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Exhibit 4(e)
[CONFORMED]
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THE TOLEDO EDISON COMPANY
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
TRUSTEE.
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FORTY-THIRD SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 1, 1995
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(SUPPLEMENTAL TO INDENTURE DATED AS OF APRIL 1, 1947)
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FIRST MORTGAGE BONDS, COLLATERAL SERIES C
FIRST MORTGAGE BONDS, COLLATERAL SERIES D
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TABLE OF CONTENTS
PAGE
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PARTIES.................................................. 1
RECITALS................................................. 1
FORM OF BOND OF THE 49TH SERIES.......................... 4
FORM OF BOND OF THE 50TH SERIES.......................... 9
GRANTING CLAUSES......................................... 14
ARTICLE I
CREATION AND DESCRIPTION OF BONDS OF THE 49TH SERIES
SECTION 1. Creation of Bonds of the 49th Series, limit
on amount issuable........................ 14
SECTION 2. Interest Rate, Computation and Payment
Dates..................................... 15
SECTION 3. Place and coin of payment................... 15
SECTION 4. Denomination................................ 15
SECTION 5. Transfer of Bonds of the 49th Series........ 15
SECTION 6. Registration of Bonds of the 49th Series.... 16
SECTION 7. Payments on Bonds of the 49th Series........ 16
SECTION 8. Authentication of Bonds of the 49th Series
by Trustee................................ 16
SECTION 9. Redemption of Bonds of the 49th Series...... 16
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ii
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ARTICLE II
CREATION AND DESCRIPTION OF BONDS OF THE 50TH SERIES
SECTION 1. Creation of Bonds of the 50th Series, limit
on amount issuable........................ 17
SECTION 2. Interest Rate, Computation and Payment
Dates..................................... 17
SECTION 3. Place and coin of payment................... 18
SECTION 4. Denomination................................ 18
SECTION 5. Transfer of Bonds of the 50th Series........ 18
SECTION 6. Registration of Bonds of the 50th Series.... 18
SECTION 7. Payments on Bonds of the 50th Series........ 18
SECTION 8. Authentication of Bonds of the 50th Series
by Trustee................................ 18
SECTION 9. Redemption of Bonds of the 50th Series...... 19
ARTICLE III
THE TRUSTEE
The Trustee accepts trust created by Forty-third
Supplemental Indenture................................. 19
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 1. Ratification and approval of Original
Indenture as supplemented................. 20
Covenants of Original Indenture, except as
modified, continue in effect.............. 20
SECTION 2. Forty-third Supplemental Indenture may be
executed in counterparts.................. 20
TESTIMONIUM CLAUSE....................................... 20
COMPANY'S SIGNATURES..................................... S-1
TRUSTEE'S SIGNATURES..................................... S-2
COMPANY'S ACKNOWLEDGMENT................................. S-3
TRUSTEE'S ACKNOWLEDGMENT................................. S-4
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FORTY-THIRD SUPPLEMENTAL INDENTURE, dated as of June 1, 1995, between THE
TOLEDO EDISON COMPANY, a corporation organized and existing under the laws of
the State of Ohio (hereinafter called the "Company"), and THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), 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 (hereinafter called the "Trustee"), as Trustee.
RECITALS
The Company has heretofore executed and delivered an Indenture of Mortgage
and Deed of Trust dated as of April 1, 1947 (hereinafter referred to as the
"Original Indenture") to The Chase National Bank of the City of New York,
predecessor Trustee, to secure an issue of First Mortgage Bonds of the Company,
issuable in series, and created thereunder an initial series of bonds designated
as First Mortgage Bonds, 2 7/8% Series due 1977, being the initial series of
bonds issued under the Original Indenture; and
The Company has heretofore executed and delivered to The Chase National
Bank of the City of New York, predecessor Trustee, four Supplemental Indentures
supplementing the Original Indenture dated, respectively, September 1, 1948,
April 1, 1949, December 1, 1950 and March 1, 1954 and has heretofore executed
and delivered to The Chase Manhattan Bank, which on March 31, 1955, became the
Trustee under the Original Indenture by virtue of the merger of The Chase
National Bank of the City of New York into President and Directors of The
Manhattan Company under the name of The Chase Manhattan Bank, the Fifth and the
Sixth Supplemental Indentures dated, respectively, February 1, 1956, and May 1,
1958, supplementing the Original Indenture; and
The Chase Manhattan Bank was converted into a national banking association
under the name The Chase Manhattan Bank (National Association), effective
September 23, 1965; and by virtue of said conversion the continuity of the
business of The Chase Manhattan Bank, including its business of acting as
corporate trustee, and its corporate existence, have not been affected, so that
The Chase Manhattan Bank (National Association) is vested with all the trusts,
powers, discretion, immunities, privileges and all other matters as were vested
in said The Chase Manhattan Bank under the Indenture (hereinafter defined), with
like effect as if originally named as Trustee therein; and
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The Company has heretofore executed and delivered to the Trustee 35
Supplemental Indentures dated, respectively, as follows: Seventh, August 1,
1967, Eighth, November 1, 1970, Ninth, August 1, 1972, Tenth, November 1, 1973,
Eleventh, July 1, 1974, Twelfth, October 1, 1975, Thirteenth, June 1, 1976,
Fourteenth, October 1, 1978, Fifteenth, September 1, 1979, Sixteenth, September
1, 1980, Seventeenth, October 1, 1980, Eighteenth, April 1, 1981, Nineteenth,
November 1, 1981, Twentieth, June 1, 1982, Twenty-first, September 1, 1982,
Twenty-second, April 1, 1983, Twenty-third, December 1, 1983, Twenty-fourth,
April 1, 1984, Twenty-fifth, October 15, 1984, Twenty-sixth, October 15, 1984,
Twenty-seventh, August 1, 1985, Twenty-eighth, August 1, 1985, Twenty-ninth,
December 1, 1985, Thirtieth, March 1, 1986, Thirty-first, October 15, 1987,
Thirty-second, September 15, 1988, Thirty-third, June 15, 1989, Thirty-fourth,
October 15, 1989, Thirty-fifth, May 15, 1990, Thirty-sixth, March 1, 1991,
Thirty-seventh, May 1, 1992, Thirty-eighth, August 1, 1992, Thirty-ninth,
October 1, 1992, Fortieth, January 1, 1993, Forty-first, September 15, 1994 and
Forty-second, May 1, 1995 supplementing the Original Indenture (the Original
Indenture, all the aforementioned Supplemental Indentures, this Forty-third
Supplemental Indenture and any other indentures supplemental to the Original
Indenture are herein collectively called the "Indenture" and this Forty-third
Supplemental Indenture is hereinafter called "this Supplemental Indenture"); and
Pursuant to the provisions of the Indenture, the Company has issued 48
series of bonds in the aggregate principal amount of $2,062,800,000 of which 29
series (including the Bonds of the 1977 Series issued pursuant to the Original
Indenture) in the aggregate principal amount of $1,145,800,000 are no longer
outstanding and of which additional portions, aggregating $36,875,000 in
principal amount, of four other series have been retired; and
The Company covenanted in and by the Original Indenture to execute and
deliver such further instruments and do such further acts as may be necessary or
proper to carry out more effectually the purposes of the Original Indenture and
to make subject to the lien thereof property acquired after the execution and
delivery of the Original Indenture; and
Under Article 3 of the Original Indenture, the Company is authorized to
issue additional bonds upon the terms and conditions expressed in the Original
Indenture; and
The Company proposes to create two new series of First Mortgage Bonds to be
designated as First Mortgage Bonds, Collateral Series C (hereinafter
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called the "Bonds of the 49th Series") and First Mortgage Bonds, Collateral
Series D (hereinafter called the "Bonds of the 50th Series") with the respective
denominations, rates of interest, date of maturity, redemption provisions and
other provisions and agreements in respect thereof as in this Supplemental
Indenture set forth; and
The Bonds of the 49th Series are to be issued by the Company and 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
dated May 14, 1993 of the Company and The Cleveland Electric Illuminating
Company (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 the 49th Series. 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 the 49th Series as agent for the
benefit of the Lenders.
The Bonds of the 50th Series are to be issued by the Company and 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 Cleveland Electric
Illuminating Company, Barclays Bank PLC, Union Bank, Society National Bank and
Chemical Bank, as Co-Agents, and the 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 the 50th Series. 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 the 50th Series as agent for the benefit of the Participating
Banks.
The Company, by appropriate corporate action, has duly resolved and
determined to execute this Supplemental Indenture for the purpose of providing
for the creation of the Bonds of the 49th Series and the Bonds of the 50th
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Series and of specifying the form, provisions and particulars thereof as in said
Original Indenture, as amended, provided or permitted, including the issuance
only of fully registered bonds, and of giving to the Bonds of the 49th Series
and the Bonds of the 50th Series the protection and security of the Indenture;
and
The text of the Bonds of the 49th Series is to be substantially in the form
following:
[FORM OF FULLY REGISTERED BOND OF THE 49TH SERIES]
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 TOLEDO EDISON COMPANY
FIRST MORTGAGE BOND, COLLATERAL SERIES C
No. - $
THE TOLEDO EDISON COMPANY, an Ohio corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to
or registered assigns, the principal sum of Seventy-five Million
Dollars ($75,000,000) or such lesser principal amount as is equal to 60% 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 Cleveland Electric Illuminating 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, at the same place
or places as payments are required to be made by the Company under the Guaranty,
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, and
to pay interest on the unpaid principal amount hereof in like coin or currency
to the registered owner hereof at said place or places at such rate per annum on
each interest payment date (hereinafter
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defined) as shall cause the amount of interest payable on such interest payment
date on the Bonds of this Series (hereinafter defined) to equal 60% 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
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 the
Indenture (hereinafter defined). 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 Bonds of the Company, known as its First Mortgage
Bonds, issued and to be issued in one or more series under and equally and
ratably secured (except as any sinking, amortization, improvement or other fund,
established in accordance with the provisions of said Indenture, may afford
additional security for the Bonds of any particular series) by a certain
Indenture of Mortgage and Deed of Trust, dated as of April 1, 1947 (hereinafter
called the "Original Indenture"), made by the Company to The Chase National Bank
of the City of New York (The Chase Manhattan Bank (National Association),
successor), as Trustee (hereinafter called the "Trustee"), and by certain
indentures supplemental thereto, including the Forty-third Supplemental
Indenture dated as of June 1, 1995 (the Original Indenture and said indentures
supplemental thereto herein collectively called the "Indenture" and said
Forty-third Supplemental Indenture hereinafter called the "Supplemental
Indenture"), to which Indenture reference is hereby made for a description of
the property mortgaged, the nature and extent of the security, the rights and
limitations of rights of the Company, the Trustee and the holders of said Bonds
and of the coupons appurtenant to coupon Bonds under the Indenture and the terms
and conditions upon which said Bonds are and are to be issued and secured, to
all of the provisions of which Indenture and of all
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such supplemental indentures in respect of such security, including the
provisions of the Indenture permitting the issue of Bonds of any series for
property which, under the restrictions and limitations therein specified, may be
subject to liens prior to the lien of the Indenture, the holder, by accepting
this Bond, assents. To the extent permitted by and as provided in the Indenture,
the rights and obligations of the Company and of the holders of said Bonds and
coupons (including those pertaining to any sinking or other fund) may be changed
and modified, with the consent of the Company, by the holders of at least 75% in
aggregate principal amount of the Bonds then outstanding, such percentage being
determined as provided in the Indenture; provided, however, that in case such
changes and modifications affect one or more but less than all series of Bonds
then outstanding, they shall be required to be adopted only by the affirmative
vote of the holders of at least 75% in aggregate principal amount of outstanding
Bonds of such one or more series so affected; and further provided, that without
the consent of the holder hereof no such change or modification shall be made
which will extend the time of payment of the principal of, or of the interest or
premium, if any, on this Bond or reduce the principal amount hereof or the rate
of interest or the premium, if any, hereon, or affect any other modification of
the terms of payment of such principal or interest, or premium, if any, or will
permit the creation of any lien ranking prior to or on a parity with the lien of
the Indenture on any of the mortgaged property, or will deprive the holder
hereof of the benefit of a lien upon the mortgaged property for the security of
this Bond, or will reduce the percentage of Bonds required for the adoption of
changes or modifications as aforesaid.
This Bond is the only Bond of a series of Bonds designated as the First
Mortgage Bonds, Collateral Series C, of the Company (herein called "Bonds of
this Series") limited, except as otherwise provided in the Indenture, in
aggregate principal amount to $75,000,000 but the aggregate principal amount
hereof outstanding at any time shall not exceed such lesser amount as is equal
to 60% of the amount of the Lenders' Commitments and is issued under and secured
by the Supplemental Indenture.
The Bonds of this Series have been issued by the Company to the Agent Bank
to (i) 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 this Series.
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
this Series as agent for the benefit of the Lenders. The Bonds of this
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Series 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 this Series, but such payment shall not
reduce the principal amount of the Bonds of this Series 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 this Series are subject to redemption prior to maturity as
provided in Section 9 of Article I 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.
The principal of this Bond may be declared or may become due before the
maturity hereof, on the conditions, in the manner and at the times set forth in
the Indenture, upon the happening of a default as therein defined.
No recourse under or upon any covenant or obligation of the Indenture, or
of any indenture supplemental thereto, or of this Bond, for the payment of the
principal of or the interest on this Bond, or for any claim based thereon, or
otherwise in any manner in respect thereof, shall be had against any
incorporator, subscriber to the capital stock, stockholder, officer or director,
as such, of the Company, whether former, present or future, either directly or
indirectly through the Company or any predecessor or successor corporation or
the Trustee, by the enforcement of any subscription to capital stock, assessment
or otherwise, or by any legal or equitable proceeding by virtue of any
constitution, statute, or otherwise (including, without limiting the generality
of the foregoing, any proceeding to enforce any claimed liability of
stockholders of the Company based upon any theory of disregarding the corporate
entity of the Company or upon any theory that the Company was acting as the
agent or instrumentality of the stockholders), any and all such liability of
incorporators, stockholders, subscribers, officers and directors, as such, being
released by the holder hereof, by the acceptance of this Bond, and being
likewise waived and released by the terms of the Indenture.
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This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication endorsed hereon shall have been signed by The
Chase Manhattan Bank (National Association) or its successor, as Trustee under
the Indenture.
IN WITNESS WHEREOF, THE TOLEDO EDISON COMPANY has caused this Bond to be
signed in its name by its President or a Vice-President and its corporate seal
to be impressed or imprinted hereon and attested by its Secretary or an
Assistant Secretary.
Dated THE TOLEDO EDISON COMPANY
By
Vice President.
Attest:
Secretary.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated herein, described in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), AS TRUSTEE
By
Authorized Officer.
[END OF FORM OF BOND OF THE 49TH SERIES]
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The text of the Bonds of the 50th Series is to be substantially in the form
following:
[FORM OF FULLY REGISTERED BOND OF THE 50TH SERIES]
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
CLEVELAND ELECTRIC ILLUMINATING COMPANY, BARCLAY'S 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 Toledo Edison Company
FIRST MORTGAGE BOND, COLLATERAL SERIES D
No. - $
THE TOLEDO EDISON COMPANY, an Ohio corporation (hereinafter called the
Company), for value received, hereby promises to pay to
or registered assigns, the principal sum of One Hundred Thirty-five
Million, Six Hundred Thousand Dollars ($135,600,000) or such lesser principal
amount as is equal to 60% 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 Advance, 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 such payment shall be 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 to the registered
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owner hereof at said place or places 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 this Series (hereinafter defined)
to equal 60% 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 this Series then
outstanding and the denominator of which is such aggregate principal amount plus
60% 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 hereinafter called an "interest payment
date"), until 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 the Indenture (hereinafter defined). 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.
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 Bonds of the Company, known as its First Mortgage
Bonds, issued and to be issued in one or more series under and equally and
ratably secured (except as any sinking, amortization, improvement or other fund,
established in accordance with the provisions of said Indenture, may afford
additional security for the Bonds of any particular series) by a certain
Indenture of Mortgage and Deed of Trust, dated as of April 1, 1947 (hereinafter
called the "Original Indenture"), made by the Company to The Chase National Bank
of the City of New York (The Chase Manhattan Bank (National Association),
successor), as Trustee (hereinafter called the "Trustee"), and by certain
indentures supplemental thereto, including the Forty-third Supplemental
Indenture dated as of June 1, 1995 (the Original Indenture and said indentures
supplemental thereto herein collectively called the "Indenture" and said
Forty-third Supplemental Indenture hereinafter called the "Supplemental
Indenture"), to which Indenture reference is hereby made for a
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description of the property mortgaged, the nature and extent of the security,
the rights and limitations of rights of the Company, the Trustee and the holders
of said Bonds and of the coupons appurtenant to coupon Bonds under the Indenture
and the terms and conditions upon which said Bonds are and are to be issued and
secured, to all of the provisions of which Indenture and of all such
supplemental indentures in respect of such security, including the provisions of
the Indenture permitting the issue of Bonds of any series for property which,
under the restrictions and limitations therein specified, may be subject to
liens prior to the lien of the Indenture, the holder, by accepting this Bond,
assents. To the extent permitted by and as provided in the Indenture, the rights
and obligations of the Company and of the holders of said Bonds and coupons
(including those pertaining to any sinking or other fund) may be changed and
modified, with the consent of the Company, by the holders of at least 75% in
aggregate principal amount of the Bonds then outstanding, such percentage being
determined as provided in the Indenture; provided, however, that in case such
changes and modifications affect one or more but less than all series of Bonds
then outstanding, they shall be required to be adopted only by the affirmative
vote of the holders of at least 75% in aggregate principal amount of outstanding
Bonds of such one or more series so affected; and further provided, that without
the consent of the holder hereof no such change or modification shall be made
which will extend the time of payment of the principal of, or of the interest or
premium, if any, on this Bond or reduce the principal amount hereof or the rate
of interest or the premium, if any, hereon, or affect any other modification of
the terms of payment of such principal or interest, or premium, if any, or will
permit the creation of any lien ranking prior to or on a parity with the lien of
the Indenture on any of the mortgaged property, or will deprive the holder
hereof of the benefit of a lien upon the mortgaged property for the security of
this Bond, or will reduce the percentage of Bonds required for the adoption of
changes or modifications as aforesaid.
This Bond is the only Bond of a series of Bonds designated as the First
Mortgage Bonds, Collateral Series D, of the Company (herein called "Bonds of
this Series") limited, except as otherwise provided in the Indenture, in
aggregate principal amount to $135,600,000 but the aggregate principal amount
hereof outstanding at any time shall not exceed such lesser amount as is equal
to 60% 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
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Cash Collateral, and is issued under and secured by the Supplemental Indenture.
The Bonds of this Series have been issued by the Company to the Agent Bank
to (i) 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 this Series.
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
this Series as agent for the benefit of the Participating Banks (as defined in
the Reimbursement Agreement). The Bonds of this Series have been delivered to
the Agent Bank as agent for 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
this Series, but such payment shall not reduce the principal amount of the Bonds
of this Series 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
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 this Series are subject to redemption prior to maturity 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, any accrued and
unpaid interest and all other amounts payable by the Company under the
Reimbursement Agreement.
The principal of this Bond may be declared or may become due before the
maturity hereof, on the conditions, in the manner and at the times set forth in
the Indenture, upon the happening of a default as therein defined.
No recourse under or upon any covenant or obligation of the Indenture, or
of any indenture supplemental thereto, or of this Bond, for the payment of the
principal of or the interest on this Bond, or for any claim based thereon, or
otherwise in any manner in respect thereof, shall be had against any
incorporator, subscriber to the capital stock, stockholder, officer or director,
as such, of the Company, whether former, present or future, either directly or
indirectly
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through the Company or any predecessor or successor corporation or the Trustee,
by the enforcement of any subscription to capital stock, assessment or
otherwise, or by any legal or equitable proceeding by virtue of any
constitution, statute, or otherwise (including, without limiting the generality
of the foregoing, any proceeding to enforce any claimed liability of
stockholders of the Company based upon any theory of disregarding the corporate
entity of the Company or upon any theory that the Company was acting as the
agent or instrumentality of the stockholders), any and all such liability of
incorporators, stockholders, subscribers, officers and directors, as such, being
released by the holder hereof, by the acceptance of this Bond, and being
likewise waived and released by the terms of the Indenture.
This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication endorsed hereon shall have been signed by The
Chase Manhattan Bank (National Association) or its successor, as Trustee under
the Indenture.
IN WITNESS WHEREOF, THE TOLEDO EDISON COMPANY has caused this Bond to be
signed in its name by its President or a Vice-President and its corporate seal
to be impressed or imprinted hereon and attested by its Secretary or an
Assistant Secretary.
Dated
THE TOLEDO EDISON COMPANY
By
Vice President.
Attest:
Secretary.
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated herein, described in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), AS TRUSTEE
By
Authorized Officer.
[END OF FORM OF BOND OF 50TH SERIES]
All conditions and requirements necessary to make this Supplemental
Indenture a valid, legal and binding instrument in accordance with its terms and
to make the Bonds of the 49th Series and the Bonds of the 50th Series, when duly
executed by the Company and authenticated and delivered by the Trustee, and duly
issued, the valid, binding and legal obligations of the Company, have been done
and performed, and the execution and delivery of this Supplemental Indenture
have been in all respects duly authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That The Toledo
Edison Company, the Company herein named, in consideration of the premises and
of One Dollar ($1.00) to it duly paid by the Trustee at or before the ensealing
and delivery of these presents, the receipt whereof is hereby acknowledged, does
hereby covenant and agree to and with the Trustee and its successors in the
trust under the Indenture, for the benefit of those who shall hold the bonds to
be issued hereunder and thereunder, as hereinafter provided, as follows:
ARTICLE I
CREATION AND DESCRIPTION OF BONDS OF THE 49TH SERIES
SECTION 1. A new series of bonds to be issued under and secured by the
Indenture is hereby created, to be designated as "First Mortgage Bonds,
Collateral Series C" (such bonds herein referred to as the "Bonds of the 49th
Series"). The Bonds of the 49th Series shall be limited to an aggregate
principal amount of $75,000,000 but the aggregate principal amount thereof
outstanding at any time shall not exceed such lesser amount as is equal to 60%
of the aggregate amount of the Lenders' Commitments (as defined in the Revolving
Credit Agreement). The Bonds of the 49th Series shall be substantially in the
form hereinbefore recited.
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SECTION 2. The principal of all Bonds of the 49th Series 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 payment date (hereinafter defined) as shall
cause the amount of interest payable on each interest payment date on the Bonds
of the 49th Series to equal 60% 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 the 49th Series,
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 the 49th Series shall bear
interest from the later of the date of initial authentication of such Bond or
the most recent date to which interest has been paid until the principal of such
Bond is paid.
SECTION 3. The Bonds of the 49th Series 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 the 49th Series shall be issued only as one fully
registered Bond in the denomination of $75,000,000.
SECTION 5. Bonds of the 49th Series shall be transferable only to a
successor Revolver Agent Bank under the Revolving Credit Agreement in the manner
and upon the terms set forth in sec. 2.05 of the Original Indenture, but
notwithstanding the provisions of sec. 2.08 of the Original Indenture, no charge
shall be made upon any transfer or exchange of Bonds of the 49th Series other
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than for any tax or taxes or other governmental charge required to be paid by
the Company.
SECTION 6. The Bonds of the 49th Series shall be registered in the name of
the Revolver Agent Bank.
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 the 49th Series but such payment
shall not reduce the principal amount of the Bonds of the 49th Series 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 the 49th Series shall be deemed to
be paid in full.
SECTION 8. The Bonds of the 49th Series may be executed by the Company and
delivered to the Trustee and, upon compliance with all applicable provisions and
requirements of the Original Indenture in respect thereof, shall be
authenticated by the Trustee and delivered (without awaiting the filing or
recording of this Supplemental Indenture) in accordance with the written order
or orders of the Company.
SECTION 9. The Bonds of the 49th Series 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
Revolver Agent Bank for redemption of all Bonds of the 49th Series 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 the 49th
Series 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 the 49th Series
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.
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ARTICLE II
CREATION AND DESCRIPTION OF BONDS OF THE 50TH SERIES
SECTION 1. A new series of bonds to be issued under and secured by the
Indenture is hereby created, to be designated as "First Mortgage Bonds,
Collateral Series D" (such bonds herein referred to as the "Bonds of the 50th
Series"). The Bonds of the 50th Series shall be limited to an aggregate
principal amount of $135,600,000 but the aggregate principal amount thereof
outstanding at any time shall not exceed such lesser amount as is equal to 60%
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) minus (c) the amount, if any, of cash collateral held by the LC Agent
Bank under the Reimbursement Agreement ("LC Cash Collateral"), outstanding from
time to time under the Reimbursement Agreement. The Bonds of the 50th Series
shall be substantially in the form hereinbefore recited.
SECTION 2. The principal of all Bonds of the 50th Series 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
and (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 each interest payment date on the Bonds of the 50th Series
to equal 60% 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 the 50th Series then
outstanding and the denominator of which is such aggregate principal amount plus
60% of the amount, if any, of LC Cash Collateral. Such interest shall be payable
on the same dates from time to time 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 the 50th Series,
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
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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.
SECTION 3. The Bonds of the 50th Series 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 the 50th Series shall be issued only as one fully
registered Bond in the denomination of $135,600,000.
SECTION 5. Bonds of the 50th Series shall be transferable only to a
successor LC Agent Bank under the Reimbursement Agreement in the manner and upon
the terms set forth in sec. 2.05 of the Original Indenture, but notwithstanding
the provisions of sec. 2.08 of the Original Indenture, no charge shall be made
upon any transfer or exchange of Bonds of the 50th Series other than for any tax
or taxes or other governmental charge required to be paid by the Company.
SECTION 6. The Bonds the 50th Series 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
the 50th Series, but such payment shall not reduce the principal amount of the
Bonds of the 50th Series 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 the 50th Series shall be deemed to be paid in
full.
SECTION 8. The Bonds of the 50th Series may be executed by the Company and
delivered to the Trustee and, upon compliance with all applicable provisions and
requirements of the Original Indenture in respect thereof, shall be
authenticated by the Trustee and delivered (without awaiting the filing
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or recording of this Supplemental Indenture) in accordance with the written
order or orders of the Company.
SECTION 9. The Bonds of the 50th Series 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 the 50th Series 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 the
50th Series 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 the 50th
Series 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.
ARTICLE III
THE TRUSTEE
The Trustee accepts the trusts created by this Supplemental Indenture upon
the terms and conditions in the Original Indenture and in this Supplemental
Indenture set forth. The recitals in this Supplemental Indenture are made by the
Company only and not by the Trustee. Each and every term and condition contained
in Article 13 of the Original 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 to make the same conform to this Supplemental Indenture.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 1. The Original Indenture, as heretofore supplemented, is in all
respects ratified and confirmed, and the Original Indenture, this Supplemental
Indenture and all other indentures supplemental to the Original Indenture shall
be read, taken and construed as one and the same instrument. Neither the
execution of this Supplemental Indenture nor anything herein contained shall be
construed to impair the lien of the Indenture on any of the property subject
thereto, and such lien shall remain in full force and effect as security for all
bonds now outstanding or hereafter issued under the Indenture. All covenants and
provisions of the Original Indenture, except as modified by this Supplemental
Indenture and all other indentures supplemental to the Original Indenture, shall
continue in full force and effect for the respective periods of time therein
specified, and this Supplemental Indenture shall form part of the Indenture. All
terms defined in Article 1 of the Original Indenture shall, for all purposes of
this Supplemental Indenture, have the meanings in said Article 1 specified,
except as modified by this Supplemental Indenture and all other indentures
supplemental to the Original Indenture and unless the context otherwise
requires.
SECTION 2. This Supplemental Indenture may be simultaneously executed in
any number of counterparts, and all said counterparts executed and delivered,
each as an original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, The Toledo Edison Company has caused its corporate name
to be hereunto affixed and this instrument to be signed by its President or a
Vice President and its corporate seal to be hereunto affixed and attested by its
Secretary or an Assistant Secretary for and in its behalf and The Chase
Manhattan Bank (National Association), as Trustee, in evidence of its acceptance
of the trust hereby created, has caused its corporate name to be hereunto
affixed, this instrument to be signed by its President or a Vice President and
its corporate seal to be hereunto affixed and attested by its Secretary or an
Assistant Secretary for and in its behalf, all as of the day and year first
above written.
24
S-1
THE TOLEDO EDISON COMPANY,
By G.R. LEIDICH
Vice President
Attest: J.T. PERCIO
Secretary
Signed, sealed and acknowledged on behalf of
THE TOLEDO EDISON COMPANY
in the presence of
PATRICIA BARKEY
- -----------------------------------
Patricia A. Barkey
SONDRA Y. CLARKE
- -----------------------------------
Sondra Y. Clarke
As witnesses
[SEAL]
25
S-2
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as Trustee,
By VALERIE DUNBAR
Second Vice President
Attest: SAM SCHWARTZMAN
Assistant Secretary
Signed, sealed and acknowledged on behalf of
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION) in the presence of
LYNN M. FITZPATRICK
- -----------------------------------
Lynn M. Fitzpatrick
DONNA FITZSIMMONS
- -----------------------------------
Donna Fitzsimmons
As witnesses
[SEAL]
26
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 the Secretary, respectively,
of The Toledo Edison 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
----------------------------
Notary Public
Sondra Y. Clarke
Notary Public, State of Ohio
Recorded in Cuyahoga County
My Commission Expires
November 25, 1998
[SEAL]
27
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 an Assistant Secretary,
respectively, of The Chase Manhattan Bank (National Association), that the seal
affixed to the foregoing instrument is the corporate seal of said association
and that said instrument was signed and sealed in behalf of said association by
authority of its Board of Directors; and said officers severally acknowledged
said instrument to be the free act and deed of said association.
MARGARET M. PRICE
----------------------------
Notary Public
Notary Public, State of New
York
No. 24-4980599
Qualified in Kings County
Commission Expires April 22,
1997
THIS INSTRUMENT PREPARED BY KEVIN P. MURPHY, ATTORNEY AT LAW.
[SEAL]
28
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(S) FILED FOR RECORD
- ------------------------- ---------- ------------ ---------------------
Ohio
Belmont................ 639 642 June 30, 1995
Defiance............... 324 843 June 29, 1995
Erie................... 227 544 June 29, 1995
Fulton................. 329 547 June 29, 1995
Henry.................. 270 246 June 29, 1995
Lake................... 1131 284 June 29, 1995
Lorain................. 1104 787 June 29, 1995
Monroe................. 14 309 June 30, 1995
Ottawa................. 456 843 June 29, 1995
Paulding............... 292 453 June 29, 1995
Putnam................. 578 192 June 29, 1995
Sandusky............... 479 998 June 29, 1995
Seneca................. 512 636 June 29, 1995
Williams............... 350 655 June 29, 1995
Wood................... 1014 282 June 29, 1995
Pennsylvania
Beaver................. 1374 750 June 29, 1995
MICROFICHE
----------
Lucas, Ohio............ 95-1249A07
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 July 6, 1995 under original or amendment file
number 07851362, microfilm number 24450676, to comply with the filing
requirements of the Pennsylvania enactment of the Uniform Commercial Code.