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OHIO EDISON COMPANY
with
THE BANK OF NEW YORK,
As Trustee
----------
EIGHTH SUPPLEMENTAL INDENTURE
Providing among other things for
MORTGAGE BONDS
Floating Rate Series A of 2003 due 2003
---------
Dated as of August 1, 2003
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SUPPLEMENTAL INDENTURE, dated as of August 1, 2003 between OHIO EDISON
COMPANY, a corporation organized and existing under the laws of the State of
Ohio (hereinafter called the "Company") 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.
WHEREAS, the Company has heretofore executed and delivered to THE BANK
OF NEW YORK, as Trustee (hereinafter called the "Trustee"), a certain General
Mortgage Indenture and Deed of Trust, dated as of January 1, 1998, to secure
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, which
Indenture as heretofore and hereby supplemented is hereinafter referred to as
the "Indenture"; 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 up to $450,000,000 in aggregate
principal amount to be designated as "Mortgage Bonds Floating Rate Series A of
2003 due 2003" (hereinafter sometimes referred to as the "bonds of Floating Rate
Series A"), 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:
[FORM OF BOND OF FLOATING RATE SERIES A]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF OHIO EDISON COMPANY (THE "COMPANY")THAT THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A) (1)
TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (AS INDICATED
BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (5) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE IN THE FORM
ATTACHED TO THIS SECURITY IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE
TRUSTEE, (6) IN ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (7) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF EACH STATE OF THE UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT WILL FURNISH TO THE COMPANY
AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF, OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2) OF RULE 902 UNDER, REGULATION S UNDER THE SECURITIES ACT."
2
"ANY TRANSFER OF THIS SECURITY IS FURTHER SUBJECT TO THE ISSUER'S
RIGHT-OF-FIRST-REFUSAL AS SET FORTH MORE FULLY HEREIN."
OHIO EDISON COMPANY
MORTGAGE BONDS FLOATING RATE SERIES A OF 2003 DUE 2003
Due December 31, 2003
$_______________________ No._____
Stated Maturity: December 31, 2003 Initial Interest Accrual Date:_____, 2003
- --------------- -----------------------------
Interest Payment Dates: the last day of each Interest Period (as defined herein)
- ----------------------
and at Stated Maturity.
Regular Record Dates: the Business Day immediately preceding each Interest
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Payment Date.
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 the City of Akron, Ohio, on December 31, 2003 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 office or agency
to the registered owner hereof, in like coin or currency, interest thereon from
the Initial Interest Accrual Date (as listed above), or from the most recent
Interest Payment Date (as listed above) to which payment has been made or duly
provided for, at a rate per annum for each Interest Period equal to the
Eurodollar Rate (as defined below) for such Interest Period plus the Applicable
Margin (as defined below), payable on the applicable Interest Payment Date to
the Person in whose name this bond is registered at the close of business on the
Regular Record Date (whether or not a Business Day) immediately preceding such
Interest Payment Date, on and until Stated Maturity (as listed above) 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.
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 Indenture 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 or her 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 or her
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 Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Authorized Signatory
4
[FORM OF BOND OF FLOATING RATE SERIES A]
[REVERSE]
OHIO EDISON COMPANY
MORTGAGE BONDS FLOATING RATE SERIES A OF 2003 DUE 2003
This bond is one of an issue of bonds of the Company, issuable in
series, and is one of a series known as its Mortgage Bonds of the series
designated in its title, all issued and to be issued under and equally secured
(except as to any money, obligations or other instruments, or earnings thereon,
deposited with the Trustee in accordance with the provisions of the Indenture
hereinafter mentioned for the bonds of any particular series) by a General
Mortgage Indenture and Deed of Trust, dated as of January 1, 1998, 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 "Indenture") 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 further entitled to the benefits of that
certain Standby Bond Purchase Agreement, dated as of August 1, 2003 (the
"Standby Purchase Agreement"), among the Company, the Purchasers from time to
time parties thereto ("Purchasers") and Barclays Bank PLC, as administrative
agent (the "Administrative Agent") thereunder, including without limitation,
certain representations, warranties and covenants of the Company and certain
Events of Default thereunder, to which Standby Purchase Agreement reference is
hereby made. Pursuant to the terms of the Standby Purchase Agreement, certain
rights and remedies affecting the bonds of this series and the rights of the
holders thereof may be exercised only by the Purchasers or the Administrative
Agent acting on behalf of the Purchasers and not by holders of bonds of this
series that are not Purchasers.
Capitalized terms used and not otherwise defined herein shall have the
meanings given to them in the Standby Purchase Agreement and, if not defined
therein, in the Indenture.
Calculation of Interest. All computations of interest on the bonds of
this series shall be made by the Administrative Agent on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the relevant Interest Period. Each determination by
the Administrative Agent of an interest rate or the duration of an Interest
Period applicable to the bonds of this series (or any of them) shall be
conclusive and binding for all purposes, absent manifest error. The
Administrative Agent has agreed to advise the Company, the Trustee and each
Purchaser of each interest rate and the duration of each Interest Period from
time to time applicable to the bonds of this series. The Trustee shall be under
no duty to inquire into, may conclusively presume the correctness of, and shall
by fully protected in acting upon the Administrative Agent's calculation of the
Interest Rate.
5
Payments. Whenever any payment of principal of or interest on the bonds
of this series shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of interest;
provided, however, if such extension would cause payment of principal of or
interest on bonds of this series to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
Default Interest. If and for so long as an Event of Default shall have
occurred and be continuing the unpaid principal amount of each Bond shall (to
the fullest extent permitted by law) bear interest until paid in full at a rate
per annum equal at all times to a rate equal to 2% above the rate then
applicable to such Bond, payable upon demand.
Optional Redemption. The Company may at any time and from time to time
redeem in whole or ratably in part bonds of this series issued as part of the
same Funding at a redemption price equal to the outstanding principal amount to
be redeemed plus interest accrued to the date of such redemption on the
principal so redeemed plus any amount payable in connection with such redemption
pursuant to Section 8.04(b) of the Standby Purchase Agreement; provided,
however, that each optional redemption of bonds of this series shall be in a
principal amount equal to $25,000,000 or any integral multiple of $1,000,000 in
excess thereof. Notice of any such optional redemption shall be provided by the
Company to the Trustee and to the Administrative Agent under the Standby
Purchase Agreement not later than 11:00 A.M. (New York time) on the third
Eurodollar Business Day prior to such redemption.
Mandatory Redemption. Upon delivery by the Administrative Agent to the
Trustee of notice that an Event of Default under the Standby Purchase Agreement
has occurred and is continuing, all of the bonds of this series shall be subject
to immediate mandatory redemption in whole at a price equal to the aggregate
principal amount of bonds of this series outstanding plus interest accrued on
the bonds of this series to the date of such redemption plus any amount payable
in connection with such redemption pursuant to Section 8.04(b) of the Standby
Purchase Agreement.
The bonds of this series are not otherwise redeemable prior to their
maturity
Notice of Redemption The Administrative Agent and each Purchaser have
waived, and each holder of this bond, by its acceptance of this bond, hereby
also waives any right to receive any notice of redemption from the Trustee prior
to the occurrence of any redemption date for bonds of this series.
Certain Definitions: As used herein:
"Applicable Margin" means 150 basis points; provided, that if
the Company's Reference Ratings shall fall below BBB-/Baa3 the
Applicable Margin will increase to 300 basis points. For purposes of
the foregoing, if the Reference Ratings assigned by Moody's and S&P are
not comparable (i.e., a "split rating") by (x) one level, the lower of
such Reference Ratings shall control or (y) two or more levels, the
level corresponding to the Reference Rating one level above the lower
Reference Rating shall control unless either is below BB+ or unrated
(in the case of S&P) or Ba1 or unrated (in the case of Moody's), in
which case the lower of the two Reference Ratings shall control. Any
6
change in the Applicable Margin will be effective as of the date on
which S&P or Moody's, as the case may be, announces the applicable
change in the Reference Rating.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York, New York or Akron, Ohio.
"Eurodollar Business Day" means a Business Day on which
dealings in U.S. dollars are carried on in the London interbank market.
"Eurodollar Rate" means, for each Interest Period applicable
to this bond, the quotient obtained by dividing (i) the interest rate
per annum equal to the rate appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
U.S. dollars at 11:00 A.M. (London time) two Eurodollar Business Days
before the first day of such Interest Period for a period of one month
or, if for any reason such rate is not available, the rate per annum
rounded upward to the nearest whole multiple of 1/16 of 1% per annum,
if such rate is not such a multiple at which deposits in U.S. dollars
are offered by the principal office of the Administrative Agent in
London to prime banks in the London interbank market at 11:00 a.m.
(London time) two Eurodollar Business Days before the first day of such
Interest Period for a period equal to one month, by (ii) 100% minus the
Eurodollar Rate Reserve Percentage.
"Eurodollar Rate Reserve Percentage" for each Interest Period
applicable to this bond means the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such Interest
Period.
"Funding" means any purchase of bonds of this series made by
the Purchasers simultaneously under the Standby Purchase Agreement.
"Interest Period" means a period of one month commencing on
the Initial Interest Accrual Date and, thereafter, each subsequent
period of one month commencing on the last day of the immediately
preceding Interest Period; provided, however, that:
(i) any Interest Period that would otherwise end after
December 31, 2003 shall instead end on December 31, 2003;
(ii) Interest Periods commencing on the same date for bonds
of this series purchased as part of the same Funding shall
be coextensive; and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Eurodollar Business Day,
the last day of such Interest Period shall be extended to
occur on the next succeeding Eurodollar Business Day,
provided, that if such extension would cause the last day of
such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the
next preceding Eurodollar Business Day.
7
"Moody's" means Moody's Investors Service, Inc. or
any successor thereto.
"Reference Ratings" means the ratings assigned by S&P
and Moody's to the first mortgage bonds or other senior
secured non-credit enhanced debt of the Company.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor
thereto.
No recourse shall be had for the payment of the principal of or
premium, or interest if any, on this bond, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under the
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any predecessor or successor
corporation, either directly or through the Company or a predecessor or
successor corporation, whether by virtue of any Constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability of incorporators, 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 Indenture.
The bonds of this series are issuable only as registered bonds without
coupons in denominations of $1,000,000 and integral multiples thereof. If and to
the extent this bond becomes transferable, the registered owner hereof, in
person or by attorney duly authorized, may, upon compliance with the next
succeeding paragraph, effectuate such transfer 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, upon surrender and cancellation of this bond and thereupon a new
registered bond or bonds of the same series for a like principal amount, will be
issued to the transferee in exchange therefor, as provided in the Indenture, and
upon payment, if the Company shall require it, of the transfer charges therein
prescribed. 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.
No transfer of this bond shall be effected, except upon five days'
prior written notice to the Company, which notice shall identify the transferor
and transferee and the price at which this bond is proposed to be transferred.
Not later than the Trustee's close of business on the fifth day following the
Company's receipt of such notice (or if such fifth day is not a Business Day,
then upon the next succeeding Business Day), the Company shall advise the
Trustee and the transferor in writing that either: (A) the Company consents to
such transfer, whereupon the Trustee shall register such transfer as set forth
above and in the Indenture or (B) the Company elects to purchase this bond at a
purchase price equal to the stated principal amount of this bond plus interest
accrued thereon to the second Business Day following the date of such notice
from the Company, whereupon the Company shall deliver such purchase price to the
Trustee no later than 12:00 noon (New York City time) on such second Business
Day, and the Trustee shall pay such purchase price over to the transferor
against surrender of this bond to the Trustee for the account of the Company. In
the event that the Company shall fail to communicate timely to the Trustee and
the transferor its election to consent to such transfer or to purchase this bond
as aforesaid, the Company shall be deemed to have consented to such transfer.
Nothing contained in this paragraph shall be construed to deprive the Company of
9
any right to object to any transfer of this bond on the grounds that such
transfer does not comply with the requirements of this bond, the Indenture or
applicable law.
Each holder shall be deemed to understand that the offer and sale of
the bonds of this series have not been registered under the Securities Act of
1933 (the "Securities Act") and that the bonds of this series may not be offered
or sold except as permitted in the following sentence. Each holder shall be
deemed to agree, on its own behalf and on behalf of any accounts for which it is
acting as hereinafter stated, that if such holder sells any bonds of this
series, such holder will do so only (A) to the Company, (B) to a person whom it
reasonably believes is a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, (C) to an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the bonds of this series, (D) in an
offshore transaction in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and each holder is further
deemed to agree to provide to any person purchasing any of the bonds of this
series from it a notice advising such purchaser that resales of the bonds of
this series are restricted as stated herein.
Each holder shall be deemed to understand that, on any proposed resale
of any bonds of this series pursuant to the exemption from registration under
Rule 144 under the Securities Act, any holder making any such proposed resale
will be required to furnish to the Trustee and Company such certifications,
legal opinions and other information as the Trustee and Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions.
[END OF FORM OF BOND OF FLOATING RATE SERIES A]
9
[CERTIFICATE OF TRANSFER]
Mortgage Bonds Floating Rate Series A of 2003 due 2003
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten.
the within Security of the Company and does hereby irrevocably
constitute and appoint__________________________________________________________
to transfer the said Security on the books of the within-named Company, with
full power of substitution in the premises.
The undersigned certifies that said Security is being resold, pledged or
otherwise transferred as follows: (check one)
|_| to the Company;
|_| to a Person whom the undersigned reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act") purchasing
for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or other transfer
is being made in reliance on Rule 144A;
|_| in an offshore transaction in accordance with Rule 904 of Regulation S
under the Securities Act;
|_| to an institution that is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is acquiring
this Security for investment purposes and not for distribution; (attach
a copy of an Accredited Investor Certificate in the form annexed signed
by an authorized officer of the transferee)
|_| as otherwise permitted by the non-registration legend appearing on this
Security; or
|_| as otherwise agreed by the Company, confirmed in writing to the
Trustee, as follows: [describe]
Signed:
---------------------------------
Dated:
---------------------------------
10
WHEREAS, the Company deems it advisable to enter into this Supplemental
Indenture for the purposes of describing the form of the bonds of the Floating
Rate 2003 Series and establishing the redemption provisions thereof, the
interest rate and maturity thereof.
NOW, THEREFORE, it is hereby covenanted, decLared and agreed, by the
Company, that all such bonds of the Floating Rate 2003 Series are to be issued,
authenticated and delivered, from time to time, subject to this Supplemental
Indenture and to the further covenants, conditions, uses and trusts in the
Indenture set forth, and the parties hereto mutually agree as follows:
SECTION 1. Bonds of Floating Rate 2003 Series shall be designated as
the Company's "Mortgage Bonds Floating Rate Series of 2003 due 2003". The bonds
of Floating Rate 2003 Series shall bear interest from the applicable Initial
Interest Accrual Date set forth on the face of the bonds of Floating Rate 2003
Series or from the most recent Interest Payment Date set forth on the face of
such bonds to which payment has been made or duly provided for. The interest
rate and maturity date of the bonds of the Floating Rate 2003 Series shall be as
set forth in the form of bond hereinabove set forth, and such provisions are
incorporated at this place as though set forth in their entirety. Principal or
redemption price of and interest on the bonds of the Floating Rate 2003 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.
Interest on the bonds of the Floating Rate 2003 Series shall be
calculated as provided in the form of bond hereinabove set forth, and such
provisions are incorporated at this place as though set forth in their entirety.
Definitive bonds of the Floating Rate 2003 Series may be issued,
originally or otherwise, only as registered bonds, substantially in the form of
bond hereinabove set forth, and in denominations of $1,000,000 and, if higher,
in multiples of $1,000,000. Delivery of a bond of the Floating Rate 2003 Series
to the Trustee for authentication shall be conclusive evidence that its serial
number has been duly approved by the Company.
The bonds of the Floating Rate 2003 Series shall be redeemable as
provided in the form of bond hereinabove set forth, and such provisions are
incorporated at this place as though set forth in their entirety.
SECTION 2. Bonds of the Floating Rate 2003 Series have not been
registered under the Securities Act and therefore may not be offered or sold
except as permitted in the following sentence. Each holder shall be deemed to
agree, on its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that if such holder sells any bonds of the Floating Rate
2003 Series, such holder will do so only (A) to the Company, (B) to a person
whom it reasonably believes is a "qualified institutional buyer" within the
11
meaning of Rule 144A under the Securities Act that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, (C)
to an institutional "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) that, prior to such transfer, furnishes to
the Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the bonds of this series, (D) in an
offshore transaction in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and each holder is further
deemed to agree to provide to any person purchasing any of the bonds of the
Floating Rate 2003 Series from it a notice advising such purchaser that resales
of such bonds are restricted as stated herein. If and to the extent bonds of the
Floating Rate 2003 Series become transferable, such transfer may be accomplished
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 hereinabove
recited.
SECTION 3. No transfer of bonds of the Floating Rate 2003 Series shall
be effected, except upon five days' prior written notice to the Company, which
notice shall identify the transferor and transferee and the price at which such
Bonds of the Floating Rate 2003 Series are proposed to be transferred. Not later
than the Trustee's close of business on the fifth day following the Company's
receipt of such notice (or if such fifth day is not a Business Day, then upon
the next succeeding Business Day), the Company shall advise the Trustee and the
transferor in writing that either: (A) the Company consents to such transfer,
whereupon the Trustee shall register such transfer as set forth above and in the
Indenture or (B) the Company elects to purchase such Bonds of the Floating Rate
2003 Series at a purchase price equal to the stated principal amount of such
Bonds of the Floating Rate 2003 Series plus interest accrued thereon to the
second Business Day following the date of such notice from the Company,
whereupon the Company shall deliver such purchase price to the Trustee no later
than 12:00 noon (New York City time) on such second Business Day, and the
Trustee shall pay such purchase price over to the transferor against surrender
of such Bonds of the Floating Rate 2003 Series to the Trustee for the account of
the Company. In the event that the Company shall fail to communicate timely to
the Trustee and the transferor its election to consent to such transfer or to
purchase such Bonds of the Floating Rate 2003 Series as aforesaid, the Company
shall be deemed to have consented to such transfer. Nothing contained in this
paragraph shall be construed to deprive the Company of any right to object to
any transfer of any Bonds of the Floating Rate 2003 Series on the grounds that
such transfer does not comply with the requirements of such Bonds of the
Floating Rate 2003 Series, the Indenture or applicable law.
SECTION 4. 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 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 herein or in the bonds of the Floating Rate 2003 Series (except the
Trustee's authentication certificates), 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. The Trustee may conclusively presume that the
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obligation of the Company to pay the principal of or interest on the bonds of
this series as the same shall become due and payable, whether at maturity,
redemption, acceleration or otherwise, shall have been fully satisfied and
discharged unless and until it shall have received a written notice from a duly
authorized officer of the Administrative Agent stating that the payment of
principal of or interest on the bonds of this series has not been fully paid
when due and specifying the amount of funds required to make such payment.
SECTION 5. 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. Capitalized terms used and not otherwise defined
herein shall have the meaning ascribed to them in the Indenture.
SECTION 6. 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 7. 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:
------------------------------------------------
Edward J. Udovich, Assistant Corporate Secretary
Signed, Sealed and Acknowledged on behalf of
OHIO EDISON COMPANY in the presence of:
- ------------------------------------------
Julie A. Phillips
- ------------------------------------------
Diane L. Rapp
THE BANK OF NEW YORK
By:
-----------------------------------------
Sirojni Dindial, Assistant Vice President
Seal]
Attest:
------------------------------------
Timothy J. Hea, Assistant Treasurer
Signed, Sealed and Acknowledged on behalf of
The Bank of New York in the presence of:
- -------------------------------------------
Dorothy Miller
- -------------------------------------------
Cynthia Chaney
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STATE OF OHIO )
: ss.:
COUNTY OF SUMMIT )
On the 7th day of August in the year 2003 before me, the undersigned,
personally appeared Harvey L. Wagner and Edward J. Udovich, Vice President and
Controller and Assistant Corporate Secretary, respectively, of Ohio Edison
Company, 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.
--------------------------------------
Susie M. Hoisten, Notary Public
Residence-Summit County
Statewide Jurisdiction, Ohio
My Commission Expires December 9, 2006
[SEAL]
15
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 7th day of August in the year 2003 before me, the undersigned,
personally appeared Sirojni Dindial and Timothy J. Hea, Assistant Vice President
and Assistant Treasurer,, respectively, of The Bank of New York, 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:
-----------------------------------------
Sirojni Dindial, Assistant Vice President
This instrument was prepared by FirstEnergy Corp.
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