1
Exhibit 4(c)
[CONFORMED]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(successor to Morgan Guaranty Trust Company
of New York,
formerly Guaranty Trust Company of New York)
As Trustee under
The Cleveland Electric Illuminating Company's
Mortgage and Deed of Trust,
Dated July 1, 1940
------------------
SEVENTY-FIRST SUPPLEMENTAL INDENTURE
DATED JUNE 1, 1995
First Mortgage Bonds, Collateral Series A
First Mortgage Bonds, Collateral Series B
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
i
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Seventy-First Supplemental Indenture
Dated June 1, 1995
TABLE OF CONTENTS*
PAGE
----------
PARTIES......................................................... 1
RECITALS:
Indenture and Supplemental Indentures......................... 1
First Mortgage Bonds outstanding.............................. 1
Authorization by Indenture of issue of additional Bonds....... 1
Bonds of Collateral Series A.................................. 2
Bonds of Collateral Series B.................................. 2
Purpose of Seventy-First Supplemental Indenture............... 3
Authorization of Seventy-First Supplemental Indenture......... 3
Compliance with conditions to making of Seventy-First
Supplemental Indenture..................................... 3
ARTICLE I -- CONFIRMATION OF 1940 MORTGAGE AND
SUPPLEMENTAL INDENTURES....................................... 3
ARTICLE II -- CREATION, PROVISIONS, REDEMPTION, PRINCIPAL
AMOUNT AND FORM OF BONDS OF COLLATERAL SERIES A............... 4
Section 1 -- Creation and designation of Bonds of
Collateral Series A and compliance with Indenture........ 4
Section 2 -- Date of Bonds of Collateral Series A, maturity
date, interest rate, accrual date and payment dates...... 4
Section 3 -- Place of Payment.............................. 5
Section 4 -- Denomination of Bonds of Collateral Series
A........................................................ 5
Section 5 -- Transfer of Bonds of Collateral Series A...... 5
Section 6 -- Registration.................................. 5
Section 7 -- Payments under Revolving Credit Agreement..... 5
Section 8 -- Redemption of Bonds of Collateral Series A.... 6
- ---------------
*The Table of Contents, the page headings and the recording data are not part of
the Seventy-First Supplemental Indenture as executed.
3
ii
PAGE
----------
Section 9 -- Redemption of Bonds of Collateral Series A in
an "Event of Default" under the Revolving Credit
Agreement................................................ 6
Section 10 -- Form of Fully Registered Bond of Collateral
Series A................................................. 6
Form of Trustee's Certificate of
Authentication.............................. 11
ARTICLE III -- CREATION, PROVISIONS, REDEMPTION, PRINCIPAL
AMOUNT AND FORM OF BONDS OF COLLATERAL SERIES B............... 11
Section 1 -- Creation and designation of Bonds of
Collateral Series B and compliance with Indenture........ 11
Section 2 -- Date of Bonds of Collateral Series B, maturity
date, interest rate, accrual date and payment dates...... 11
Section 3 -- Place of Payment.............................. 12
Section 4 -- Denomination of Bonds of Collateral Series
B........................................................ 12
Section 5 -- Transfer of Bonds of Collateral Series B...... 12
Section 6 -- Registration.................................. 13
Section 7 -- Payments under Reimbursement Agreement........ 13
Section 8 -- Redemption of Bonds of Collateral Series B.... 13
Section 9 -- Redemption of Bonds of Collateral Series B in
"Reimbursement Event of Default" under the Reimbursement
Agreement................................................ 13
Section 10 -- Form of Fully Registered Bond of Collateral
Series B................................................. 14
Form of Trustee's Certificate of
Authentication.............................. 18
ARTICLE IV -- THE TRUSTEE....................................... 19
Section 1 -- Acceptance by Trustee......................... 19
Section 2 -- Responsibility of Trustee..................... 19
Section 3 -- Reliance by Trustee upon certain demands,
certificates and opinions................................ 19
ARTICLE V -- MISCELLANEOUS PROVISIONS........................... 19
4
iii
PAGE
----------
EXECUTION....................................................... 19
COMPANY'S ACKNOWLEDGMENT........................................ S-3
TRUSTEE'S ACKNOWLEDGMENT........................................ S-4
RECORDING AND FILING DATA....................................... R-1
5
SEVENTY-FIRST SUPPLEMENTAL INDENTURE, dated June 1, 1995, made by and
between THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation organized and
existing under the laws of the State of Ohio (the "Company"), and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION) (successor to MORGAN GUARANTY TRUST
COMPANY OF NEW YORK), a national banking association existing under the laws of
the United States of America, with its head office at 1 Chase Manhattan Plaza,
the City of New York (the "Trustee"), as Trustee under the Mortgage and Deed of
Trust dated July 1, 1940, hereinafter mentioned:
RECITALS
In order to secure First Mortgage Bonds of the Company ("Bonds"), the
Company has heretofore executed and delivered to the Trustee the Mortgage and
Deed of Trust dated July 1, 1940 (the "1940 Mortgage") and seventy Supplemental
Indentures thereto dated, respectively, July 1, 1940, August 18, 1944, December
1, 1947, September 1, 1950, June 1, 1951, May 1, 1954, March 1, 1958, April 1,
1959, December 20, 1967, January 15, 1969, November 1, 1969, June 1, 1970,
November 15, 1970, May 1, 1974, April 15, 1975, April 16, 1975, May 28, 1975,
February 1, 1976, November 23, 1976, July 26, 1977, September 27, 1977, May 1,
1978, September 1, 1979, April 1, 1980, April 15, 1980, May 28, 1980, June 9,
1980, December 1, 1980, July 28, 1981, August 1, 1981, March 1, 1982, July 15,
1982, September 1, 1982, November 1, 1982, November 15, 1982, May 24, 1983, May
1, 1984, May 23, 1984, June 27, 1984, September 4, 1984, November 14, 1984,
November 15, 1984, April 15, 1985, May 28, 1985, August 1, 1985, September 1,
1985, November 1, 1985, April 15, 1986, May 14, 1986, May 15, 1986, February 25,
1987, October 15, 1987, February 24, 1988, September 15, 1988, May 15, 1989,
June 13, 1989, October 15, 1989, January 1, 1990, June 1, 1990, August 1, 1990,
May 1, 1991, May 1, 1992, July 31, 1992, January 1, 1993, February 1, 1993, May
20, 1993, June 1, 1993, September 15, 1994, May 1, 1995 and May 2, 1995; and
The 1940 Mortgage, as supplemented and modified by said Supplemental
Indentures and by this Seventy-First Supplemental Indenture, will be hereinafter
collectively referred to as the "Indenture" and this Seventy-first Supplemental
Indenture will be hereinafter referred to as "this Supplemental Indenture"; and
Pursuant to the provisions of the Indenture, the Company has issued 112
series of Bonds in the aggregate principal amount of $5,312,052,000, of which
6
2
74 series in the aggregate principal amount of $2,402,037,000 are no longer
outstanding; and
The Indenture provides among other things that the Company, from time to
time, in addition to the Bonds authorized to be executed, authenticated and
delivered pursuant to other provisions therein, may execute and deliver
additional Bonds to the Trustee and the Trustee shall thereupon authenticate and
deliver such Bonds to or upon the order of the Company; and
The Company has determined to create pursuant to the provisions of the
Indenture two new series of Bonds designated, respectively, as "First Mortgage
Bonds, Collateral Series A" (the "Bonds of Collateral Series A") and "First
Mortgage Bonds, Collateral Series B" (the "Bonds of Collateral Series B"), each
such series with the respective denominations, rates of interest, dates of
maturity, redemption provisions and other provisions and agreements in respect
thereof as in this Supplemental Indenture set forth; and
The Bonds of Collateral Series A are to be delivered to the Revolver Agent
Bank (hereinafter defined) to (i) provide for the payment of the Company's
obligations to make payments to any person under the Guaranty of the Company and
The Toledo Edison Company dated May 14, 1993 (such guaranty, as amended from
time to time herein called the "Guaranty"), in favor of the Lenders party to the
Credit Agreement dated as of May 14, 1993, as amended, among Centerior Energy
Corporation and Centerior Service Company ("Obligors") and Citibank, N.A., as
Agent, and the other banks named therein (such credit agreement, as amended from
time to time, herein called the "Revolving Credit Agreement"), and (ii) to
provide to such persons the benefits of the security provided for the Bonds of
Collateral Series A. As used herein, the term "Lenders" shall refer collectively
to all banks which are parties to the Revolving Credit Agreement and the term
"Revolver Agent Bank" shall refer to the bank designated in the Revolving Credit
Agreement as the party responsible for holding the Bonds of Collateral Series A
as agent for the benefit of the Lenders.
The Bonds of Collateral Series B are to be delivered to the LC Agent Bank
(hereinafter defined) to (i) provide for the payment of the Company's
obligations to make payments to any person under the Reimbursement Agreement
dated as of June 29, 1995 among the Company, The Toledo Edison Company, Barclays
Bank PLC, acting through its New York Branch, as Fronting Bank, Administrative
Agent, Collateral Agent and Co-Agent, Union Bank, Society National Bank and
Chemical Bank, as Co-Agents, and the
7
3
participating banks named therein (such reimbursement agreement, as amended from
time to time, herein called the "Reimbursement Agreement") and (ii) to provide
to such persons the benefits of the security provided for the Bonds of
Collateral Series B. As used herein, the term "Participating Banks" shall refer
collectively to all banks which are parties to the Reimbursement Agreement and
the term "LC Agent Bank" shall refer to the bank designated in the Reimbursement
Agreement as the party responsible for holding the Bonds of Collateral Series B
as agent for the benefit of the Participating Banks.
The Company, in the exercise of the powers and authority conferred upon and
reserved to it under the provisions of the Indenture, and pursuant to
appropriate resolutions of the Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee this Supplemental
Indenture in the form hereof for the purposes herein provided; and
All conditions and requirements necessary to make this Supplemental
Indenture a valid, binding and legal instrument have been done, performed and
fulfilled and the execution and delivery hereof have been in all respects duly
authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That The Cleveland Electric Illuminating Company, in consideration of the
premises and of the mutual covenants herein contained and of the sum of One
Dollar ($1.00) to it duly paid by the Trustee at or before the ensealing and
delivery of these presents and for other valuable considerations, the receipt
whereof is hereby acknowledged, hereby covenants and agrees to and with the
Trustee and its successors in the Trust under the Indenture, for the benefit of
those who shall hold the Bonds and coupons, if any, issued and to be issued
thereunder and under this Supplemental Indenture as hereinafter provided, as
follows:
ARTICLE I
CONFIRMATION OF 1940 MORTGAGE AND
SUPPLEMENTAL INDENTURES
The 1940 Mortgage (as modified in Article V of the Supplemental Indenture
dated December 1, 1947, Article V of the Supplemental Indenture dated May 1,
1954, Article V of the Supplemental Indenture dated March 1, 1958, Article V of
the Supplemental Indenture dated January 15, 1969, Article III of the
Supplemental Indenture dated November 23, 1976 and Article III of the
Supplemental Indenture dated April 15, 1985) and the Supplemental
8
4
Indentures dated July 1, 1940, August 18, 1944, December 1, 1947, September 1,
1950, June 1, 1951, May 1, 1954, March 1, 1958, April 1, 1959, December 20,
1967, January 15, 1969, November 1, 1969, June 1, 1970, November 15, 1970, May
1, 1974, April 15, 1975, April 16, 1975, May 28, 1975, February 1, 1976,
November 23, 1976, July 26, 1977, September 27, 1977, May 1, 1978, September 1,
1979, April 1, 1980, April 15, 1980, May 28, 1980, June 9, 1980, December 1,
1980, July 28, 1981, August 1, 1981, March 1, 1982, July 15, 1982, September 1,
1982, November 1, 1982, November 15, 1982, May 24, 1983, May 1, 1954, May 23,
1984, June 27, 1984, September 4, 1984, November 14, 1984, November 15, 1984,
April 15, 1985, May 28, 1985, August 1, 1985, September 1, 1985, November 1,
1985, April 15, 1986, May 14, 1986, May 15, 1986, February 25, 1987, October 15,
1987, February 24, 1988, September 15, 1988, May 15, 1989, June 13, 1989,
October 15, 1989, January 1, 1990, June 1, 1990, August 1, 1990, May 1, 1991,
May 1, 1992, July 31, 1992, January 1, 1993, February 1, 1993, May 20, 1993,
June 1, 1993, September 15, 1994, May 1, 1995 and May 2, 1995, respectively, are
hereby in all respects confirmed.
ARTICLE II
CREATION, PROVISIONS, REDEMPTION, PRINCIPAL AMOUNT
AND FORM OF BONDS OF COLLATERAL SERIES A
SECTION 1. The Company hereby creates a new series of Bonds to be issued
under and secured by the Indenture and to be designated as "First Mortgage
Bonds, Collateral Rate Series A" of the Company and hereinabove and hereinafter
called the "Bonds of Collateral Series A". The Bonds of Collateral Series A
shall be limited to an aggregate principal amount of $50,000,000 but the
aggregate principal amount thereof outstanding at any time shall not exceed such
lesser amount as is equal to 40% of the aggregate amount from time to time of
the Lenders' Commitments (as defined in the Revolving Credit Agreement). The
Bonds of Collateral Series A shall be executed, authenticated and delivered in
accordance with the provisions of, and shall in all respects be subject to, all
of the terms, conditions and covenants of the Indenture.
SECTION 2. The Bonds of Collateral Series A shall be dated the date of
authentication, shall be payable in whole or in installments on such date or
dates as the Company has any obligations under the Guaranty to make any payment
to the Lenders, but not later than June 1, 2006, and shall bear interest from
the time hereinafter provided at such rate per annum on each interest
9
5
payment date (hereinafter defined) as shall cause the amount of interest payable
on each interest payment date on the Bonds of Collateral Series A to equal 40%
of the amount of interest and fees payable on such interest payment date under
the Revolving Credit Agreement. Such interest shall be payable on the same dates
as interest or fees are payable from time to time pursuant to the Revolving
Credit Agreement (each such date herein called an "interest payment date"),
until the maturity of the Bonds of Collateral Series A, or, in the case the
Revolver Agent Bank shall demand redemption of any such Bonds, until the
redemption date, or, in the case of any default by the Company in the payment of
the principal due on any such Bonds, until the Company's obligation with respect
to the payment of such principal shall be discharged as provided in the
Indenture. The amount of interest and fees payable from time to time under the
Revolving Credit Agreement, the basis on which such interest and fees are
computed and the dates on which such interest and fees are payable are set forth
in the Revolving Credit Agreement.
Except as hereinafter provided, each Bond of Collateral Series A shall bear
interest (a) from the interest payment date next preceding the date of such Bond
to which interest has been paid, or (b) if the date of such Bond is an interest
payment date to which interest has been paid, then from such date, or (c) if no
interest has been paid thereon, then from the date of initial issue.
SECTION 3. The Bonds of Collateral Series A shall be payable as to
principal and interest at the same place or places as payments are required to
be made by the Company under the Guaranty; and both principal and interest shall
be payable in any coin or currency of the United States of America which at the
time of payment shall be legal tender for the payment of public and private
debts.
SECTION 4. The Bonds of Collateral Series A shall be issued as one fully
registered Bond in the denomination of $50,000,000.
SECTION 5. In the manner and subject to the limitations provided in the
Indenture, Bonds of Collateral Series A may be transferred only to a successor
to the Revolver Agent Bank under the Revolving Credit Agreement, without charge,
except for any tax or taxes or other governmental charges incident to such
transfer or exchange, at the agency of the Company in the Borough of Manhattan,
The City of New York.
SECTION 6. The Bonds of Collateral Series A shall be registered in the name
of the Revolver Agent Bank.
10
6
SECTION 7. Any payment made in respect of the Company's obligations under
the Guaranty or by the Obligors under the Revolving Credit Agreement shall be
deemed a payment in respect of the Bonds of Collateral Series A, but such
payment shall not reduce the principal amount of the Bonds of Collateral Series
A unless the aggregate amount of the Lenders' Commitments is irrevocably reduced
concurrently with such payment. In the event that all of the Company's
obligations under the Guaranty and the obligations of the Obligors under the
Revolving Credit Agreement have been discharged, the Bonds of Collateral Series
A shall be deemed to be paid in full.
SECTION 8. The Bonds of Collateral Series A shall be redeemable only to
the extent provided in this Article II, subject to the provisions contained in
the form of Bond of Collateral Series A.
SECTION 9. The Bonds of Collateral Series A shall be redeemed by the
Company in whole at any time prior to maturity at a redemption price of 100% of
the principal amount to be redeemed, plus any accrued and unpaid interest to the
redemption date and all other amounts payable by the Company under the Guaranty,
but only if the Trustee shall receive a written demand from the Revolver Agent
Bank for redemption of all Bonds of Collateral Series A held by the Revolver
Agent Bank stating that an "Event of Default" under the Revolving Credit
Agreement has occurred and is continuing and that payment of the principal
amount outstanding under the Revolving Credit Agreement, all interest thereon
and all other amounts payable thereunder are immediately due and payable and
demanding payment thereof; provided, however, that the Bonds of Collateral
Series A shall not be redeemed in the event that prior to the date of such
redemption the Trustee shall have received a certificate of the Revolver Agent
Bank (a) stating that there has been a waiver of such Event of Default or (b)
withdrawing said written demand. The redemption of the Bonds of Collateral
Series A shall be made forthwith upon receipt of such demand by the Company from
the Majority Banks (as defined in the Revolving Credit Agreement), the Revolver
Agent Bank on behalf of the Majority Banks, or the Trustee.
SECTION 10. The form of the fully registered Bonds of Collateral Series A
and of the Trustee's certificate of authentication thereon, shall be
substantially as follows:
11
7
[FORM OF FULLY REGISTERED BOND OF COLLATERAL SERIES A]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR AGENT BANK UNDER THE CREDIT
AGREEMENT DATED AS OF MAY 14, 1993, AS AMENDED, AMONG CENTERIOR ENERGY
CORPORATION AND CENTERIOR SERVICE COMPANY (COLLECTIVELY, THE "OBLIGORS") AND
CITIBANK, N.A. AND THE BANKS NAMED THEREIN (SUCH CREDIT AGREEMENT, AS AMENDED
FROM TIME TO TIME, THE "REVOLVING CREDIT AGREEMENT").
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Incorporated under the laws of the State of Ohio
FIRST MORTGAGE BOND, COLLATERAL SERIES A
No. $
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation organized and
existing under the laws of the State of Ohio (hereinafter called the "Company",
which term shall include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns,
the sum of Fifty Million Dollars ($50,000,000) or such lesser principal amount
as is equal to 40% of the aggregate amount from time to time of the Lenders'
Commitments (as defined in the Revolving Credit Agreement), in whole or in
installments on such date or dates as the Company has any obligation to make
payments under the Guaranty of the Company and The Toledo Edison Company dated
May 14, 1993, as amended (the "Guaranty"), in favor of the Lenders (as defined
in the Revolving Credit Agreement), but not later than June 1, 2006, in any coin
or currency of the United States of America which at the time of payment is
legal tender for the payment of public and private debts, and to pay interest on
the unpaid principal amount hereof in like coin or currency from the time
hereinafter provided at such rate per annum on each interest payment date
(hereinafter defined) as shall cause the amount of interest payable on such
interest payment date on the Bonds of Collateral Series A (hereinafter defined)
to equal 40% of the amount of interest and fees payable on such interest payment
date under the Revolving Credit Agreement. Such interest shall be payable on the
same dates as interest or fees are payable from time to time pursuant to the
Revolving Credit Agreement (each such date herein called an "interest payment
date"), until the maturity of this Bond, or, if the Agent Bank shall demand
redemption of this Bond, until the redemption date, or, if the Company shall
default in the payment of the
12
8
principal due on this Bond, until the Company's obligation with respect to the
payment of such principal shall be discharged as provided in said Indenture. The
amount of interest and fees payable from time to time under the Revolving Credit
Agreement, the basis on which such interest and fees are computed and the dates
on which such interest and fees are payable are set forth in the Revolving
Credit Agreement.
Except as hereinafter provided, this Bond shall bear interest (a) from the
interest payment date next preceding the date of this Bond to which interest has
been paid, or (b) if the date of this Bond is an interest payment date to which
interest has been paid, then from such date, or (c) if no interest has been paid
on this Bond, then from the date of initial issue.
This Bond is one of the duly authorized Bonds of the Company (herein called
the "Bonds"), all issued and to be issued under and equally secured by a
Mortgage and Deed of Trust dated July 1, 1940, executed by the Company to
Guaranty Trust Company of New York as Trustee under which The Chase Manhattan
Bank (National Association) is successor trustee (herein called the "Trustee"),
and all indentures supplemental thereto (said Mortgage as so supplemented herein
called the "Indenture") to which reference is hereby made for a description of
the properties mortgaged and pledged, the nature and extent of the security, the
rights of the registered owner or owners of the Bonds and of the Trustee in
respect thereof, and the terms and conditions upon which the Bonds are, and are
to be, secured. The Bonds may be issued in series, for various principal sums,
may mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided. This Bond is the only Bond of a
series designated as the First Mortgage Bonds, Collateral Series A (herein
called the "Bonds of Collateral Series A") limited, except as otherwise provided
in the Indenture, in aggregate principal amount to $50,000,000 but the aggregate
principal amount hereof outstanding at any time shall not exceed such lesser
amount as is equal to 40% of the aggregate amount of the Lenders' Commitments
and is issued under and secured by the Indenture and described in the
Seventy-First Supplemental Indenture dated June 1, 1995, between the Company and
the Trustee (herein called the "Supplemental Indenture").
The Bonds of Collateral Series A have been issued by the Company to the
Agent Bank (i) to provide for the payment of the Company's obligations to make
payments to any person under the Guaranty, and (ii) to provide to such persons
the benefits of the security provided for the Bonds of Collateral Series A.
13
9
As used herein, the term "Agent Bank" shall refer to the bank designated in
the Revolving Credit Agreement as the party responsible for holding the Bonds of
Collateral Series A as agent for the benefit of the Lenders. The Bonds of
Collateral Series A have been delivered to the Agent Bank as agent for the
benefit of the Lenders.
Any payment made in respect of the Company's obligations under the Guaranty
or by the Obligors under the Revolving Credit Agreement shall be deemed a
payment in respect of the Bonds of Collateral Series A, but such payment shall
not reduce the principal amount of the Bonds of Collateral Series A unless the
aggregate amount of the Lenders' Commitments is irrevocably reduced concurrently
with such payment. In the event that all of the Company's obligations under the
Guaranty and the obligations of the Obligors under the Revolving Credit
Agreement have been discharged, this Bond shall be deemed to have been paid in
full and shall be surrendered to the Trustee for cancellation.
The Bonds of Collateral Series A are subject to redemption prior to
maturity at the demand of the Agent Bank as provided in Section 9 of Article II
of the Supplemental Indenture at a redemption price of 100% of the principal
amount to be redeemed and any accrued and unpaid interest and all other amounts
payable by the Company under the Guaranty.
To the extent permitted by and as provided in the Indenture, modifications
or alterations of the Indenture, or of any indenture supplemental thereto, and
of the rights and obligations of the Company and of the holders of the Bonds and
coupons may be made with the consent of the Company by an affirmative vote of
not less than 80% in principal amount of the Bonds entitled to vote then
outstanding, at a meeting of Bondholders called and held as provided in the
Indenture, and, in case one or more but less than all of the series of Bonds
then outstanding under the Indenture are so affected, by an affirmative vote of
not less than 80% in principal amount of the Bonds of any series entitled to
vote then outstanding and affected by such modification or alteration; provided,
however, that no such modification or alteration shall be made which will affect
the terms of payment of the principal of or premium, if any, or interest on this
Bond. In the Nineteenth Supplemental Indenture dated November 23, 1976 between
the Company and the Trustee, the Company has modified the Indenture effective
from and after the time when none of the Bonds of any series established prior
to the execution of the Nineteenth Supplemental Indenture shall remain
outstanding so as to change "80%" in the foregoing sentence to "60%" and to make
certain other modifications of the
14
10
Indenture and has reserved the right to make certain other modifications of the
Indenture without any vote, consent or other action by the holders of Bonds of
any series established in the Nineteenth Supplemental Indenture or in any
subsequent supplemental indenture.
If an event of default, as defined in the Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Indenture may
be declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that such
declaration may in certain events be waived by the holders of a majority in
principal amount of the Bonds outstanding.
No recourse shall be had for the payment of the principal of or the
interest or premium, if any, on this Bond, or for any claim based hereon or on
the Indenture or any indenture supplemental thereto, against any incorporator,
or against any stockholder, director or officer, past, present or future, of the
Company, or of any predecessor or successor corporation, as such, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution or statute or
otherwise, of incorporators, stockholders, directors or officers being released
by every owner hereof by the acceptance of this Bond and as part of the
consideration for the issue hereof, and being likewise released by the terms of
the Indenture.
This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental thereto, or become valid or obligatory for any purpose,
until the Trustee under the Indenture, or a successor trustee thereto under the
Indenture, shall have signed the form of certificate of authentication endorsed
hereon.
IN WITNESS WHEREOF, The Cleveland Electric Illuminating Company has caused
this Bond to be signed in its name by its President or a Vice President and its
corporate seal to be hereto affixed and attested by its Secretary or an
Assistant Secretary.
Dated:
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
15
11
By ......................................................
Vice President
ATTEST:
...........................
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated and described in the
within-mentioned Indenture and Supplemental Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
Trustee
By.......................................................
Authorized Officer
[END OF FORM OF FULLY REGISTERED BOND OF COLLATERAL SERIES A]
ARTICLE III
CREATION, PROVISIONS, REDEMPTION, PRINCIPAL AMOUNT
AND FORM OF BONDS OF COLLATERAL SERIES B
SECTION 1. The Company hereby creates a new series of Bonds to be issued
under and secured by the Indenture and to be designated as "First Mortgage
Bonds, Collateral Series B" of the Company and hereinabove and hereinafter
called the "Bonds of Collateral Series B". The Bonds of Collateral Series B
shall be executed, authenticated and delivered in accordance with the provisions
of, and shall in all respects be subject to, all of the terms, conditions and
covenants of the Indenture. The aggregate principal amount of Bonds of
Collateral Series B shall not exceed $90,400,000 but the aggregate principal
amount thereof outstanding at any time shall not exceed such lesser amount as is
equal to 40% of the sum of (a) the Maximum Available Credit Amount (as defined
in the Reimbursement Agreement) from time to time of the Letters of
16
12
Credit (as defined in its Reimbursement Agreement) plus (b) the aggregate
principal amount of Letter of Credit drawings and Advances (as defined in the
Reimbursement Agreement) outstanding from time to time under the Reimbursement
Agreement minus (c) the amount, if any, of cash collateral held by the LC Agent
Bank under the Reimbursement Agreement ("LC Cash Collateral").
SECTION 2. The Bonds of Collateral Series B shall be dated the date of
authentication, shall be payable in whole or in installments on such date or
dates as the Company has any obligations to (i) reimburse the Fronting Bank (as
defined in the Reimbursement Agreement) for any amounts paid by the Fronting
Bank under a Letter of Credit, or (ii) repay any Advance, but not later than
June 1, 2017, and shall bear interest from the time hereinafter provided at such
rate per annum on each interest payment date (hereinafter defined) as shall
cause the amount of interest payable on such interest payment date on the Bonds
of Collateral Series B to equal 40% of the amount of interest and fees payable
on such interest payment date under the Reimbursement Agreement multiplied by a
fraction, the numerator of which is the aggregate principal amount of Bonds of
Collateral Series B then outstanding and the denominator of which is such
aggregate principal amount plus 40% of the amount, if any, of LC Cash
Collateral. Such interest shall be payable on the same dates as interest or fees
are payable from time to time pursuant to the Reimbursement Agreement (each such
date herein called an "interest payment date"), until the maturity of the Bonds
of Collateral Series B, or, in the case the LC Agent Bank shall demand
redemption of any such Bonds, until the redemption date, or, in the case of any
default by the Company in the payment of the principal due on any such Bonds,
until the Company's obligation with respect to the payment of such principal
shall be discharged as provided in the Indenture. The amount of interest and
fees payable from time to time under the Reimbursement Agreement, the basis on
which such interest is computed and the dates on which such interest and fees
are payable are set forth in the Reimbursement Agreement.
Except as hereinafter provided, each Bond of Collateral Series B shall bear
interest (a) from the interest payment date next preceding the date of such Bond
to which interest has been paid, or (b) if the date of such Bond is an interest
payment date to which interest has been paid, then from such date, or (c) if no
interest has been paid thereon, then from the date of initial issue.
17
13
SECTION 3. The Bonds of Collateral Series B shall be payable as to
principal and interest at the same place or places as payments are required to
be made by the Company under the Reimbursement Agreement; and both principal and
interest shall be payable in any coin or currency of the United States of
America which at the time of payment shall be legal tender for the payment of
public and private debts.
SECTION 4. The Bonds of Collateral Series B shall be issued as one fully
registered Bond in the denomination of $90,400,000.
SECTION 5. In the manner and subject to the limitations provided in the
Indenture, Bonds of Collateral Series B may be transferred only to a successor
to the LC Agent Bank under the Reimbursement Agreement without charge, except
for any tax or taxes or other governmental charges incident to such transfer or
exchange, at the agency of the Company in the Borough of Manhattan, The City of
New York.
SECTION 6. The Bonds of Collateral Series B shall be registered in the
name of the LC Agent Bank.
SECTION 7. Any payment made in respect of the Company's obligations under
the Reimbursement Agreement shall be deemed a payment in respect of the Bonds of
Collateral Series B, but such payment shall not reduce the principal amount of
the Bonds of Collateral Series B unless the sum of (a) the Maximum Available
Credit Amount of the Letters of Credit plus (b) the aggregate principal amount
of Letter of Credit drawings and Advances then outstanding under the
Reimbursement Agreement is irrevocably reduced concurrently with such payment.
In the event that all of the Company's obligations under the Reimbursement
Agreement have been discharged, the Bonds of Collateral Series B shall be deemed
to be paid in full.
SECTION 8. The Bonds of Collateral Series B shall be redeemable only to
the extent provided in this Article III, subject to the provisions contained in
the form of Bond of Collateral Series B.
SECTION 9. The Bonds of Collateral Series B shall be redeemed by the
Company in whole at any time prior to maturity at a redemption price of 100% of
the principal amount to be redeemed, plus any accrued and unpaid interest to the
redemption date, but only if the Trustee shall receive a written demand from the
LC Agent Bank for redemption of all Bonds of Collateral Series B
18
14
held by the LC Agent Bank stating that a "Reimbursement Event of Default" under
the Reimbursement Agreement has occurred and is continuing and that payment of
the Advances and all other principal amounts outstanding under the Reimbursement
Agreement, all interest thereon and all other amounts payable thereunder are due
and payable within two Business Days (as defined in the Reimbursement Agreement)
after demand therefor by the Required Banks (as defined in the Reimbursement
Agreement) or are then due and payable; provided, however, that the Bonds of
Collateral Series B shall not be redeemed in the event that prior to the date of
such redemption the Trustee shall have received a certificate of the LC Agent
Bank (a) stating that there has been a waiver of such Reimbursement Event of
Default or (b) withdrawing said written demand. The redemption of the Bonds of
Collateral Series B shall be made forthwith upon receipt of such demand by the
Company from the Required Banks, the LC Agent Bank on behalf of the Required
Banks, or the Trustee.
SECTION 10. The form of the fully registered Bonds of Collateral Series B
and of the Trustee's certificate of authentication thereon, shall be
substantially as follows:
[FORM OF FULLY REGISTERED BOND OF COLLATERAL SERIES B]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR AGENT BANK UNDER THE
REIMBURSEMENT AGREEMENT DATED AS OF JUNE 29, 1995 AMONG THE COMPANY AND THE
TOLEDO EDISON COMPANY AND BARCLAYS BANK PLC, UNION BANK, SOCIETY NATIONAL BANK
AND CHEMICAL BANK AND THE OTHER BANKS NAMED THEREIN (SUCH REIMBURSEMENT
AGREEMENT, AS AMENDED FROM TIME TO TIME, THE "REIMBURSEMENT AGREEMENT").
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Incorporated under the laws of the State of Ohio
FIRST MORTGAGE BOND, COLLATERAL SERIES B
NO. $
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation organized and
existing under the laws of the State of Ohio (hereinafter called the "Company",
which term shall include any successor corporation as defined
19
15
in the Indenture hereinafter referred to), for value received, hereby promises
to pay to
, or registered assigns,
the sum of Ninety Million, Four Hundred Thousand Dollars ($90,400,000) or such
lesser amount as is equal to 40% of the sum of (a) the Maximum Available Credit
Amount (as defined in the Reimbursement Agreement) from time to time of the
Letters of Credit (as defined in the Reimbursement Agreement) plus (b) the
aggregate principal amount of Letter of Credit drawings and Advances (as defined
in the Reimbursement Agreement) outstanding from time to time under the
Reimbursement Agreement minus (c) the amount, if any, of cash collateral held by
the Agent Bank (hereinafter defined) under the Reimbursement Agreement ("Cash
Collateral"), in whole or in installments on such date or dates as the Company
has any obligation to (i) reimburse the Fronting Bank (as defined in the
Reimbursement Agreement) for any amounts paid by the Fronting Bank under a
Letter of Credit, or (ii) repay any Advances, but not later than June 1, 2017,
at the same place or places as such reimbursement and repayment obligations are
payable, in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts, and
to pay interest on the unpaid principal amount hereof in like coin or currency
from the time hereinafter provided at such rate per annum on each interest
payment date (hereinafter defined) as shall cause the amount of interest payable
on such interest payment date on the Bonds of Collateral Series B (hereinafter
defined) to equal 40% of the amount of interest and fees payable on such
interest payment date under the Reimbursement Agreement multiplied by a
fraction, the numerator of which is the aggregate principal amount of Bonds of
Collateral Series B then outstanding and the denominator of which is such
aggregate principal amount plus 40% of the amount, if any, of Cash Collateral.
Such interest shall be payable on the same dates as interest or fees are payable
from time to time pursuant to the Reimbursement Agreement (each such date herein
called an "interest payment date"), until the maturity of this Bond, or, if the
Agent Bank shall demand redemption of this Bond, until the redemption date, or,
if the Company shall default in the payment of the principal due on this Bond,
until the Company's obligation with respect to the payment of such principal
shall be discharged as provided in said Indenture. The amount of interest and
fees payable from time to time under the Reimbursement Agreement, the basis on
which such interest and fees are computed and the dates on which such interest
and fees are payable are set forth in the Reimbursement Agreement.
20
16
Except as hereinafter provided, this Bond shall bear interest (a) from the
interest payment date next preceding the date of this Bond to which interest has
been paid, or (b) if the date of this Bond is an interest payment date to which
interest has been paid, then from such date, or (c) if no interest has been paid
on this Bond, then from the date of initial issue.
This Bond is one of the duly authorized Bonds of the Company (herein called
the "Bonds"), all issued and to be issued under and equally secured by a
Mortgage and Deed of Trust dated July 1, 1940, executed by the Company to
Guaranty Trust Company of New York as Trustee under which The Chase Manhattan
Bank (National Association) is successor trustee (herein called the "Trustee"),
and all indentures supplemental thereto (said Mortgage as so supplemented herein
called the "Indenture") to which reference is hereby made for a description of
the properties mortgaged and pledged, the nature and extent of the security, the
rights of the registered owner or owners of the Bonds and of the Trustee in
respect thereof, and the terms and conditions upon which the Bonds are, and are
to be, secured. The Bonds may be issued in series, for various principal sums,
may mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided. This Bond is the only Bond of a
series designated as the First Mortgage Bonds, Collateral Series B (herein
called the "Bonds of Collateral Series B") limited, except as otherwise provided
in the Indenture, in aggregate principal amount to $90,400,000, but the
aggregate principal amount hereof outstanding at any time shall not exceed such
lesser amount as is equal to 40% of the sum of (a) the Maximum Available Credit
Amount from time to time of the Letters of Credit plus (b) the aggregate
principal amount of Letter of Credit drawings and Advances outstanding from time
to time under the Reimbursement Agreement minus (c) the amount, if any, of Cash
Collateral, and is issued under and secured by the Indenture and described in
the Seventy-First Supplemental Indenture dated June 1, 1995, between the Company
and the Trustee (herein called the "Supplemental Indenture").
The Bonds of Collateral Series B have been issued by the Company to the
Agent Bank (i) to provide for the payment of the Company's obligations to make
payments to any person under the Reimbursement Agreement and (ii) to provide to
such persons the benefits of the security provided for the Bonds of Collateral
Series B.
As used herein, the term "Agent Bank" shall refer to the bank designated in
the Reimbursement Agreement as the party responsible for holding the Bonds of
Collateral Series B as agent for the benefit of the Participating Banks
21
17
(as defined in the Reimbursement Agreement). The Bonds of Collateral Series B
have been delivered to the Agent Bank as agent for the benefit of the
Participating Banks.
Any payment made in respect of the Company's obligations under the
Reimbursement Agreement shall be deemed a payment in respect of the Bonds of
Collateral Series B, but such payment shall not reduce the principal amount of
the Bonds of Collateral Series B unless the sum of (a) the Maximum Available
Credit Amount of the Letters of Credit plus (b) the aggregate principal amount
of Letter of Credit drawings and Advances then outstanding under the
Reimbursement Agreement is irrevocably reduced concurrently with such payment.
In the event that all of the Company's obligations under the Reimbursement
Agreement have been discharged, this Bond shall be deemed paid in full and shall
be surrendered to the Trustee for cancellation.
The Bonds of Collateral Series B are subject to redemption prior to
maturity as provided in Section 9 of Article III of the Supplemental Indenture
at a redemption price of 100% of the principal amount to be redeemed, any
accrued and unpaid interest and all other amounts payable by the Company under
the Reimbursement Agreement.
To the extent permitted by and as provided in the Indenture, modifications
or alterations of the Indenture, or of any indenture supplemental thereto, and
of the rights and obligations of the Company and of the holders of the Bonds and
coupons may be made with the consent of the Company by an affirmative vote of
not less than 80% in principal amount of the Bonds entitled to vote then
outstanding, at a meeting of Bondholders called and held as provided in the
Indenture, and, in case one or more but less than all of the series of Bonds
then outstanding under the Indenture are so affected, by an affirmative vote of
not less than 80% in principal amount of the Bonds of any series entitled to
vote then outstanding and affected by such modification or alteration; provided,
however, that no such modification or alteration shall be made which will affect
the terms of payment of the principal of or premium, if any, or interest on this
Bond. In the Nineteenth Supplemental Indenture dated November 23, 1976 between
the Company and the Trustee, the Company has modified the Indenture effective
from and after the time when none of the Bonds of any series established prior
to the execution of the Nineteenth Supplemental Indenture shall remain
outstanding so as to change "80%" in the foregoing sentence to "60%" and to make
certain other modifications of the Indenture and has reserved the right to make
certain other modifications of the Indenture without any vote, consent or other
action by the holders of Bonds of
22
18
any series established in the Nineteenth Supplemental Indenture or in any
subsequent supplemental indenture.
If an event of default, as defined in the Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Indenture may
be declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that such
declaration may in certain events be waived by the holders of a majority in
principal amount of the Bonds outstanding.
No recourse shall be had for the payment of the principal of or the
interest or premium, if any, on this Bond, or for any claim based hereon or on
the Indenture or any indenture supplemental thereto, against any incorporator,
or against any stockholder, director or officer, past, present or future, of the
Company, or of any predecessor or successor corporation, as such, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution or statute or
otherwise, of incorporators, stockholders, directors or officers being released
by every owner hereof by the acceptance of this Bond and as part of the
consideration for the issue hereof, and being likewise released by the terms of
the Indenture.
This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental thereto, or become valid or obligatory for any purpose,
until the Trustee under the Indenture, or a successor trustee thereto under the
Indenture, shall have signed the form of certificate of authentication endorsed
hereon.
IN WITNESS WHEREOF, The Cleveland Electric Illuminating Company has caused
this Bond to be signed in its name by its President or a Vice President and its
corporate seal to be hereto affixed and attested by its Secretary or an
Assistant Secretary.
23
19
Dated:
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By ......................................................
Vice President
Attest:
...........................
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated and described in the
within-mentioned Indenture and Supplemental Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
Trustee
By.......................................................
Authorized Officer
[END OF FORM OF FULLY REGISTERED BOND OF COLLATERAL SERIES B]
ARTICLE IV
THE TRUSTEE
SECTION 1. The Trustee hereby accepts the trusts hereby declared and
provided upon the terms and conditions in the Indenture set forth and upon the
terms and conditions set forth in this Article IV.
SECTION 2. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or the due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article XIII
24
20
of the Indenture shall apply to this Supplemental Indenture with the same force
and effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate.
SECTION 3. For purposes of this Supplemental Indenture (a) the Trustee may
conclusively rely and shall be protected in acting upon the written demand from,
or certificate of, the Revolver Agent Bank, the LC Agent Bank, or any officers'
certificate or opinion of counsel, as to the truth of the statements and the
correctness of the opinions expressed therein, without independent investigation
or verification thereof, subject to Article XIII of the Indenture and (b) a
written demand from, or certificate of, the Revolver Agent Bank or the LC Agent
Bank shall mean a written demand or certificate executed by the president, any
vice president or any authorized officer of the Revolver Agent Bank or the LC
Agent Bank, respectively.
ARTICLE V
MISCELLANEOUS PROVISIONS
This Supplemental Indenture may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original; but such
counterparts shall together constitute but one and the same instrument.
EXECUTION
IN WITNESS WHEREOF, said The Cleveland Electric Illuminating Company has
caused this Supplemental Indenture to be executed on its behalf by its President
or one of its Vice Presidents and its corporate seal to be hereto affixed and
said seal and this Supplemental Indenture to be attested by its Secretary or an
Assistant Secretary, and said The Chase Manhattan Bank (National Association),
in evidence of its acceptance of the trust hereby created, has caused this
Supplemental Indenture to be executed on its behalf by one of its Vice
Presidents or one of its Trust Officers and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by one of
its Assistant Trust Officers or Assistant Secretaries, all as of the day and
year first above written.
25
S-1
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By G.R. LEIDICH
Vice President
Attest: J.T. PERCIO
Secretary
Signed, sealed and acknowledged by
The Cleveland Electric Illuminating Company
in the presence of
PATRICIA BARKEY
- -----------------------------------
Patricia A. Barkey
SONDRA Y. CLARKE
- -----------------------------------
Sondra Y. Clarke
As witnesses
[SEAL]
26
S-2
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By VALERIE DUNBAR
Second Vice President
Attest: SAM SCHWARTZMAN
Assistant Secretary
Signed, sealed and acknowledged by
The Chase Manhattan Bank
(National Association)
In the presence of
LYNN M. FITZPATRICK
- -----------------------------------
Lynn M. Fitzpatrick
DONNA FITZSIMMONS
- -----------------------------------
Donna Fitzsimmons
As witnesses
[SEAL]
27
S-3
STATE OF OHIO )
COUNTY OF CUYAHOGA ) ss:
On this day of June, 1995, before me personally appeared GARY R.
LEIDICH and J. T. PERCIO to me personally known, who being by me severally duly
sworn, did say that they are a Vice President and Secretary, respectively, of
The Cleveland Electric Illuminating Company, that the seal affixed to the
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said officers severally acknowledged said instrument
to be the free act and deed of said corporation.
SONDRA Y. CLARKE
SONDRA Y. CLARKE
Notary Public, State of Ohio
Recorded in Cuyahoga Cty.
My Comm. Expires
[SEAL] November 25, 1998
28
S-4
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss:
On this day of June, 1995, before me personally appeared VALERIE
DUNBAR and SAM SCHWARTZMAN to me personally known, who being by me severally
duly sworn, did say that they are a Second Vice President and Assistant
Secretary, respectively, of The Chase Manhattan Bank (National Association),
that the seal affixed to the foregoing instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors; and said officers severally
acknowledged said instrument to be the free act and deed of said corporation.
MARGARET M. PRICE
Notary Public
Notary Public, State of New York
No. 24-4980599
Qualified in Kings County
[SEAL] Commission Expires April 22, 1997
This instrument prepared by Kevin P. Murphy, attorney at law.
29
R-1
This page contains information as to recording and filing which was not set
forth in this Supplemental Indenture at the time of execution. This page is not
a part of this Supplemental Indenture.
RECORDING AND FILING DATA
This Supplemental Indenture was filed for record and recorded in the record
of mortgages in the offices of the Recorders of the following Counties:
COUNTY VOLUME PAGE FILED FOR RECORD
- ------------------------------- --------------- -----------------------------
Ohio
Ashtabula 82 1934 June 29, 1995
Cuyahoga 95-05101 51 June 29, 1995
Erie 227 572 June 29, 1995
Geauga 1019 759 June 29, 1995
Lake 1131 311 June 29, 1995
Lorain 1104 759 June 29, 1995
Ottawa 456 871 June 29, 1995
Portage 35 51 June 29, 1995
Stark Instrument No. 95028581 June 29, 1995
Summit 1956 134 June 29, 1995
Trumbull 941 961 June 29, 1995
Pennsylvania
Warren 612 258 June 29, 1995
Beaver 1374 722 June 29, 1995
An amendment to a previously filed financing statement and a counterpart of
this Supplemental Indenture were filed in the office of the Secretary of the
Commonwealth of Pennsylvania on June 29, 1995 under original file number
13451763, microfilm number 24430561, to comply with the filing requirements of
the Pennsylvania enactment of the Uniform Commercial Code.