THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
TO
THE CHASE MANHATTAN BANK,
as Trustee
Eighty-first Supplemental Indenture
Dated as of September 29, 1999
Eighty-first Supplemental Indenture, dated as of September 29,
1999, made by and between THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a
corporation organized and existing under the laws of the State of Ohio (the
"Company"), and THE CHASE MANHATTAN BANK (successor by merger to The Chase
Manhattan Bank (National Association), which in turn was successor to Morgan
Guaranty Trust Company of New York, formerly Guaranty Trust Company of New
York), a corporation organized and existing under the laws of the State of
New York (the "Trustee"), as Trustee under the Mortgage and Deed of Trust
dated July 1, 1940, hereinafter mentioned:
RECITALS
In order to secure first mortgage bonds of the Company ("Bonds"),
the Company has heretofore executed and delivered to the Trustee the Mortgage
and Deed of Trust dated July 1, 1940 (the "1940 Mortgage") and eighty
supplemental indentures thereto ("Supplemental Indentures"); and
The 1940 Mortgage, as supplemented and modified by said
Supplemental Indentures and by this Eighty-first Supplemental Indenture, will
be hereinafter collectively referred to as the "Indenture" and this Eighty-
first Supplemental Indenture will be hereinafter referred to as "this
Supplemental Indenture"; and
In the Nineteenth Supplemental Indenture, dated November 23, 1976
(the "Nineteenth Supplemental Indenture"), the Company reserved the right,
without any vote, consent or other action by holders of Bonds of any series
established or created in the Nineteenth Supplemental Indenture or any
subsequent supplemental indenture, to amend and modify, in the manner
specified therein, certain provisions of the Indenture (the "Affected
Provisions"), and the Company has determined to exercise that right as to
certain of the Affected Provisions without prejudice to its right to amend
and modify the balance of the Affected Provisions at a later date; and
The Company, in the exercise of the powers and authority conferred
upon and reserved to it under the provisions of the Indenture, and pursuant
to appropriate resolutions of its Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee this Supplemental
Indenture in the form hereof for the purposes herein provided; and
All conditions and requirements necessary to make this Supplemental
Indenture a valid, binding and legal instrument have been done, performed and
fulfilled and the execution and delivery hereof have been in all respects
duly authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE I
CONFIRMATION OF 1940
MORTGAGE AND SUPPLEMENTAL INDENTURES
------------------------------------
The 1940 Mortgage (as modified in Article V of the Supplemental
Indenture dated December 1, 1947, Article V of the Supplemental Indenture
dated May 1, 1954, Article V of the Supplemental Indenture dated March 1,
1958, Article V of the Supplemental Indenture dated January 15, 1969, Article
III of the Supplemental Indenture dated November 23, 1976 and Article III of
the Supplemental Indenture dated April 15, 1985) and the Supplemental
Indentures dated July 1, 1940, August 18, 1944, December 1, 1947, September
1, 1950, June 1, 1951, May 1, 1954, March 1, 1958, April 1, 1959, December
20, 1967, January 15, 1969, November 1, 1969, June 1, 1970, November 15,
1970, May 1, 1974, April 15, 1975, April 16, 1975, May 28, 1975, February 1,
1976, November 23, 1976, July 26, 1977, September 27, 1977, May 1, 1978,
September 1, 1979, April 1, 1980, April 15, 1980, May 28, 1980, June 9, 1980,
December 1, 1980, July 28, 1981, August 1, 1981, March 1, 1982, July 15,
1982, September 1, 1982, November 1, 1982, November 15, 1982, May 24, 1983,
May 1, 1984, May 23, 1984, June 27, 1984, September 4, 1984, November 14,
1984, November 15, 1984, April 15, 1985, May 28, 1985, August 1, 1985,
September 1, 1985, November 1, 1985, April 15, 1986, May 14, 1986, May 15,
1986, February 25, 1987, October 15, 1987, February 24, 1988, September 15,
1988, May 15, 1989, June 13, 1989, October 15, 1989, January 1, 1990, June 1,
1990, August 1, 1990, May 1, 1991, May 1, 1992, July 31, 1992, January 1,
1993, February 1, 1993, May 20, 1993, June 1, 1993, September 15, 1994, May
1, 1995, May 2, 1995, June 1, 1995, July 15, 1995, August 1, 1995, June 15,
1997, August 1, 1997, October 15, 1997, June 1, 1998, October 1, 1998,
October 1, 1998, and April 1, 1999, respectively, are hereby in all respects
confirmed.
ARTICLE II
AMENDMENT AND MODIFICATION OF INDENTURE
---------------------------------------
Section 2.01 Pursuant to the right conferred upon and reserved to it
under Section 2 of Article III of Nineteenth Supplemental Indenture, the
Company, without any vote, consent or other action by holders of Bonds of any
series established or created in the Nineteenth Supplemental Indenture or any
subsequent supplemental indenture (all Bonds created in any supplemental
indenture prior to the Nineteenth Supplemental Indenture being no longer
outstanding), hereby adds a definition of "Nuclear Fuel" in, and amends and
modifies the definition of "Property Additions" in, Article I of the
Indenture, as follows:
"Nuclear Fuel:
The term `Nuclear Fuel' shall mean (a) any substance, material
or fuel element, including nuclear fuel and associated means (and
any similar or analogous substance or device), whether or not
classified as fuel and whether or not chargeable to operating
expenses, comprising or intended to comprise, or formerly
comprising, the core, or other part, of a nuclear reactor or any
similar or analogous device, (b) any substance, material or fuel
element, including nuclear fuel and associated means (and any
similar or analogous substance or device) while in the process of
fabrication or preparation and special nuclear or other materials
held for use in such fabrication or preparation, (c) any substance,
material or fuel element formerly comprising such nuclear fuel and
associated means (or any similar or analogous substance or device)
and which are undergoing or have undergone, reprocessing and (b)
uranium, thorium, plutonium and any other substance or material
from time to time used or selected for use by the Company as fuel
material, or as potential fuel material, in a nuclear reactor or
any similar or analogous device."
"Property Additions:
The term `property additions' shall mean any new or additional
property, real or personal (including separate and distinct units,
plants, systems and properties), located within, or subject to the
laws of, the United States of America or Canada, and improvements,
extensions or additions (including in these terms equipment and
appliances installed as a part of the fixed property of the
Company) to or about the plants or properties of the Company
purchased, constructed or otherwise acquired by the Company after
June 30, 1940, and in every case used or useful in the business of
generating, manufacturing, developing, producing, creating,
transmitting, transporting, distributing or supplying any kind or
form of matter, electricity, energy, radiation, light,
refrigeration, heat, water, steam, gas or fuel, including, without
limitation of the general import of the foregoing, electricity or
gas for light, heat, refrigeration, power, or any other purposes or
water for drinking, power, heat, refrigeration or any other
purposes or steam for heat, power, refrigeration or any other
purposes, and in every case properly chargeable to fixed property
accounts under the regulations, rules and orders, if any, with
respect to such matters, in force at the time, of The Public
Utilities Commission of Ohio or other public body or authority
having jurisdiction or supervisory authority over the accounts of
the Company, or, if there are no such regulations, rules and
orders, in the opinion of the signers of a certificate of the
nature required by Section 5(a) of Article III or Section 1(b) of
Article VIII."
" `Property additions' as so defined, without limitation of the
general import of such term, shall include property and interests
and rights therein in any one or more of the following categories:
(a) subject to Article XII, property acquired by the Company
or by a successor corporation as a result of any consolidation or
merger to which the Company or any successor corporation may be a
party;
(b) permanent improvements, extensions or additions to or
about the properties of the Company in the process of construction
or partially completed, insofar as actually constructed or
completed;
(c) property purchased, constructed or otherwise acquired to
replace property retired;
(d) easements, rights-of-way and leases over any privately or
publicly owned real, personal or mixed property or highway property
for towers, poles, wires, cables, conduits or mains or for
generating plant or transmission line or distribution line purposes
and rights, permits, licenses, franchises or any other forms of
permission to use or appropriate water or to overflow any such
property by the erection of dams or otherwise or to maintain
generating, transmission or distribution facilities or appliances
or dams or other similar structures on any such property and
generating, transmission and distribution facilities and appliances
and dams and other similar structures maintained by the Company on
any such property, provided that, in the opinion of counsel, such
easements, rights-of-way or leases, or rights, permits, licenses,
franchises or other forms of permission, as the case may be, shall
run for an unlimited or indeterminate or indefinite period of time
or for a period of time extending beyond the date of maturity of
all Bonds then outstanding under this Indenture and all additional
Bonds applied for at the particular time in question or the Company
has power under eminent domain or similar statutes to condemn and
acquire, adjacent thereto or in lieu thereof, such easements,
rights-of-way or leases, rights, permits, licenses, franchises or
other forms of permission sufficient for its purposes;
(e) any structures and any other property, including, but not
limited to, towers, poles, wires, cables, conduits, mains, dams and
other similar structures and generating, transmission and
distribution facilities and appliances located on, over, under or
in any privately or publicly owned real, personal or mixed property
or highway property pursuant to any easement, right-of-way or
or right, permit, license, franchise or any other form of
permission, whether or not such easement, right-of-way or lease or
right, permit, license, franchise or other form of permission runs
for an unlimited or indeterminate or indefinite period of time
extending beyond the date of maturity of all Bonds then outstanding
under this Indenture or then being applied for, provided that in
the opinion of counsel, the Company has the right to remove any
such property additions which are so located on any such property
prior to or upon the termination of such easement, right-of-way or
lease or right, permit, license, franchise or other form of
permission without compensation or other remuneration to anyone and
free of any lien prior or equal to the lien of the Indenture,
except permitted liens;
(f) generating, transmission or distribution facilities or
appliances or dams or other similar structures located or
constructed on, over, under or in public highways or other public
property, provided that the Company shall, in the opinion of
counsel, have the lawful right under rights, permits, licenses,
franchises or other forms of permission granted by a governmental
body having jurisdiction in the premises or by the law of the State
in which such property is located to maintain and operate such
property additions for an unlimited, indeterminate or indefinite
period of time or for the period, if any, specified in such right,
permit, license, franchise or other form of permission or law and
that the terms of such right, permit, license, franchise or other
form of permission or law do not contain any provisions giving to
any public authority the right to take over such property additions
without the payment of fair consideration therefor;
(g) provided that the Company shall have acquired good title
to the artificially filled land extending beyond the natural shore
line of Lake Erie in front of the land owned by the Company
described in this Indenture as Parcels Nos. 1 to 18, inclusive, of
the kind described in Subdivision (e) (1) of Section 5 of Article
III or shall have acquired the right to occupy said land as
described in Subdivision (e) (4) of said Section 5, permanent
improvements, extensions or additions to or about the plant and
property of the Company located on the site of said artificially
filled land (but only those constructed or installed after June 30,
1940), provided, however, that until the Company shall have
delivered to the Trustee an opinion of counsel of the nature
required by Subdivision (e) (1) of Section 5 of Article III with
respect to good title to such artificially filled land, the
aggregate amount with respect to any such improvements, extensions
or additions which shall be deemed to be property additions and
which may be made the basis of authentication and delivery of any
additional Bonds or the withdrawal or reduction of cash under any
of the provisions of this Indenture shall not exceed Fourteen
Million Two Hundred Fifty Thousand Dollars ($14,250,000). The
foregoing provisions shall not, however, limit the use of any such
improvements, extensions or additions for the purpose of
Subdivision (g) of the definition of net bondable value of property
additions not subject to an unfunded prior lien; and
(h) space satellites, space stations and other analogous
facilities whether or not in the Earth's atmosphere and whether or
not subject to the laws of the United States of America."
" `Property additions' as so defined shall not include:
(aa) good will or going concern value as such, separate and
distinct from the property operated thereunder or in connection
therewith or incident thereto;
(bb) any contracts or operating agreements or franchises or
governmental permits, granted or acquired, as such, separate and
distinct from the property operated thereunder or in connection
therewith or incident thereto;
(cc) any shares of stock or certificates or evidences of
interest therein, or any bonds, notes or other evidences of
indebtedness or certificates of interest therein or any other
securities;
(dd) any materials, merchandise, appliances or supplies
acquired for the purpose of resale or leasing to its customers in
the ordinary course and conduct of the business of the Company, or
any materials or supplies held for consumption in operation or held
in advance of use thereof for fixed capital purposes;
(ee) easements, rights-of-way and leases and rights, permits,
licenses, franchises and other forms of permission with respect to
publicly or privately owned real, personal or mixed property or
highway property and additions installed by the Company on any such
property pursuant thereto, except as permitted in Subdivisions (d),
(e) and (f) of this definition; or
(ff) any natural gas wells or natural gas leases or natural
gas transportation lines (other than natural gas transportation
lines for the purpose of supplying fuel to the Company's plants) or
other works or property used primarily and principally in the
production of natural gas or its transportation up to the point of
connection with any distribution system."
Section 2.02 Pursuant to the right conferred upon and reserved to it
under Section 3 of Article III of Nineteenth Supplemental Indenture, the
Company, without any vote, consent or other action by holders of Bonds of any
series established or created in the Nineteenth Supplemental Indenture or any
subsequent supplemental indenture (all Bonds created in any supplemental
indenture prior to the Nineteenth Supplemental Indenture being no longer
outstanding), hereby amends and modifies clauses (2) and (3) of Subdivision
(e) of Section 5 of Article III of the Indenture to read as follows:
"(2) If such property additions (i) include any easements,
rights-of-way or leases over any privately or publicly owned real,
personal or mixed property or highway property for towers, poles, wires,
cables, conduits or mains or for generating plant or transmission line
or distribution line purposes or rights, permits, licenses, franchises
or any other forms of permission to use or appropriate water or to
overflow any such property by the erection of dams or otherwise or to
maintain generating, transmission or distribution facilities or
appliances or dams or other similar structures on any such property or
generating, transmission or distribution facilities or appliances or
dams or other similar structures maintained by the Company on any such
property, the Company is entitled to such easements, rights-of-way or
leases or such rights, permits, licenses, franchises or other forms of
permission, as the case may be, for an unlimited or indeterminate or
indefinite period of time or for a period extending beyond the date of
maturity of the additional Bonds applied for and also beyond the date of
maturity of all Bonds then outstanding under this Indenture or the
Company has power under eminent domain or similar statutes to condemn
and acquire, adjacent thereto or in lieu thereof, such easements,
rights-of-way or leases or rights, permits, licenses, franchises or
other forms of permission sufficient for its purposes, or (ii) include
any structures or any other property, including, but not limited to,
towers, poles, wires, cables, conduits, mains, dams or other similar
structures or generating, transmission or distribution facilities or
appliances located on, over, under or in any privately or publicly owned
real, personal or mixed property or highway property pursuant to any
easement, right-of-way or lease or right, permit, license, franchise or
any other form of permission whether or not such easement, right-of-way
or lease or right, permit, license, franchise or other form of
permission, runs for an unlimited or indeterminate or indefinite period
of time extending beyond the date of maturity of all Bonds then
outstanding under this Indenture or then being applied for, the Company
has the right to remove any such property additions which are so located
on any such property prior to or upon the termination of such easement,
right-of-way or lease or right, permit, license, franchise or any other
form of permission without compensation or other remuneration to anyone
and free of any lien prior or equal to the lien of the Indenture, except
permitted liens;
(3) If such property additions include any generating,
transmission or distribution facilities or appliances or dams or other
similar structures located or constructed on, over or under public
highways or other public property, the Company has the lawful right
under rights, permits, licenses, franchises or other forms of permission
granted by a governmental body having jurisdiction in the premises or by
the law of the State in which such property is located to maintain and
operate such property additions for an unlimited, indeterminate or
indefinite period of time or for the period, if any, specified in such
right, permit, license, franchise or other form of permission or law and
that the terms of such right, permit, license, franchise or other form
of permission or law do not contain any provisions giving to any public
authority the right to take over such property additions without the
payment of fair consideration therefor;".
Section 2.03 Pursuant to the right conferred upon and reserved to it
under Section 5 of Article III of Nineteenth Supplemental Indenture, the
Company, without any vote, consent or other action by holders of Bonds of any
series established or created in the Nineteenth Supplemental Indenture or any
subsequent supplemental indenture (all Bonds created in any supplemental
indenture prior to the Nineteenth Supplemental Indenture being no longer
outstanding), hereby amends and modifies the definition of the term
"permitted liens" contained in Article I of the Indenture by inserting the
following as a new paragraph at the end of such definition:
"The term `permitted liens' shall also mean and include
as of any particular time any controls, liens, restrictions,
regulations, easements, exceptions or reservations of any
governmental authority to the extent applicable to Nuclear Fuel.".
Section 2.04 Pursuant to the right conferred upon and reserved to it
under Section 6 of Article III of Nineteenth Supplemental Indenture, the
Company, without any vote, consent or other action by holders of Bonds of any
series established or created in the Nineteenth Supplemental Indenture or any
subsequent supplemental indenture (all Bonds created in any supplemental
indenture prior to the Nineteenth Supplemental Indenture being no longer
outstanding), hereby amends and modifies Subdivision (a) of Section 2 of
Article VII of the Indenture by adding the words "or Nuclear Fuel" after the
words "or equipment" each time such words appear in said Subdivision (a).
ARTICLE III
THE TRUSTEE
-----------
Section 3.01 The Trustee hereby accepts the trusts hereby declared and
provided upon the terms and conditions in the Indenture set forth and upon
the terms and conditions set forth in this Article III.
Section 3.02 The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution hereof by the Company or for or
in respect of the recitals contained herein, all of which recitals are made
by the Company solely. In general, each and every term and condition
contained in Article XIII of the Indenture shall apply to this Supplemental
Indenture with the same force and effect as if the same were herein set forth
in full, with such omissions, variations and modifications thereof as may be
appropriate.
ARTICLE IV
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 Corporate Secretary or an Assistant Secretary, and said The Chase
Manhattan Bank, in evidence of its acceptance of the trust hereby created,
has caused this Supplemental Indenture to be executed on its behalf by one of
its Vice Presidents or one of its Corporate Trust Officers, and its corporate
seal to be hereto affixed and said seal and this Supplemental Indenture to be
attested by one of its Assistant Secretaries, all as of the day and year
first above written.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By:
---------------------------------------
Richard H. Marsh, Vice President
Attest:
- ------------------------------------
Nancy C. Ashcom, Corporate Secretary
Signed, sealed and acknowledged by
The Cleveland Electric Illuminating Company
in the presence of
- -----------------------------------
Edward J. Udovich
- -----------------------------------
Nancy L. Chancey
THE CHASE MANHATTAN BANK, AS TRUSTEE
By:
---------------------------------
James P. Freeman, Vice President
Attest:
- -------------------------------------
R. Lorenzen, Senior Trust Officer
Signed, sealed and acknowledged by
The Chase Manhattan Bank
in the presence of
- --------------------------------------
William Keenan
- --------------------------------------
Donna Fitzsimmons
As witnesses
STATE OF OHIO
COUNTY OF SUMMIT
On this 29th day of September, 1999, before me personally appeared
Richard H. Marsh and Nancy C. Ashcom, to me personally known, who being by me
severally duly sworn, did say that they are a Vice President and the
Corporate Secretary, respectively, of The Cleveland Electric Illuminating
Company, that the seal affixed to the foregoing instrument is the corporate
seal of said corporation and that said instrument was signed and sealed in
behalf of said corporation by authority of its Board of Directors; and said
officers severally acknowledged said instrument to the free act and deed of
said corporation.
--------------------------------------
Notary Public
Susie M. Hoisten
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission expires November 19, 2001
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ___ day of _____, 1999, before me personally appeared James P.
Freeman and R. Lorenzen, to me personally known, who being by me severally
duly sworn, did say that they are a Vice President and a Senior Trust
Officer, respectively, of The Chase Manhattan Bank, that the seal affixed to
the foregoing instrument is the corporate seal of said corporation and that
said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors; and said officers severally acknowledged
said instrument to the free act and deed of said corporation.
-------------------------
Notary Public
Emily Fayan
This instrument prepared by: FirstEnergy Corp., 76 South Main Street,
Akron, Ohio 44308.