THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
TO
THE CHASE MANHATTAN BANK
(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
-------------
Eighty-second Supplemental Indenture
DATED AS OF JANUARY 15, 2000
First Mortgage Bonds, 2000 Collateral Series A
Eighty-second Supplemental Indenture, dated as of January 15, 2000, 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 to MORGAN 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 81 Supplemental
Indentures thereto ("Supplemental Indentures"); and
The 1940 Mortgage, as supplemented and modified by said Supplemental
Indentures and by this Eighty-second Supplemental Indenture, will be
hereinafter collectively referred to as the "Indenture" and this Eighty-
second Supplemental Indenture will be hereinafter referred to as "this
Supplemental Indenture"; 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 a new series of Bonds designated as "First Mortgage Bonds, 2000
Collateral Series A" (the "Bonds of 2000 Collateral Series A"), with the
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 2000 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 Amended
and Restated Guaranty of the Company and The Toledo Edison Company dated
November 4, 1999 (such guaranty, as amended from time to time herein called
the "Guaranty"), in favor of the Lenders party to the Second Amended and
Restated Credit Agreement dated as of November 4, 1999 among FirstEnergy
Corp. (the "Borrower") and Citibank, N.A., as Administrative Agent, the other
banks named therein and Salomon Smith Barney Inc., as Arranger, (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 2000 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 2000 Collateral Series A as agent for
the benefit of the Lenders.
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, Article III of the
Supplemental Indenture dated April 15, 1985 and Article II of the
Supplemental Indenture dated as of June 30, 1999) 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, April 1, 1999 and June 30, 1999, respectively, are hereby in
all respects confirmed.
ARTICLE II
CREATION, PROVISIONS, REDEMPTION, PRINCIPAL AMOUNT
AND FORM OF BONDS OF 2000 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, 2000 Collateral Series A" of the Company and hereinabove and
hereinafter called the "Bonds of 2000 Collateral Series A". The Bonds of 2000
Collateral Series A shall be limited to an aggregate principal amount of
$10,000,000 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) in excess of $125,000,000. The Bonds of 2000
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 2000 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 payment date (hereinafter defined) as shall cause the amount of
interest payable on each interest payment date on the Bonds of 2000
Collateral Series A to equal 40% of the amount of interest and fees payable
on such interest payment date under the Revolving Credit Agreement with
respect to borrowings or Commitments thereunder in excess of $125,000,000.
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 2000 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 2000 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 2000 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 2000 Collateral Series A shall be issued only
as one fully registered Bond in the denomination of $10,000,000.
SECTION 5. In the manner and subject to the limitations provided in the
Indenture, Bonds of 2000 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 2000 Collateral Series A 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 Borrower under the Revolving Credit Agreement
shall be deemed a payment in respect of the Bonds of 2000 Collateral Series
A, but such payment shall not reduce the principal amount of the Bonds of
2000 Collateral Series A unless the aggregate amount of the Lenders'
Commitments in excess of $125,000,000 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 Borrower under the Revolving Credit
Agreement have been discharged, the Bonds of 2000 Collateral Series A shall
be deemed to be paid in full.
SECTION 8. The Bonds of 2000 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 2000 Collateral Series A.
SECTION 9. The Bonds of 2000 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 2000 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 2000 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 2000 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 2000 Collateral
Series A and of the Trustee's certificate of authentication thereon, shall be
substantially as follows:
[Form of Fully Registered Bond of 2000 Collateral Series A]
This bond is not transferable except to a successor Agent Bank under the
second amended and restated credit agreement dated as of November 4, 1999
among FirstEnergy Corp. (the "Borrower"), Citibank, N.A., as
administrative agent, the banks named therein and Salomon Smith Barney
Inc., as Arranger, *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, 2000 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
Ten Million Dollars ($10,000,000) 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 excess of $125,000,000, in
whole or in installments on such date or dates as the Company has any
obligation to make payments under the Amended and Restated Guaranty of the
Company and The Toledo Edison Company dated November 4, 1999 (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 2000 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 with respect to borrowings
or Commitments thereunder in excess of $125,000,000. 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 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 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, 2000 Collateral Series A
(herein called the "Bonds of 2000 Collateral Series A") limited, except as
otherwise provided in the Indenture, in aggregate principal amount to
$10,000,000 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 in excess of $125,000,000 and is issued
under and secured by the Indenture and described in the Eighty-second
Supplemental Indenture dated as of January 15, 2000, between the Company and
the Trustee (herein called the "Supplemental Indenture").
The Bonds of 2000 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 2000
Collateral Series A.
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 2000 Collateral Series A as agent for the benefit of the Lenders.
The Bonds of 2000 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 Borrower under the Revolving Credit Agreement shall be
deemed a payment in respect of the Bonds of 2000 Collateral Series A, but
such payment shall not reduce the principal amount of the Bonds of 2000
Collateral Series A unless the aggregate amount of the Lenders' Commitments
in excess of $125,000,000 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 Borrower 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 2000 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 60% 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 60% 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. Pursuant to the
Nineteenth Supplemental Indenture dated November 23, 1976 between the Company
and the Trustee, the Company has reserved the right to modify the Indenture
to except and exclude nuclear fuel (to the extent, if any, not otherwise
excepted and excluded) from the lien and operation thereof without any vote,
consent or other action by the holders of Bonds.
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
By:
--------------------------------
Vice President
ATTEST:
By:
---------------------
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
Trustee
By:
-----------------------------
Authorized Officer
[End of Form of Fully Registered Bond of 2000 Collateral Series A]
ARTICLE III
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 III.
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 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 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 shall mean a written demand or certificate executed by the
president, any vice president or any authorized officer of the Revolver Agent
Bank.
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
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 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.
The Cleveland Electric Illuminating Company
By:
----------------------------
Vice President
Attest:
--------------------
Corporate Secretary
Signed, sealed and acknowledged by
The Cleveland Electric Illuminating Company
in the presence of
- --------------------------
- --------------------------
As witnesses
The Chase Manhattan Bank
By:
---------------------------
Attest:
----------------------------
Signed, sealed and acknowledged by
The Chase Manhattan Bank
In the presence of
- -----------------------------
- -----------------------------
As witnesses
State of Ohio )
) ss.:
County of Summit )
On this day of January, 2000, before me personally appeared
[________] and Nancy C. Ashcom to me personally known, who being by me
severally duly sworn, did say that they are a Vice President and 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 be the free act and deed of said
corporation.
- --------------------------------
Notary Public, State of Ohio
State of New York )
) ss.:
County of New York )
On this day of November, 1999, before me personally appeared
[________] and [________] to me personally known, who being by me severally
duly sworn, did say that they are a [_____________] and [_____________],
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 be the free act and deed of said corporation.
---------------------------------
Notary Public
Notary Public, State of New York
This Instrument Prepared by FirstEnergy Corp., 76 South Main Street, Akron,
Ohio 44308