Unassociated Document















 

 

 

OHIO EDISON COMPANY


 

 

with

 

 

THE BANK OF NEW
YORK

        As
Trustee

 

 











 

 


Tenth Supplemental
Indenture

 

 

Providing among
other things for 

 

 

Mortgage Bonds


 

 

Guarantee Series A
of 2004 due 2016 

 

 

 




 


 

 

 

Dated as of
December 1, 2004

 




 

 

 












































SUPPLEMENTAL
INDENTURE, dated as of
December 1, 2004, 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
supplemented is hereinafter referred to as the “Indenture”; and

 

WHEREAS, the
Company has heretofore entered into an Air Quality Facilities Loan Agreement,
dated as of December 1, 1999 (the “Loan Agreement”), with the Ohio Air
Quality Development Authority (the “Authority”) in connection with which the
Authority issued $47,725,000 aggregate principal amount of its Pollution Control
Revenue Refunding Bonds Series 1999-C (Ohio Edison Company Project) (the
“Revenue Bonds”) under the Trust Indenture, dated as of December 1, 1999
and amended and restated as of December 1, 2004 (the “Revenue Bond
Indenture”), between the Authority and J.P. Morgan Trust Company, National
Association, as successor trustee (the “Revenue Bond Trustee”), in order to
provide funds to loan to the Company for the purpose of refunding certain bonds
of the Authority issued to assist the Company in the financing of the cost of
certain air quality facilities;

 

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 to be delivered to the Revenue Bond Trustee for the benefit of the
Revenue Bonds, consisting of $47,725,000 in aggregate principal amount to be
designated as “Mortgage Bonds, Guarantee Series A of 2004 due 2016” (hereinafter
referred to as the “bonds of Guarantee 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 bond below:

 










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[Form of Bond of
Guarantee Series A]

 

This bond is not
transferable except (i) to a successor trustee under the Amended and Restated
Trust Indenture dated as of December 1, 2004 between the Ohio Air Quality
Development Authority and J.P. Morgan Trust Company, National Association, as
successor trustee, (ii) in connection with the exercise of the rights and
remedies of the holder hereof consequent upon an “Event of Default” as defined
in the Indenture referred to herein or (iii) in compliance with a final order of
a court of competent jurisdiction or in connection with any bankruptcy or
reorganization proceeding of the Company.

 

OHIO EDISON
COMPANY

 

Mortgage Bond,
Guarantee Series A of 2004 due 2016 

 

Due June 1,
2016

 

 


	 $_________________	
       No.
      ____




 

Ohio Edison
Company, a corporation of
the State of Ohio (hereinafter called the Company), for value received, hereby
promises to pay to                                       , or registered
assigns, _____________ dollars at an office or agency of the Company in the
Borough of Manhattan, The City of New York, New York or the City of Akron,
Ohio, on June 1, 2016 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 (hereinafter
defined) at the Revenue Bond Interest Rate (hereinafter defined) per annum
payable semi-annually on June 1 and December 1 in each year commencing on the
June 1 or December 1 immediately succeeding the Initial Interest Accrual Date
(each such date herein referred to as an “interest payment date”) on and until
maturity, or, in the case of any bonds of this series duly called for
redemption, on and until the redemption date, or in the case of any default by
the Company in the payment of the principal due on any bonds of this series,
until the Company’s obligation with respect to the payment of the principal
shall be discharged as provided in the Indenture referred to on the reverse
hereof.

 

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 valid or 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.

 

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 affixed
hereto or reproduced hereon, attested by its Corporate Secretary or an Assistant
Corporate Secretary, by his or her signature or a facsimile thereof.


 

Dated:

 










3









 

 


	 	 	 
	 	OHIO
      EDISON COMPANY
	 
 	 
 	 
 
		By:  	 
	 	
      

      
	 	Title 



 

 Attest:


 

 










Title:

 

[Form of Trustee’s
Authentication Certificate] 

 

Trustee’s
Authentication Certificate

 

This is one of the
bonds of the series designated therein referred to in the within-mentioned
Indenture.

 

 


	 	 	 
	 	THE BANK OF NEW YORK
	 
 	 
 	 as Trustee
 
		By:  	 
	 	
      

                  Authorized
      Signatory
	 	



 




 

[Reverse of Form of
Bond of Guarantee Series A] 

 

OHIO EDISON
COMPANY

 

Mortgage Bond,
Guarantee Series A of 2004 due 2016

 

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.

 










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The bonds of this
series shall be redeemed in whole, by payment of the principal amount thereof
plus accrued interest thereon, if any, to the date fixed for redemption, upon
receipt by the Trustee of a written advice from the trustee under the Amended
and Restated Trust Indenture 

 

(the “Revenue Bond
Indenture”) dated as of December 1, 2004, between the Ohio Air Quality
Development Authority and J.P. Morgan Trust Company, National Association, as
successor trustee (such trustee and any successor trustee being hereinafter
referred to as the “Revenue Bond Trustee”), securing $47,725,000 of State of
Ohio Pollution Control Revenue Refunding Bonds, Series 1999-C (Ohio Edison
Company Project) which have been issued on behalf of the Company (the “Revenue
Bonds”), stating that the principal amount of all the Revenue Bonds then
outstanding under the Revenue Bond Indenture has been declared due and payable
pursuant to the provisions of Section 11.02 of the Revenue Bond Indenture,
specifying the date of the accelerated maturity of such Revenue Bonds and the
date from which interest on the Revenue Bonds issued under the Revenue Bond
Indenture has then accrued and is unpaid (specifying the rate or rates of such
accrual and the principal amount of the particular Revenue Bonds to which such
rates apply), stating such declaration of maturity has not been annulled and
demanding payment of the principal amount hereof plus accrued interest hereon to
the date fixed for such redemption. The date fixed for such redemption shall not
be earlier than the date specified in the aforesaid written advice as the date
of the accelerated maturity of the Revenue Bonds then outstanding under the
Revenue Bond Indenture and not later than the 45th day after receipt
by the Trustee of such advice, unless such 45th day is earlier
than such date of accelerated maturity. The date fixed for such redemption shall
be specified by the Revenue Bond Trustee in a notice of redemption to be given
by the Trustee not less than 30 days prior to the date so fixed for such
redemption. Upon mailing of such notice of redemption, the date from which
unpaid interest on the Revenue Bonds has then accrued (as specified by the
Revenue Bond Trustee) shall become the initial interest accrual date (the
“Initial Interest Accrual Date”) with respect to the bonds of this series;
provided, however, on any demand for payment of the principal amount hereof at
maturity as a result of the principal of the Revenue Bonds becoming due and
payable on the maturity date of the bonds of this series, the earliest date from
which unpaid interest on the Revenue Bonds has then accrued shall become the
Initial Interest Accrual Date with respect to the bonds of this series, such
date, together with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, as to be stated in a written notice from the
Revenue Bond Trustee to the Trustee, which notice shall also specify the rate or
rates of such accrual and the principal amount of the particular Revenue Bonds
to which such rate or rates apply. The aforementioned notice of redemption shall
become null and void for all purposes under the Indenture, (including the fixing
of the Initial Interest Accrual Date with respect to the bonds of this series)
upon receipt by the Trustee of written notice from the Revenue Bond Trustee of
the annulment of the acceleration of the maturity of the Revenue Bonds then
outstanding under the Revenue Bond Indenture and the rescission of the aforesaid
written advice prior to the redemption date specified in such notice of
redemption, and thereupon no redemption of the bonds of this series and no
payment in respect thereof as specified in such notice of redemption shall be
effected or required. But no such rescission shall extend to any subsequent
written advice from the Revenue Bond Trustee or impair any right consequent on
such subsequent written advice.

 

Bonds of this
series are not otherwise redeemable prior to their maturity.

 










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The “Revenue Bond
Interest Rate” shall be the same rate of interest per annum as is borne by the
Revenue Bonds; provided, however, that if there are different rates of interest
borne by the Revenue Bonds, or if interest is required to be paid on the Revenue
Bonds more frequently than on each June 1 or December 1, the Revenue Bond
Interest Rate shall be the rate that results in the total amount of interest
payable on an interest payment date, a redemption date or at maturity, as the
case may be, or at any other time interest on this bond is due and payable, to
be equal to the total amount of unpaid interest that has accrued on all then
outstanding Revenue Bonds.

 

The principal
hereof may be declared or may become due on the conditions, in the manner and at
the time set forth in the Indenture upon the occurrence and continuance of an
Event of Default (as defined in the Indenture) as in the Indenture
provided.

 

Bonds of this
series shall be deemed to be paid and no longer outstanding under the Indenture
to the extent the aggregate principal amount of bonds of this series exceeds the
aggregate principal amount of the Revenue Bonds outstanding from time to time.
The Trustee may rely on an Officer’s Certificate (as defined in the Indenture)
to this effect.

 

Unless and until
the Trustee shall have received from the Revenue Bond Trustee any such aforesaid
written advice stating that the principal amount of all Revenue Bonds then
outstanding under the Revenue Bond Indenture has been declared due and payable
or any demand for payment of the principal amount hereof at maturity as a result
of the principal of the Revenue Bonds becoming due and payable on the maturity
date of the bonds of this series, the Trustee may conclusively presume that the
obligation of the Company to pay the principal of, and interest, if any, on the
bonds of this series shall have been fully satisfied and
discharged.

 

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 a single registered bond without coupons in a
denomination equal to the aggregate principal amount of bonds of this series
outstanding. If and to the extent this bond becomes transferable, the registered
owner hereof, in person or by attorney duly authorized, may effectuate such
transfer at an office or agency of the Company, in the Borough of Manhattan, The
City of New York, New York 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 

 










6












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. 

 

[End of Form of
Bond of Guarantee Series A] 

 

and 

 

WHEREAS, the
Company deems it advisable to enter into this Supplemental Indenture for the
purposes of establishing the form, terms and provisions of the bonds of
Guarantee Series A, as provided and contemplated by Sections 2.01(a) and 3.01(b)
of the Indenture, and the Company has requested and hereby requests the Trustee
to join in the execution of this Supplemental Indenture;

 

NOW, THEREFORE, IT
IS HEREBY COVENANTED, DECLARED AND AGREED, by the Company, that all such bonds
of Guarantee Series A are to be issued, authenticated and delivered, 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 Guarantee
Series A shall be designated as the Company’s “Mortgage Bonds, Guarantee Series
A of 2004 due 2016.” The bonds of Guarantee Series A shall bear interest from
the Initial Interest Accrual Date as provided in the form of the bond of
Guarantee Series A hereinabove set forth, and such provisions are incorporated
at this place as though set forth in their entirety. The interest rate and
maturity date of the bonds of Guarantee Series A shall be as set forth in the
form of bond hereinabove set forth. Principal or redemption price of and
interest on the bonds of Guarantee Series A 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, New York or in the City of
Akron, Ohio.

 

Definitive bonds of
Guarantee Series A may be issued, originally or otherwise, only as registered
bonds, substantially in the form of bond hereinabove set forth, and in a single
denomination equal to the aggregate principal amount thereof that is
Outstanding. Delivery of a bond of Guarantee Series A to the Trustee for
authentication shall be conclusive evidence that its serial number has been duly
approved by the Company.

 

The bonds of
Guarantee Series A 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 Guarantee
Series A shall be deemed to be paid and no longer outstanding under the
Indenture to the extent that the aggregate principal amount thereof exceeds the
aggregate principal amount of Revenue Bonds (as defined in the form of bond
hereinabove set forth) outstanding from time to time. The Trustee may rely on an
Officer’s Certificate to this effect.

 










7












Unless and until
the Trustee shall have received from the Revenue Bond Trustee any written advice
stating that the principal amount of all Revenue Bonds then outstanding under
the Revenue Bond Indenture has been declared due and payable or any demand for
payment of the principal amount hereof at maturity as a result of the principal
of the Revenue Bonds becoming due and payable on the maturity date of the bonds
of this series, as provided in the form of the bond of Guarantee Series A
hereinabove set forth, the Trustee may conclusively presume that the obligation
of the Company to pay the principal of, and interest, if any, on the bonds of
Guarantee Series A shall have been fully satisfied and discharged.

 

SECTION
3. Bonds of Guarantee
Series A are not transferable except in connection with the exercise of the
rights and remedies of the holder thereof consequent upon an “Event of Default”
as defined in the Indenture or as otherwise provided in the form of bond
hereinabove set forth. If and to the extent bonds of Guarantee Series A become
transferable, such transfer may be accomplished by the Holders 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, New York 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 of such series hereinabove
recited.

 

SECTION
4. The principal
amount of bonds of Guarantee Series A which may be authenticated and delivered
hereunder is limited to the aggregate principal amount of Forty-Seven Million
Seven Hundred Twenty-Five Thousand Dollars ($47,725,000).

 

Bonds of Guarantee
Series A in the aggregate principal amount of Forty-Seven Million Seven Hundred
Twenty-Five Thousand Dollars ($47,725,000) may at any time subsequent to the
execution hereof be executed by the Company and delivered to the Trustee and
shall be authenticated by the Trustee and delivered (either before or after the
recording hereof) upon the basis of Unbonded Class “A” Bonds issued and
delivered to the Trustee for such purpose, pursuant to a Company Order referred
to in Section 4.01 of the Indenture and upon receipt by the Trustee of the
opinions and other documents required by Sections 4.01 and 4.02 of the
Indenture.

 

SECTION
5. 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
Guarantee Series A (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.

 

SECTION
6. 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 herein and not otherwise defined herein shall have the meaning
ascribed to them in the Indenture. 

 










8












SECTION
7. 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
8. 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.

 

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 Vice Presidents,
Assistant Corporate Secretaries or Assistant Treasurers, all as of the day and
year first above written.

 


	 	 	 
	 	OHIO EDISON
      COMPANY
	 
 	 
 	 
 
		By:  	
	 	
      

      Richard H. Marsh
	 	
      Senior Vice
      President and

      Chief
      Financial Officer 




 

[Seal]

 


	 	 	 	 
	Attest:	 	 	
	
      

          David W. Whitehead	 	 	
	    Corporate Secretary	 	 	

 

Signed, Sealed and
Acknowledged on behalf of

Ohio Edison
Company in the presence
of: 

 

 






Edward J.
Morgan

 





 James
G. Smith










9









 

 


	 	 	 
	 	THE BANK OF
      NEW YORK
	 
 	 
 	 as
      Trustee
 
	Date: 	By:  	
	 	
      

      Barbara Bevelaqua
	 	Vice
      President



 

[Seal]


 


	 	 	 	 
	Attest:	 	 	
	
      

          Julie Salovitch-Miller	 	 	
	    Vice
      President	 	 	




Signed, Sealed and
Acknowledged on behalf of

The Bank of New
York
in the presence of: 

 

 










Remo
Reale

Vice
President

 

 








Robert
Massimillo

Vice
President










10












STATE OF
OHIO        )

                                           
)
ss.:

COUNTY OF
SUMMIT )

 

On
the ____ day of _____________ in the year 2004 before me, the undersigned,
personally appeared Richard H. Marsh and David W. Whitehead, personally known to
me or proved to me on the basis of satisfactory evidence to be the individuals
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their capacity as Senior Vice President and Chief
Financial Officer and Corporate Secretary, respectively, and that by their
signatures on the instrument, the individuals, or the person or entity 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]










11












STATE OF NEW
YORK    ) 

                                                  
) ss.:


COUNTY OF NEW
YORK )

 

On
the ___ day of ________________ in the year 2004 before me, the undersigned,
personally appeared Barbara Bevelaqua and Julie Salovitch-Miller, each
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 as Vice
President and Vice President , respectively, of The Bank of New York, and
that by their signatures on the instrument, the individuals, or the person or
entity 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





	 	
       

      Robert
      Hirsch

      Notary
      Public, State of New York

      No. 
      01HI6076679

      Qualified in
      Rockland County

      Commission
      expires July 1, 2006









[SEAL]










12












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
	 	 	 	 
	 	 	 	 
		 	
              
      
	/s/ 
		 	 	
      

            Barbara Bevelaqua
	 	 	 	      
      Vice President

 

 

This instrument was
prepared by FirstEnergy Corp.

 









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