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THE TOLEDO EDISON COMPANY
TO
THE CHASE MANHATTAN BANK
as Trustee.
Forty-seventh Supplemental Indenture
DATED AUGUST 1, 1997
(Supplemental to Indenture dated as of April 1, 1947)
First Mortgage Bonds, 6.10% Series due 2027
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THE TOLEDO EDISON COMPANY
Forty-seventh Supplemental Indenture
Dated August 1, 1997
TABLE OF CONTENTS
Page
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Parties 1
Recitals 1
Form of Bond of This Series 4
Granting Clauses 10
Article I -- Creation and Description of Bonds of
This Series 11
Section 1 --Creation of Bonds of This Series,
Limit on Amount Issuable 11
Section 2 --Interest Rates, Computation and
Payment Dates 11
Section 3 --Place and Coin of Payment 11
Section 4 --Denominations 11
Section 5 --Transfer and Exchange 11
Section 6 --Record Date for Payment of Interest 12
Section 7 --Date of Bonds of This Series 12
Section 8 --Authentication of Bonds of This
Series by Trustee 12
Article II -- Redemption of Bonds of This Series 13
Section 1 --Bonds of This Series Redeemable 13
Section 2 --Mandatory Redemption Provisions 13
Section 3 --Certain Provisions Of Original Indenture
Applicable To Redemption Of Bonds Of
This Series 14
Section 4 --Bondholder Agrees To Accept Payment
Of Bonds Of This Series Redeemed Prior
To Maturity 14
Article III -- Payment Deemed Made of Bonds of
This Series 14
Section 1 --Upon Surrender Of Authority Bonds
Purchased 14
Section 2 --Upon Payment Of Authority Bonds 15
Section 3 --Surrender And Cancellation Of Bonds
Of This Series 15
Article IV -- The Trustee 16
Section 1 --The Trustee Accepts Trust Created By
Forty-Seventh Supplemental Indenture 16
Section 2 --Agency Of The Company Other Than The
Trustee 16
Section 3 --Trustee Advises Company Of Notations
Provided For In Article III 16
Article V -- Miscellaneous Provisions 17
Section 1 --Ratification And Approval Of Original
Indenture As Supplemented 17
Covenants Of Original Indenture, Except
As Modified, Continue In Effect
Section 2 --Forty-Seventh Supplemental Indenture
May Be Executed In Counterparts 17
Testimonium Clause S-1
Signatures And Seals S-1
Acknowledgments S-1
Recording And Filing Data R-1
Forty-seventh Supplemental Indenture, dated August 1, 1997,
made by and between THE TOLEDO EDISON Company, a corporation
organized and existing under the laws of the State of Ohio
(hereinafter called the "Company"), and THE CHASE MANHATTAN BANK,
a corporation organized and existing under the laws of the State
of New York (the "Trustee"), as Trustee.
RECITALS
The Company has heretofore executed and delivered an
Indenture of Mortgage and Deed of Trust dated as of April 1, 1947
(the "Original Indenture") to The Chase National Bank of the City
of New York, predecessor Trustee, to secure an issue of First
Mortgage Bonds of the Company, issuable in series, and created
thereunder an initial series of bonds designated as First Mortgage
Bonds, 2 7/8% Series due 1977, being the initial series of bonds
issued under the Original Indenture; and
The Company has heretofore executed and delivered to The
Chase National Bank of the City of New York, predecessor Trustee,
four Supplemental Indentures supplementing the Original Indenture
dated, respectively, September 1, 1948, April 1, 1949, December 1,
1950 and March 1, 1954 and has heretofore executed and delivered
to The Chase Manhattan Bank, which on March 31, 1955, became the
Trustee under the Original Indenture by virtue of the merger of
The Chase National Bank of the City of New York into President and
Directors of The Manhattan Company under the name of The Chase
Manhattan Bank, the Fifth and the Sixth Supplemental Indentures
dated, respectively, February 1, 1956, and May 1, 1958,
supplementing the Original Indenture; and
The Chase Manhattan Bank was converted into a national
banking association under the name The Chase Manhattan Bank
(National Association), effective September 23, 1965; and by
virtue of said conversion the continuity of the business of Chase
Manhattan Bank, including its business of acting as corporate
trustee, and its corporate existence, were not affected, so that
Chase Manhattan Bank is vested with all the trusts, powers,
discretion, immunities, privileges and all other matters as were
vested in said Chase Manhattan Bank under the Indenture, with like
effect as if originally named as Trustee therein; and
The Company has heretofore executed and delivered to The
Chase Manhattan Bank (National Association), predecessor Trustee,
38 Supplemental Indentures dated, respectively, as follows:
Seventh, August 1, 1967, Eighth, November 1, 1970, Ninth,
August 1, 1972, Tenth, November 1, 1973, Eleventh, August 15,
1974, Twelfth, October 1, 1975, Thirteenth, June 1, 1976,
Fourteenth, October 1, 1978, Fifteenth, September 1, 1979,
Sixteenth, September 1, 1980, Seventeenth, October 1, 1980,
Eighteenth, April 1, 1981, Nineteenth, November 1, 1981,
Twentieth, June 1, 1982, Twenty-first, September 1, 1982, Twenty-
second, April 1, 1983, Twenty-third, December 1, 1983, Twenty-
fourth, April 1, 1984, Twenty-fifth, October 15, 1984, Twenty-
sixth, October 15, 1984, Twenty-seventh, August 1, 1985, Twenty-
eighth, August 1, 1985, Twenty-ninth, December 1, 1985, Thirtieth,
March 1, 1986, Thirty-first, October 15, 1987, Thirty-second,
September 15, 1988, Thirty-third, June 15, 1989, Thirty-fourth,
October 15, 1989, Thirty-fifth, May 15, 1990, Thirty-sixth,
March 1, 1991, Thirty-seventh, May 1, 1992, Thirty-eighth,
August 1, 1992, Thirty-ninth, October 1, 1992, Fortieth,
January 1, 1993, Forty-first, September 15, 1994, Forty-second,
May 1, 1995, Forty-third, June 1, 1995, Forty-fourth, August 15,
1995 and Forty-fifth, August 15, 1995, supplementing the Original
Indenture; and
The Chase Manhattan Bank (National Association), Successor
Trustee, was merged on July 1, 1996, with and into Chemical Bank,
a New York banking corporation, which changed its name to The
Chase Manhattan Bank, and which became the Trustee under the
Original Indenture by virtue of such merger; and
The Company has heretofore executed and delivered to The
Chase Manhattan Bank, Trustee, a Forty-sixth Supplemental
Indenture dated June 15, 1997, supplementing the Original
Indenture, and is executing and delivering to The Chase Manhattan
Bank, Trustee, this Forty-seventh Supplemental Indenture, dated
August 1, 1997, supplementing the Original Indenture (The Original
Indenture, all the aforementioned Supplemental Indentures, this
Forty-seventh Supplemental Indenture and any other indentures
supplemental to the Original Indenture are herein collectively
called the "Indenture" and this Forty-seventh Supplemental
Indenture is hereinafter called "this Supplemental Indenture");
and
Pursuant to the provisions of the Indenture, the Company has
issued 55 series of bonds in the aggregate principal amount of
$2,472,400,000, of which 30 series (including the Bonds of the
1977 Series issued pursuant to the Original Indenture) in the
aggregate principal amount of $1,177,200,000 are no longer
outstanding and of which additional portions, aggregating
$95,775,000 in principal amount, of 5 other series have been
retired; and
The Company covenanted in and by the Original Indenture to
execute and deliver such further instruments and do such further
acts as may be necessary or proper to carry out more effectually
the purposes of the Original Indenture and to make subject to the
lien thereof property acquired after the execution and delivery of
the Original Indenture; and
Under Article 3 of the Original Indenture, the Company is
authorized to issue additional bonds upon the terms and conditions
expressed in the Original Indenture; and
The Company proposes to create one new series of First
Mortgage Bonds to be designated as First Mortgage Bonds, 6.10%
Series due 2027 (hereinafter called the "Bonds of this Series"),
such series with the denominations, rate of interest, date of
maturity, redemption provisions and other provisions and
agreements in respect thereof as in this Supplemental Indenture
set forth; and
The Bonds of this Series are to be issued by the Company to
the Ohio Air Quality Development Authority (hereinafter called the
"Air Authority"), and registered initially in the name of The
Fifth Third Bank, Cincinnati, Ohio, Trustee (hereinafter called
the "Air Bond Trustee") for the account of the Air Authority, to
evidence and secure the obligations of the Company to repay a loan
(hereinafter called the "Air Loan") made by the Air Authority to
the Company pursuant to a certain loan agreement, dated as of
August 1, 1997, between the Air Authority and the Company
(hereinafter called the "Air Authority Loan Agreement") to assist
the Company in refunding certain bonds which had been previously
issued by the Air Authority, the proceeds of which had been loaned
to the Company to assist in financing its portion of the cost of
the acquisition, construction and installation of certain air
pollution control facilities located at the Perry Nuclear Unit
No. 1 in Lake County, Ohio. The Air Loan is to be funded with
proceeds to be derived from the sale by the Air Authority of one
series of State of Ohio Collateralized Pollution Control Revenue
Refunding Bonds, Series 1997-A (The Toledo Edison Company Project)
(hereinafter called the "Air Bonds") in the aggregate principal
amount of $10,100,000, to be issued under a Trust Indenture, dated
as of August 1, 1997 (hereinafter called the "Air Bond
Indenture"), between the Air Bond Trustee and the Air Authority.
All right, title and interest of the Air Authority in the Bonds of
this Series are to be assigned and pledged by the Air Authority to
the Air Bond Trustee as further security for the payment of the
principal of, premium, if any, and interest on the Air Bonds; and
The Company, by appropriate corporate action, has duly
resolved and determined to execute this Supplemental Indenture for
the purpose of providing for the creation of the Bonds of this
Series and of specifying the form, provisions and particulars
thereof as in said Original Indenture, as amended, provided or
permitted, including the issuance only of fully registered Bonds
of this Series, and of giving to the Bonds of this Series the
protection and security of the Indenture; and
The text of the Bonds of this Series is to be substantially
in the form following:
[Form of Bond of This Series]
The Toledo Edison Company
First Mortgage Bond, 6.10% Series Due 2027
Due August 1, 2027
No. $
The Toledo Edison Company, an Ohio corporation (hereinafter
called the Company) for value received, hereby promises to pay to
or registered assigns, the principal sum of Dollars or the
aggregate unpaid principal amount hereof (as shown on the
Schedule of Payments hereon), whichever is less, on August 1,
2027, at its office or agency in the Borough of Manhattan, The
City of New York, or, so long as the registered owner of this Bond
is the Air Bond Trustee (hereinafter defined), at the agency of
the Company in the City of Cincinnati, State of Ohio, and semi-
annually on the first day of August and the first day of
February in each year, commencing February 1, 1998 (each such date
hereinafter called an interest payment date), to pay interest on
the unpaid principal amount hereof to the registered owner hereof
at said office or agencies at the rate per annum specified in the
title of this Bond, until maturity, or, if this Bond shall be duly
called for redemption, until the redemption date, or, if the
Company shall default in the payment of the principal amount of
this Bond, until the Company's obligation with respect to the
payment of such principal shall be discharged as provided in the
Indenture (hereinafter defined). Except as hereinafter provided,
this Bond shall bear interest from the interest payment date next
preceding the date of this Bond to which interest has been paid,
unless this Bond is dated on an interest payment date, in which
case from the date hereof; or unless this Bond is dated prior to
the first interest payment date in respect hereof, in which case
from August 1, 1997, and except that if this Bond is delivered on
a transfer or exchange of or in substitution for another Bond or
Bonds it shall bear interest from the last preceding date to which
interest shall have been paid on the Bond or Bonds in respect of
which this Bond is delivered (except that if this Bond is dated
between the record date (hereinafter defined) for any interest
payment date and such interest payment date, then from such
interest payment date, provided, however, that if the Company
shall default in payment of the interest due on such interest
payment date, then from the next preceding interest payment date
to which interest has been paid on the Bond of this Series, or if
such interest payment date is the first interest payment date for
Bonds of this Series, then from August 1, 1997). The interest so
payable on any interest payment date will, subject to certain
exceptions provided in the Indenture, be paid to the person in
whose name this Bond is registered at the close of business on the
record date, which shall be the "Regular Record Date" as defined
in the Air Bond Indenture (hereinafter defined), applicable to the
regular interest payment date of any Bond of this Series, if it
were an "Interest Payment Date" as defined in the Air Bond
Indenture. Both the principal of and the interest on this Bond
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.
This Bond is one of the Bonds of the Company, known as its
First Mortgage Bonds, issued and to be issued in one or more
series under and equally and ratably secured (except as any
sinking, amortization, improvement or other fund, established in
accordance with the provisions of the Indenture, may afford
additional security for the Bonds of any particular series) by a
certain Indenture of Mortgage and Deed of Trust, dated as of
April 1, 1947 (hereinafter called the Original Indenture), made by
the Company to The Chase National Bank of the City of New York,
now succeeded by The Chase Manhattan Bank, as Trustee (hereinafter
called the Trustee), and by certain indentures supplemental
thereto, including the Forty-seventh Supplemental Indenture dated
as of August 1, 1997 (the Original Indenture and said indentures
supplemental thereto herein collectively called the Indenture and
said Forty-seventh Supplemental Indenture hereinafter called the
Supplemental Indenture), to which Indenture reference is hereby
made for a description of the property mortgaged, the nature and
extent of the security, the rights and limitations of rights of
the Company, the Trustee and the holders of said Bonds and of the
coupons appurtenant to coupon Bonds under the Indenture and the
terms and conditions upon which said Bonds are and are to be
issued and secured, to all of the provisions of which Indenture
and of all such supplemental indentures in respect of such
security, including the provisions of the Indenture permitting the
issue of Bonds of any series for property which, under the
restrictions and limitations therein specified, may be subject to
liens prior to the lien of the Indenture, the holder, by accepting
this Bond, assents. To the extent permitted by and as provided in
the Indenture, the rights and obligations of the Company and of
the holders of said Bonds and coupons (including those pertaining
to any sinking or other fund) may be changed and modified, with
the consent of the Company, by the holders of at least 75% in
aggregate principal amount of the Bonds then outstanding, such
percentage being determined as provided in the Indenture;
provided, however, that in case such changes and modifications
affect one or more but less than all series of Bonds then
outstanding, they shall be required to be adopted only by the
affirmative vote of the holders of at least 75% in aggregate
principal amount of outstanding Bonds of such one or more series
so affected; and further provided, that without the consent of the
holder hereof no such change or modification shall be made which
will extend the time of payment of the principal of, or of the
interest or premium, if any, on this Bond or reduce the principal
amount hereof or the rate of interest or the premium, if any,
hereon, or affect any other modification of the terms of payment
of such principal or interest, or premium, if any, or will permit
the creation of any lien ranking prior to or on a parity with the
lien of the Indenture on any of the mortgaged property, or will
deprive the holder hereof of the benefit of a lien upon the
mortgaged property for the security of this Bond, or will reduce
the percentage of Bonds required for the adoption of changes or
modifications as aforesaid.
This Bond is one of a series of Bonds designated as First
Mortgage Bonds, 6.10% Series due 2027, of the Company (herein
called Bonds of this Series) limited, except as otherwise provided
in the Indenture, in aggregate principal amount to $10,100,000 and
issued under and secured by the Supplemental Indenture. The Bonds
of this Series have been issued by the Company to the Ohio Air
Quality Development Authority (hereinafter called the Air
Authority) to evidence and secure the obligations of the Company
to repay a loan (herein called the Air Authority Loan) made by the
Air Authority to the Company pursuant to a certain loan agreement,
dated as of August 1, 1997 (herein called the Air Authority Loan
Agreement), between the Air Authority and the Company to assist
the Company in refunding certain bonds which had been previously
issued by the Air Authority, the proceeds of which had been loaned
to the Company to assist in financing its portion of the cost of
the acquisition, construction and installation of certain air
pollution control facilities. The Air Authority Loan has been
funded with proceeds derived from the sale by the Air Authority of
one series of State of Ohio Collateralized Pollution Control
Revenue Refunding Bonds, Series 1997-A (The Toledo Edison Company
Project) (herein called the Air Bonds) in the aggregate principal
amount of $10,100,000, issued under a Trust Indenture, dated as of
August 1, 1997 (herein called the Air Bond Indenture), between The
Fifth Third Bank, Cincinnati, Ohio, as trustee (herein called the
Air Bond Trustee) and the Air Authority. All right, title and
interest of the Air Authority in the Bonds of this Series have
been assigned by the Air Authority to the Air Bond Trustee as
security for the payment of the principal of and premium, if any,
and interest on the Air Bonds; and the Bonds of this Series have
been delivered to the Air Bond Trustee, as trustee, for the
benefit of the holders of the Air Bonds.
In the event any Air Bonds shall be surrendered to the Air
Bond Trustee or other person for cancellation pursuant to the Air
Bond Indenture (except upon exchange for other Air Bonds), Bonds
of this Series equal in principal amount to such Air Bonds shall
be deemed to have been paid, but only when and to the extent
(a) so noted on the Schedule of Payments hereon by one of the
agencies of the Company hereinabove specified and (if such agency
is not the Trustee) written notice by such agency of such notation
has been received by the Trustee or (b) such Bond is surrendered
to and cancelled by the Trustee as provided in the next paragraph;
and in the event and to the extent the principal of (or premium,
if any) or interest on any Air Bonds shall be paid or deemed to be
paid, an equal amount of principal (or premium, if any) or
interest, as the case may be, payable with respect to an aggregate
principal amount of Bonds of this Series equal to the aggregate
principal amount of such Air Bonds shall be deemed to have been
paid, but, in the case of such payment of principal, only when and
to the extent (i) so noted on the Schedule of Payments hereon by
one of the agencies of the Company hereinabove specified and (if
such agency is not the Trustee) written notice by such agency of
such notation has been received by the Trustee or (ii) this Bond
is surrendered to and cancelled by the Trustee as provided in the
next paragraph. When any such payment of principal of this Bond is
made, this Bond shall be surrendered by the registered owner
hereof to an agency of the Company for such notation and
notification or to the Trustee for cancellation.
In the event that this Bond shall be deemed to have been paid
in full, this Bond shall be surrendered to the Trustee for
cancellation. In the event that this Bond shall be deemed to have
been paid in part, this Bond may, at the option of the registered
owner, be surrendered to the Trustee for cancellation, in which
event the Trustee shall cancel this Bond and the Company shall
execute and the Trustee shall authenticate and deliver Bonds of
this Series in authorized denominations in aggregate principal
amount equal to the unpaid balance of the principal amount of this
Bond.
The Bonds of this Series are subject to mandatory redemption
by the Company prior to maturity, upon not less than thirty days
prior notice, in whole or in part at any time, all as more fully
provided in Section 1 of Article II of the Supplemental Indenture,
in the event the Company exercises its option to direct the
redemption of Air Bonds, pursuant to Section 6.2 of the Air
Authority Loan Agreement, and an equivalent principal amount of
Air Bonds are being concurrently called for redemption, at a
redemption price of 100% of the principal amount to be redeemed,
plus accrued interest to the date fixed for redemption.
The Bonds of this Series are also subject to mandatory
redemption by the Company prior to maturity at any time (a) in
whole upon notice of the occurrence of an event of default under
the Air Bond Indenture and of the acceleration of the payment of
the principal of the Air Bonds or (b) in whole or in part upon a
final determination by any federal, judicial or administrative
authority that interest on the Air Bonds is includable for federal
income tax purposes in the gross income of the holders of the Air
Bonds (other than because a holder is a "substantial user" of the
Project being financed pursuant to the Air Authority Loan
Agreement or a "related person" thereof, as those terms are used
in Section 147(a) of the Internal Revenue Code of 1986, as
amended) and an equivalent amount of Air Bonds are being
concurrently called for redemption, in each case as provided in
Section 2 of Article II of the Supplemental Indenture, at a
redemption price of 100% of the principal amount to be redeemed,
plus accrued interest to the date fixed for redemption.
The Bonds of this Series are also subject to mandatory
redemption by the Company prior to stated maturity, all as more
fully provided in Section 1 of Article II of the Supplemental
Indenture, in whole or in part, on any date on or after August 1,
2007 in the event that and to the extent that the Company
exercises its option to direct the redemption of Air Bonds,
pursuant to Section 6.1 of the Air Authority Loan Agreement, and
an equivalent principal amount of Air Bonds are being concurrently
called for redemption, at redemption prices, plus accrued and
unpaid interest, if any, to the redemption date as follows:
Redemption Price
(Expressed as a Percentage
of the
Redemption Periods Principal Amount
(dates inclusive) Being Redeemed)
------------------ -------------------------
August 1, 2007 through July 31, 2008 102%
August 1, 2008 through July 31, 2009 101%
August 1, 2009 and thereafter 100%
Any redemption of the Bonds of this Series shall be made in
accordance with the applicable provisions of Sections 5.02, 5.03,
5.04 and 5.05 of the Original Indenture, unless and to the extent
waived in writing by the registered owner or owners of all Bonds
of this Series and such waiver is filed with the Trustee.
If this Bond shall be called for redemption and payment of
the redemption price shall be duly provided by the Company as
specified in the Indenture, interest shall cease to accrue hereof
from and after the date of redemption fixed in the notice thereof.
The principal of this Bond may be declared or may become due
before the maturity hereof, on the conditions, in the manner and
at the times set forth in the Indenture, upon the happening of a
default as therein described.
This Bond is transferable by the registered owner hereof in
person or by his duly authorized attorney at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
upon surrender and cancellation of this Bond, and thereupon a new
fully registered Bond or Bonds of this Series and maturity, for
the same aggregate principal amount, in authorized denominations,
will be issued to the transferee in exchange therefor, as provided
in the Indenture. The Company and the Trustee and any paying agent
may deem and treat the person in whose name this Bond is
registered as the absolute owner hereof for the purpose or
receiving payment and for all other purposes. This Bond, alone or
with other Bonds of this Series and maturity, may in like manner
be exchanged at such office or agency for one or more new fully
registered Bonds of this Series and maturity, in authorized
denominations, of the same aggregate principal amount. Upon each
such transfer, exchange and re-exchange the Company will not
require the payment of any charges, other than for any tax or
other governmental charge required to be paid by the Company in
connection therewith.
No recourse under or upon any covenant or obligation of the
Indenture, or of any indenture supplemental thereto, or of this
Bond, for the payment of the principal of or the interest on this
Bond, or for any claim based thereon, or otherwise in any manner
in respect thereof, shall be had against any incorporator,
subscriber to the capital stock, stockholder, officer or director,
as such, of the Company, whether former, present or future, either
directly, or indirectly through the Company or any predecessor or
successor corporation or the Trustee, by the enforcement of any
subscription to capital stock, assessment or otherwise, or by any
legal or equitable proceeding by virtue of any constitution,
statute or otherwise (including, without limiting the generality
of the foregoing, any proceeding to enforce any claimed liability
of stockholders of the Company based upon any theory of
disregarding the corporate entity of the Company or upon any
theory that the Company was acting as the agent or instrumentality
of the stockholders), any and all such liability of incorporators,
stockholders, subscribers, officers and directors, as such, being
released by the holder hereof, by the acceptance of this Bond, and
being likewise waived and released by the terms of the Indenture.
This Bond shall not be valid or become obligatory for any
purpose until the certificate of authentication endorsed hereon
shall have been signed by The Chase Manhattan Bank or its
successor, as Trustee under the Indenture.
In Witness Whereof, The Toledo Edison Company has caused this
Bond to be signed in its name by its President or a Vice
President, manually or in facsimile, and its corporate seal to be
impressed or imprinted hereon and attested by a manual or
facsimile signature of its Secretary or an Assistant.
Dated:
The Toledo Edison Company
By
----------------------------------
President
Attest:
- ----------------------
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, as Trustee
By
------------------------------
Authorized Officer
[Form of Schedule of Payments]
Schedule of Payments
Agency of
the
Unpaid Company
Principal Principal Premium Interest Making Authorized
Date Payment Amount Payment Payment Notation Officer Title
- ---- ------- ------ ------- ------- -------- ------- -----
[End of Form of Bond of This Series]
All conditions and requirements necessary to make this
Supplemental Indenture a valid, legal and binding instrument in
accordance with its terms and to make the Bonds of this Series,
when duly executed by the Company and authenticated and delivered
by the Trustee, and duly issued, the valid, binding and legal
obligations of the Company, have been done and performed, and the
execution and delivery of this Supplemental Indenture have been in
all respects duly authorized;
Now, Therefore, This Supplemental Indenture Witnesseth: That
The Toledo Edison Company, the Company herein named, in
consideration of the premises and of One Dollar ($1.00) to it duly
paid by the Trustee at or before the ensealing and delivery of
these presents, the receipt whereof is hereby acknowledged, does
hereby covenant and agree to and with the Trustee and its
successors in the trust under the Indenture, for the benefit of
those who shall hold the bonds to be issued hereunder and
thereunder, as hereinafter provided, as follows:
ARTICLE I
Creation and Description of Bonds of This Series
Section 1. A new series of bonds to be issued under and
secured by the Indenture is hereby created, to be designated as
First Mortgage Bonds, 6.10% Series due 2027 (such bonds herein
referred to as the "Bonds of this Series"). The Bonds of this
Series shall be limited to an aggregate principal amount of
$10,100,000, excluding any Bonds of this Series which may be
authenticated in exchange for or in lieu of or in substitution for
or on transfer of other Bonds of this Series pursuant to any
provisions of the Original Indenture or of this Supplemental
Indenture. The Bonds of this Series shall be substantially in the
form hereinbefore recited.
Section 2. All Bonds of this Series shall mature August 1,
2027 and shall bear interest from August 1, 1997 at the rate of
6.10% per annum payable semi-annually on August 1 and February 1
in each year, commencing February 1, 1998.
Section 3. Both principal and interest shall be payable, so
long as the registered owner of the Bonds of this Series is the
Air Bond Trustee, at the agency of the Company in the City of
Cincinnati, State of Ohio, but if and when the registered owner of
the Bonds of this Series is not the Air Bond Trustee, shall be
payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York; 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 this Series shall be issued only as
fully registered Bonds in denominations of $5,000 and any integral
multiple thereof.
Section 5. Bonds of this Series shall be transferable and
exchangeable for other Bonds of the same series at the office or
agency of the Company in the Borough of Manhattan, The City of New
York, in the manner and upon the terms set forth in Section 2.05
of the Original Indenture, but notwithstanding the provisions of
Section 2.08 of the Original 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 6. The person in whose name any Bond of this Series
is registered at the close of business on any record date (as
defined in the text of the Form of Bond of this Series set forth
in this Supplemental Indenture) with respect to any interest
payment date shall be entitled to receive the interest payable on
such interest payment date notwithstanding the cancellation of
such registered Bond upon any transfer or exchange thereof
subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the
payment of the interest due on such interest payment date, in
which case such defaulted interest shall be paid to the person in
whose name such Bond (or any Bond or Bonds issued, directly or
after intermediate transactions, upon transfer or exchange or in
substitution thereof) is registered on the date of payment of such
defaulted interest or on a subsequent record date for such payment
if one shall have been established as hereinafter provided. A
subsequent record date may be established by the Company by notice
mailed to the holders of Bonds of this Series not less than
10 days preceding such record date, which record date shall be not
more than 15 days prior to the subsequent interest payment date.
Section 7. Except as provided in this Article I, every Bond
of this Series shall be dated and shall bear interest as provided
in Section 2.04 of the Original Indenture; provided, however,
that, so long as there is no existing default in the payment of
interest on said Bonds, the holder of any Bond of this Series
authenticated by the Trustee between the record date for any
interest payment date and such interest payment date shall not be
entitled to the payment of the interest due on such interest
payment date and shall have no claim against the Company with
respect thereto; provided, further, that, if and to the extent the
Company shall default in the payment of the interest due on such
interest payment date, then any such Bond shall bear interest from
the interest payment date next preceding the date of such Bond to
which interest has been paid or, if the Company shall be in
default with respect to the interest due on the first interest
payment date of such Bond, then from August 1, 1997.
Section 8. The Bonds of this Series may be executed by the
Company and delivered to the Trustee and, upon compliance with all
applicable provisions and requirements of the Original Indenture
in respect thereof, shall be authenticated by the Trustee and
delivered (without awaiting the filing or recording of this
Supplemental Indenture) in accordance with the written order or
orders of the Company.
ARTICLE II
Redemption of Bonds of This Series
Section 1. The Bonds of this Series shall, in the manner
provided in Article 5 of the Original Indenture, be subject to
mandatory redemption by the Company prior to maturity, as follows:
(a) In the event the Company exercises its option to direct
the redemption of Air Bonds upon the occurrence of any of the
events described in Section 6.2 of the Air Authority Loan
Agreement, in whole or in part, in each case at a redemption price
of 100% of the principal amount, plus accrued interest to the date
fixed for redemption; or
(b) In whole or in part on any date on or after August 1,
2007, in the event that and to the extent that the Company
exercises its option to direct the redemption of Air Bonds
pursuant to Section 6.1 of the Air Authority Loan Agreement, at
redemption prices equal to the following percentages of the
principal amount to be redeemed, plus accrued interest to the date
fixed for redemption:
Redemption Price
(Expressed as a Percentage
of the
Redemption Periods Principal Amount
(dates inclusive) Being Redeemed)
------------------ -------------------------
August 1, 2007 through July 31, 2008 102%
August 1, 2008 through July 31, 2009 101%
August 1, 2009 and thereafter 100%
Any redemption under this Section 1 shall occur only upon
receipt by the Trustee of a certificate of the Company to the
effect that (i) the Company has given notice to the Air Bond
Trustee that the Company is exercising its option to direct
redemption of Air Bonds as provided in Section 6.1 or 6.2 of the
Air Authority Loan Agreement and (ii) an equivalent principal
amount of Air Bonds are currently being called for redemption.
Such certificate shall specify the principal amount of the Bonds
of this Series to be redeemed, shall have attached to it a copy of
said notice to the Air Bond Trustee and shall specify the
redemption date of such Bonds of this Series, which redemption
date shall not be less than forty-five (45) days from the date of
the Trustee's receipt of such certificate and shall be the same as
the redemption date specified in the attached notice for the Air
Bonds being concurrently redeemed.
Section 2. (a) The Bonds of this Series shall be subject to
mandatory redemption by the Company in whole at any time prior to
maturity if the Trustee shall receive a written demand from the
Air Bond Trustee for redemption of all Bonds of this Series held
by the Air Bond Trustee, stating that an "event of default" under
the Air Bond Indenture has occurred and is continuing and that
payment of the principal of the Air Bonds has been accelerated;
provided, however, that the Bonds of this Series shall not be
redeemed under this Section 2(a) in the event that prior to the
date fixed for redemption: (i) the Trustee shall have received a
certificate of the Air Bond Trustee (a) stating that there has
been a waiver of such acceleration or (b) withdrawing said written
demand, or (ii) if an event of default under Section 9.01 of
Article 9 of the Original Indenture shall have occurred and be
continuing, there has been an acceleration of the principal of the
Bonds of this Series. Any such redemption shall be made not more
than 45 days after receipt of the written demand at a redemption
price of 100% of the principal amount to be redeemed, plus accrued
interest to the date fixed for redemption.
(b) The Bonds of this Series shall also be subject to special
mandatory redemption by the Company in whole or in part at any
time at a redemption price of 100% of the principal amount
thereof, plus accrued interest to the date fixed for redemption,
at the earliest practicable date selected by the Air Bond Trustee,
after consultation with the Company, but in any event no later
than 180 days following the Air Bond Trustee's notification of a
Determination of Taxability (as defined in the Air Bond
Indenture). Any special mandatory redemption hereunder shall be
made upon receipt by the Trustee of a certificate of the Company
to the effect that the Company is delivering monies to redeem
Bonds of this Series in order to provide the Air Bond Trustee with
the monies needed to redeem Air Bonds in accordance with
Section 6.3 of the Air Authority Loan Agreement and
Section 4.01(b) of the Air Bond Indenture. Such certificate shall
specify the principal amount of Air Bonds to be redeemed and the
redemption date of the Bonds of this Series, which date shall be
the same as the redemption date for the Air Bonds being
concurrently redeemed.
Section 3. The provisions of Sections 5.02, 5.03, 5.04 and
5.05 of the Original Indenture shall be applicable to Bonds of
this Series, provided that upon deposit with the Trustee of money
to redeem Bonds of this Series, such money shall be immediately
available for payment.
Section 4. The holder of each and every Bond of this
Series issued hereunder hereby agrees to accept payment thereof
prior to maturity on the terms and conditions provided for in this
Article II.
ARTICLE III
Payment Deemed Made of Bonds of This Series
Section 1. In the event any Air Bonds shall be purchased by
the Company and surrendered by it to the Air Bond Trustee for
cancellation or shall be otherwise surrendered to the Air Bond
Trustee for cancellation pursuant to the Air Bond Indenture
(except upon exchange for other Air Bonds), Bonds of this Series
equal in principal amount and maturity to the Air Bonds so
surrendered shall be deemed to have been paid, but only when and
to the extent that (a) such payment of the principal amount of
such Bonds of this Series shall be noted by an agency of the
Company on the Schedule of Payments on such Bonds of this Series
and (if such agency is not the Trustee) written notice by such
agency of such notation shall have been received by the Trustee or
(b) such Bonds of this Series shall have been surrendered to and
cancelled by the Trustee as provided in Section 3 of this
Article III.
Section 2. In the event and to the extent the principal of
or premium, if any, or interest on any Air Bonds shall be paid out
of funds held by the Air Bond Trustee or out of any other funds or
shall otherwise be deemed to be paid, an equal amount of principal
of or premium, if any, or interest on, as the case may be, Bonds
of this Series shall be deemed to have been paid, but in the case
of such payments of principal on such Bonds of this Series, only
when and to the extent that (a) such payment of the principal
amount of such Bonds of this Series shall be noted by an agency of
the Company on the Schedule of Payments on such Bonds of this
Series and (if such agency is not the Trustee) written notice by
such agency of such notation shall have been received by the
Trustee or (b) such Bonds of this Series shall have been
surrendered to and cancelled by the Trustee as provided in
Section 3 of this Article III.
Section 3. When payment of any principal amount of a Bond
of this Series shall be deemed to have been made as provided in
Section 1 or 2 of this Article III, the registered owner thereof
shall surrender such Bond to an agency of the Company for notation
and notification or to the Trustee for cancellation as provided in
said Section. All Bonds of this Series which shall be deemed to
have been paid in full as provided in said Section 1 or 2 shall be
surrendered to the Trustee for cancellation and the Trustee shall
forthwith cancel the same. In the event that part of a Bond of
this Series shall be deemed to have been paid as provided in said
Section 1 or 2, the registered owner may, at its option, surrender
such Bond to the Trustee for cancellation, in which event the
Trustee shall cancel such Bond and the Company shall execute and
the Trustee shall authenticate and deliver, without charge to the
registered owner, Bonds of this Series in such authorized
denominations as shall be specified by the registered owner in an
aggregate principal amount equal to the unpaid balance of the
principal amount of such surrendered Bond.
ARTICLE IV
The Trustee
Section 1. The Trustee accepts the trusts created by this
Supplemental Indenture upon the terms and conditions in the
Original Indenture and in this Supplemental Indenture set forth.
The recitals in this Supplemental Indenture are made by the
Company only and not by the Trustee. Each and every term and
condition contained in Article 13 of the Original 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 to make the same conform to this Supplemental
Indenture.
Section 2. The Company shall cause any agency of the
Company, other than the Trustee, which it may appoint from time to
time to act as such agency in respect of the Bonds of this Series,
to execute and deliver to the Trustee an instrument in which such
agency shall:
(a) Agree to keep and maintain, and furnish to the Trustee
from time to time as reasonably requested by the Trustee,
appropriate records of all transactions carried out by it as such
agency and to furnish the Trustee such other information and
reports as the Trustee may reasonably require;
(b) Certify that it is eligible for appointment as such
agency and agree to notify the Trustee promptly if it shall cease
to be so eligible; and
(c) Agree to indemnify the Trustee, in a manner
satisfactory to the Trustee, against any loss, liability or
expense incurred by, and defend any claim asserted against, the
Trustee by reason of any act or failure to act as such agency,
except for any liability resulting from any action taken by it at
the specific direction of the Trustee;
provided, however, that the Company, in lieu of causing any such
agency to furnish such an instrument, may make such other
arrangements with the Trustee in respect of any such agency as
shall be satisfactory to the Trustee.
Section 3. The Trustee shall advise the Company, promptly,
in writing of the notation or receipt of written notice of
notation on or cancellation of any Bond of this Series provided
for in Articles I, II and III of this Supplemental Indenture.
ARTICLE V
Miscellaneous Provisions
Section 1. The Original Indenture, as heretofore
supplemented, is in all respects ratified and confirmed, and the
Original Indenture, this Supplemental Indenture and all other
indentures supplemental to the Original Indenture shall be read,
taken and construed as one and the same instrument. Neither the
execution of this Supplemental Indenture nor anything herein
contained shall be construed to impair the lien of the Indenture
on any of the property subject thereto, and such lien shall remain
in full force and effect as security for all bonds now outstanding
or hereafter issued under the Indenture. All covenants and
provisions of the Original Indenture, except as modified by this
Supplemental Indenture and all other indentures supplemental to
the Original Indenture, shall continue in full force and effect
for the respective periods of time therein specified, and this
Supplemental Indenture shall form part of the Indenture. All terms
defined in Article 1 of the Original Indenture shall, for all
purposes of this Supplemental Indenture, have the meanings in said
Article 1 specified, except as modified by this Supplemental
Indenture and all other indentures supplemental to the Original
Indenture and unless the context otherwise requires.
Section 2. This Supplemental Indenture may be simultaneously
executed in any number of counterparts, and all said counterparts
executed and delivered, each as an original, shall constitute but
one and the same instrument.
EXECUTION
In Witness Whereof, The Toledo Edison Company has caused its
corporate name to be hereunto affixed, this instrument to be
signed by its President or a Vice President and its corporate seal
to be hereunto affixed and attested by its Secretary or an
Assistant Secretary for and in its behalf and The Chase Manhattan
Bank, as Trustee, in evidence of its acceptance of the trust
hereby created, has caused its corporate name to be hereunto
affixed, this instrument to be signed by its President or a Vice
President and its corporate seal to be hereunto affixed and
attested by its Secretary, an Assistant Secretary or a Corporate
Trust Officer, for and in its behalf, all as of the day and year
first above written.
The Toledo Edison Company
By: /s/ Gary R. Leidich
----------------------------
Gary R. Leidich, Vice President
Attest:
/s/ Janis T. Percio
- ---------------------------
Janis T. Percio, Secretary
Signed, sealed and acknowledged by The Toledo
Edison Company in the presence of:
/s/ T. Michele Lynch
- ---------------------------
T. Michele Lynch
/s/ Carol L. Hebach
- ---------------------------
Carol L. Hebach
As witnesses
The Chase Manhattan Bank, as
Trustee
By: /s/ P.J. Gilkeson
---------------------------
P.J. Gilkeson, Vice President
Attest:
/s/ R. Lorenzen
- ---------------------------------
R. Lorenzen, Senior Trust Officer
Signed, sealed and acknowledged by The Chase
Manhattan Bank in the presence of:
/s/ B. Skiba
- -----------------
B. Skiba
/s/ James P. Freeman
- -------------------------
James P. Freeman
As witnesses
State of Ohio
SS:
County of Cuyahoga
On this 20th day of August, 1997, before me personally
appeared Gary R. Leidich and Janis T. Percio to me personally
known, who being by me severally duly sworn, did say that they are
a Vice President and the Secretary, respectively, of The Toledo
Edison 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.
/s/ Carol L. Hebach
--------------------------
Notary Public
Carol L. Hebach
Notary Public, State of Ohio
Recorded in Cuyahoga County
My Commission expires January 19, 2000
State of New York
SS:
County of New York
On this 21st day of August, 1997, before me personally
appeared P.J.Gilkeson and R. Lorenzen to me personally known, who
being by me severally duly sworn, did say that they are a Vice
President and a Senior Trust Officer, respectively, of The Chase
Manhattan Bank, that the seal affixed to the foregoing instrument
is the corporate seal of said corporation and that said instrument
was signed and sealed in behalf of said corporation by authority
of its Board of Directors; and said officers severally
acknowledged said instrument to be the free act and deed of said
corporation.
/s/ Emily Fayan
------------------------------
Notary Public
Emily Fayan
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate Filed in New York County
Commission expires December 31, 1997
This Instrument Prepared By Paul N. Edwards, Attorney At Law.
R-1
This page contains information as to recording and filing
which was not set forth in this Supplemental Indenture at the time
of execution. This page is not a part of this Supplemental
Indenture.
RECORDING AND FILING DATA
This Supplemental Indenture was filed for record and recorded
in the record of mortgages in the offices of the Recorders of the
following Counties:
County Volume Page Filed for Record
------ ------ ---- ----------------
Ohio
Belmont
Defiance
Erie
Fulton
Henry
Lake
Monroe
Ottawa
Paulding August , 1997
Putnam
Sandusky
Seneca
Williams
Wood
Pennsylvania
Beaver
Microfiche
----------
Lucas, Ohio August , 1997
An amendment to a previously filed financing statement and a
counterpart of this Supplemental Indenture were filed in the
office of the Secretary of the Commonwealth of Pennsylvania on
August , 1997 under original or amendment file number 07851362,
microfilm number 24581784, to comply with the filing requirements
of the Pennsylvania enactment of the Uniform Commercial Code.
Pursuant to Section 6.18 of a certain Trust Indenture, dated
as of August 1, 1997, between the Ohio Air Quality Development
Authority and The Fifth Third Bank, as Trustee, and a Letter
Agreement, dated August 26, 1997, from said Trustee to The Toledo
Edison Company, a copy of which is on file with said Trustee, this
Bond may not be sold, assigned, pledged or transferred except as
required to effect an assignment by said Trustee to a successor
trustee under said Trust Indenture.
The Toledo Edison Company
First Mortgage Bond, 6.10% Series Due 2027
Due August 1, 2027
No. 1 $10,100,000
The Toledo Edison Company, an Ohio corporation (hereinafter
called the Company) for value received, hereby promises to pay to
The Fifth Third Bank, as trustee under the Air Bond Indenture
(hereinafter defined) or registered assigns, the principal sum of
Ten Million, One Hundred Thousand Dollars or the aggregate unpaid
principal amount hereof (as shown on the Schedule of Payments
hereon), whichever is less, on August 1, 2027, at its office or
agency in the Borough of Manhattan, The City of New York, or, so
long as the registered owner of this Bond is the Air Bond Trustee
(hereinafter defined), at the agency of the Company in the City of
Cincinnati, State of Ohio, and semi-annually on the first day of
August and the first day of February in each year, commencing
February 1, 1998 (each such date hereinafter called an interest
payment date), to pay interest on the unpaid principal amount
hereof to the registered owner hereof at said office or agencies
at the rate per annum specified in the title of this Bond, until
maturity, or, if this Bond shall be duly called for redemption,
until the redemption date, or, if the Company shall default in the
payment of the principal amount of this Bond, until the Company's
obligation with respect to the payment of such principal shall be
discharged as provided in the Indenture (hereinafter defined).
Except as hereinafter provided, this Bond shall bear interest from
the interest payment date next preceding the date of this Bond to
which interest has been paid, unless this Bond is dated on an
interest payment date, in which case from the date hereof; or
unless this Bond is dated prior to the first interest payment date
in respect hereof, in which case from August 1, 1997, and except
that if this Bond is delivered on a transfer or exchange of or in
substitution for another Bond or Bonds it shall bear interest from
the last preceding date to which interest shall have been paid on
the Bond or Bonds in respect of which this Bond is delivered
(except that if this Bond is dated between the record date
(hereinafter defined) for any interest payment date and such
interest payment date, then from such interest payment date,
provided, however, that if the Company shall default in payment of
the interest due on such interest payment date, then from the next
preceding interest payment date to which interest has been paid on
the Bond of this Series, or if such interest payment date is the
first interest payment date for Bonds of this Series, then from
August 1, 1997). The interest so payable on any interest payment
date will, subject to certain exceptions provided in the
Indenture, be paid to the person in whose name this Bond is
registered at the close of business on the record date, which
shall be the "Regular Record Date" as defined in the Air Bond
Indenture (hereinafter defined), applicable to the regular
interest payment date of any Bond of this Series, if it were an
"Interest Payment Date" as defined in the Air Bond Indenture. Both
the principal of and the interest on this Bond 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.
This Bond is one of the Bonds of the Company, known as its
First Mortgage Bonds, issued and to be issued in one or more
series under and equally and ratably secured (except as any
sinking, amortization, improvement or other fund, established in
accordance with the provisions of the Indenture, may afford
additional security for the Bonds of any particular series) by a
certain Indenture of Mortgage and Deed of Trust, dated as of
April 1, 1947 (hereinafter called the Original Indenture), made by
the Company to The Chase National Bank of the City of New York,
now succeeded by The Chase Manhattan Bank, as Trustee (hereinafter
called the Trustee), and by certain indentures supplemental
thereto, including the Forty-seventh Supplemental Indenture dated
as of August 1, 1997 (the Original Indenture and said indentures
supplemental thereto herein collectively called the Indenture and
said Forty-seventh Supplemental Indenture hereinafter called the
Supplemental Indenture), to which Indenture reference is hereby
made for a description of the property mortgaged, the nature and
extent of the security, the rights and limitations of rights of
the Company, the Trustee and the holders of said Bonds and of the
coupons appurtenant to coupon Bonds under the Indenture and the
terms and conditions upon which said Bonds are and are to be
issued and secured, to all of the provisions of which Indenture
and of all such supplemental indentures in respect of such
security, including the provisions of the Indenture permitting the
issue of Bonds of any series for property which, under the
restrictions and limitations therein specified, may be subject to
liens prior to the lien of the Indenture, the holder, by accepting
this Bond, assents. To the extent permitted by and as provided in
the Indenture, the rights and obligations of the Company and of
the holders of said Bonds and coupons (including those pertaining
to any sinking or other fund) may be changed and modified, with
the consent of the Company, by the holders of at least 75% in
aggregate principal amount of the Bonds then outstanding, such
percentage being determined as provided in the Indenture;
provided, however, that in case such changes and modifications
affect one or more but less than all series of Bonds then
outstanding, they shall be required to be adopted only by the
affirmative vote of the holders of at least 75% in aggregate
principal amount of outstanding Bonds of such one or more series
so affected; and further provided, that without the consent of the
holder hereof no such change or modification shall be made which
will extend the time of payment of the principal of, or of the
interest or premium, if any, on this Bond or reduce the principal
amount hereof or the rate of interest or the premium, if any,
hereon, or affect any other modification of the terms of payment
of such principal or interest, or premium, if any, or will permit
the creation of any lien ranking prior to or on a parity with the
lien of the Indenture on any of the mortgaged property, or will
deprive the holder hereof of the benefit of a lien upon the
mortgaged property for the security of this Bond, or will reduce
the percentage of Bonds required for the adoption of changes or
modifications as aforesaid.
This Bond is one of a series of Bonds designated as First
Mortgage Bonds, 6.10% Series due 2027, of the Company (herein
called Bonds of this Series) limited, except as otherwise provided
in the Indenture, in aggregate principal amount to $10,100,000 and
issued under and secured by the Supplemental Indenture. The Bonds
of this Series have been issued by the Company to the Ohio Air
Quality Development Authority (hereinafter called the Air
Authority) to evidence and secure the obligations of the Company
to repay a loan (herein called the Air Authority Loan) made by the
Air Authority to the Company pursuant to a certain loan agreement,
dated as of August 1, 1997 (herein called the Air Authority Loan
Agreement), between the Air Authority and the Company to assist
the Company in refunding certain bonds which had been previously
issued by the Air Authority, the proceeds of which had been loaned
to the Company to assist in financing its portion of the cost of
the acquisition, construction and installation of certain air
pollution control facilities. The Air Authority Loan has been
funded with proceeds derived from the sale by the Air Authority of
one series of State of Ohio Collateralized Pollution Control
Revenue Refunding Bonds, Series 1997-A (The Toledo Edison Company
Project) (herein called the Air Bonds) in the aggregate principal
amount of $10,100,000, issued under a Trust Indenture, dated as of
August 1, 1997 (herein called the Air Bond Indenture), between The
Fifth Third Bank, Cincinnati, Ohio, as trustee (herein called the
Air Bond Trustee) and the Air Authority. All right, title and
interest of the Air Authority in the Bonds of this Series have
been assigned by the Air Authority to the Air Bond Trustee as
security for the payment of the principal of and premium, if any,
and interest on the Air Bonds; and the Bonds of this Series have
been delivered to the Air Bond Trustee, as trustee, for the
benefit of the holders of the Air Bonds.
In the event any Air Bonds shall be surrendered to the Air
Bond Trustee or other person for cancellation pursuant to the Air
Bond Indenture (except upon exchange for other Air Bonds), Bonds
of this Series equal in principal amount to such Air Bonds shall
be deemed to have been paid, but only when and to the extent
(a) so noted on the Schedule of Payments hereon by one of the
agencies of the Company hereinabove specified and (if such agency
is not the Trustee) written notice by such agency of such notation
has been received by the Trustee or (b) such Bond is surrendered
to and cancelled by the Trustee as provided in the next paragraph;
and in the event and to the extent the principal of (or premium,
if any) or interest on any Air Bonds shall be paid or deemed to be
paid, an equal amount of principal (or premium, if any) or
interest, as the case may be, payable with respect to an aggregate
principal amount of Bonds of this Series equal to the aggregate
principal amount of such Air Bonds shall be deemed to have been
paid, but, in the case of such payment of principal, only when and
to the extent (i) so noted on the Schedule of Payments hereon by
one of the agencies of the Company hereinabove specified and (if
such agency is not the Trustee) written notice by such agency of
such notation has been received by the Trustee or (ii) this Bond
is surrendered to and cancelled by the Trustee as provided in the
next paragraph. When any such payment of principal of this Bond is
made, this Bond shall be surrendered by the registered owner
hereof to an agency of the Company for such notation and
notification or to the Trustee for cancellation.
In the event that this Bond shall be deemed to have been paid
in full, this Bond shall be surrendered to the Trustee for
cancellation. In the event that this Bond shall be deemed to have
been paid in part, this Bond may, at the option of the registered
owner, be surrendered to the Trustee for cancellation, in which
event the Trustee shall cancel this Bond and the Company shall
execute and the Trustee shall authenticate and deliver Bonds of
this Series in authorized denominations in aggregate principal
amount equal to the unpaid balance of the principal amount of this
Bond.
The Bonds of this Series are subject to mandatory redemption
by the Company prior to maturity, upon not less than thirty days
prior notice, in whole or in part at any time, all as more fully
provided in Section 1 of Article II of the Supplemental Indenture,
in the event the Company exercises its option to direct the
redemption of Air Bonds, pursuant to Section 6.2 of the Air
Authority Loan Agreement, and an equivalent principal amount of
Air Bonds are being concurrently called for redemption, at a
redemption price of 100% of the principal amount to be redeemed,
plus accrued interest to the date fixed for redemption.
The Bonds of this Series are also subject to mandatory
redemption by the Company prior to maturity at any time (a) in
whole upon notice of the occurrence of an event of default under
the Air Bond Indenture and of the acceleration of the payment of
the principal of the Air Bonds or (b) in whole or in part upon a
final determination by any federal, judicial or administrative
authority that interest on the Air Bonds is includable for federal
income tax purposes in the gross income of the holders of the Air
Bonds (other than because a holder is a "substantial user" of the
Project being financed pursuant to the Air Authority Loan
Agreement or a "related person" thereof, as those terms are used
in Section 147(a) of the Internal Revenue Code of 1986, as
amended) and an equivalent amount of Air Bonds are being
concurrently called for redemption, in each case as provided in
Section 2 of Article II of the Supplemental Indenture, at a
redemption price of 100% of the principal amount to be redeemed,
plus accrued interest to the date fixed for redemption.
The Bonds of this Series are also subject to mandatory
redemption by the Company prior to stated maturity, all as more
fully provided in Section 1 of Article II of the Supplemental
Indenture, in whole or in part, on any date on or after August 1,
2007 in the event that and to the extent that the Company
exercises its option to direct the redemption of Air Bonds,
pursuant to Section 6.1 of the Air Authority Loan Agreement, and
an equivalent principal amount of Air Bonds are being concurrently
called for redemption, at redemption prices, plus accrued and
unpaid interest, if any, to the redemption date as follows:
Redemption Price
(Expressed as a Percentage of
Redemption Periods the Principal Amount
(dates inclusive) Being Redeemed
------------------ ----------------------------
August 1, 2007 through July 31, 2008 102%
August 1, 2008 through July 31, 2009 101%
August 1, 2009 and thereafter 100%
Any redemption of the Bonds of this Series shall be made in
accordance with the applicable provisions of Sections 5.02, 5.03,
5.04 and 5.05 of the Original Indenture, unless and to the extent
waived in writing by the registered owner or owners of all Bonds
of this Series and such waiver is filed with the Trustee.
If this Bond shall be called for redemption and payment of
the redemption price shall be duly provided by the Company as
specified in the Indenture, interest shall cease to accrue hereof
from and after the date of redemption fixed in the notice thereof.
The principal of this Bond may be declared or may become due
before the maturity hereof, on the conditions, in the manner and
at the times set forth in the Indenture, upon the happening of a
default as therein described.
This Bond is transferable by the registered owner hereof in
person or by his duly authorized attorney at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
upon surrender and cancellation of this Bond, and thereupon a new
fully registered Bond or Bonds of this Series and maturity, for
the same aggregate principal amount, in authorized denominations,
will be issued to the transferee in exchange therefor, as provided
in the Indenture. The Company and the Trustee and any paying agent
may deem and treat the person in whose name this Bond is
registered as the absolute owner hereof for the purpose or
receiving payment and for all other purposes. This Bond, alone or
with other Bonds of this Series and maturity, may in like manner
be exchanged at such office or agency for one or more new fully
registered Bonds of this Series and maturity, in authorized
denominations, of the same aggregate principal amount. Upon each
such transfer, exchange and re-exchange the Company will not
require the payment of any charges, other than for any tax or
other governmental charge required to be paid by the Company in
connection therewith.
No recourse under or upon any covenant or obligation of the
Indenture, or of any indenture supplemental thereto, or of this
Bond, for the payment of the principal of or the interest on this
Bond, or for any claim based thereon, or otherwise in any manner
in respect thereof, shall be had against any incorporator,
subscriber to the capital stock, stockholder, officer or director,
as such, of the Company, whether former, present or future, either
directly, or indirectly through the Company or any predecessor or
successor corporation or the Trustee, by the enforcement of any
subscription to capital stock, assessment or otherwise, or by any
legal or equitable proceeding by virtue of any constitution,
statute or otherwise (including, without limiting the generality
of the foregoing, any proceeding to enforce any claimed liability
of stockholders of the Company based upon any theory of
disregarding the corporate entity of the Company or upon any
theory that the Company was acting as the agent or instrumentality
of the stockholders), any and all such liability of incorporators,
stockholders, subscribers, officers and directors, as such, being
released by the holder hereof, by the acceptance of this Bond, and
being likewise waived and released by the terms of the Indenture.
This Bond shall not be valid or become obligatory for any
purpose until the certificate of authentication endorsed hereon
shall have been signed by The Chase Manhattan Bank or its
successor, as Trustee under the Indenture.
In Witness Whereof, The Toledo Edison Company has caused this
Bond to be signed in its name by its President or a Vice
President, manually or in facsimile, and its corporate seal to be
impressed or imprinted hereon and attested by a manual or
facsimile signature of its Secretary or an Assistant.
Dated:
The Toledo Edison Company
By
---------------------------
Vice President
Attest:
- ---------------------------
Secretary
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, as
Trustee
By
------------------------------
- ---
Authorized Officer
Schedule of Payments
Agency of
the
Unpaid Company
Principal Principal Premium Interest Making Authorized
Date Payment Amount Payment Payment Notation Officer Title
- ---- ------- ------ ------- ------- -------- ------- -----
Pursuant to Section 6.18 of a certain Trust Indenture, dated
as of August 1, 1997, between the Ohio Air Quality Development
Authority and The Fifth Third Bank, as Trustee, and a Letter
Agreement, dated August 26, 1997, from said Trustee to The Toledo
Edison Company, a copy of which is on file with said Trustee, this
Bond may not be sold, assigned, pledged or transferred except as
required to effect an assignment by said Trustee to a successor
trustee under said Trust Indenture.
The Toledo Edison Company
First Mortgage Bond, 6.10% Series Due 2027
Due August 1, 2027
No. $
The Toledo Edison Company, an Ohio corporation (hereinafter
called the Company) for value received, hereby promises to pay to
or registered assigns, the principal sum of Dollars or the
aggregate unpaid principal amount hereof (as shown on the Schedule
of Payments hereon), whichever is less, on August 1, 2027, at its
office or agency in the Borough of Manhattan, The City of New
York, or, so long as the registered owner of this Bond is the Air
Bond Trustee (hereinafter defined), at the agency of the Company
in the City of Cincinnati, State of Ohio, and semi-annually on the
first day of August and the first day of February in each year,
commencing February 1, 1998 (each such date hereinafter called an
interest payment date), to pay interest on the unpaid principal
amount hereof to the registered owner hereof at said office or
agencies at the rate per annum specified in the title of this
Bond, until maturity, or, if this Bond shall be duly called for
redemption, until the redemption date, or, if the Company shall
default in the payment of the principal amount of this Bond, until
the Company's obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture
(hereinafter defined). Except as hereinafter provided, this Bond
shall bear interest from the interest payment date next preceding
the date of this Bond to which interest has been paid, unless this
Bond is dated on an interest payment date, in which case from the
date hereof; or unless this Bond is dated prior to the first
interest payment date in respect hereof, in which case from
August 1, 1997, and except that if this Bond is delivered on a
transfer or exchange of or in substitution for another Bond or
Bonds it shall bear interest from the last preceding date to which
interest shall have been paid on the Bond or Bonds in respect of
which this Bond is delivered (except that if this Bond is dated
between the record date