled to vote.
Holders of at least 50% in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders. If a quorum is present at a meeting, an
affirmative vote by the Holders of at least 66 2/3% in Liquidation Amount of
Preferred Securities, present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount represented by their
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05 Proxies, Etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may vote by proxy,
provided that no proxy shall be voted at any meeting unless it shall have been
placed on file with the Administrative Trustees, or with such other officer or
agent of the Trust as the Administrative Trustees may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Securityholders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote
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shall not be received in respect of such Trust Securities. A proxy purporting
to be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger.
Section 6.06 Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without
a meeting if the Holders of at least 66 2/3% in Liquidation Amount of all
Outstanding Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express provision of
this Trust Agreement) shall consent to the action in writing.
Section 6.07 Record Date for Voting and Other Purposes. For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders or the payment
of distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Trust Agreement and (subject to
Section 8.01) conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date
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of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders of
Trust Securities and the Administrative Trustees or among such Securityholders
or Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the
Trust shall be open to inspection by Securityholders during normal business
hours for any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
Section 7.01 Property Trustee. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
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(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good standing under the
laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes the valid and
legally binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate, conflict with or
constitute a breach of the Property Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery by
the Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the consent or
approval of, the giving of notice to, the registration with or the taking of
any other action with respect to any governmental authority or agency under any
existing Federal law governing the banking or trust powers of the Property
Trustee or under the laws of the State of New York;
Section 7.02 Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes the valid and
legally binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
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(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the Delaware
Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery by
the Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein require the consent or
approval of, the giving of notice to, the registration with or the taking of
any other action with respect to any governmental authority or agency under any
existing Federal law governing the banking or trust powers of the Delaware
Trustee or under the laws of the State of Delaware;
ARTICLE VIII.
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall
be as provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act, and no implied covenants or obligations
shall be read into this Trust Agreement against any of the Trustees.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to them.
Notwithstanding anything contained in this Trust Agreement to the contrary, the
duties and responsibilities of the Property Trustee under this Trust Agreement
shall be subject to the protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the Trust Indenture Act and to
the extent applicable, Rule 3a-7 under the 1940 Act, or any successor rule
thereunder. Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of
Section 8.01.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees
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are not personally liable to it for any amount distributable in respect of any
Trust Security or for any other liability in respect of any Trust Security.
This Section 8.01(b) does not limit the liability of the Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust Property
and the Property Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement,
the Trust Indenture Act and Rule 3a-7 thereunder;
(ii) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Trust Property or the payment of any taxes or
assessments levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to
Section 2.07(a)(B)(i) and except to the extent otherwise required by
law;
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
Section 8.02 Notice of Defaults. Within five Business Days
after the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice of
any default known to the Property Trustee to the Securityholders, the
Administrative Trustees and the Depositor, unless such default shall have been
cured or waived. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
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Section 8.03 Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(a) the Property Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate or an instrument signed by
the requisite number of Administrative Trustees, as the case may be; and any
resolution of the Board of Directors mentioned herein may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by
the Depositor or the Administrative Trustees;
(d) the Property Trustee may consult with counsel of its
choice and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at
the request or direction of any of the Holders pursuant to this Trust
Agreement, unless such Holders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses (including
attorneys' fees and expenses) and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Property Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to
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examine the books, records and premises of the Depositor personally or by agent
or attorney;
(g) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Trust Agreement;
(i) the Property Trustee shall not be charged with
knowledge of any default, Event of Default or Appointment Event with respect
to the Trust Securities unless either (1) a Responsible Officer of the Property
Trustee shall have actual knowledge of the default, Event of Default or
Appointment Event or (2) written notice of such default, Event of Default or
Appointment Event shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder of the Trust Securities;
(j) no provision of this Trust Agreement shall be deemed
to impose any duty or obligation on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority available to
the Property Trustee shall be construed to be a duty; and
(k) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Property Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Trust Agreement or adequate
indemnity against such risk or liability is not reasonably assured to it;
(l) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or any tax or securities) (or any rerecording, refiling
or registration thereof);
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(m) the Property Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust Agreement from
any court of competent jurisdiction; and
(n) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the Holders of
the Securities, which instructions may only be given by the Holders of the same
proportion and liquidation amount of the Securities as would be entitled to
direct the Property Trustee under the terms of this Trust Agreement in respect
of such remedies, right or action, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such instructions.
Section 8.04 Not Responsible For Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof, nor as to the validity or sufficiency of this Trust Agreement
or the Trust Securities. The Trustees shall not be accountable for the use or
application by the Trust of the proceeds of the Trust Securities in accordance
with Section 2.05.
Section 8.05 May Hold Securities. Except as provided in the
definitions of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06 Compensation; Fees; Indemnity. The Depositor
agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
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(c) to indemnify the Trustees for, and to hold the
Trustees harmless from and against, any and all loss, damage, claims, liability
or expense incurred without negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder.
As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior to
the Trust Securities upon all property and funds held or collected by such
Trustee as such, except funds held in trust for the payment of Distributions on
the Trust Securities.
The provisions of this Section shall survive the termination
of this Trust Agreement.
Section 8.07 Corporate Property Trustee Required; Eligibility
Trustees.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property Trustee shall be
a Person that has a combined capital and surplus of at least $50,000,000. If
any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware that otherwise meets the requirements of applicable Delaware
law and that shall act through one or more persons authorized to bind such
entity.
Section 8.08 Conflicting Interests. If the Property Trustee
has or shall acquire a conflicting interest within the
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meaning of the Trust Indenture Act, the Property Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. The
Subordinated Indenture and the Guarantee Agreement shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i)
of the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.09 Co-trustees and Separate Trustee. Unless an
Event of Default shall have occurred and be continuing, at any time or times,
for the purpose of meeting the legal requirements of the Trust Indenture Act or
of any jurisdiction in which any part of the Trust Property may at the time be
located, the Holder of the Common Securities and the Administrative Trustees
shall, by agreed action of the majority of such Trustees, have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case an Event of Default under the Subordinated Indenture has
occurred and is continuing, the Administrative Trustees alone shall have power
to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(a) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees.
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(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that under
any law of any jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee, or
any other Trustee hereunder.
(e) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee or separate
trustee.
Section 8.10 Resignation and Removal; Appointment of
Successor; Special Administrative Trustee. No resignation or removal of any
Trustee (the "Relevant Trustee") and no appointment of a successor Relevant
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Relevant Trustee in accordance with the applicable
requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to
the Trust Securities by giving written notice thereof to the Securityholders.
If the instrument of acceptance by a successor Relevant Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the resigning Relevant
Trustee may petition any court of competent jurisdiction for the
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appointment of a successor Relevant Trustee with respect to the Trust
Securities. Unless an Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at any time by Act of the Common
Securityholder. If an Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at such time by Act of the Securityholders
of a majority in Liquidation Amount of the Preferred Securities Certificates,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Event of
Default shall have occurred and be continuing, the Common Securityholder, by
Act of the Common Securityholder delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees with respect to
the Trust Securities and the Trust, and the retiring Relevant Trustee shall
comply with the applicable requirements of Section 8.11. If the Relevant
Trustee shall resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when an Event of Default shall have occurred and
be continuing, the Preferred Securityholders, by Act of the Securityholders of
a majority in Liquidation Amount of the Preferred Securities then outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the
Trust, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee with respect to the Trust
Securities and the Trust and each appointment of a successor Trustee with
respect to the Trust Securities and the Trust to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the Depositor. Each
notice shall include the name of the successor Relevant Trustee with respect to
the Trust Securities and the Trust and the address of its Corporate Trust
Office. Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the
unanimous act of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in each case being
an individual who satisfies the eligibility requirement for Administrative
Trustees
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or Delaware Trustee, as the case may be, set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such Person as an Administrative Trustee (in which case
the vacancy so created will be filled in accordance with the preceding
sentence).
Notwithstanding the foregoing, if an Appointment Event has
occurred and is continuing, one (1) additional Administrative Trustee (the
"Special Administrative Trustee") may be appointed by vote of the Holders of a
majority in Liquidation Amount of the Preferred Securities, voting as a class
at a meeting of the Holders of the Preferred Securities, and such Special
Administrative Trustee may only be removed (otherwise than as set forth in the
next sentence) by vote of the Holders of a majority in Liquidation Amount of
the Preferred Securities, voting as a class at a meeting of the Holders of the
Preferred Securities. A Special Administrative Trustee shall only hold office
while an Appointment Event is continuing and shall cease to hold office
immediately after the Appointment Event pursuant to which the Special
Administrative Trustee was appointed and all other Appointment Events cease to
be continuing. Any Special Administrative Trustee may resign from office
(without need for a prior or subsequent accounting) by an instrument in writing
signed by the Special Administrative Trustee and delivered to the Depositor and
the Trust, which resignation shall take effect upon such delivery or upon such
later date as is specified therein; provided, however, that no such resignation
of a Special Administrative Trustee shall be effective until the 60th day
following delivery of the instrument of resignation of the Special
Administrative Trustee to the Depositor and the Trust or such later date
specified in such instrument during which period the Holders of the Preferred
Securities shall have the right to appoint a successor Special Administrative
Trustee as provided in this Section.
Section 8.11 Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee with respect to
all Trust Securities and the Trust, every such successor Relevant Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Relevant Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Relevant Trustee shall
become effective and such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on the request of the Depositor
or the successor Relevant Trustee, such retiring Relevant Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly
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assign, transfer and deliver to such successor Relevant Trustee all property
and money held by such retiring Relevant Trustee hereunder, subject,
nevertheless, to the retiring Trustee's prior lien provided for in Section
8.06.
In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities
and the Trust and (2) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each such Relevant
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee
and upon the execution and delivery of such amendment the resignation or
removal of the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, such
retiring Relevant Trustee shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Relevant Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation Succession to
Business. Any corporation into which the Property Trustee, Delaware Trustee or
any Administrative Trustee which is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant
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Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
Section 8.13 Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee or the Delaware Trustee
shall be or become a creditor of the Depositor or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the Property Trustee or
the Delaware Trustee, as the case may be, shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor).
Section 8.14 Reports by Property Trustee.
(a) The Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. Such of those
reports as are required to be transmitted by the Property Trustee pursuant to
Section 313(a) of the Trust Indenture Act shall be so transmitted within 60
days after July 31 of each year, commencing July 31, 1996.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Depositor. The Depositor will notify the Property Trustee when any
Trust Securities are listed on any stock exchange.
Section 8.15 Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information (if any) as required
by Section 314 and the compliance certificate required by Section 314 of the
Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
(including any covenants compliance with which constitutes a condition
precedent) that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust
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Indenture Act may be given in the form of an Officers' Certificate.
Section 8.17 Number of Trustees.
(a) The number of Trustees (exclusive of any Special
Administrative Trustee) shall be four (4), provided that Depositor, by written
instrument may increase or decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section 8.17(a),
a vacancy shall occur. The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and (b) the Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
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Section 8.19 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Trust Agreement shall not be liable to the Trust or to
any other Covered Person for its good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or
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term so made, taken or provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement contemplated herein or
of any duty or obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) Whenever in this Trust Agreement an Indemnified
Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
ARTICLE IX.
TERMINATION AND LIQUIDATION
Section 9.01 Termination upon Expiration Date. The Trust
shall automatically terminate on [__________], [2050] (the "Expiration Date")
following the distribution of the Trust Property in accordance with Section
9.04.
Section 9.02 Early Termination. Upon the first to occur of
any of the following events (such first occurrence, an "Early Termination
Event"):
(i) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the Depositor;
(ii) the distribution of Debentures pursuant to
section 9.05 upon the occurrence of a Special Event; and
(iii) the redemption of all of the Preferred
Securities;
the Trust shall terminate and the Trustees shall take such action as is required
by Section 9.04.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trustees and the Trust shall terminate upon the latest
to occur of the following: (i) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon
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the final payment of the Trust Securities; (ii) the payment of any expenses or
other liabilities owed by the Trust; and (iii) the discharge of all
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.04 Liquidation. (a) If an Early Termination Event
specified in Section 9.02 occurs, the Trust shall be liquidated by the Trustees
as expeditiously as the Trustees determine to be appropriate by causing the
Property Trustee to distribute to each Securityholder a Like Amount of
Debentures, subject to Section 9.04(d). Notice of liquidation shall be given
by the Administrative Trustees by first-class mail, postage prepaid, mailed not
later than 30 nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be outstanding and any
Trust Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(d) applies receive a Liquidation Distribution,
as the Administrative Trustee or the Property Trustee shall deem appropriate.
(b) Except where Section 9.04(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments or
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interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property Trustee
not to be practical, the Trust Property shall be liquidated, and the Trust
shall be dissolved, wound-up or terminated, by the Property Trustee in such
manner as the Property Trustee determines. In such event, on the date of the
dissolution, winding-up or other termination of the Trust, Securityholders will
be entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, winding
up or termination, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if an Event of
Default has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities.
Section 9.05 Special Event Redemption or Distribution.
If, at any time, a Special Event shall occur and be
continuing, the Trust shall, except in the limited circumstances described
below, be dissolved with the result that, after satisfaction of liabilities to
creditors of the Trust, a Like Amount of Debentures shall be distributed to the
holders of the Trust Securities in liquidation of such holders' interests in
the Trust on a pro rata basis within 90 days following the occurrence of such
Special Event; provided, however, that in the case of the occurrence of a Tax
Event, such dissolution and distribution shall be conditioned on the
Administrative Trustees' receipt of an opinion of counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the Holders
of the Trust Securities will not recognize any gain or loss for United States
Federal income tax purposes as a result of such dissolution and distribution of
Debentures; and provided, further, that, if at the time there is available to
the Trust the opportunity to eliminate, within such 90-day period,
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the Special Event by taking some ministerial action, such as filing a form or
making an election or pursuing some other reasonable measure that will have no
adverse effect on the Trust, Ohio Edison or the Holders of the Trust
Securities, the Trust will pursue such measure in lieu of dissolution.
Furthermore, if in the case of the occurrence of a Tax Event, after receipt of
a Dissolution Tax Opinion by the Administrative Trustees (i) the Trust has
received an opinion of counsel experienced in such matters (a "Redemption Tax
Opinion") to the effect that, as a result of a Tax Event, there is more than an
insubstantial risk that Ohio Edison would be precluded from deducting the
interest on the Debentures for United States Federal income tax purposes even
if the Debentures were distributed to the holders of Trust Securities in
liquidation of such holders' interests in the Trust as described above, or (ii)
the Administrative Trustees shall have been informed by such tax counsel that
it cannot deliver a No Recognition Opinion to the Trust, Ohio Edison shall have
the right, upon not less than 30 nor more than 60 days notice, to redeem the
Debentures, in whole or in part, for cash within 90 days following the
occurrence of such Tax Event, and, following such redemption, a Like Amount of
Trust Securities shall be redeemed by the Trust at the Redemption Price on a
pro rata basis; provided, however, that, if at the time there is available to
Ohio Edison or the Trust the opportunity to eliminate, within such 90-day
period, the Tax Event by taking some ministerial action, such as filing a form
or making an election or pursuing some other similar reasonable measure which
has no adverse effect on the Trust, Ohio Edison or the holders of the Trust
Securities, Ohio Edison or the Trust will pursue such measure in lieu of
redemption.
If the Debentures are distributed to the Holders of the
Preferred Securities, whether under Section 9.04 or this Section 9.05, Ohio
Edison will use its best efforts to cause the Debentures to be listed on the
New York Stock Exchange or on such other exchange, if any, as the Preferred
Securities are then listed.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01 Guarantee by the Depositor. Subject to the
terms and conditions hereof, the Depositor irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Guarantee Beneficiaries") the full payment,
when and as due, of any and all Obligations (as hereinafter defined) to such
Guarantee Beneficiaries. As used in this Section, "Obligations" means any
indebtedness, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of the Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of
the Preferred
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Securities or such other similar interests, as the case may be. This guarantee
is intended to be for the benefit of, and to be enforceable by, all such
Guarantee Beneficiaries, whether or not such Guarantee Beneficiaries have
received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or otherwise,
in a Trust Security shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any Securityholder
for such person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time
by the Trustees and the Depositor, without the consent of any Securityholders,
(i) to cure any ambiguity, correct or supplement any provision herein or
therein which may be inconsistent with any other provision herein or therein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified for United States Federal income
tax purposes as an association taxable as a corporation at any time that any
Trust Securities are outstanding; provided, however, that, except in the case
of clause (ii), such amendment or action shall not adversely affect in any
material respect the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Trust Securityholders representing not less
than 66 2/3% in Liquidation Amount of the Trust Securities then Outstanding and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
federal income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with Section 6.03 or
6.06 hereof), this Trust Agreement may not be amended to (i) change the amount
or timing
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of any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on or
after such date; notwithstanding any other provision herein without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 6.03 or 6.06 hereof), paragraph (b) of this Section
10.03 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor or the Trustees, as the case
may be, this Trust Agreement may not be amended in a manner which imposes any
additional obligation on the Depositor or the Trustees.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
Section 10.04 Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05 GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
Section 10.06 Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust or a
Relevant Trustee or both, including any successor by operation of law.
Section 10.07 Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each
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case, addressed, (i) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address may appear
on the Securities Register and (ii) in the case of the Common Securityholder or
the Depositor, to Ohio Edison Company, 76 South Main Street, Akron, Ohio,
Attention: Treasurer, facsimile no. (216) 384-3772. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Trust, the Property Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (i) with respect to the Property Trustee
and the Delaware Trustee, The Bank of New York, 101 Barclay Street, Floor 21
West, New York, NY 10286, Attention: Corporate Trust Department with a copy to:
The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Department; and (ii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of [Ohio Edison Financing
Trust c/o Treasury Department"]. Such notice, demand or other communication to
or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust
or the Property Trustee.
Section 10.09 Agreement not to Petition. Each of the
Trustees and the Depositor agree for the benefit of the Securityholders that,
until at least one year and one day after the Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without limitation,
the United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under
any Bankruptcy Law. In the event the Depositor takes action in violation of
this Section 10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert. The provisions of this Section 10.09
shall survive the termination of this Trust Agreement.
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Section 10.10 Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control.
(d) THE APPLICATION OF THE TRUST INDENTURE ACT TO THIS
TRUST AGREEMENT SHALL NOT AFFECT THE NATURE OF THE SECURITIES AS EQUITY
SECURITIES REPRESENTING UNDIVIDED BENEFICIAL INTERESTS IN THE ASSETS OF THE
TRUST. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS
AND PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND SUCH SECURITYHOLDER AND SUCH OTHERS.
Section 10.11 Counterparts. This Trust Agreement may contain
more than one counterpart of the signature page and this Trust Agreement may be
executed by the affixing of the signature of each of the Trustees of one of
such counterpart signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
OHIO EDISON COMPANY
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_______________________________________
Name:
Title:
__________________________________________
R. H. Marsh, as Administrative Trustee
__________________________________________
T. F. Struck II, as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
OHIO EDISON FINANCING TRUST
THIS CERTIFICATE OF TRUST of Ohio Edison Financing Trust (the
"Trust"), dated August [__], 1995 is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust being formed
hereby is Ohio Edison Financing Trust.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Property Trustee
By:
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Delaware Trustee
By:
Name:
Title:
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R. H. MARSH,
not in his individual capacity but
solely as Administrative Trustee
T. F. STRUCK II,
not in his individual capacity but
solely as Administrative Trustee
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TRUST AGREEMENT, dated as of August [__], 1995, among (i) Ohio
Edison Company, an Ohio corporation (the "Depositor" or "Ohio Edison"), (ii)
The Bank of New York, a banking corporation duly organized and existing under
the laws of New York, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a banking corporation duly organized under the laws of
Delaware, as Delaware trustee (the "Delaware Trustee"), and (iv) R. H. Marsh,
an individual, and T. F. Struck II, an individual, each of whose address is c/o
Ohio Edison Company, 76 South Main Street, Akron, Ohio 44308, as trustees (each
an "Administrative Trustee" and together the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "Ohio Edison
Financing Trust", in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt
of such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitutes a business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq. (the
"Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
the form attached hereto.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form included as Exhibit 4.2 to the 1933 Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities referred to
therein. Prior to the execution and delivery of such amended and restated
Trust Agreement, the Trustees shall not have any duty or obligation hereunder
or with respect of the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the Depositor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3 (File Nos.
33-[__________] 33-[__________]) (the "1933 Act Registration Statement") and
any
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pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of 1933, as amended, of
the Preferred Securities of the Trust, and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the New York Stock Exchange; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement among the Trust, the
Depositor and [__________], substantially in the form included as Exhibit 1.1
of the 1933 Act Registration Statement. In the event that any filing referred
to in clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by the Trustees, R. H. MARSH and T. F.
STRUCK II, in their capacities as Administrative Trustees of the Trust, are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that The
Bank of New York and The Bank of New York (Delaware), in their capacities as
Property Trustee and Delaware Trustee of the Trust, respectively, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or blue sky laws. In connection
with all of the foregoing, the Depositor and each Trustee, solely in its
capacity as Trustee of the Trust, hereby constitutes and appoints John H.
Byington, Jr. and Michael F. Cusick, and each of them, as his, her or its, as
the case may be, true and lawful attorneys-in-fact, and agents, with full power
of substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustee's name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or could do in
person, hereby ratifying and confirming all that said
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attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that the number of
Trustees shall in no event be less than four (4); and provided, further that to
the extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any Trustee at any time. The Trustees may resign upon
thirty days prior notice to the Depositor.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
OHIO EDISON COMPANY,
as Depositor
By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Property Trustee
By:
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Delaware Trustee
By:
Name:
Title:
R. H. MARSH,
not in his individual capacity but
solely as Administrative Trustee
T. F. STRUCK II,
not in his individual capacity but
solely as Administrative Trustee
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EXHIBIT B
Certificate Depository Agreement
_____ ___, 1995
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099.
Attention: ____________
General Counsel's Office
Re: Ohio Edison Financing Trust ___% Trust
Preferred Capital Securities, Series A
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the Ohio Edison Financing Trust ___% Trust Preferred Capital Securities,
Series A (the "Preferred Securities"), of Ohio Edison Financing Trust, a
Delaware business trust (the "Issuer"). The payment of distributions on the
Preferred Securities and payments due upon liquidation of the Issuer or
redemption of the Preferred Securities are guaranteed by Ohio Edison Company
("Ohio Edison") to the extent set forth in a Guarantee Agreement dated ________
___, 1995 by Ohio Edison and The Bank of New York, as guarantee trustee, with
respect to the Preferred Securities. Ohio Edison and the Issuer propose to
sell the Preferred Securities to certain Underwriters (the "Underwriters")
pursuant to an Underwriting Agreement dated ________ ___, 1995 by and among the
Underwriters, and Ohio Edison dated ________ ___, 1995, and the Underwriters
wish to take delivery of the Preferred Securities through DTC. The
Administrative Trustees, acting together, are acting as transfer agent and
registrar with respect to the Preferred Securities (the "Transfer Agent and
Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about ________ ___, 1995,
there shall be deposited with DTC one
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or more global certificates (individually and collectively, the "Global
Certificate") registered in the name of DTC's nominee, Cede & Co., representing
an aggregate of _________ Preferred Securities and bearing the following
legend:
"Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation, to Ohio
Edison Financing Trust or its agent for registration of transfer,
exchange, or payment, and any Preferred Security issued is registered
in the name of Cede & Co. or in such other name as is requested by an
authorized representative of The Depository Trust Company (and any
payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of The Depository Trust Company), 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."
2. The Amended and Restated Trust Agreement of Ohio Edison
Financing Trust provides for the voting by holders of the Preferred Securities
under certain limited circumstances. The Issuer shall establish a record date
for such purposes and shall, to the extent possible, give DTC notice of such
record date not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation
of all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution
or any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number
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submitted in that transmission. (The party sending such notice shall have a
method to verify subsequently the use of such means and the timeliness of such
notice.) The Publication Date shall be not less than 30 calendar days nor more
than 60 calendar days prior to the payment of any such distribution or any such
offering or issuance of rights with respect to the Preferred Securities. After
establishing the amount of payment to be made on the Preferred Securities, the
Issuer or the Transfer Agent and Registrar will notify DTC's Dividend
Department of such payment 5 business days prior to payment date. Notices to
DTC's Dividend Department by telecopy shall be sent to (212) 709-1723. Such
notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate
actions (including mandatory tenders, exchanges and capital changes), shall be
sent, unless notification to another department is expressly provided for
herein, by telecopy to DTC's Reorganization Department at (212) 709-1093 or
(212) 709-1094 and receipt of such notice shall be confirmed by telephoning
(212) 709-6884, or by mail or any other means to:
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Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advises sent to DTC shall contain the
CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series
A".
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary
with respect to the Preferred Securities at any time by giving at least 90
days' prior written notice to the Issuer and the Transfer Agent and Registrar
(at which time DTC will confirm with the Issuer or the Transfer Agent and
Registrar the aggregate number of Preferred Securities deposited with it) and
discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Preferred Securities, make
available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its
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DTC account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer
and the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested
by the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners
of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of the Issuer.
Very truly yours,
Ohio Edison Financing Trust (As Issuer)
By: The Bank of New York,
as Property Trustee
By:
---------------------------------
Name:
Title:
-------------------------------------
-------------------------------------
Administrative Trustees
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RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
------------------------
Authorized Officer
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EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
Ohio Edison Financing Trust
Common Securities (liquidation amount $25 per Common Security)
Ohio Edison Financing Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Ohio
Edison Company (the "Holder") is the registered owner of _____ (_____) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). In accordance with Section
5.10 of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of _______ ___, 1995, among Ohio Edison
Company, an Ohio corporation, The Bank of New York, a New York banking
corporation, as trustee, The Bank of New York (Delaware), a Delaware banking
corporation, as trustee, _________________, an individual, as trustee, and
______________, an individual, as trustee (collectively, the "Administrative
Trustees of the Trust"), as the same may be amended from time to time (the
"Trust Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt and acceptance of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits thereunder.
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IN WITNESS WHEREOF, the Administrative Trustees of the Trust has
executed this certificate this ____ day of _________, 1995.
Ohio Edison Financing Trust
By:______________________,
(as Administrative Trustee)
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EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between Ohio Edison Company,
an Ohio corporation ("Ohio Edison"), and Ohio Edison Financing Trust, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Ohio Edison and to issue and sell
Ohio Edison Financing Trust ___% Trust Preferred Capital Securities, Series A
(the "Preferred Securities") with such powers, preferences and special rights
and restrictions as are set forth in the Amended and Restated Trust Agreement
of the Trust dated as of ________ __, 1995 as the same may be amended from time
to time (the "Trust Agreement");
WHEREAS, Ohio Edison is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Ohio Edison hereby agrees shall benefit
Ohio Edison and which purchase Ohio Edison acknowledges will be made in
reliance upon the execution and delivery of this Agreement, Ohio Edison
(including in its capacity as holder of the Common Securities) and the Trust
hereby agree as follows:
ARTICLE I.
Section 1.01 Guarantee by Ohio Edison. Subject to the terms and
conditions hereof, Ohio Edison hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Creditors") the full payment, when and as due,
of any and all Obligations (as hereinafter defined) to such Creditors. As used
herein, "Obligations" means any indebtedness, expenses or liabilities of the
Trust, other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Creditors, whether or not such
Creditors have received notice hereof.
Section 1.02 Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the date on which there are no Creditors
remaining; provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any holder
of Preferred Securities or any Creditor must restore payment of any sums paid
under the Preferred Securities, under any Obligation,
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under the Guarantee Agreement dated the date hereof by Ohio Edison and The Bank
of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03 Waiver of Notice. Ohio Edison hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Ohio Edison hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04 No Impairment. The obligations, covenants, agreements
and duties of Ohio Edison under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Creditors to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Creditors with respect to the Obligations or any action
on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt or, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Creditors to give notice to, or
obtain the consent of, Ohio Edison with respect to the happening of any of the
foregoing.
Section 1.05 Enforcement. A Creditor may enforce this Agreement
directly against Ohio Edison, and Ohio Edison waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against Ohio Edison.
ARTICLE II.
Section 2.01 Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Ohio Edison and shall inure to the benefit of the Creditors.
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Section 2.02 Amendment. So long as there remains any Creditor or any
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Creditor or to the holders of
the Preferred Securities but, in any event, without the prior written consent
of the Property Trust (as defined in the Trust Agreement).
Section 2.03 Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex), to wit:
Ohio Edison Financing Trust
c/o The Bank of New York
101 Barclay Street, Floor 21 West
New York, NY 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Department
(with a copy to:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Facsimile No.: ___________.
Attention: Corporate Trust Department.)
Ohio Edison Company
76 South Main Street
Akron, Ohio
Attention: Treasurer
Facsimile No.: (216) 384-3772.
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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THIS AGREEMENT is executed as of the day and year first above written.
OHIO EDISON COMPANY
By:______________________
Name:
Title:
OHIO EDISON FINANCING TRUST
By:_______________________
__________________________
__________________________
(as Administrative Trustees)
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EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -]
This Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository.
This Preferred Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
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) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation, to Ohio
Edison Financing Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of The Depository
Trust Company), 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.
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
Ohio Edison Financing Trust
___% Trust Preferred Capital Securities, Series A (liquidation amount
$25 per Preferred Security)
Ohio Edison Financing Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of _____ (_____) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the Ohio Edison Financing Trust ___% Trust
Preferred Capital Securities, Series A (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon
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surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of _______ ___, 1995, among Ohio Edison
Company, an Ohio corporation, The Bank of New York, a New York banking
corporation, as trustee, The Bank of New York (Delaware), a Delaware banking
corporation, as trustee, _________________, an individual, as trustee, and
______________, an individual, as trustee (collectively, the "Administrative
Trustees of the Trust"), as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of Preferred
Securities as set forth therein. The holder of this certificate is entitled to
the benefits of the Guarantee Agreement entered into by Ohio Edison Company, an
Ohio corporation, and The Bank of New York, as guarantee trustee, dated as of
_______ ___, 1995 (the "Guarantee") to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the holder of
this certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustee of the Trust has executed this
certificate this ____ day of _________, 1995.
Ohio Edison Financing Trust
By: _______________________
___________________________
___________________________
(as Administrative Trustees)
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
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