FIRSTENERGY CORP.
TO
THE BANK OF NEW YORK,
(successor by merger to United States Trust Company of New York)
Trustee under the GPU, Inc. Indenture,
dated as of December 1, 2000
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Supplemental Indenture
Providing for Succession By Merger
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Dated as of November 7, 2001
SUPPLEMENTAL INDENTURE
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SUPPLEMENTAL INDENTURE, dated as of November 7, 2001, between FIRSTENERGY
CORP., a corporation of the State of Ohio, whose address is 76 South Main
Street, Akron, Ohio 44308, (hereinafter sometimes called the Successor Company)
and THE BANK OF NEW YORK (successor to United States Trust Company of New York),
a corporation of the State of New York, whose address is 5 Penn Plaza, New York,
New York 10001 (hereinafter sometimes called the Trustee), Trustee under the
Indenture, dated as of December 1, 2000 (hereinafter called the Indenture), from
GPU, INC., a corporation of the Commonwealth of Pennsylvania, whose address is
300 Madison Avenue, Morristown, New Jersey 07962 (hereinafter sometimes called
the Predecessor Company), to United States Trust Company of New York, this
Supplemental Indenture (hereinafter called the Supplemental Indenture) being
supplemental thereto.
WHEREAS, Effective June 26, 2001, The Bank of New York acquired all or
substantially all of the corporate trust business of United States Trust Company
of New York, and by virtue of the provisions of Section 912 of the Indenture,
The Bank of New York became the successor Trustee under the Indenture, without
the execution or filing of any paper or any further act on the part of any
parties to the Indenture; and
WHEREAS, the Predecessor Company has heretofore issued and the Trustee has
heretofore authenticated and delivered, in accordance with the provisions of the
Indenture, $300,000,000 principal amount of 7.70% Debentures, Series A due 2005;
and
WHEREAS, Article Eleven of the Indenture provides upon any merger of the
Predecessor Company into any other entity (herein sometimes called a Merger),
for the execution and delivery to the Trustee by the successor corporation of a
supplemental indenture whereby the successor corporation shall expressly assume
the due and punctual payment of the principal of and premium, if any, and
interest, if any, on all Outstanding Securities issued under the Indenture and
the performance and observance of every covenant and obligation under the
Indenture on the part of the Company to be performed or observed; and
WHEREAS, Article Eleven of the Indenture provides that upon the Merger,
the successor corporation, into which the Predecessor Company is merged, shall
succeed to, and be substituted for, the Predecessor Company and may exercise any
right and power of the Predecessor Company under the Indenture with the same
effect as if such successor corporation had been named the Predecessor Company
therein, and thereafter, the Predecessor Company shall be relieved of all
obligations and covenants under the Indenture and the Outstanding Securities
thereunder; and
WHEREAS, on November 7, 2001 (Effective Time), the Predecessor Company
will merge into the Successor Company upon such terms as to fully comply with
the provisions of Article Eleven of the Indenture; and
WHEREAS, the Successor Company, pursuant to appropriate resolutions of its
Board of Directors, has authorized the execution of this Supplemental Indenture
to provide, among other things, for the assumption of the Indenture by the
Successor Company in compliance with Article Eleven and as hereinafter set
forth; and
WHEREAS, pursuant to Section 1201 of the Indenture, the Trustee is
authorized to enter into one or more supplemental indentures to evidence the
succession of another entity to the Predecessor Company and the assumption by
any such successor of the covenants of the Predecessor Company contained in the
Indenture and the Securities, all as provided in Article Eleven of the
Indenture.
ARTICLE I.
PROVISIONS RELATING TO ARTICLE ELEVEN OF THE INDENTURE
SECTION 1.1 The Successor Company does as of the Effective Time hereby
expressly assume (i) the due and punctual payment of the principal of and
premium, if any, and interest on all Outstanding Securities issued under the
Indenture according to their tenor and (ii) the due and punctual performance and
observance of every covenant and obligation under the Indenture on the part of
the Predecessor Company to be performed and observed.
SECTION 1.2 It is hereby declared that, in accordance with the provisions
of Section 1102 of the Indenture, the Successor Company, having expressly
assumed (i) the due and punctual payment of the principal premium, if any, and
interest on all Outstanding Securities issued under the Indenture according to
their tenor and (ii) the due and punctual performance and observance of each
covenant and obligation under the Indenture on the part of the Predecessor
Company to be performed or observed, shall succeed to, and be substituted for,
and may exercise every right and power of the Predecessor Company under the
Indenture as of the Effective Time with the same effect as if the Successor
Company had been named as the Predecessor Company therein, and the Predecessor
Company shall be relieved of all obligations and covenants under the Indenture
and the Securities Outstanding thereunder.
ARTICLE II.
MISCELLANEOUS PROVISIONS
SECTION 2.1 Subject to the amendments provided for in this Supplemental
Indenture, the terms defined in the Indenture, as heretofore supplemented, shall
for all purposes of this Supplemental Indenture have the meanings specified in
the Indenture, as heretofore supplemented.
SECTION 2.2 The Trustee hereby accepts the trusts herein declared, provided,
created or supplemented and agrees to perform the same upon the terms and
conditions herein and in the Indenture, as heretofore supplemented, set forth
and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made by
the Successor Company. In general, each and every term and condition contained
in Article Nine of the Indenture shall apply to and form part of this
Supplemental Indenture with the same force and effect as if the same were herein
set forth in full with such omissions, variations and insertions, if any, as may
be appropriate to make the same conform to the provisions of this Supplemental
Indenture.
SECTION 2.3 Whenever in this Supplemental Indenture any one of the parties
hereto is named or referred to, this shall, subject to the provisions of
Articles Nine and Eleven of the Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements in this
Supplemental Indenture contained, by or on behalf of the Successor Company, or
by or on behalf of the Trustee, shall, subject as aforesaid, bind and inure to
the respective benefits of the respective successors and assigns of such
parties, whether so expressed or not.
SECTION 2.4 Nothing in this Supplemental Indenture expressed or implied, is
intended, or shall be construed to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the holders of the Securities
Outstanding under the Indenture, any right, remedy or claim under or by reason
of this Supplemental Indenture or any covenant, condition, stipulation, promise
or agreement hereof, and all the covenants, conditions, stipulations, promises
and agreements in this Supplemental Indenture contained, by or on behalf of the
Successor Company, shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the Securities Outstanding under the Indenture.
SECTION 2.5 This Supplemental Indenture shall be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 2.6 This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first above written.
FIRSTENERGY CORP.
By
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THE BANK OF NEW YORK,
Trustee
By
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Louis P. Young
Vice President