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OHIO EDISON COMPANY
with
THE BANK OF NEW YORK,
As Trustee
-----------------------
SEVENTY-FIFTH SUPPLEMENTAL INDENTURE
Providing among other things for
FIRST MORTGAGE BONDS
Pledge Series A of 2003 due 2033
Pledge Series B of 2003 due 2033
---------
Dated as of March 1, 2003
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SUPPLEMENTAL INDENTURE, dated as of March 1, 2003 between OHIO EDISON
COMPANY, a corporation organized and existing under the laws of the State of
Ohio (hereinafter called the "Company"), party of the first part, and THE BANK
OF NEW YORK, a banking corporation organized and existing under the laws of the
State of New York, as Trustee under the Indenture hereinafter referred to, party
of the second part.
WHEREAS, the Company has heretofore executed and delivered to BANKERS
TRUST COMPANY (hereinafter called the "Old Trustee"), as trustee, a certain
Indenture, dated as of August 1, 1930, to secure an issue of bonds of the
Company, issued and to be issued in series, from time to time, in the manner and
subject to the conditions set forth in the said Indenture; and the said
Indenture has been supplemented by seventy-four supplemental indentures, which
Indenture as so supplemented and to be hereby supplemented is hereinafter
referred to as the "Indenture"; and
WHEREAS, The Bank of New York has succeeded the Old Trustee as trustee
under the Indenture (hereinafter called the "Trustee") pursuant to Article XVI
thereof; and
WHEREAS, the Indenture provides for the issuance of bonds thereunder in
one or more series, the form of each series of bonds and of the coupons to be
attached to the coupon bonds, if any, to be substantially in the forms set forth
therein with such insertions, omissions and variations as the Board of Directors
of the Company may determine; and
WHEREAS, the Company, by appropriate corporate action in conformity
with the terms of the Indenture, has duly determined to create a new series of
bonds under the Indenture, consisting of $41,000,000 in principal amount to be
designated as "First Mortgage Bonds, Pledge Series A of 2003 due 2033"
(hereinafter sometimes referred to as the "bonds of Pledge Series A") and
$9,000,000 in principal amount to be designated as "First Mortgage Bonds, Pledge
Series B of 2003 due 2033" (hereinafter sometimes referred to as the "bonds of
Pledge Series B", together with the bonds of Pledge Series A, the "bonds of the
2003 Pledge Series"), which shall bear interest at the rate per annum set forth
in, shall be subject to certain redemption rights and obligations set forth in,
and will otherwise be in the form and have the terms and provisions provided for
in this Supplemental Indenture and set forth in the form of such bonds below:
2
[FORM OF BOND OF PLEDGE SERIES A]
This Bond is not transferable except to a successor trustee under the
General Mortgage Indenture and Deed of Trust, dated as of January 1, 1998,
between the Company and The Bank of New York, as Trustee, or in connection with
the exercise of the rights and remedies of the holder hereof consequent upon a
"default" as defined in the Mortgage referred to herein.
OHIO EDISON COMPANY
FIRST MORTGAGE BONDS, PLEDGE SERIES A OF 2003 DUE 2033
Due June 1, 2033
$ No.
OHIO EDISON COMPANY, a corporation of the State of Ohio (hereinafter
called the Company), for value received, hereby promises to pay to ____________,
or registered assigns, ____________ dollars at an office or agency of the
Company in the Borough of Manhattan, The City of New York, N.Y. or in the City
of Akron, Ohio, on June 1, 2033 in any coin or currency of the United States of
America which at the time of payment is legal tender for public and private
debts, and to pay at said offices or agencies to the registered owner hereof, in
like coin or currency, interest thereon from the Initial Interest Accrual Date
(hereinbelow defined) at the rate per annum from time to time borne by the
Mortgage Bonds, Guarantee Series A of 2003 due 2033 (the "Mortgage Bonds")
issued by the Company under the General Mortgage Indenture and Deed of Trust,
dated as of January 1, 1998, as heretofore supplemented (the "General Mortgage")
by the Company to The Bank of New York, as trustee, on each June 1 and December
1 commencing on the June 1 or December 1 immediately succeeding the Initial
Interest Accrual Date (as defined below) each such date herein referred to as an
"interest payment date") on and until maturity, or, in the case of any bonds of
this series duly called for redemption, on and until the redemption date, or in
the case of any default by the Company in the payment of the principal due on
any bonds of this series, until the Company's obligation with respect to the
payment of the principal shall be discharged as provided in the Indenture
referred to on the reverse hereof. Payments of principal of and interest on this
bond shall be made at an office or agency of the Company in the Borough of
Manhattan, The City of New York, N.Y. or in the City of Akron, Ohio.
Payment of principal of, or premium or interest on, the Mortgage Bonds
shall, to the extent thereof, be deemed to satisfy and discharge the obligation
of the Company, if any, to make a payment of principal, premium or interest, as
the case may be, in respect of this bond which is then due.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This bond shall not become obligatory until The Bank of New York, the
Trustee under the Mortgage referred to on the reverse hereof, or its successor
thereunder, shall have authenticated the form of certificate endorsed hereon.
3
IN WITNESS WHEREOF, Ohio Edison Company has caused this bond to be
signed in its name by its President or a Vice President, by his signature or a
facsimile thereof, and its corporate seal to be printed hereon, attested by its
Corporate Secretary or an Assistant Corporate Secretary, by his signature or a
facsimile thereof.
Dated:
OHIO EDISON COMPANY,
By:
-------------------------------------
Title:
Attest:
- ------------------------------
Title:
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series designated therein,
described in the within-mentioned Mortgage.
THE BANK OF NEW YORK,
as Trustee,
By:______________________________________
Authorized Officer
4
[FORM OF BOND OF PLEDGE SERIES A]
[REVERSE]
OHIO EDISON COMPANY
FIRST MORTGAGE BONDS, PLEDGE SERIES A OF 2003 DUE 2033
This bond is one of an issue of bonds of the Company, issuable in
series, and is one of a series known as its First Mortgage Bonds of the series
designated in its title, all issued and to be issued under and equally secured
(except as to any sinking fund established in accordance with the provisions of
the Mortgage hereinafter mentioned for the bonds of any particular series) by an
Indenture, dated as of August 1, 1930, executed by the Company to The Bank of
New York, as Trustee, as amended and supplemented by indentures supplemental
thereto, to which Indenture as so amended and supplemented (herein referred to
as the "Mortgage") reference is made for a description of the property mortgaged
and pledged, the nature and extent of the security, the rights of the holders of
the bonds in respect thereof and the terms and conditions upon which the bonds
are secured.
The Bonds of this series are subject to mandatory redemption, in whole
or in part, as the case may be, on each date that the Mortgage Bonds are to be
redeemed. The principal amount of the Bonds of this series to be redeemed on any
such date shall be equal to the principal amount of Mortgage Bonds called for
redemption on that date. All redemption of Bonds of this series shall be at 100
percent of the principal amount thereof, plus accrued interest to the redemption
date. The Bonds of this series are not otherwise redeemable prior to their
maturity.
Notwithstanding the foregoing, Bonds of this series shall be deemed to
be paid and no longer outstanding under the Mortgage to the extent that Mortgage
Bonds are paid or deemed to be paid and are no longer outstanding and the
Trustee has been notified to such effect by the Company.
The Trustee may conclusively presume that the obligation of the Company
to pay the principal of, and interest, if any, on the bonds of this series as
the same shall become due and payable shall have been fully satisfied and
discharged unless and until it shall have received a written notice from the
trustee under the General Mortgage, signed by an authorized officer thereof,
stating that any such principal of or interest on the Mortgage Bonds has become
due and payable and has not been fully paid and specifying the amount of funds
required to make such payment.
The Initial Interest Accrual Date for the bonds of this series shall be
the date that interest begins to accrue on the Mortgage Bonds.
As more fully described in the supplemental indenture establishing the
terms and provisions of the bonds of this series, the Company reserves the
5
right, without any consent or other action by holders of the bonds of this
series, to amend the Mortgage to provide (a) that the Mortgage, the rights and
obligations of the Company and the rights of the bondholders may be modified
with the consent of the holders of not less than 60% in principal amount of the
bonds adversely affected; provided, however, that no modification shall (1)
extend the time, or reduce the amount, of any payment on any bond, without the
consent of the holder of each bond so affected, (2) permit the creation of any
lien, not otherwise permitted, prior to or on a parity with the lien of the
Mortgage, without the consent of the holders of all bonds then outstanding, or
(3) reduce the above percentage of the principal amount of bonds the holders of
which are required to approve any such modification without the consent of the
holders of all bonds then outstanding and (b) that (i) additional bonds may be
issued against 70% of the value of the property which forms the basis for such
issuance and (ii) the charge against property subject to a prior lien which is
used to effectuate the release of property under the Mortgage be similarly
based.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Mortgage, upon the
occurrence of a completed default as in the Mortgage provided.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer or director of the Company
or of any predecessor or successor corporation, either directly or through the
Company or a predecessor or successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders, officers and
directors being released by the registered owner hereof by the acceptance of
this bond and being likewise waived and released by the terms of the Mortgage.
The bonds of this series are issuable only as registered bonds without
coupons in denominations of $1,000 and, if higher, in multiples of $1.00. The
Company and the Trustee may deem and treat the person in whose name this bond is
registered as the absolute owner for the purpose of receiving payment of or on
account of the principal and interest due hereon and for all other purposes.
Registered bonds of this series shall be exchangeable at said offices or
agencies of the Company for registered bonds of other authorized denominations
having the same aggregate principal amount, in the manner and upon the
conditions prescribed in the Mortgage. Notwithstanding any provision of the
Mortgage, (a) neither the Company nor the Trustee shall be required to make
transfers or exchanges of bonds of this series during the period between any
interest payment date for such series and the record date next preceding such
interest payment date, and (b) no charge shall be made upon any transfer or
exchange of bonds of this series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
[END OF FORM OF BOND OF PLEDGE SERIES A]
[FORM OF BOND OF PLEDGE SERIES B]
6
This Bond is not transferable except to a successor trustee under the
General Mortgage Indenture and Deed of Trust, dated as of January 1, 1998,
between the Company and The Bank of New York, as Trustee, or in connection with
the exercise of the rights and remedies of the holder hereof consequent upon a
"default" as defined in the Mortgage referred to herein.
OHIO EDISON COMPANY
FIRST MORTGAGE BONDS, PLEDGE SERIES B OF 2003 DUE 2033
Due June 1, 2033
$ No.
OHIO EDISON COMPANY, a corporation of the State of Ohio (hereinafter
called the Company), for value received, hereby promises to pay to , or
registered assigns, dollars at an office or agency of the Company in the Borough
of Manhattan, The City of New York, N.Y. or in the City of Akron, Ohio, on June
1, 2033 in any coin or currency of the United States of America which at the
time of payment is legal tender for public and private debts, and to pay at said
offices or agencies to the registered owner hereof, in like coin or currency,
interest thereon from the Initial Interest Accrual Date (hereinbelow defined) at
the rate per annum from time to time borne by the Mortgage Bonds, Guarantee
Series B of 2003 due 2033 (the "Mortgage Bonds") issued by the Company under the
General Mortgage Indenture and Deed of Trust, dated as of January 1, 1998, as
heretofore supplemented (the "General Mortgage") by the Company to The Bank of
New York, as trustee, on each June 1 and December 1 commencing on the June 1 or
December 1 immediately succeeding the Initial Interest Accrual Date (as defined
below) each such date herein referred to as an "interest payment date") on and
until maturity, or, in the case of any bonds of this series duly called for
redemption, on and until the redemption date, or in the case of any default by
the Company in the payment of the principal due on any bonds of this series,
until the Company's obligation with respect to the payment of the principal
shall be discharged as provided in the Indenture referred to on the reverse
hereof. Payments of principal of and interest on this bond shall be made at an
office or agency of the Company in the Borough of Manhattan, The City of New
York, N.Y. or in the City of Akron, Ohio.
Payment of principal of, or premium or interest on, the Mortgage Bonds
shall, to the extent thereof, be deemed to satisfy and discharge the obligation
of the Company, if any, to make a payment of principal, premium or interest, as
the case may be, in respect of this bond which is then due.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This bond shall not become obligatory until The Bank of New York, the
Trustee under the Mortgage referred to on the reverse hereof, or its successor
thereunder, shall have authenticated the form of certificate endorsed hereon.
IN WITNESS WHEREOF, Ohio Edison Company has caused this bond to be
signed in its name by its President or a Vice President, by his signature or a
7
facsimile thereof, and its corporate seal to be printed hereon, attested by its
Corporate Secretary or an Assistant Corporate Secretary, by his signature or a
facsimile thereof.
Dated:
OHIO EDISON COMPANY,
By:
----------------------------------------
Title:
Attest:
- --------------------------------
Title:
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series designated therein,
described in the within-mentioned Mortgage.
THE BANK OF NEW YORK,
as Trustee,
By:__________________________________________
Authorized Officer
8
[FORM OF BOND OF PLEDGE SERIES B]
[REVERSE]
OHIO EDISON COMPANY
FIRST MORTGAGE BONDS, PLEDGE SERIES B OF 2003 DUE 2033
This bond is one of an issue of bonds of the Company, issuable in
series, and is one of a series known as its First Mortgage Bonds of the series
designated in its title, all issued and to be issued under and equally secured
(except as to any sinking fund established in accordance with the provisions of
the Mortgage hereinafter mentioned for the bonds of any particular series) by an
Indenture, dated as of August 1, 1930, executed by the Company to The Bank of
New York, as Trustee, as amended and supplemented by indentures supplemental
thereto, to which Indenture as so amended and supplemented (herein referred to
as the "Mortgage") reference is made for a description of the property mortgaged
and pledged, the nature and extent of the security, the rights of the holders of
the bonds in respect thereof and the terms and conditions upon which the bonds
are secured.
The Bonds of this series are subject to mandatory redemption, in whole
or in part, as the case may be, on each date that the Mortgage Bonds are to be
redeemed. The principal amount of the Bonds of this series to be redeemed on any
such date shall be equal to the principal amount of Mortgage Bonds called for
redemption on that date. All redemption of Bonds of this series shall be at 100
percent of the principal amount thereof, plus accrued interest to the redemption
date. The Bonds of this series are not otherwise redeemable prior to their
maturity.
Notwithstanding the foregoing, Bonds of this series shall be deemed to
be paid and no longer outstanding under the Mortgage to the extent that Mortgage
Bonds are paid or deemed to be paid and are no longer outstanding and the
Trustee has been notified to such effect by the Company.
The Trustee may conclusively presume that the obligation of the Company
to pay the principal of, and interest, if any, on the bonds of this series as
the same shall become due and payable shall have been fully satisfied and
discharged unless and until it shall have received a written notice from the
trustee under the General Mortgage, signed by an authorized officer thereof,
stating that any such principal of or interest on the Mortgage Bonds has become
due and payable and has not been fully paid and specifying the amount of funds
required to make such payment.
The Initial Interest Accrual Date for the bonds of this series shall be
the date that interest begins to accrue on the Mortgage Bonds.
As more fully described in the supplemental indenture establishing the
terms and provisions of the bonds of this series, the Company reserves the
9
right, without any consent or other action by holders of the bonds of this
series, to amend the Mortgage to provide (a) that the Mortgage, the rights and
obligations of the Company and the rights of the bondholders may be modified
with the consent of the holders of not less than 60% in principal amount of the
bonds adversely affected; provided, however, that no modification shall (1)
extend the time, or reduce the amount, of any payment on any bond, without the
consent of the holder of each bond so affected, (2) permit the creation of any
lien, not otherwise permitted, prior to or on a parity with the lien of the
Mortgage, without the consent of the holders of all bonds then outstanding, or
(3) reduce the above percentage of the principal amount of bonds the holders of
which are required to approve any such modification without the consent of the
holders of all bonds then outstanding and (b) that (i) additional bonds may be
issued against 70% of the value of the property which forms the basis for such
issuance and (ii) the charge against property subject to a prior lien which is
used to effectuate the release of property under the Mortgage be similarly
based.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Mortgage, upon the
occurrence of a completed default as in the Mortgage provided.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer or director of the Company
or of any predecessor or successor corporation, either directly or through the
Company or a predecessor or successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders, officers and
directors being released by the registered owner hereof by the acceptance of
this bond and being likewise waived and released by the terms of the Mortgage.
The bonds of this series are issuable only as registered bonds without
coupons in denominations of $1,000 and, if higher, in multiples of $1.00. The
Company and the Trustee may deem and treat the person in whose name this bond is
registered as the absolute owner for the purpose of receiving payment of or on
account of the principal and interest due hereon and for all other purposes.
Registered bonds of this series shall be exchangeable at said offices or
agencies of the Company for registered bonds of other authorized denominations
having the same aggregate principal amount, in the manner and upon the
conditions prescribed in the Mortgage. Notwithstanding any provision of the
Mortgage, (a) neither the Company nor the Trustee shall be required to make
transfers or exchanges of bonds of this series during the period between any
interest payment date for such series and the record date next preceding such
interest payment date, and (b) no charge shall be made upon any transfer or
exchange of bonds of this series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
[END OF FORM OF BOND OF PLEDGE SERIES B]
10
WHEREAS, Section 115 of the Indenture provides that the Company and the
Trustee may, from time to time and at any time, enter into such indentures
supplemental thereto as shall be deemed necessary or desirable for one or more
purposes, including, among others, to describe and set forth the particular
terms and the form of additional series of bonds to be issued under the
Indenture, to add other limitations on the issue of bonds, withdrawal of cash or
release of property, to add to the covenants and agreements of the Company for
the protection of the holders of the bonds and of the mortgaged and pledged
property, to supplement defective or inconsistent provisions contained in the
Indenture, and for any other purpose not inconsistent with the terms of the
Indenture; and
WHEREAS, all things necessary to make the bonds of the 2003 Pledge
Series when authenticated by the Trustee and issued as in the Indenture
provided, the valid, binding and legal obligations of the Company, entitled in
all respects to the security of the Indenture, have been done and performed, and
the creation, execution and delivery of this Supplemental Indenture have in all
respects been duly authorized; and
WHEREAS, the Company and Trustee deem it advisable to enter into this
Supplemental Indenture for the purposes of describing the bonds of the 2003
Pledge Series and of establishing the terms and provisions thereof, confirming
the mortgaging under the Indenture of additional property for the equal and
proportionate benefit and security of the holders of all bonds at any time
issued thereunder, amplifying the description of the property mortgaged, adding
other limitations to the Indenture on the issue of bonds, withdrawal of cash or
release of property, and adding to the covenants and agreements of the Company
for the protection of the holders of bonds and of mortgaged and pledged
property;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That OHIO
EDISON COMPANY, in consideration of the premises and of one dollar to it duly
paid by the Trustee at or before the ensealing and delivery of these presents,
the receipt whereof is hereby acknowledged, and of the purchase and acceptance
of the bonds issued or to be issued hereunder by the holders thereof, and in
order to secure the payment both of the principal and interest of all bonds at
any time issued and outstanding under the Indenture, according to their tenor
and effect, and the performance of all the provisions of the Indenture and of
said bonds, hath granted, bargained, sold, released, conveyed, assigned,
transferred, pledged, set over and confirmed and by these presents doth grant,
bargain, sell, release, convey, assign, transfer, pledge, set over and confirm
unto THE BANK OF NEW YORK, as Trustee, and to its successor or successors in
said trust, and to its and their assigns forever, all the properties of the
Company described in Schedule A (which is identified by the signature of an
officer of each party hereto at the end thereof) hereto annexed and hereby made
a part hereof;
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Article XI of the Indenture) the tolls, rents,
revenues, issues, earnings, income, product and profits thereof, and all the
11
estate, right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel thereof.
The Company does hereby agree and does hereby confirm and reaffirm the
agreement made by it in the Indenture, dated as of August 1, 1930, that all
property, rights and franchises acquired by the Company after the date of the
Indenture, dated as of August 1, 1930 (except any hereinafter expressly
excepted), shall be as fully embraced within the lien of the Indenture as if
such property had been owned by the Company on the date of the Indenture, dated
as of August 1, 1930 and was specifically described therein and conveyed thereby
and does hereby confirm that the Company will not cause or consent to a
partition, whether voluntary or through legal proceedings, of property, whether
herein described or heretofore or hereafter acquired, in which its ownership
shall be as a tenant in common except as permitted by and in conformity with the
provisions of the Indenture and particularly of Article XI thereof.
PROVIDED that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of the Indenture, viz.: cash, shares of
stock and obligations (including bonds, notes and other securities) not
heretofore or hereafter specifically pledged, paid or deposited or delivered
under the Indenture or covenanted so to be.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
mortgaged, pledged or conveyed by the Company as aforesaid, or intended so to
be, unto the Trustee and its successors and assigns forever.
IN TRUST, NEVERTHELESS, upon the terms and trusts of the Indenture for
those who shall hold the bonds and coupons issued and to be issued thereunder,
or any of them, without preference, priority or distinction as to lien of any of
said bonds and coupons over any others thereof by reason of priority in the time
of the issue or negotiations thereof, or otherwise howsoever, subject, however,
to the provisions in reference to extended, transferred or pledged coupons and
claims for interest set forth in the Indenture (and subject to any sinking funds
that may be hereafter created for the benefit of any particular series).
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or caused to be paid, the
principal of and interest on said bonds, at the times and in the manner
stipulated therein and herein, and shall keep, perform and observe all and
singular the covenants and promises in said bonds and in the Indenture expressed
to be kept, performed and observed by or on the part of the Company, then this
Supplemental Indenture and the estate and rights hereby granted shall cease,
determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by the Company, that all
such bonds and coupons are to be issued, authenticated and delivered, and that
all property subject or to become subject hereto is to be held, subject to the
further covenants, conditions, uses and trusts in the Indenture set forth, and
the parties hereto mutually agree as follows:
12
SECTION 1. Bonds of the 2003 Pledge Series shall mature on the date set
forth in the respective form of bond relating thereto hereinbefore set forth
and, subject to the provisions of said form, shall bear interest at the rate per
annum from time to time borne by the series of the Mortgage Bonds referred to in
said form. Pledge Series A Bonds shall be designated as the Company's "First
Mortgage Bonds, Pledge Series A of 2003 due 2033." Pledge Series B Bonds shall
be designated as the Company's "First Mortgage Bonds, Pledge Series B of 2003
due 2033." The bonds of the 2003 Pledge Series shall bear interest from the
Initial Interest Accrual Date (as defined in the form of the bond hereinabove
set forth). Principal or redemption price of and interest on the bonds of the
2003 Pledge Series shall be payable in any coin or currency of the United States
of America which at the time of payment is legal tender for public and private
debts, at an office or agency of the Company in the Borough of Manhattan, The
City of New York, N.Y. or in the City of Akron, Ohio.
Definitive bonds of the 2003 Pledge Series may be issued, originally or
otherwise, only as registered bonds, substantially in the form of bond
hereinbefore recited, and in the denominations of $1,000 and, if higher, in
multiples of $1.00. Delivery of a bond of the 2003 Pledge Series to the Trustee
for authentication shall be conclusive evidence that its serial number has been
duly approved by the Company.
SECTION 2. Bonds of the 2003 Pledge Series shall be deemed to be paid
and no longer outstanding under the Indenture to the extent that Mortgage Bonds
(as defined in the form of bonds hereinabove set forth) to which they relate are
paid or deemed to be paid and are no longer outstanding and the Trustee has been
notified to such effect by the Company.
SECTION 3. Bonds of the 2003 Pledge Series may be transferred by the
registered owners thereof, in person or by attorney duly authorized, at an
office or agency of the Company in the Borough of Manhattan, The City of New
York, N.Y. or in the City of Akron, Ohio but only in the manner and upon the
conditions prescribed in the Indenture and in the form of bond hereinbefore
recited. Bonds of the 2003 Pledge Series shall be exchangeable for other
registered bonds of the same series, in the manner and upon the conditions
prescribed in the Indenture, and in the form of bond hereinbefore recited, upon
the surrender of such bonds at said offices or agencies of the Company. However,
notwithstanding the provisions of Section 14 or 15 of the Indenture, no charge
shall be made upon any transfer or exchange of bonds of said series other than
for any tax or taxes or other governmental charge required to be paid by the
Company.
SECTION 4. The Company reserves the right, without any consent or other
action by holders of the bonds of the 2003 Pledge Series, or any subsequent
series of bonds, to amend the Indenture by inserting the following language as
Section 115A immediately following current Section 115 of the Indenture.
With the consent of the holders of not less than sixty per
centum (60%) in principal amount of the bonds at the time outstanding
or their attorneys-in-fact duly authorized, or, if the rights of the
holders of one or more, but not all, series then outstanding are
affected, the consent of the holders of not less than sixty per centum
(60%) in aggregate principal amount of the bonds at the time
outstanding of all affected series, taken together, and not any other
13
series, the Company, when authorized by a resolution, and the Trustee
may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or modifying the rights
and obligations of the Company and the rights of the holders of any of
the bonds and coupons; provided, however, that no such supplemental
indenture shall (1) extend the maturity of any of the bonds or reduce
the rate or extend the time of payment of interest thereon, or reduce
the amount of the principal thereof, or reduce any premium, payable on
the redemption thereof or change the coin or currency in which any bond
or interest thereon is payable, without the consent of the holder of
each bond so affected, or (2) permit the creation of any lien, not
otherwise permitted, prior to or on a parity with the lien of this
Indenture, without the consent of the holders of all of the bonds then
outstanding, or (3) reduce the aforesaid percentage of the principal
amount of bonds the holders of which are required to approve any such
supplemental indenture, without the consent of the holders of all the
bonds then outstanding. For the purposes of this Section, bonds shall
be deemed to be affected by a supplemental indenture if such
supplemental indenture adversely affects or diminishes the right of
holders thereof against the Company or against its property.
Upon the written request of the Company, accompanied by a
resolution authorizing the execution of any such supplemental
indenture, and upon the filling with the Trustee of evidence of the
consent of bondholders as aforesaid (the instrument or instruments
evidencing such consent to be dated within one year of such request),
the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's owns rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall
not be obligated to enter into such supplemental indenture. The Trustee
shall be entitled to receive and, subject to Section 102 of the
Indenture and Article Five of the Seventh Supplemental Indenture, may
rely upon an opinion of counsel as conclusive evidence that any such
supplemental indenture is authorized or permitted by the provisions of
this Section.
It shall not be necessary for the consent of the bondholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
The Company and the Trustee, if they so elect, and either
before or after such 60% or greater consent has been obtained, may
require the holder of any bond consenting to the execution of any such
supplemental indenture to submit his bond to the Trustee or to such
bank, banker or trust company as may be designated by the Trustee for
the purpose, for the notation thereon of the fact that the holder of
such bond has consented to the execution of such supplemental
indenture, and in such case such notation, in form satisfactory to the
Trustee, shall be made upon all bonds so submitted, and such bonds
bearing such notation shall forthwith be returned to the persons
entitled thereto. All subsequent holders of bonds bearing such notation
shall be deemed to have consented to the execution of such supplemental
indenture, and consent, once given or deemed to be given, may not be
withdrawn.
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Prior to the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Company shall publish a notice, setting forth in general terms the
substance of such supplemental indenture, at least once in one daily
newspaper of general circulation in each city in which the principal of
any of the bonds shall be payable, or, if all bonds outstanding shall
be registered bonds without coupons or coupon bonds registered as to
principal, such notice shall be sufficiently given if mailed, first
class, postage prepaid, and registered if the Company so elects, to
each registered holder of bonds at the last address of such holder
appearing on the registry books, such publication or mailing, as the
case may be, to be made not less than thirty days prior to such
execution. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 5. The Company reserves the right, without any consent
or other action by the holders of the bonds of the 2003 Pledge Series,
or any subsequent series of bonds, to amend the Indenture by deleting
the phrase "sixty per centum (60%)" in Section 28 of the Indenture and
substituting therefor the phrase "seventy per centum (70%)" and by
deleting the phrase "One hundred sixty-six and two-thirds per cent.
(166 2/3%)" in Sections 65 and 67 of the Indenture and substituting
therefor the phrase "One hundred and forty-two and eighty-six
hundredths per cent. (142.86%)".
SECTION 6. Except as herein otherwise expressly provided, no
duties, responsibilities or liabilities are assumed, or shall be
construed to be assumed, by the Trustee by reason of this Supplemental
Indenture; the Trustee shall not be responsible for the recitals herein
or in the bonds (except the Trustee's authentication certificate), all
of which are made by the Company solely; and this Supplemental
Indenture is executed and accepted by the Trustee, subject to all the
terms and conditions set forth in the Indenture, as fully to all
intents and purposes as if the terms and conditions of the Indenture
were herein set forth at length.
SECTION 7. As supplemented by this Supplemental Indenture, the
Indenture is in all respects ratified and confirmed, and the Indenture
as herein defined, and this Supplemental Indenture, shall be read,
taken and construed as one and the same instrument.
SECTION 8. Nothing in this Supplemental Indenture contained
shall or shall be construed to confer upon any person other than a
holder of bonds issued under the Indenture, the Company and the Trustee
any right or interest to avail himself of any benefit under any
provision of the Indenture or of this Supplemental Indenture.
SECTION 9. This Supplemental Indenture may be simultaneously
executed in several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, OHIO EDISON COMPANY and THE BANK OF NEW YORK have
caused these presents to be executed in their respective names by their
respective Presidents or one of their Vice Presidents or Assistant Vice
Presidents and their respective seals to be hereunto affixed and attested by
their respective Corporate Secretaries or one of their Assistant Corporate
Secretaries or Assistant Treasurers, all as of the day and year first above
written.
OHIO EDISON COMPANY
By:__________________________________________
Harvey L. Wagner, Vice President and
Controller
[Seal]
Attest:
----------------------------------------
David W. Whitehead, Corporate Secretary
Signed, Sealed and Acknowledged on behalf of
OHIO EDISON COMPANY in the presence of:
- -----------------------------
Julie A. Phillips
- -----------------------------
Amit D. Patel
THE BANK OF NEW YORK
By:______________________________________
Patricia Gallagher, Vice President
[Seal]
Attest: ______________________________________
Margaret Ciesmelewski, Vice President
Signed, Sealed and Acknowledged on behalf of
THE BANK OF NEW YORK in the presence of:
- -----------------------------
Barbara Bevelaqua
- -----------------------------
Mary LaGumina
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STATE OF OHIO )
: ss.:
COUNTY OF SUMMIT )
On the 3rd day of March in the year 2003 before me, the undersigned,
personally appeared Harvey L. Wagner and David W. Whitehead, personally known to
me or proved to me on the basis of satisfactory evidence to be the individuals
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their capacity, and that by their signatures on the
instrument, the individuals, or the person upon behalf of which the individuals
acted, executed the instruments.
-------------------------------------
Karen L. Pope
Notary Public, State of Ohio
My Commission Expires Jan. 16, 2005
Recorded in Stark County
[SEAL]
17
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 3rd day of March in the year 2003 before me, the undersigned,
personally appeared Patricia Gallagher and Margaret Ciesmelewski, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individuals whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their capacity, and that by their
signatures on the instrument, the individuals, or the person upon behalf of
which the individuals acted, executed the instruments.
--------------------------------
William J. Cassels
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 18, 2006
[SEAL]
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The Bank of New York hereby certifies that its precise name and address
as Trustee hereunder are:
The Bank of New York
101 Barclay Street
City, County and State of New York 10286
THE BANK OF NEW YORK
By:
----------------------------------
Patricia Gallagher, Vice President
This instrument was prepared by FirstEnergy Corp.
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