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EXHIBIT 4.2
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OHIO EDISON COMPANY
AND
THE BANK OF NEW YORK,
Trustee
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FIRST SUPPLEMENTAL
INDENTURE
TO
INDENTURE
Dated as of , 1996
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% Junior Subordinated Debentures Due 2016
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of ________, 1996 (this
"First Supplemental Indenture"), between Ohio Edison Company, an Ohio
corporation (the "Company"), and The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as trustee (the
"Trustee"), under the Indenture dated as of ________, 1996 between the Company
and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
subordinated Securities, to be issued from time to time in one or more series as
might be determined by the Company in accordance with the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its _____% Junior Subordinated Debentures Due 2016 (the "Debentures"), the form
and substance of such Debentures and the terms, provisions and conditions
thereof to be as set forth in the Indenture and this First Supplemental
Indenture; and
WHEREAS, Ohio Edison Financing Trust II, a Delaware statutory business
trust (the "Trust"), has offered to issue $__________ aggregate stated
liquidation amount of its _____% Trust Originated Preferred Securities (the
"Preferred Securities") in exchange for a like aggregate par value of the
Company's 7.75% Class A Preferred Stock, $25 par value per share (the "Class A
Preferred Stock") and has offered to the Company $__________ aggregate stated
liquidation amount of its common securities (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities"), such Trust
Securities representing undivided beneficial interests in the assets of the
Trust, and proposes to invest the proceeds from such offering and the Class A
Preferred Stock received in the exchange in $___________ aggregate principal
amount of the Debentures; and
WHEREAS, the Company has requested the Trustee to execute and deliver
this First Supplemental Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument, in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms. Unless the context otherwise
requires, (a) a term defined in the Indenture has the same meaning when used in
this First Supplemental Indenture, (b) a term defined anywhere in this First
Supplemental Indenture has the same meaning throughout and (c) the following
terms have the meanings given to them in the Declaration (including, without
limitation, Annex I thereto):
Class A Preferred Stock
Clearing Agency
Dealer Manager Agreement
Delaware Trustee
No Recognition Opinion
Preferred Securities Guarantee
Preferred Security Certificate
Pro Rata
Property Trustee
Regular Trustee
Special Event
Tax Event
Tax Event Opinion
In addition, the following terms have the following respective
meanings:
"Declaration" means the Amended and Restated Declaration of Trust of
Ohio Edison Financing Trust II, a Delaware business trust, dated as of ________,
1996.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities Pro Rata in accordance with
the Declaration.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Additional Interest, if any.
"Senior Indebtedness" means the principal of, premium, if any, interest
on and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred, created or assumed: (i)
all indebtedness of the Company on a consolidated basis (other than any
obligations to trade creditors) evidenced by notes, debentures, bonds, other
Securities or other instruments issued by the Company for money borrowed and
capitalized lease obligations; (ii) all indebtedness of others of the kinds
described in the preceding clause (i) assumed or guaranteed in any manner by the
Company or in effect guaranteed by the Company; and (iii) all renewals,
extensions or refundings of
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indebtedness of the kinds described in either of the preceding clauses (i) or
(ii), unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Debentures.
Section 1.2. Interpretation. Each definition in this First Supplemental
Indenture includes the singular and the plural, and references to the neuter
gender include the masculine and feminine where appropriate. Terms which relate
to accounting matters shall be interpreted in accordance with generally accepted
accounting principles in effect from time to time. References to any statute
mean such statute as amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this First Supplemental Indenture as a whole. References to Articles
and Sections are to the Articles and Sections of this First Supplemental
Indenture. The headings to the Articles and Sections are for convenience of
reference and shall not affect the meaning or interpretation of this First
Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.1. Designation and Principal Amount. There is hereby
authorized a series of Securities designated the "_____% Junior Subordinated
Debentures Due 2016." The aggregate principal amount of Debentures which may be
authenticated and delivered under the Indenture is limited to $____________
(except for Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures pursuant to Sections
2.08, 2.09, 2.11, 3.07 or 9.05 of the Indenture and except for any Debentures
which pursuant to Section 2.04 of the Indenture are deemed not to have been
authenticated and delivered pursuant to the Indenture).
Section 2.2. Maturity. The Maturity Date will be __________, 2016.
Section 2.3. Form and Payment. Except as provided in Section 2.4, the
Debentures shall be issued in fully registered certificated form without
interest coupons. Principal and interest on the Debentures issued in
certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee in New
York, New York, provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the security register maintained by the Registrar.
Notwithstanding the foregoing, so long as the registered Holder of any
Debentures is the Property Trustee, the payment of the principal of and interest
(including Additional Interest, if any) on such Debentures held by the Property
Trustee will be made at such place and to such account as may be designated by
the Property Trustee.
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Section 2.4. Debenture Form Upon Dissolution Event. In connection with
a Dissolution Event, Debentures in certificated form may be presented to the
Trustee by the Property Trustee and any Preferred Security Certificate which
represents Preferred Securities will be deemed to represent beneficial interests
in Debentures in certificated form presented to the Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate stated
liquidation amount of such Preferred Securities until such Preferred Security
Certificates are presented to the Registrar for transfer or reissuance, at which
time such Preferred Security Certificates will be canceled and a Debenture,
registered in the name of the holder of such Preferred Security Certificate or
the transferee of the holder of such Preferred Security Certificate, as the case
may be, with an aggregate principal amount equal to the aggregate stated
liquidation amount of the Preferred Security Certificate canceled, will be
executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this First Supplemental Indenture.
On issue of such Debentures, Debentures in certificated form with an equivalent
aggregate principal amount that were presented by the Property Trustee to the
Trustee will be deemed to have been canceled.
Section 2.5. Interest. (a) Each Debenture will bear interest at the
rate of _____% per annum (the "Coupon Rate") from the original date of issuance
until the principal thereof becomes due and payable, and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any interest installment in
arrears for more than one quarter and on any interest on such overdue interest
at the Coupon Rate, payable (subject to the provisions of Article IV) quarterly
in arrears on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date"), commencing on __________, 1996, to the
Person in whose name such Debenture or any predecessor Debenture is registered,
at the close of business on the regular record date (each, a "Regular Record
Date") for such interest installment, which shall be the close of business on
the day 15 calendar days prior to that Interest Payment Date. In addition, each
Debenture will bear interest from _______, 1996 through ____, 1996 at the rate
of 7.75% per annum of the principal amount thereof (the "Pre-Issuance Accrued
Distribution"), payable on ____________, 1996 to to the Person in whose name
such Debenture is registered at the close of business on the Regular Record Date
for such interest installment.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
amount of interest payable for any period shorter than a full quarterly period
for which interest is computed will be computed on the basis of the actual
number of days elapsed in such a 90-day quarter.
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(c) If at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
Section 3.1. Special Event Redemption. If a Tax Event has occurred and
is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular
Trustees shall have been informed by tax counsel rendering the
Dissolution Tax Opinion that a No Recognition Opinion cannot be
delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right, upon not less than 30 nor more than 60 days notice to the
registered Holders of the Debentures, to redeem the Debentures, in whole or in
part, for cash within 90 days following the occurrence of such Tax Event (the
"90 Day Period") at a redemption price equal to 100% of the principal amount to
be redeemed plus any accrued and unpaid interest thereon to the date of such
redemption (the "Special Redemption Price"), provided that, if at the time there
is available to the Company the opportunity to eliminate, within the 90 Day
Period, the Tax Event by taking some ministerial action ("Ministerial Action"),
such as filing a form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Company, the Trust or the
holders of the Trust Securities, the Company shall pursue such Ministerial
Action in lieu of redemption; and provided further, that the Company shall have
no right to redeem the Debentures while the Trust is pursing any Ministerial
Action pursuant to its obligations under the Declaration. The Special Redemption
Price shall be paid (or wire transfer instructions in respect thereof shall have
been irrevocably given) prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines and specifies in
the notice of redemption, provided the Company shall deposit with the Trustee an
amount sufficient to pay the Special Redemption Price by 11:00 a.m. on the date
such Special Redemption Price is to be paid.
Section 3.2. Optional Redemption by Company. (a) Subject to the
provisions of Article Three of the Indenture and to Section 3.2(b), the Company
shall have the right to
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redeem the Debentures, in whole or in part, from time to time, on or after
__________, 20__, at a redemption price equal to 100% of the principal amount to
be redeemed plus any accrued and unpaid interest thereon to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days notice to the
registered Holder of the Debentures, at the Optional Redemption Price. If the
Debentures are only partially redeemed pursuant to this Section 3.2, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee. The Optional Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption or at such earlier time as the
Company determines and specifies in the notice of redemption, provided the
Company shall deposit with the Trustee an amount sufficient to pay the Optional
Redemption Price by 11:00 a.m. on the date such Optional Redemption Price is to
be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
Section 3.3. No Sinking Fund. The Debentures are not entitled to the
benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period. Except with respect
to the Pre-Issuance Accrued Distribution, the Company shall have the right, at
any time and from time to time prior to the Maturity Date, to extend the
interest payment period of such Debentures for up to twenty (20) consecutive
quarters (the "Extended Interest Payment Period"). Interest that is in arrears
for more than one quarter (whether due to an extension of the interest payment
period pursuant to this Section 4.1 or otherwise) will accrue interest at the
Coupon Rate and the interest so accrued at the end of each quarter and remaining
unpaid will itself bear interest thereafter at the Coupon Rate (to the extent
permitted by applicable law) until paid on the same basis. At the end of the
Extended Interest Payment Period, the Company shall pay all interest accrued and
unpaid on the Debentures, including any Additional Interest ("Deferred
Interest"), which shall be payable to the Holders of the Debentures in whose
names the Debentures are registered in the security register maintained by the
Registrar on the first Regular Record Date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such period
together with all such further extensions thereof shall not exceed twenty (20)
consecutive quarters or extend beyond the Maturity Date. Upon the termination of
any Extended Interest Payment Period and upon the payment of all Deferred
Interest then due, the Company may select a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end thereof.
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Section 4.2. Notice of Extension. (a) If the Property Trustee is the
only registered Holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written notice to both
the Regular Trustees and the Property Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities are payable, or
(ii) the date the Trust is required to give notice of the record or payment date
for such Distributions to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Preferred Securities, but in
any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Debentures at
the time the Company selects an Extended Interest Payment Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period ten (10) Business Days before
the earlier of (i) the next succeeding Interest Payment Date, or (ii) the date
the Company is required to give notice of the record or payment date of such
interest payment to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 4.2 shall be counted as one of the twenty quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses. In connection with the offering, sale
and issuance of the Debentures to the Property Trustee in connection with the
issuance of the Preferred Securities by the Trust in exchange for Class A
Preferred Stock and the sale of the Common Securities by the Trust to the
Company, and in connection with the maintenance of the Trust for so long as the
Trust Securities are outstanding, the Company shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, and compensation of the Trustee under the Indenture
in accordance with the provisions of Section 7.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Trust Securities (including commissions and expenses of
the dealer manager payable pursuant to the Dealer Manager Agreement), the fees
and expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), any Clearing Agency
for the Debentures, duplicating, travel and telephone and other
telecommunications expenses and costs and
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expenses incurred in connection with the acquisition, financing, and disposition
of Trust assets);
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration;
(d) pay any and all taxes, duties, assessments or governmental charges
of whatever nature (other than United States withholding taxes attributable to
the Trust or its assets) imposed on the Trust or its assets and all liabilities,
costs and expenses of the Trust with respect to such taxes, duties, assessments
or governmental charges; and
(e) pay any and all fees and expenses related to the enforcement by the
Property Trustee of the rights of the holders of the Preferred Securities.
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate. The Company covenants and
agrees, and each holder of Debentures issued hereunder by such holder's
acceptance thereof likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article VI; and each holder of a
Debenture, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this First Supplemental Indenture or thereafter incurred.
This Article shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness and such holders are made obligees hereunder and they and/or
each of them may enforce such provisions.
No provision of this Article VI shall prevent the occurrence of any
default or Event of Default with respect to the Debentures.
Section 6.2. Default on Senior Indebtedness. In the event and during
the continuation of any default by the Company in the payment of principal,
premium, interest or any other amount due on any Senior Indebtedness, or in the
event that the maturity of any Senior Indebtedness has been accelerated because
of a default, then, in either case, no payment shall be made by the Company to
the Holders of the Debentures with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or interest on, or
any other amount owing in respect of, the Debentures.
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In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder of the Debentures when such payment is
prohibited by the preceding paragraph of this Section 6.2, such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of Senior Indebtedness.
Section 6.3. Liquidation; Dissolution; Bankruptcy. Upon any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all
amounts due upon all Senior Indebtedness shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
or distribution is made by the Company to the Holders of the Debentures on
account of the principal of, premium, if any, or interest on, or any other
amount owing in respect of, the Debentures; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Debentures or the Trustee
would be entitled to receive from the Company, except for the provisions of this
Article VI, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Debentures or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Debentures before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any
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concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
For purposes of this Article VI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article VI with respect
to the Debentures to the payment of all Senior Indebtedness that may at the time
be outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Five of the Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 6.3 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Five of the Indenture.
Nothing in Section 6.2 or in this Section 6.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 of the Indenture.
Section 6.4. Subrogation. Subject to the payment in full of all Senior
Indebtedness, the rights of the Holders of the Debentures shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until the principal of, premium, if any, and interest on,
and all other amounts owing in respect of, the Debentures shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which
the Holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article VI, and no payment over pursuant to the provisions of
this Article VI, to or for the benefit of the holders of such Senior
Indebtedness by Holders of the Debentures or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Debentures be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article VI are and are intended solely for the purposes of defining the
relative rights of the Holders of the Debentures, on the one hand, and the
holders of Senior Indebtedness on the other hand.
Nothing contained in this Article VI or elsewhere in this First
Supplemental Indenture or the Indenture or in the Debentures is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Debentures, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Debentures the principal of (and premium, if any) and interest on and all other
amounts owing in respect of the Debentures as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders of the Debentures and creditors of the
Company, other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of
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any Debenture from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, as amended and supplemented by this First
Supplemental Indenture, subject to the rights, if any, under this Article VI of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article VI, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, and the Holders of the Debentures, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article VI.
Section 6.5. Trustee to Effectuate Subordination. Each Holder of a
Debenture by such holder's acceptance thereof authorizes and directs the Trustee
on such holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article VI and appoints the
Trustee such holder's attorney-in-fact for any and all such purposes.
Section 6.6. Notice by the Company. The Company shall give prompt
written notice to a Trust Officer of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Debentures pursuant to the provisions of this Article VI. Notwithstanding
the provisions of this Article VI or any other provision of the Indenture and
this First Supplemental Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of monies to or by the Trustee in respect of the Debentures pursuant to
the provisions of this Article VI unless and until a Trust Officer shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any representative or trustee therefor; and before
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 7.01 of the Indenture, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 6.6 at least two Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Debenture) then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness (or a
representative or trustee on behalf of such holder) to
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establish that such notice has been given by a holder of such Senior
Indebtedness or a representative or trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article VI, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article VI, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 6.7. Rights of the Trustee; Holders of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article VI in respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article VI, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture or this First Supplemental Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and, subject to the provisions of Section 7.01 of
the Indenture, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders of Debentures, the
Company or any other Person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article VI or otherwise.
Section 6.8. Subordination May Not Be Impaired. No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of the Indenture or this First Supplemental
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of the Debentures
and without impairing or releasing the subordination provided in this Article VI
or the obligations hereunder of the Holders of the Debentures to the holders of
such Senior Indebtedness, do any one or more the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged,
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mortgaged or otherwise securing such senior Indebtedness; (iii) release any
Person liable in any manner for the collection of such Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Company and any
other Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
Section 7.1. Listing on Exchange. If the Debentures are to be issued as
a global Security in connection with the distribution of the Debentures to the
holders of the Preferred Securities upon a Dissolution Event, the Company will
use its best efforts to list such Debentures on the New York Stock Exchange or
on such other exchange as the Preferred Securities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
Section 8.1. Form of Debenture. The Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY, INSERT: This Debenture is
a global Debenture within the meaning of the Indenture hereinafter referred to
and is registered in the name of a depositary or a nominee of a depositary.
Unless and until it is exchanged in whole or in part for Debentures in
definitive form, this Debenture may not be transferred except as a whole by the
depositary to a nominee of the depositary or by a nominee of the depositary to
the depositary or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such successor
depositary.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede Co., has an interest herein.]
No. $
CUSIP No.
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Ohio Edison Company
_____% JUNIOR SUBORDINATED DEBENTURE DUE 2016
Ohio Edison Company, an Ohio corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ________________ or registered
assigns, the principal sum of ________________ Dollars on __________, 2016, and
to pay interest on said principal sum from ________, 1996, or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing _________, 1996, at the rate of _____% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
interest installment in arrears for more than one quarter and on any interest on
such overdue interest at the same rate per annum. In addition, this Debenture
will bear interest from _______, 1996 through ____, 1996 at the rate of 7.75%
per annum of the principal amount thereof, payable on ____________, 1996 to the
Person in whose name this Debenture is registered at the close of business on
the Regular Record Date for such interest installment. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Debenture (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the Regular Record Date for
such interest installment, which shall be 15 calendar days prior to the relevant
Interest Payment Date. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on
such Regular Record Date, and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Company for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of the Debentures not less than fifteen (15) days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in New York, New York, in any coin or
currency of the United States of America which at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder
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at such address as shall appear in the security register maintained by the
Registrar. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Property Trustee, the payment of the principal of (and premium,
if any) and interest on this Debenture will be made at such place and to such
account as may by designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Debenture is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
OHIO EDISON COMPANY
By
------------------------------
[Title]
Attest:
By
---------------------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
Date:
CERTIFICATE OF AUTHENTICATION
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By
---------------------------------
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the
Company designated its " % Junior Subordinated Debentures Due 2016" (herein
sometimes referred to as the "Debentures"), issued under and pursuant to an
Indenture dated as of , 1996, duly executed and delivered between the
Company and The Bank of New York, not in its individual capacity but solely as
trustee (the "Trustee"), as supplemented by a First Supplemental Indenture dated
as of , 1996, between the Company and the Trustee (such Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. The terms of the
Debentures include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect on the
date of the Indenture (the "TIA"). This Debenture is subject to all such terms
and the Holder of this Debenture is referred to the Indenture and the TIA for a
statement of those terms.
The Debentures are general unsecured obligations of the Company and are
limited (except as otherwise provided in the Indenture) to $ in
aggregate principal amount.
Upon the occurrence and continuation of a Tax Event, in certain
circumstances this Debenture may be redeemed by the Company at a redemption
price equal to 100% of the principal amount hereof, plus any accrued but unpaid
interest thereon to the date of such redemption (the "Special Redemption
Price"). The Special Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier time as the Company
determines. The Company shall also have the right to redeem this Debenture at
the option of the Company, without premium or penalty, in whole or in part at
any time on or after , 20 (an "Optional Redemption"), at a
redemption price equal to 100% of the principal amount hereof, plus any accrued
but unpaid interest thereon to the date of such redemption (the "Optional
Redemption Price"). Any optional redemption pursuant to this paragraph will be
made upon not less than 30 nor more than 60 days notice, at the Optional
Redemption Price. If the Debentures are only partially redeemed by the
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Company pursuant to an Optional Redemption, the Debentures will be redeemed pro
rata or by lot or by any other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of a majority in aggregate principal
amount of the Securities of each series affected at the time outstanding, as
defined in the Indenture, to amend or supplement the Indenture or the Securities
of any series (including the Debentures) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the Holders of the
Securities (including the Debentures); provided, however, that no such amendment
or supplement shall (i) extend the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or extend the
time for payment of interest thereon, without the consent of the Holder of each
Security of such series so affected or (ii) reduce the aforesaid percentage in
aggregate principal amount of Securities, the Holders of which are required to
consent to any such amendment or supplement, without the consent of the Holders
of each Security then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Securities of any series at the time outstanding affected thereby,
on behalf of all of the Holders of the Securities of such series, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences, except a default in the payment of the principal of or
interest, if any, on any of the Securities of such series. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures, and from time to time, to extend the interest payment period of the
Debentures for up to twenty
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(20) consecutive quarters (an "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(including interest accrued on unpaid interest as described above at the rate
specified for the Debentures to the extent that payment of such interest is
permitted by applicable law). Before the termination of any such Extended
Interest Payment Period, the Company may further extend such Extended Interest
Payment Period, provided that such Extended Interest Payment Period together
with all such further extensions thereof shall not exceed twenty (20)
consecutive quarters or extend beyond the maturity of the Debentures. At the
termination of any such Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and any additional amounts then due, the Company
may select a new Extended Interest Payment Period, subject to the foregoing
requirements.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered Holder hereof on the
security register of the Company maintained by the Registrar, upon surrender of
this Debenture for registration of transfer at the office or agency of the
Trustee in New York, New York accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company or the Trustee duly executed by
the registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent and the Registrar may deem
and treat the registered Holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Registrar) for the purpose of
receiving payment of principal of and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any Paying Agent nor the
Registrar shall be affected by any notice to the contrary.
No past, present or future director, officer, employee or stockholder,
as such, of the Company or the Trustee or any successor of either thereof shall
have any liability for any obligations of the Company or the Trustee under the
Debentures or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Debentures so issued are exchangeable for a like aggregate principal amount of
Debentures of a different authorized denomination, as requested by the Holder
surrendering the same.
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This Debenture shall be governed by the internal laws of the State of
New York.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
Section 9.1. Original Issue of Debentures. Debentures in the aggregate
principal amount of $___________ may, upon execution of this First Supplemental
Indenture, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its Chairman,
its President, or any Vice President and its Treasurer, an Assistant Treasurer,
or Secretary without any further action by the Company.
ARTICLE X
CERTAIN COVENANTS
The following covenants shall apply to the Debentures (but not with
respect to any other series of Securities), and are in addition to the covenants
set forth in Article Four of the Indenture.
Section 10.1. Limitation on Dividends and Other Payments. If (i) there
shall have occurred any event that constitutes an Event of Default or (ii) the
Company shall be in default with respect to its payment of any obligations under
the Preferred Securities Guarantee, then (a) the Company shall not declare or
pay any dividend on, make any distributions with respect to, or redeem, purchase
or make a liquidation payment with respect to, any of its capital stock, (b) the
Company shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by the Company which
rank pari passu with or junior to the Debentures, and (c) the Company shall not
make any guarantee payments with respect to the foregoing (other than pursuant
to the Preferred Securities Guarantee).
If the Company shall have given notice of its election to defer
payments of interest on the Debentures by extending the interest payment period
as provided in Article IV and such period, or any extension thereof, shall be
continuing, then (i) the Company shall not declare or pay any dividend or, make
any distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock, (ii) the Company shall not
make any payment of interest, principal, premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company which rank pari
passu with or junior to
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the Debentures, and (iii) the Company shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Preferred Securities
Guarantee).
Notwithstanding the foregoing restrictions, nothing in this Section
10.1 shall prevent the Company, in any event, from paying any stock dividend
where the dividend stock is the same as that on which the dividend is paid.
Section 10.2. Covenants as to the Trust. For so long as the Trust
Securities remain outstanding, the Company will (i) maintain 100% direct or
indirect ownership of the Common Securities; provided, however, that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities, (ii) not cause, as sponsor of the
Trust, or permit, as the holder of the Common Securities of the Trust, the
termination, dissolution or winding-up of the Trust, except in connection with a
distribution of the Debentures as provided in the Declaration and in connection
with certain mergers, consolidations or amalgamations as permitted by the
Declaration, (iii) use its reasonable efforts to cause the Trust (a) to remain a
statutory business trust, except in connection with a distribution of Debentures
to the holders of the Preferred Securities in liquidation of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, and (b) to otherwise continue to be treated as a grantor trust for
United States federal income tax purposes and (iv) use its reasonable efforts to
cause each holder of Trust Securities to be treated as owning an individual
beneficial interest in the Debentures.
ARTICLE XI
CERTAIN EVENTS OF DEFAULT
Section 11.1. Additional Events of Default. An Event of Default with
respect to the Debentures shall include those events described in Section 6.01
of the Indenture and, with respect to the Debentures only, the occurrence of any
of the following events: the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution of
Debentures to holders of Preferred Securities in liquidation or redemption of
their interests in the Trust, (ii) the redemption of all of the outstanding
Preferred Securities, or (iii) certain mergers, consolidations or amalgamations,
each as permitted by the provisions of the Declaration.
Section 11.2. Waiver of Existing Defaults. Notwithstanding Section 6.04
of the Indenture, the Holders of a majority in aggregate principal amount of the
Debentures may not waive an a Default or an existing Event of Default (i) in the
payment of the principal of or accrued interest on the Debentures, unless the
Company has paid or deposited with the Trustee a sum sufficient to pay all
matured installments of interest (with interest on overdue interest at the rate
specified in Section 2.5(a)) upon all of the Debentures and the principal of the
Debentures that shall have become due otherwise than by acceleration or (ii)
that arise
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out of a breach by the Company of Section 10.1. Section 6.02 of the
Indenture shall, in all other respects and as modified by this Section 11.2,
apply to the Debentures.
Section 11.3. Additional Interest Included. For purposes of Sections
6.01(1), 6.01(2) and 6.03 of the Indenture, references to "interest" shall be
deemed to include Additional Interest, if any, payable.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Supplemental Indenture Incorporated Into Indenture. This
First Supplemental Indenture is executed by the Company and the Trustee pursuant
to the provisions of Sections 2.01 and 2.02 of the Indenture, and the terms and
conditions hereof shall be deemed to be part of the Indenture for all purposes
relating to the Debentures. The provisions of the Indenture, as modified by this
First Supplemental Indenture, are effective with respect to the Debentures, and
are not effective with respect to any series of Securities to be issued pursuant
to any subsequent supplemental indenture or resolution of the Board of
Directors. The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects adopted, ratified and confirmed.
Section 12.2. Trustee Not Responsible for Recitals; Disclaimer. The
recitals herein contained are made by the Company and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this First
Supplemental Indenture.
Section 12.3. Governing Law. This First Supplemental Indenture and each
Debenture shall be deemed to be a contract made under the internal laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State.
Section 12.4. Separability. In case any one or more of the provisions
contained in this First Supplemental Indenture or in the Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
Section 12.5. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 12.6. Acknowledgment of Rights of Holders of Preferred
Securities. The Company hereby acknowledges the right of each holder of
Preferred Securities, upon and
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during the continuance of an Event of Default under the Declaration that results
from the failure of the Company to pay principal of or interest on the
Debentures when due, to directly institute proceedings against the Company to
obtain payment to such holder of an amount equal to the principal or interest so
defaulted on with respect to Debentures in a principal amount equal to the
aggregate liquidation amount of the Preferred Securities owned by such holder.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, as of the day and year first above written.
OHIO EDISON COMPANY
By
-----------------------
Name:
Title:
Attest:
---------------------
Title:
THE BANK OF NEW YORK,
as Trustee
By
-----------------------
Name:
Title:
Attest:
---------------------
Title:
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STATE OF )
COUNTY OF ) ss:
On the day of , 1996 before me personally came , to
me known, who, being by me duly sworn, did depose and say that he is of
Ohio Edison Company, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
NOTARY PUBLIC
[seal] Commission expires
STATE OF )
COUNTY OF ) ss:
On the day of , 1996 before me personally came , to
me known, who, being by me duly sworn, did depose and say that he is of
THE BANK OF NEW YORK, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
NOTARY PUBLIC
[seal] Commission expires
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TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms. . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Interpretation. . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.1. Designation and Principal Amount. . . . . . . . . . . . . . 3
Section 2.2. Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3. Form and Payment. . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4. Global Debenture. . . . . . . . . . . . . . . . . . . . . . 3
Section 2.5. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
REDEMPTION OF THE DEBENTURES
Section 3.1. Special Event Redemption. . . . . . . . . . . . . . . . . . 5
Section 3.2. Optional Redemption by Company. . . . . . . . . . . . . . . 6
Section 3.3. No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period. . . . . . . . . . . . 6
Section 4.2. Notice of Extension. . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses. . . . . . . . . . . . . . . . . . . . 8
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate. . . . . . . . . . . . . . . . . . 8
Section 6.2. Default on Senior Indebtedness. . . . . . . . . . . . . . . 8
Section 6.3. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . . 8
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Section 6.4. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6.5. Trustee to Effectuate Subordination. . . . . . . . . . . . 11
Section 6.6. Notice by the Company. . . . . . . . . . . . . . . . . . . 11
Section 6.7. Rights of the Trustee; Holders of Senior Indebtedness. . . 12
Section 6.8. Subordination May Not Be Impaired. . . . . . . . . . . . . 13
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
Section 7.1. Listing on Exchange. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VIII
FORM OF DEBENTURE
Section 8.1. Form of Debenture. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
Section 9.1. Original Issue of Debentures. . . . . . . . . . . . . . . . 19
ARTICLE X
CERTAIN COVENANTS
Section 10.1. Limitation on Dividends and Other Payments. . . . . . . . . 20
Section 10.2. Covenants as to the Trust . . . . . . . . . . . . . . . . . 20
ARTICLE XI
CERTAIN EVENTS OF DEFAULT
Section 11.1. Additional Events of Default. . . . . . . . . . . . . . . . 21
Section 11.2. Waiver of Existing Defaults. . . . . . . . . . . . . . . . 21
ARTICLE XII
MISCELLANEOUS
Section 12.1. Supplemental Indenture Incorporated Into Indenture. . . . . 21
Section 12.2. Trustee Not Responsible for Recitals; Disclaimer. . . . . . 22
Section 12.3. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.4. Separability. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.5. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.6. Acknowledgment of Rights of Holders of Preferred
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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