========================================================================
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
TO
JPMORGAN CHASE BANK (formerly known as
THE CHASE MANHATTAN BANK)
(successor to ▇▇▇▇▇▇ Guaranty Trust Company
of New York,
formerly Guaranty Trust Company of New York)
As Trustee under
The Cleveland Electric Illuminating Company's
Mortgage and Deed of Trust,
Dated July 1, 1940
------------------
Eighty-third Supplemental Indenture
DATED AS OF May 15, 2002
First Mortgage Bonds, 2002 Series A
========================================================================
Eighty-third Supplemental Indenture, dated as of May 15, 2002, made by
and between THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation organized
and existing under the laws of the State of Ohio (the "Company"), and JPMORGAN
CHASE BANK (formerly known as THE CHASE MANHATTAN BANK) (successor to ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK), a corporation organized and existing under
the laws of the State of New York (the "Trustee"), as Trustee under the Mortgage
and Deed of Trust dated July 1, 1940, hereinafter mentioned:
RECITALS
In order to secure First Mortgage Bonds of the Company ("Bonds"), the
Company has heretofore executed and delivered to the Trustee the Mortgage and
Deed of Trust dated July 1, 1940 (the "1940 Mortgage") and 82 Supplemental
Indentures thereto ("Supplemental Indentures"); and
The 1940 Mortgage, as supplemented and modified by said Supplemental
Indentures and by this Eighty-third Supplemental Indenture, will be hereinafter
collectively referred to as the "Indenture" and this Eighty-third Supplemental
Indenture will be hereinafter referred to as "this Supplemental Indenture"; and
The Indenture provides among other things that the Company, from time
to time, in addition to the Bonds authorized to be executed, authenticated and
delivered pursuant to other provisions therein, may execute and deliver
additional Bonds to the Trustee and the Trustee shall thereupon authenticate and
deliver such Bonds to or upon the order of the Company; and
The Company has determined to create pursuant to the provisions of the
Indenture a new series of Bonds designated as "First Mortgage Bonds, 2002 Series
A" (the "Bonds of 2002 Series A"), with the denominations, rates of interest,
dates of maturity, redemption provisions and other provisions and agreements in
respect thereof as in this Supplemental Indenture set forth; and
The Company, in the exercise of the powers and authority conferred upon
and reserved to it under the provisions of the Indenture, and pursuant to
appropriate resolutions of the Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee this Supplemental
Indenture in the form hereof for the purposes herein provided; and
All conditions and requirements necessary to make this Supplemental
Indenture a valid, binding and legal instrument have been done, performed and
fulfilled and the execution and delivery hereof have been in all respects duly
authorized.
Now, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That The Cleveland Electric Illuminating Company, in consideration of
the premises and of the mutual covenants herein contained and of the sum of One
Dollar ($1.00) to it duly paid by the Trustee at or before the ensealing and
delivery of these presents and for other valuable considerations, the receipt
whereof is hereby acknowledged, hereby covenants and agrees to and with the
Trustee and its successors in the Trust under the Indenture, for the benefit of
those who shall hold the Bonds and coupons, if any, issued and to be issued
thereunder and under this Supplemental Indenture as hereinafter provided, as
follows:
Article I
CONFIRMATION OF 1940 MORTGAGE AND
SUPPLEMENTAL INDENTURES
The 1940 Mortgage (as modified in Article V of the Supplemental
Indenture dated December 1, 1947, Article V of the Supplemental Indenture dated
May 1, 1954, Article V of the Supplemental Indenture dated March 1, 1958,
Article V of the Supplemental Indenture dated January 15, 1969, Article III of
the Supplemental Indenture dated November 23, 1976, Article III of the
Supplemental Indenture dated April 15, 1985 and Article II of the Supplemental
Indenture dated as of June 30, 1999) and the Supplemental Indentures dated July
1, 1940, August 18, 1944, December 1, 1947, September 1, 1950, June 1, 1951, May
1, 1954, March 1, 1958, April 1, 1959, December 20, 1967, January 15, 1969,
November 1, 1969, June 1, 1970, November 15, 1970, May 1, 1974, April 15, 1975,
April 16, 1975, May 28, 1975, February 1, 1976, November 23, 1976, July 26,
1977, September 27, 1977, May 1, 1978, September 1, 1979, April 1, 1980, April
15, 1980, May 28, 1980, June 9, 1980, December 1, 1980, July 28, 1981, August 1,
1981, March 1, 1982, July 15, 1982 , September 1, 1982, November 1, 1982,
November 15, 1982, May 24, 1983, May 1, 1984, May 23, 1984, June 27, 1984,
September 4, 1984, November 14, 1984, November 15, 1984, April 15, 1985, May 28,
1985, August 1, 1985, September 1, 1985, November 1, 1985, April 15, 1986, May
14, 1986, May 15, 1986, February 25, 1987, October 15, 1987, February 24, 1988,
September 15, 1988, May 15, 1989, June 13, 1989, October 15, 1989, January 1,
1990, June 1, 1990, August 1, 1990, May 1, 1991, May 1, 1992, July 31, 1992,
January 1, 1993, February 1, 1993, May 20, 1993, June 1, 1993, September 15,
1994, May 1, 1995, May 2, 1995, June 1, 1995, July 15, 1995, August 1, 1995,
June 15, 1997, August 1, 1997, October 15, 1997, June 1, 1998, October 1, 1998,
October 1, 1998, April 1, 1999, June 30, 1999 and January 15, 2000 respectively,
are hereby in all respects confirmed.
Article II
CREATION, PROVISIONS, REDEMPTION, PRINCIPAL AMOUNT
AND FORM OF BONDS OF 2002 SERIES A
Section 1. The Company hereby creates a new series of Bonds to be authenticated
and delivered under and secured by the Indenture and to be designated as "First
Mortgage Bonds, 2002 Series A" of the Company and hereinabove and hereinafter
called the "Bonds of 2002 Series A". The Bonds of 2002 Series A shall be limited
to an aggregate principal amount of $358,500,000.00. The Bonds of 2002 Series A
shall be executed, authenticated and delivered in accordance with the provisions
of, and shall in all respect be subjected to, all of the terms, conditions and
covenants of the Indenture.
Section 2. The Bonds of 2002 Series A shall be dated the date of authentication,
shall mature on May 15, 2003 and shall bear interest as stated in the form of
the Bonds of 2002 Series A hereinafter set forth.
Section 3. The Bonds of 2002 Series A shall be payable, both as to principal and
interest, at the offices of the Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇; and shall be payable in any coin or currency of the Untied States of
America which at the time of payment shall be legal tender for the payment of
public and private debts.
Section 4. The Bonds of 2002 Series A shall be issued only as one fully
registered Bond in the denomination of $358,500,000.
Section 5. In the manner and subject to the limitations provided in the
Indenture and this Supplemental Indenture, the Bonds of 2002 Series A may be
transferred on the books of the Company without charge, except for any tax or
taxes or other governmental charges incident to such transfer.
Section 6. The Bonds of 2002 Series A shall be redeemable as provided in the
form of the Bonds of 2002 Series A hereinafter set forth.
Section 7. The form of the fully registered Bonds of 2002 Series A and of the
Trustee's certificate of authentication thereon, shall be substantially as
follows:
[FORM OF FULLY REGISTERED BOND OF 2002 SERIES A]
THE BONDS OF 2002 SERIES A HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY BE SOLD OR TRANSFERRED ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Incorporated under the laws of the State of Ohio
FIRST MORTGAGE BOND, 2002 SERIES A
No. $
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a company organized and
existing under the laws of the State of Ohio (hereinafter called the "Company",
which term shall include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises to pay to, or
registered assigns, the sum of ______________ Dollars ($____________) together
with interest thereon at the rate of 4.925% per annum, on May 15, 2003, in any
coin or currency of the United States of America which at the time of payment is
legal tender for the payment of public and private debts.
The interest hereon shall accrue from the date of original issuance
hereof until maturity, or, in case the Bonds of 2002 Series A (as hereinafter
defined) are duly called for redemption in accordance with the second succeeding
paragraph, until the redemption date, or, in the case of any default by the
Company in the payment of the principal due on the Bonds of 2002 Series A, until
the Company's obligation with respect to the payment of the principal hereof
shall be discharged as provided in the Indenture hereinafter referred to.
Interest hereon shall be payable only at maturity or on said redemption date and
in each case shall be payable to the person to whom principal is payable.
This Bond is one of the duly authorized Bonds of the Company (herein
called the "Bonds"), all equally secured by a Mortgage and Deed of Trust dated
July 1, 1940, executed by the Company to Guaranty Trust Company of New York as
Trustee under which JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank) is successor trustee (herein called the "Trustee"), and all indentures
supplemental thereto (said Mortgage as so supplemented herein called the
"Indenture") to which reference is hereby made for a description of the
properties mortgaged and pledged, the nature and extent of the security, the
rights of the registered owner or owners of the Bonds and of the trustee in
respect thereof and the terms and conditions upon which the Bonds are, and are
to be, secured. The Bonds may be issued in series, for various principal sums,
may mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided. This Bond is the only Bond of a
series designated as the First Mortgage Bonds, 2002 Series A (herein called the
"Bonds of 2002 Series A") limited in aggregate principal amount to
$358,500,000.00 and secured by the Indenture and described in the Eighty-third
Supplemental Indenture dated as of May 15, 2002, between the Company and the
trustee (herein called the "Supplemental Indenture").
The Bonds of 2002 Series A are subject to redemption prior to maturity,
in whole but not in part, at the option of either the Company or the registered
owner thereof, upon notice given to the other party not less than one day prior
to the date selected for redemption, at a price equal to 100% of the principal
amount thereof, together with accrued interest thereon.
To the extent permitted by and as provided in the Indenture,
modifications or alterations of the Indenture, or of any indenture supplemental
thereto, and of the rights and obligations of the Company and of the holders of
the Bonds and coupons may be made with the consent of the Company by an
affirmative vote of not less than 60% in principal amount of the Bonds entitled
to vote then outstanding, at a meeting of Bondholders called and held as
provided in the Indenture, and, in case one or more but less than all of the
series of Bonds then outstanding under the Indenture are so affected, by an
affirmative vote of not less than 60% in principal amount of the Bonds of any
series entitled to vote then outstanding and affected by such modification or
alternation; provided, however, that no such modification or alternation shall
be made which will affect the terms of payment on this Bond. Pursuant to the
Nineteenth Supplemental Indenture dated November 23, 1976 between the Company
and the Trustee, the Company has reserved the right to modify the Indenture to
except and exclude nuclear fuel (to the extent, if any, not otherwise excepted
and excluded) from the lien and operation thereof without any vote, consent or
other action by the holders of Bonds.
If an event of default, as defined in the Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Indenture may
be declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that such
declaration may in certain events be waived by the holders of a majority in
principal amount of the Bonds outstanding.
No recourse shall be had for the payment on this Bond, or for any claim
based hereon or on the Indenture or any indenture supplemental thereto, against
any incorporator, or against any stockholder, director or officer, past, present
or future, of the Company, or of any predecessor or successor corporation, as
such, either directly or through the Company or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the
enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution or statute or
otherwise, of incorporators, stockholders, directors or officers being released
by every owner hereof by the acceptance of this Bond and as part of the
consideration for the issue hereof, and being likewise released by the terms of
the Indenture.
This Bond shall not be entitled to any benefit under the Indenture or
any indenture supplement thereto, or become valid or obligatory for any purpose,
until the Trustee under the Indenture, or a successor trustee thereto under the
Indenture, shall have signed the form of certificate of authentication endorsed
hereon.
IN WITNESS WHEREOF, The Cleveland Electric Illuminating Company has
cause this Bond to be signed in its name by its President or a Vice President
and its corporate seal to be hereto affixed and attested by its Corporate
Secretary or an Assistant Corporate Secretary.
Dated:
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By:__________________________________
Vice President
ATTEST:
By:____________________
Corporate Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated and described in
the within-mentioned Indenture and Supplemental Indenture.
JPMORGAN CHASE BANK
Trustee
By:_________________________________
Authorized Officer
[END FORM OF FULLY REGISTERED BOND OF 2002 SERIES A]
Article III
THE TRUSTEE
Section 1. The Trustee hereby accepts the trusts hereby declared and provided
upon the terms and conditions in the Indenture set forth and upon the terms and
conditions set forth in this Article III.
Section 2. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or the
due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article XIII of the
Indenture shall apply to this Supplemental Indenture with the same force and
effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate.
Article IV
MISCELLANEOUS PROVISIONS
This Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
EXECUTION
IN WITNESS WHEREOF, said The Cleveland Electric Illuminating Company
has caused this Supplemental Indenture to be executed on its behalf by its
President or one of its Vice Presidents and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by its
Corporate Secretary or an Assistant Corporate Secretary, and said JPMorgan Chase
Bank, in evidence of its acceptance of the trust hereby created, has caused this
Supplemental Indenture to be executed on its behalf by one of its Vice
Presidents or one of its Trust Officers and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by one of
its Assistant Trust Officers or Assistant Secretaries, all as of the day and
year first above written.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By:__________________________________
Senior Vice President
ATTEST:____________________
Corporate Secretary
Signed, sealed and acknowledged by
The Cleveland Electric Illuminating Company
in the present of
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
As witnesses
JPMORGAN CHASE BANK
By:__________________________________
Attest:____________________
Signed, sealed and acknowledged by
JPMorgan Chase Bank
In the present of
-----------------------------
-----------------------------
As witnesses
STATE OF OHIO )
)SS.:
COUNTY OF SUMMIT )
On this 29th day of May, 2002, before me personally appeared ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to me personally known, who being by me severally duly
sworn, did say that they are a Senior Vice President and Corporate Secretary,
respective, of The Cleveland Electric Illuminating Company, that the seal
affixed to the foregoing instrument is the corporate seal of said corporation
and that said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors; and said officers severally acknowledged
said instrument to be the free act and deed of said corporation.
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires December 9, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS.:
COUNTY OF NEW YORK )
On this 29th day of May, 2002, before me personally appeared
_____________ and __________________ to me personally known, who being by me
severally duly sworn, did say that they are a _______________ and
_________________, respective, of JPMorgan Chase Bank, that the seal affixed to
the foregoing instrument is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said officers severally acknowledged said instrument
to be the free act and deed of said corporation.
---------------------------------
Notary Public
Notary Public, State of New York
This Instrument Prepared by FirstEnergy Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
