1
Exhibit 4b(74)
2
4(b)(74)
[CONFORMED]
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THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(successor to Xxxxxx 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
------------------------
SEVENTY-THIRD SUPPLEMENTAL INDENTURE
DATED AUGUST 1, 1995
FIRST MORTGAGE BONDS, 7.70% SERIES DUE 2025-B
FIRST MORTGAGE BONDS, 7.70% SERIES DUE 2025-C
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THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
SEVENTY-THIRD SUPPLEMENTAL INDENTURE
DATED AUGUST 1, 1995
TABLE OF CONTENTS*
PAGE
--------
PARTIES..................................................... 1
RECITALS:
Indenture and Supplemental Indentures..................... 1
First Mortgage Bonds outstanding.......................... 1
Authorization by Indenture of issue of additional Bonds... 1
Bonds of 2025-B Series.................................... 2
Bonds of 2025-C Series.................................... 2
Purpose of Seventy-Third Supplemental Indenture........... 3
Authorization of Seventy-Third Supplemental Indenture..... 3
Compliance with conditions to making of Seventy-Third
Supplemental Indenture................................. 3
ARTICLE I -- CONFIRMATION OF 1940 MORTGAGE AND
SUPPLEMENTAL INDENTURES................................... 4
ARTICLE II -- CREATION, PROVISIONS, REDEMPTION, PRINCIPAL
AMOUNT AND FORM OF BONDS OF 2025-B SERIES................. 4
Section 1 -- Creation and designation of Bonds and
compliance with Indenture............................ 4
Section 2 -- Date of Bonds, maturity date, interest
rate, accrual date, payment dates, places of payment
and Record Date...................................... 4
Section 3 -- Principal amount, denominations,
registration, transfer and exchange of Bonds......... 6
Section 4 -- Redemption of Bonds of 2025-B Series...... 6
Section 5 -- Redemption of Bonds pursuant to Section
4.01(a) of the OWDA Trust Indenture.................. 6
Section 6 -- Redemption of Bonds pursuant to Section
4.01(b) of the OWDA Trust Indenture.................. 7
Section 7 -- Redemption of Bonds pursuant to Section
4.01(c) of the OWDA Trust Indenture.................. 8
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*The Table of Contents, the page headings and the recording data are not
part of the Seventy-Third Supplemental Indenture as executed.
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PAGE
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Section 8 -- Redemption of Bonds in an "Event of
Default" under the OWDA Trust Indenture.............. 8
Section 9 -- Notice of redemption under Sections 5
through 8 of Article II of this Supplemental
Indenture............................................ 9
Section 10 -- Bonds deemed to be paid in full upon
surrender of Water Bonds for cancellation under the
OWDA Trust Indenture................................. 9
Section 11 -- Payment on the Water Bonds deemed to be
payment of corresponding obligation on Bonds......... 10
Section 12 -- Surrender of Bonds in the event of
payment in full or partial payment thereof and
issuance of new Bonds for the unpaid balance......... 10
Section 13 -- Form of Fully Registered Bond............ 10
Form of Trustee's Certificate of
Authentication........................... 17
Form of Schedule of Payments............. 18
ARTICLE III -- CREATION, PROVISIONS, REDEMPTION, PRINCIPAL
AMOUNT AND FORM OF BONDS OF 2025-C SERIES................. 19
Section 1 -- Creation and designation of Bonds and
compliance with Indenture............................ 19
Section 2 -- Date of Bonds, maturity date, interest
rate, accrual date, payment dates, places of payment
and Record Date...................................... 19
Section 3 -- Principal amount, denominations,
registration, transfer and exchange of Bonds......... 20
Section 4 -- Redemption of Bonds of 2025-C Series...... 21
Section 5 -- Redemption of Bonds pursuant to Section
4.01(a) of the OAQDA Trust Indenture................. 21
Section 6 -- Redemption of Bonds pursuant to Section
4.01(b) of the OAQDA Trust Indenture................. 21
Section 7 -- Redemption of Bonds pursuant to Section
4.01(c) of the OAQDA Trust Indenture................. 22
Section 8 -- Redemption of Bonds in an "Event of
Default" under the OAQDA Trust Indenture............. 23
Section 9 -- Notice of redemption under Sections 5
through 8 of Article III of this Supplemental
Indenture............................................ 23
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PAGE
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Section 10 -- Bonds deemed to be paid in full upon
surrender of Air Bonds for cancellation under the
OAQDA Trust Indenture................................ 24
Section 11 -- Payment on the Air Bonds deemed to be
payment of corresponding obligation on Bonds......... 24
Section 12 -- Surrender of Bonds in the event of
payment in full or partial payment thereof and
issuance of new Bonds for the unpaid balance......... 24
Section 13 -- Form of Fully Registered Bond............ 25
Form of Trustee's Certificate of
Authentication......................... 32
Form of Schedule of Payments............. 33
ARTICLE IV -- THE TRUSTEE................................... 34
Section 1 -- Acceptance by Trustee..................... 34
Section 2 -- Responsibility of Trustee................. 34
Section 3 -- Reliance by Trustee upon certain demands,
certificates and opinions............................ 34
Section 4 -- Records kept and indemnity given by agency
of the Company....................................... 34
Section 5 -- Certain advices to the Company............ 35
ARTICLE V -- MISCELLANEOUS PROVISIONS....................... 35
EXECUTION................................................... 35
SIGNATURES AND SEALS........................................ S-1
ACKNOWLEDGEMENTS............................................ S-2
RECORDING AND FILING DATA................................... R-1
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SEVENTY-THIRD SUPPLEMENTAL INDENTURE, dated August 1, 1995, 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 THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION) (successor to XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, formerly GUARANTY TRUST COMPANY OF NEW YORK), a national
banking association existing under the laws of the United States of America,
with its head office at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx xx Xxx Xxxx (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 seventy-two
Supplemental Indentures thereto dated, respectively, 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 and July 15, 1995; and
The 1940 Mortgage, as supplemented and modified by said Supplemental
Indentures and by this Seventy-Third Supplemental Indenture, will be hereinafter
collectively referred to as the "Indenture" and this Seventy-Third Supplemental
Indenture will be hereinafter referred to as "this Supplemental Indenture"; and
Pursuant to the provisions of the Indenture, the Company has issued 115
series of Bonds in the aggregate principal amount of $5,497,602,000, of which 75
series in the aggregate principal amount of $2,480,937,000 are no longer
outstanding; and
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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 two new series of Bonds designated as "First Mortgage Bonds, 7.70%
Series due 2025-B" (the "Bonds of 2025-B Series"), and "First Mortgage Bonds,
7.70% Series due 2025-C" (the "Bonds of 2025-C Series"), with the respective
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 Bonds of 2025-B Series are to be issued by the Company to the Ohio
Water Development Authority (hereinafter called the "OWDA") to evidence and
secure the obligation of the Company to repay the loan (hereinafter called the
"OWDA Loan") made by the OWDA to the Company pursuant to a certain loan
agreement, dated as of August 1, 1995, between the OWDA and the Company
(hereinafter called the "OWDA Loan Agreement") to assist the Company in
refunding certain bonds which had been previously issued by the OWDA, the
proceeds of which were loaned to the Company to assist in the financing of a
portion of the costs of the acquisition, construction and installation of
certain facilities comprising waste water and solid waste facilities under
Chapters 6121 and 6123, Ohio Revised Code, as amended, at the Perry Nuclear
Power Plant Unit No. 1 in Lake County, Ohio (hereinafter called the "OWDA
Project"); and the OWDA Loan is to be funded with proceeds derived from the sale
by the OWDA of State of Ohio Collateralized Pollution Control Revenue Refunding
Bonds, Series 1995 (The Cleveland Electric Illuminating Company Project) in the
aggregate principal amount of $40,900,000 (hereinafter called the "Water
Bonds"); and the Water Bonds are to be issued under a certain trust indenture,
dated as of August 1, 1995 (hereinafter called the "OWDA Trust Indenture"),
between the OWDA and Society National Bank, as trustee (hereinafter called the
"OWDA Trustee"), and the Bonds of 2025-B Series are to be assigned by the OWDA
to the OWDA Trustee as security for the payment of the principal of and premium,
if any, and interest on the Water Bonds and are to be delivered by the Company
on behalf of the OWDA directly to, and registered in the name of, the OWDA
Trustee; and
The Bonds of 2025-C Series are to be issued by the Company to the Ohio Air
Quality Development Authority (hereinafter called the "OAQDA") to evidence and
secure the obligation of the Company to
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repay the loan (hereinafter called the "OAQDA Loan") made by the OAQDA to the
Company pursuant to a certain loan agreement, dated as of August 1, 1995,
between the OAQDA and the Company (hereinafter called the "OAQDA Loan
Agreement") to assist the Company in refunding certain bonds which had been
previously issued by the OAQDA, the proceeds of which were loaned to the Company
to assist in the financing of a portion of the costs of the acquisition,
construction and installation of certain facilities comprising air quality
facilities under Chapter 3706, Ohio Revised Code, as amended, at the Perry
Nuclear Power Plant Unit No. 1 in Lake County, Ohio (hereinafter called the
"OAQDA Project"); and the OAQDA Loan is to be funded with proceeds derived from
the sale by the OAQDA of State of Ohio Collateralized Pollution Control Revenue
Refunding Bonds, Series 1995 (The Cleveland Electric Illuminating Company
Project) in the aggregate principal amount of $2,900,000 (hereinafter called the
"Air Bonds"); and the Air Bonds are to be issued under a certain trust
indenture, dated as of August 1, 1995 (hereinafter called the "OAQDA Trust
Indenture"), between the OAQDA and Society National Bank, as trustee
(hereinafter called the "OAQDA Trustee"), and the Bonds of 2025-C Series are to
be assigned by the OAQDA to the OAQDA Trustee as security for the payment of the
principal of and premium, if any, and interest on the Air Bonds and are to be
delivered by the Company on behalf of the OAQDA directly to, and registered in
the name of, the OAQDA Trustee; 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:
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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 and Article III of the
Supplemental Indenture dated April 15, 1985) 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 and July 15, 1995,
respectively, are hereby in all respects confirmed.
ARTICLE II
CREATION, PROVISIONS, REDEMPTION, PRINCIPAL AMOUNT
AND FORM OF BONDS OF 2025-B SERIES
SECTION 1. The Company hereby creates a new series of Bonds to be issued
under and secured by the Indenture and to be designated as "First Mortgage
Bonds, 7.70% Series due 2025-B" of the Company and hereinabove and hereinafter
called the "Bonds of 2025-B Series". The Bonds of 2025-B Series shall be
executed, authenticated and delivered in accordance with the provisions of, and
shall in all respects be subject to, all of the terms, conditions and covenants
of the Indenture.
SECTION 2. The Bonds of 2025-B Series shall be dated the date of
authentication, shall mature August 1, 2025, and shall bear interest from the
time hereinafter provided at the rate of 7.70% per annum payable semiannually on
the same dates as interest is payable on the
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Water Bonds (each such date hereinafter called an "interest payment date") until
maturity, or, in the case of any such Bonds duly called for redemption, until
the redemption date, or, in the case of any default by the Company in the
payment of the principal due on any such Bonds, until the Company's obligation
with respect to the payment of the principal shall be discharged as provided in
the Indenture.
Except as hereinafter provided, each Bond of 2025-B Series shall bear
interest (a) from the interest payment date next preceding the date of such Bond
to which interest has been paid, or (b) if the date of such Bond is an interest
payment date to which interest has been paid, then from such date, or (c) if no
interest has been paid thereon, then from August 1, 1995. Notwithstanding the
foregoing, if the date of such Bond is after a Record Date (as hereinafter
defined) and before the next following interest payment date, then it shall bear
interest from such interest payment date; provided, however, that (i) if the
Company shall default in the payment of the interest due on such interest
payment date, then such Bond shall bear interest from the interest payment date
next preceding the date of such Bond to which interest has been paid, or (ii) if
no interest has been paid thereon, then it shall bear interest from August 1,
1995.
The interest payable on any interest payment date shall be paid to the
respective persons in whose names the Bonds of 2025-B Series shall be registered
at the close of business on the Record Date next preceding such interest payment
date, notwithstanding the cancellation of any such Bond upon any transfer or
exchange thereof subsequent to such Record Date and prior to such interest
payment date; provided, however, that, if and to the extent the Company shall
default in the payment of the interest due on such interest payment date, such
defaulted interest shall be paid to the respective persons in whose names such
outstanding Bonds of 2025-B Series are registered at the close of business on a
date (the "Subsequent Record Date") not less than 10 days nor more than 15 days
next preceding the date of payment of such defaulted interest, such Subsequent
Record Date to be established by the Company by notice given by mail by or on
behalf of the Company to the registered owners of Bonds of 2025-B Series not
less than 10 days next preceding such Subsequent Record Date.
The term "Record Date" shall mean, with respect to any regular interest
payment date of any Bond of 2025-B Series, the date which would be the "Regular
Record Date", as defined in the OWDA Trust Indenture, applicable to such regular
interest payment date, if it were an "Interest Payment Date", as defined in the
OWDA Trust Indenture.
The Bonds of 2025-B Series shall be payable as to principal (and premium,
if any) and interest in any coin or currency of the United States of America
which at the time of payment is legal tender for the
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payment of public and private debts, and shall be payable (as well the interest
and the principal thereof and the premium thereon, if any) at the agency of the
Company in the City of Cleveland, State of Ohio, or, at the option of the
Company, at the agency of the Company in The City of New York. Unless the
context indicates a different meaning, any reference in this Article II to
"agency of the Company" means either the agency of the Company in the City of
Cleveland, State of Ohio, or the agency of the Company in The City of New York.
SECTION 3. The principal amount of Bonds of 2025-B Series which may be
authenticated and delivered hereunder shall not exceed $40,900,000, except as
otherwise provided in the Indenture.
The Bonds of 2025-B Series shall be issued as fully registered Bonds only,
without coupons, in the denominations of $100,000 and any integral multiple
thereof.
In the manner and subject to the limitations provided in the Indenture,
Bonds of 2025-B Series may be transferred or may be exchanged for a like
aggregate principal amount of Bonds of such series of other authorized
denominations, in either case without charge, except for any tax or taxes or
other governmental charges incident to such transfer or exchange, at the agency
of the Company in The City of New York.
In the event less than all of the Bonds of 2025-B Series at the time
outstanding are called for redemption, the Company shall not be required (a) to
register any transfer or make any exchange of any such Bond for a period of 15
days before the mailing of the notice of redemption of any such Bonds, (b) to
register any transfer or make any exchange of any such Bond so called for
redemption in its entirety, or (c) to register any transfer or make any exchange
of any portion of any such Bond so called for redemption.
Except as otherwise provided in Section 2 of this Article II with respect
to the payment of interest, the Company, the agencies of the Company and the
Trustee may deem and treat the person in whose name a Bond of 2025-B Series is
registered as the absolute owner thereof for the purpose of receiving any
payment and for all other purposes.
SECTION 4. The Bonds of 2025-B Series shall be redeemable only to the
extent provided in this Article II, subject to the provisions contained in
Article V of the Indenture and the form of Bond of 2025-B Series.
SECTION 5. The Bonds of 2025-B Series shall be subject to redemption by the
Company prior to maturity in whole at any time or in part from time to time, at
a redemption price of 100% of the principal
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amount to be redeemed, plus accrued and unpaid interest to the redemption date,
but in each instance only upon receipt by the Trustee of an officers'
certificate to the effect (a) that the OWDA, at the direction of the Company, or
the Company, on behalf of the OWDA, has given notice to the OWDA Trustee that
the Company is exercising its option to direct the redemption of all or a part
(specifying the principal amount) of the Water Bonds as provided in Section
4.01(a) of the OWDA Trust Indenture and (b) that an equivalent principal amount
of Bonds of 2025-B Series shall be concurrently called for redemption. Such
officers' certificate shall specify the principal amount of the Bonds of 2025-B
Series to be redeemed and the accrued and unpaid interest to the redemption
date, shall have attached to it a copy of said notice to the OWDA Trustee and
said direction of the Company and shall specify the redemption date of such
Bonds of 2025-B Series (which redemption date shall be not less than 45 days
from the date of the Trustee's receipt of such certificate and shall be the same
date as the redemption date of the Water Bonds being concurrently redeemed which
is specified in said attached notice). The redemption of the Bonds of 2025-B
Series shall be made upon the notice and in the manner provided in this Article
II, subject to the provisions of the Indenture.
SECTION 6. The Bonds of 2025-B Series shall be redeemed by the Company
prior to maturity in whole at any time or in part from time to time upon a final
determination by any federal judicial or administrative authority that interest
on the Water Bonds is includable for federal income tax purposes in the gross
income of the holders of the Water Bonds (other than because a holder is a
"substantial user" of the OWDA Project or a "related person" thereof as those
terms are used in Section 147(a) of the Internal Revenue Code of 1986, as
amended), at a redemption price of 100% of the principal amount to be redeemed,
plus accrued and unpaid interest to the redemption date, but in each instance
only upon receipt by the Trustee of an officers' certificate to the effect (a)
that the OWDA, at the direction of the Company, or the Company, on behalf of the
OWDA, has given notice to the OWDA Trustee that it is required to redeem all or
a part (specifying the principal amount) of the Water Bonds as provided in
Section 4.01(b) of the OWDA Trust Indenture and (b) that an equivalent principal
amount of Bonds of 2025-B Series shall be concurrently called for redemption.
Such officers' certificate shall specify the principal amount of the Bonds of
2025-B Series to be redeemed and the redemption price thereof and accrued and
unpaid interest to the redemption date, shall have attached to it a copy of said
notice to the OWDA Trustee and said direction of the Company and shall specify
the redemption date of such Bonds of 2025-B Series (which redemption date shall
be not less than 45 days from the date of the Trustee's
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receipt of such certificate and shall be the same date as the redemption date of
the Water Bonds being concurrently redeemed which is specified in said attached
notice). The redemption of the Bonds of 2025-B Series shall be made upon the
notice and in the manner provided in this Article II, subject to the provisions
of the Indenture.
SECTION 7. The Bonds of 2025-B Series shall be subject to redemption by the
Company prior to maturity in whole at any time or in part from time to time, but
in no instance before August 1, 2005, at the same redemption price plus accrued
and unpaid interest, if any, as shall be payable on the Water Bonds to be
redeemed concurrently therewith, to the redemption date as follows:
REDEMPTION PRICE
(EXPRESSED AS A
PERCENTAGE OF THE
REDEMPTION PERIODS PRINCIPAL AMOUNT
(DATES INCLUSIVE) BEING REDEEMED)
--------------------------------------------- --------------------
August 1, 2005 through July 31, 2006......... 102%
August 1, 2006 through July 31, 2007......... 101
August 1, 2007 and thereafter................ 100
but in each instance only upon receipt by the Trustee of an officers'
certificate to the effect (a) that the OWDA, at the direction of the Company, or
the Company, on behalf of the OWDA, has given notice to the OWDA Trustee that
the Company is exercising its option to direct the redemption of all or a part
(specifying the principal amount) of the Water Bonds as provided in Section
4.01(c) of the OWDA Trust Indenture and (b) that an equivalent principal amount
of the Bonds of 2025-B Series shall be concurrently called for redemption. Such
officers' certificate shall specify the principal amount of the Bonds of 2025-B
Series to be redeemed and the redemption price thereof and accrued and unpaid
interest to the redemption date, shall have attached to it a copy of said notice
to the OWDA Trustee and said direction of the Company and shall specify the
redemption date of such Bonds of 2025-B Series (which redemption date shall be
not less than 45 days from the date of the Trustee's receipt of such certificate
and shall be the same date as the redemption date of the Water Bonds being
concurrently redeemed which is specified in said attached notice). The
redemption of the Bonds of 2025-B Series shall be made upon the notice and in
the manner provided in this Article II, subject to the provisions of the
Indenture.
SECTION 8. The Bonds of 2025-B Series shall be redeemed by the Company in
whole at any time prior to maturity at a redemption price of 100% of the
principal amount to be redeemed, plus accrued and unpaid interest to the
redemption date, but only if the Trustee shall receive a written demand from the
OWDA Trustee for redemption of
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all Bonds of 2025-B Series held by the OWDA Trustee stating that an "Event of
Default" under the OWDA Trust Indenture has occurred and is continuing and that
payment of the principal of the Water Bonds has been accelerated; provided,
however, that the Bonds of 2025-B Series shall not be redeemed in the event that
prior to the date of mailing of notice of such redemption as provided in Section
9 of this Article II: (a) the Trustee shall have received a certificate of the
OWDA Trustee (i) stating that there has been a waiver of such acceleration or
(ii) withdrawing said written demand or (b) if an event of default under Section
1 of Article IX of the Indenture shall have occurred and be continuing, there
has been a declaration of acceleration of the principal of the Bonds of 2025-B
Series. The redemption of the Bonds of 2025-B Series shall be made on a date
selected by the Company not more than 45 days after receipt of the written
demand and shall be made upon the notice and in the manner provided in this
Article II, subject to the provisions of the Indenture.
SECTION 9. Subject to the provisions of the Indenture, written notice of
redemption of Bonds of 2025-B Series pursuant to any of Sections 5 through 8,
inclusive, of this Article II shall be given by the Trustee by mailing to the
registered owner or owners of such Bonds to be redeemed a notice of such
redemption, first class postage prepaid, at its last address as it shall appear
upon the books of the Company for the registration and transfer of such Bonds.
Any notice of redemption pursuant to said Section 5, 6 or 7 shall be mailed at
least 30 days and not earlier than 60 days before the redemption date and any
notice of redemption pursuant to said Section 8 shall be mailed not more than 45
days before the redemption date; provided, however, that the registered owner or
owners of all Bonds of 2025-B Series may consent in writing to a shorter notice
period, and such consent, if filed with the Trustee, shall be binding upon the
Company and such registered owner or owners and their transferees. In the event
of a partial redemption, the Trustee shall select the Bonds of 2025-B Series to
be redeemed in such manner as the Trustee shall deem appropriate and fair.
SECTION 10. In the event any Water Bonds shall be purchased by the Company
and surrendered by the Company to the OWDA Trustee for cancellation or shall be
otherwise surrendered to the OWDA Trustee or other person for cancellation
pursuant to the OWDA Trust Indenture (except upon exchange for other Water
Bonds), Bonds of 2025-B Series equivalent in principal amount to the Water Bonds
so surrendered shall be deemed to have been paid, but only when and to the
extent that (a) such payment of the principal amount of such Bonds of 2025-B
Series shall be noted by an agency of the Company on the schedule of payments on
such Bonds of 2025-B Series and (if such agency is not the Trustee) written
notice by such agency of such notation shall have been received by the Trustee
or (b) such Bonds of
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2025-B Series shall have been surrendered to and cancelled by the Trustee as
provided in Section 12 of this Article II.
SECTION 11. In the event and to the extent the principal of (or premium,
if any) or interest on any Water Bonds shall be paid out of funds held by the
OWDA Trustee or out of any other funds or shall otherwise be deemed to be paid,
an equal amount of principal (or premium, if any) or interest, as the case may
be, payable with respect to an aggregate principal amount of Bonds of 2025-B
Series equal to the aggregate principal amount of such Water Bonds shall be
deemed to have been paid, but, in the case of such payment of principal of such
Bonds of 2025-B Series, only when and to the extent that (a) such payment of the
principal amount thereof shall be noted by an agency of the Company on the
schedule of payments on such Bonds of 2025-B Series and (if such agency is not
the Trustee) written notice by such agency of such notation shall have been
received by the Trustee or (b) such Bonds of 2025-B Series shall have been
surrendered to and cancelled by the Trustee as provided in Section 12 of this
Article II. If the Water Bonds are issued in an aggregate principal amount of
less than $40,900,000, an aggregate principal amount of the Bonds of 2025-B
Series equal to the difference between $40,900,000 and the aggregate principal
amount of the Water Bonds issued (and all related premium and interest, if any)
shall be deemed to have been paid.
SECTION 12. When payment of any principal amount of a Bond of 2025-B Series
is made as provided in Section 10 or 11 of this Article II, the registered owner
thereof shall surrender such Bond to an agency of the Company for notation and
notification or to the Trustee for cancellation as provided in such Section. All
Bonds of 2025-B Series deemed to have been paid in full as provided in Section
10 or 11 of this Article II shall be surrendered to the Trustee for cancellation
and the Trustee shall forthwith cancel the same. In the event that part of a
Bond of 2025-B Series shall be deemed to have been paid as provided in said
Section 10 or 11, the registered owner may at its option surrender such Bond to
the Trustee for cancellation, in which event the Trustee shall cancel such Bond
and the Company shall execute and the Trustee shall authenticate and deliver,
without charge to the registered owner, Bonds of 2025-B Series in such
authorized denominations as shall be specified by the registered owner in an
aggregate principal amount equal to the unpaid balance of the principal amount
of such surrendered Bond.
SECTION 13. The form of the fully registered Bonds of 2025-B Series, and
of the Trustee's certificate of authentication thereon, shall be substantially
as follows:
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[Form of Fully Registered Bond]
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Incorporated under the laws of the State of Ohio
First Mortgage Bond, 7.70% Series Due 2025-B
Due August 1, 2025
No. $
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation 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 or the
aggregate unpaid principal amount hereof (as shown on the Schedule of Payments
hereon), whichever is less, on August 1, 2025, 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, and to pay interest on the unpaid principal
amount hereof in like coin or currency from the time hereinafter provided at
such rate per annum on each interest payment date (hereinafter defined) as shall
cause the amount of interest payable on such interest payment date on the Bonds
of 2025-B Series (hereinafter defined) to equal the amount of interest payable
on such interest payment date on the Water Bonds (hereinafter defined) and
payable semiannually on the same dates as interest is payable on said Water
Bonds (each such date herein called an "interest payment date") until the
maturity of this Bond, or, if this Bond shall be duly called for redemption,
until the redemption date, or, if the Company shall default in the payment of
the principal amount of this Bond, until the Company's obligation with respect
to the payment of such principal shall be discharged as provided in said
Indenture. Except as hereinafter provided, this Bond shall bear interest (a)
from the interest payment date next preceding the date of this Bond to which
interest has been paid, or (b) if the date of this Bond is an interest payment
date to which interest has been paid, then from such date, or (c) if no interest
has been paid on this Bond, then from August 1, 1995. Notwithstanding the
foregoing, if the date of this Bond is after the Record Date (as defined in
Section 2 of Article II of the Supplemental Indenture hereinafter defined) which
next precedes an interest payment date and before such interest payment date,
then it shall bear interest from such interest payment date; provided, however,
that (i) if the Company shall default in the payment of the interest due on such
interest payment date, then this Bond shall bear interest from the interest
payment date next preceding the date of this Bond to which interest has been
paid, or (ii) if no interest has been
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paid on this Bond, then it shall bear interest from August 1, 1995. Subject to
certain exceptions provided in said Indenture, the interest payable on any
interest payment date shall be paid to the person in whose name this Bond shall
be registered at the close of business on the Record Date or, in the case of
defaulted interest, on a day preceding the date of payment thereof established
by notice to the registered owner of this Bond in the manner provided in said
Supplemental Indenture. Principal of (and premium, if any) and interest on this
Bond are payable at the agency of the Company in the City of Cleveland, State of
Ohio, or, at the option of the Company, at the agency of the Company in The City
of New York.
This Bond is one of a duly authorized issue of Bonds of the Company
(herein called the "Bonds"), all issued and to be issued under and 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 The Chase
Manhattan Bank (National Association) 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 one of a series designated as the First Mortgage Bonds, 7.70% Series due
2025-B (herein called the "Bonds of 2025-B Series") limited, except as
otherwise provided in the Indenture, in aggregate principal amount to
$40,900,000, issued under and secured by the Indenture and described in the
Seventy-Third Supplemental Indenture dated August 1, 1995, between the Company
and the Trustee (herein called the "Supplemental Indenture").
The Bonds of 2025-B Series have been issued by the Company to the Ohio
Water Development Authority (herein called the "OWDA") to evidence and secure
the obligation of the Company to repay the loan (herein called the "OWDA Loan")
made by the OWDA to the Company pursuant to a certain loan agreement, dated as
of August 1, 1995, between the OWDA and the Company (hereinafter called the
"OWDA Loan Agreement") to assist the Company in refunding certain bonds which
had been previously issued by the OWDA, the proceeds of which were loaned to the
Company to assist in the financing of a portion of the costs of the acquisition,
construction and installation of certain facilities comprising waste water and
solid waste facilities under Chapters 6121 and 6123, Ohio Revised Code, as
amended, at the Perry
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Nuclear Power Plant Unit No. 1 in Lake County, Ohio. To provide funds for the
OWDA Loan, the OWDA will issue one or more series of State of Ohio
Collateralized Pollution Control Revenue Refunding Bonds, Series 1995 (The
Cleveland Electric Illuminating Company Project) in an aggregate principal
amount of not more than $40,900,000 (herein called the "Water Bonds") under a
certain trust indenture, dated as of August 1, 1995 (herein called the "OWDA
Trust Indenture"), between the OWDA and Society National Bank, as trustee
(herein called the "OWDA Trustee"). The Bonds of 2025-B Series have been
assigned by, and delivered on behalf of, the OWDA to the OWDA Trustee as
security for the payment of the principal of and premium, if any, and interest
on the Water Bonds.
In the event any Water Bonds shall be surrendered to the OWDA Trustee or
other person for cancellation pursuant to the OWDA Trust Indenture (except upon
exchange for other Water Bonds), Bonds of 2025-B Series equivalent in principal
amount to such Water Bonds shall be deemed to have been paid, but only when and
to the extent (a) so noted on the Schedule of Payments hereon by one of the
agencies of the Company hereinabove specified and (if such agency is not the
Trustee) written notice by such agency of such notation has been received by the
Trustee or (b) such Bond is surrendered to and cancelled by the Trustee as
provided in the next paragraph; and in the event and to the extent the principal
of (or premium, if any) or interest on any Water Bonds shall be paid or deemed
to be paid, an equal amount of principal (or premium, if any) or interest, as
the case may be, payable with respect to an aggregate principal amount of Bonds
of 2025-B Series equal to the aggregate principal amount of such Water Bonds
shall be deemed to have been paid, but, in the case of such payment of
principal, only when and to the extent (i) so noted on the Schedule of Payments
hereon by one of the agencies of the Company hereinabove specified and (if such
agency is not the Trustee) written notice by such agency of such notation has
been received by the Trustee or (ii) such Bond is surrendered to and cancelled
by the Trustee as provided in the next paragraph. When any such payment of
principal of this Bond is made, such Bond shall be surrendered by the registered
owner hereof to an agency of the Company for such notation and notification or
to the Trustee for cancellation. If the Water Bonds are issued in an aggregate
principal amount of less than $40,900,000, an aggregate principal amount of the
Bonds of 2025-B Series equal to the difference between $40,900,000 and the
aggregate principal amount of the Water Bonds issued (and all related premium
and interest, if any) shall be deemed to have been paid.
In the event that this Bond shall be deemed to have been paid in full, this
Bond shall be surrendered to the Trustee for cancellation. In the event that
this Bond shall be deemed to have been paid in part, this
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Bond may, at the option of the registered owner, be surrendered to the Trustee
for cancellation, in which event the Trustee shall cancel this Bond and the
Company shall execute and the Trustee shall authenticate and deliver Bonds of
2025-B Series in authorized denominations in aggregate principal amount equal to
the unpaid balance of the principal amount of this Bond.
The Bonds of 2025-B Series are subject to redemption by the Company prior
to maturity in whole at any time or in part from time to time as provided in
Section 5 of Article II of the Supplemental Indenture at a redemption price of
100% of the principal amount to be redeemed, plus accrued and unpaid interest to
the redemption date.
The Bonds of 2025-B Series shall be redeemed by the Company prior to
maturity in whole at any time or in part from time to time as provided in
Section 6 of Article II of the Supplemental Indenture at a redemption price of
100% of the principal amount to be redeemed, plus accrued and unpaid interest to
the redemption date, at the earliest practicable date selected by the OWDA
Trustee after consultation with the Company, but in no event later than 180 days
following the OWDA Trustee's notification of the Determination of Taxability (as
defined in the OWDA Trust Indenture).
The Bonds of 2025-B Series are subject to redemption by the Company prior
to maturity in whole at any time or in part from time to time, but in no
instance before August 1, 2005, as provided in Section 7 of Article II of the
Supplemental Indenture at a redemption price, plus accrued and unpaid interest,
if any, to the redemption date as follows:
REDEMPTION PRICE
(EXPRESSED AS A
PERCENTAGE OF THE
REDEMPTION PERIODS PRINCIPAL AMOUNT
(DATES INCLUSIVE) BEING REDEEMED)
--------------------------------------------- --------------------
August 1, 2005 through July 31, 2006......... 102%
August 1, 2006 through July 31, 2007......... 101
August 1, 2007 and thereafter................ 100
The Bonds of 2025-B Series shall be redeemed by the Company prior to
maturity in whole at any time as provided in Section 8 of Article II of the
Supplemental Indenture at a redemption price of 100% of the principal amount to
be redeemed, plus accrued and unpaid interest to the redemption date.
Any redemption of the Bonds of 2025-B Series shall be made after written
notice to the registered owner or owners of such Bonds, sent by the Trustee by
first class mail, postage prepaid, at least 30 days and not earlier than 60 days
before the redemption date (except in the event of redemption pursuant to the
next preceding paragraph in
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which case such notice shall be mailed not more than 45 days before the
redemption date), unless a shorter notice period is consented to in writing by
the registered owner or owners of all Bonds of 2025-B Series and such consent is
filed with the Trustee, and such redemption and notice shall be made in the
manner provided in Article II of the Supplemental Indenture, subject to the
provisions of the Indenture. In the event of a partial redemption, the Trustee
shall select the Bonds of 2025-B Series to be redeemed in such manner as the
Trustee shall deem appropriate and fair.
In the Forty-Third Supplemental Indenture dated April 15, 1985 between
the Company and the Trustee, the Company has modified, in certain respects,
the redemption provisions in the Indenture effective only with respect to the
Bonds of all series established or created in said Forty-Third Supplemental
Indenture and all supplemental indentures dated after May 28, 1985.
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 80% 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 80% in principal amount of the Bonds of any series entitled to
vote then outstanding and affected by such modification or alteration; provided,
however, that no such modification or alteration shall be made which will affect
the terms of payment of the principal of (or premium, if any) or interest on
this Bond. In the Nineteenth Supplemental Indenture dated November 23, 1976
between the Company and the Trustee, the Company has modified the Indenture
effective from and after the time when none of the Bonds of any series
established prior to the execution of the Nineteenth Supplemental Indenture
shall remain outstanding so as to change "80%" in the foregoing sentence to
"60%" and to make certain other modifications of the Indenture and has reserved
the right to make certain other modifications of the Indenture without any vote,
consent or other action by the holders of Bonds of any series established in the
Nineteenth Supplemental Indenture or in any subsequent supplemental indenture.
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
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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.
Subject to the limitations provided in the Indenture, this Bond is
transferable by the registered owner hereof, in person or by duly authorized
attorney, on the books of the Company to be kept for that purpose at the agency
of the Company in The City of New York upon surrender and cancellation of this
Bond, and upon presentation of a duly executed written instrument of transfer,
and thereupon a new fully registered Bond or Bonds of 2025-B Series, of the same
aggregate principal amount and in authorized denominations will be issued to the
transferee or transferees in exchange herefor; and this Bond, with or without
others of like series, may in like manner be exchanged for one or more new fully
registered Bonds of 2025-B Series of other authorized denominations but of the
same aggregate principal amount; all without charge except for any tax or taxes
or other governmental charges incidental to such transfer or exchange and all
subject to the terms and conditions set forth in the Indenture. In the event
less than all of the Bonds of 2025-B Series at the time outstanding are called
for redemption, the Company shall not be required (a) to register any transfer
or make any exchange of any such Bond for a period of 15 days before the mailing
of the notice of redemption of any such Bonds, (b) to register any transfer or
make any exchange of any such Bond called for redemption in its entirety, or (c)
to register any transfer or make any exchange of any portion of any such Bond
called for redemption. Except as otherwise provided herein with respect to the
payment of interest, the Company, the agencies of the Company and the Trustee
may deem and treat the person in whose name this Bond is registered as the
absolute owner hereof for the purpose of receiving any payment and for all other
purposes.
No recourse shall be had for the payment of the principal of or the
interest or premium, if any, 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, 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.
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This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental 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 caused
this Bond to be signed in its name by its President or a Vice President (whose
signature may be manual or a facsimile thereof), and its corporate seal (or a
facsimile thereof) to be hereto affixed and attested by its Secretary or an
Assistant Secretary (whose signature may be manual or a facsimile thereof).
Dated:
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By ....................................................
VICE PRESIDENT
Attest:
.............................
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated and described in the
within-mentioned Indenture and Supplemental Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
TRUSTEE
By ...........................................
AUTHORIZED OFFICER
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[FORM OF SCHEDULE OF PAYMENTS]
SCHEDULE OF PAYMENTS
AGENCY
OF THE
UNPAID COMPANY
PRINCIPAL PRINCIPAL PREMIUM INTEREST MAKING AUTHORIZED
DATE PAYMENT AMOUNT PAYMENT PAYMENT NOTATION OFFICER TITLE
--------- ------- ------- ------- ------- ------- ------- -------
[END OF FORM OF FULLY REGISTERED BOND]
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ARTICLE III
CREATION, PROVISIONS, REDEMPTION, PRINCIPAL AMOUNT
AND FORM OF BONDS OF 2025-C SERIES
SECTION 1. The Company hereby creates a new series of Bonds to be issued
under and secured by the Indenture and to be designated as "First Mortgage
Bonds, 7.70% Series due 2025-C" of the Company and hereinabove and hereinafter
called the "Bonds of 2025-C Series". The Bonds of 2025-C Series shall be
executed, authenticated and delivered in accordance with the provisions of, and
shall in all respects be subject to, all of the terms, conditions and covenants
of the Indenture.
SECTION 2. The Bonds of 2025-C Series shall be dated the date of
authentication, shall mature August 1, 2025, and shall bear interest from the
time hereinafter provided at the rate of 7.70% per annum payable semiannually on
the same dates as interest is payable on the Air Bonds (each such date
hereinafter called an "interest payment date") until maturity, or, in the case
of any such Bonds duly called for redemption, until the redemption date, or, in
the case of any default by the Company in the payment of the principal due on
any such Bonds, until the Company's obligation with respect to the payment of
the principal shall be discharged as provided in the Indenture.
Except as hereinafter provided, each Bond of 2025-C Series shall bear
interest (a) from the interest payment date next preceding the date of such Bond
to which interest has been paid, or (b) if the date of such Bond is an interest
payment date to which interest has been paid, then from such date, or (c) if no
interest has been paid thereon, then from August 1, 1995. Notwithstanding the
foregoing, if the date of such Bond is after a Record Date (as hereinafter
defined) and before the next following interest payment date, then it shall bear
interest from such interest payment date; provided, however, that (i) if the
Company shall default in the payment of the interest due on such interest
payment date, then such Bond shall bear interest from the interest payment date
next preceding the date of such Bond to which interest has been paid, or (ii) if
no interest has been paid thereon, then it shall bear interest from August 1,
1995.
The interest payable on any interest payment date shall be paid to the
respective persons in whose names the Bonds of 2025-C Series shall be registered
at the close of business on the Record Date next preceding such interest payment
date, notwithstanding the cancellation of any such Bond upon any transfer or
exchange thereof subsequent to such Record Date and prior to such interest
payment date; provided, however, that, if and to the extent the Company shall
default in the payment of the interest due on such interest payment date, such
defaulted interest shall be paid to the respective persons in
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whose names such outstanding Bonds of 2025-C Series are registered at the close
of business on a date (the "Subsequent Record Date") not less than 10 days nor
more than 15 days next preceding the date of payment of such defaulted interest,
such Subsequent Record Date to be established by the Company by notice given by
mail by or on behalf of the Company to the registered owners of Bonds of 2025-C
Series not less than 10 days next preceding such Subsequent Record Date.
The term "Record Date" shall mean, with respect to any regular interest
payment date of any Bond of 2025-C Series, the date which would be the "Regular
Record Date", as defined in the OAQDA Trust Indenture, applicable to such
regular interest payment date, if it were an "Interest Payment Date", as defined
in the OAQDA Trust Indenture.
The Bonds of 2025-C Series shall be payable as to principal (and premium,
if any) and interest 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, and shall be payable (as well the interest and the principal
thereof and the premium thereon, if any) at the agency of the Company in the
City of Cleveland, State of Ohio, or, at the option of the Company, at the
agency of the Company in The City of New York. Unless the context indicates a
different meaning, any reference in this Article III to "agency of the Company"
means either the agency of the Company in the City of Cleveland, State of Ohio,
or the agency of the Company in The City of New York.
SECTION 3. The principal amount of Bonds of 2025-C Series which may be
authenticated and delivered hereunder shall not exceed $2,900,000, except as
otherwise provided in the Indenture.
The Bonds of 2025-C Series shall be issued as fully registered Bonds only,
without coupons, in the denominations of $100,000 and any integral multiple
thereof.
In the manner and subject to the limitations provided in the Indenture,
Bonds of 2025-C Series may be transferred or may be exchanged for a like
aggregate principal amount of Bonds of such series of other authorized
denominations, in either case without charge, except for any tax or taxes or
other governmental charges incident to such transfer or exchange, at the agency
of the Company in The City of New York.
In the event less than all of the Bonds of 2025-C Series at the time
outstanding are called for redemption, the Company shall not be required (a) to
register any transfer or make any exchange of any such Bond for a period of 15
days before the mailing of the notice of redemption of any such Bonds, (b) to
register any transfer or make any exchange of any such Bond so called for
redemption in its entirety,
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or (c) to register any transfer or make any exchange of any portion of any such
Bond so called for redemption.
Except as otherwise provided in Section 2 of this Article III with respect
to the payment of interest, the Company, the agencies of the Company and the
Trustee may deem and treat the person in whose name a Bond of 2025-C Series is
registered as the absolute owner thereof for the purpose of receiving any
payment and for all other purposes.
SECTION 4. The Bonds of 2025-C Series shall be redeemable only to the
extent provided in this Article III, subject to the provisions contained in
Article V of the Indenture and the form of Bond of 2025-C Series.
SECTION 5. The Bonds of 2025-C Series shall be subject to redemption by the
Company prior to maturity in whole at any time or in part from time to time, at
a redemption price of 100% of the principal amount to be redeemed, plus accrued
and unpaid interest to the redemption date, but in each instance only upon
receipt by the Trustee of an officers' certificate to the effect (a) that the
OAQDA, at the direction of the Company, or the Company, on behalf of the OAQDA,
has given notice to the OAQDA Trustee that the Company is exercising its option
to direct the redemption of all or a part (specifying the principal amount) of
the Air Bonds as provided in Section 4.01(a) of the OAQDA Trust Indenture and
(b) that an equivalent principal amount of Bonds of 2025-C Series shall be
concurrently called for redemption. Such officers' certificate shall specify the
principal amount of the Bonds of 2025-C Series to be redeemed and the accrued
and unpaid interest to the redemption date, shall have attached to it a copy of
said notice to the OAQDA Trustee and said direction of the Company and shall
specify the redemption date of such Bonds of 2025-C Series (which redemption
date shall be not less than 45 days from the date of the Trustee's receipt of
such certificate and shall be the same date as the redemption date of the Air
Bonds being concurrently redeemed which is specified in said attached notice).
The redemption of the Bonds of 2025-C Series shall be made upon the notice and
in the manner provided in this Article III, subject to the provisions of the
Indenture.
SECTION 6. The Bonds of 2025-C Series shall be redeemed by the Company
prior to maturity in whole at any time or in part from time to time upon a final
determination by any federal judicial or administrative authority that interest
on the Air Bonds is includable for federal income tax purposes in the gross
income of the holders of the Air Bonds (other than because a holder is a
"substantial user" of the OAQDA Project or a "related person" thereof as those
terms are used in Section 147(a) of the Internal Revenue Code of 1986, as
amended),
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at a redemption price of 100% of the principal amount to be redeemed, plus
accrued and unpaid interest to the redemption date, but in each instance only
upon receipt by the Trustee of an officers' certificate to the effect (a) that
the OAQDA, at the direction of the Company, or the Company, on behalf of the
OAQDA, has given notice to the OAQDA Trustee that it is required to redeem all
or a part (specifying the principal amount) of the Air Bonds as provided in
Section 4.01(b) of the OAQDA Trust Indenture and (b) that an equivalent
principal amount of Bonds of 2025-C Series shall be concurrently called for
redemption. Such officers' certificate shall specify the principal amount of the
Bonds of 2025-C Series to be redeemed and the redemption price thereof and
accrued and unpaid interest, shall have attached to it a copy of said notice to
the OAQDA Trustee and said direction of the Company and shall specify the
redemption date of such Bonds of 2025-C Series (which redemption date shall be
not less than 45 days from the date of the Trustee's receipt of such certificate
and shall be the same date as the redemption date of the Air Bonds being
concurrently redeemed which is specified in said attached notice). The
redemption of the Bonds of 2025-C Series shall be made upon the notice and in
the manner provided in this Article III, subject to the provisions of the
Indenture.
SECTION 7. The Bonds of 2025-C Series shall be subject to redemption by the
Company prior to maturity in whole at any time or in part from time to time, but
in no instance before August 1, 2005, at the same redemption price plus accrued
and unpaid interest, if any, as shall be payable on the Air Bonds to be redeemed
concurrently therewith, to the redemption date as follows:
REDEMPTION PRICE
(EXPRESSED AS A
PERCENTAGE OF THE
REDEMPTION PERIODS PRINCIPAL AMOUNT
(DATES INCLUSIVE) BEING REDEEMED)
--------------------------------------------- --------------------
August 1, 2005 through July 31, 2006......... 102%
August 1, 2006 through July 31, 2007......... 101
August 1, 2007 and thereafter................ 100
but in each instance only upon receipt by the Trustee of an officers'
certificate to the effect (a) that the OAQDA, at the direction of the Company,
or the Company, on behalf of the OAQDA, has given notice to the OAQDA Trustee
that the Company is exercising its option to direct the redemption of all or
part (specifying the principal amount) of the Air Bonds as provided in Section
4.01(c) of the OAQDA Trust Indenture and (b) that an equivalent principal amount
of the Bonds of 2025-C Series shall be concurrently called for redemption. Such
officers' certificate shall specify the principal amount of the Bonds of 2025-C
Series to be redeemed and the redemption price thereof and
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accrued and unpaid interest to the redemption date, shall have attached to it a
copy of said notice to the OAQDA Trustee and said direction of the Company and
shall specify the redemption date of such Bonds of 2025-C Series (which
redemption date shall be not less than 45 days from the date of the Trustee's
receipt of such certificate and shall be the same date as the redemption date of
the Air Bonds being concurrently redeemed which is specified in said attached
notice). The redemption of the Bonds of 2025-C Series shall be made upon the
notice and in the manner provided in this Article III, subject to the provisions
of the Indenture.
SECTION 8. The Bonds of 2025-C Series shall be redeemed by the Company in
whole at any time prior to maturity at a redemption price of 100% of the
principal amount to be redeemed, plus accrued and unpaid interest to the
redemption date, but only if the Trustee shall receive a written demand from the
OAQDA Trustee for redemption of all Bonds of 2025-C Series held by the OAQDA
Trustee stating that an "Event of Default" under the OAQDA Trust Indenture has
occurred and is continuing and that payment of the principal of the Air Bonds
has been accelerated; provided, however, that the Bonds of 2025-C Series shall
not be redeemed in the event that prior to the date of mailing of notice of such
redemption as provided in Section 9 of this Article III: (a) the Trustee shall
have received a certificate of the OAQDA Trustee (i) stating that there has been
a waiver of such acceleration or (ii) withdrawing said written demand or (b) if
an event of default under Section 1 of Article IX of the Indenture shall have
occurred and be continuing, there has been a declaration of acceleration of the
principal of the Bonds of 2025-C Series. The redemption of the Bonds of 2025-C
Series shall be made on a date selected by the Company not more than 45 days
after receipt of the written demand and shall be made upon the notice and in the
manner provided in this Article III, subject to the provisions of the Indenture.
SECTION 9. Subject to the provisions of the Indenture, written notice of
redemption of Bonds of 2025-C Series pursuant to any of Sections 5 through 8,
inclusive, of this Article III shall be given by the Trustee by mailing to the
registered owner or owners of such Bonds to be redeemed a notice of such
redemption, first class postage prepaid, at its last address as it shall appear
upon the books of the Company for the registration and transfer of such Bonds.
Any notice of redemption pursuant to said Section 5, 6 or 7 shall be mailed at
least 30 days and not earlier than 60 days before the redemption date and any
notice of redemption pursuant to said Section 8 shall be mailed not more than 45
days before the redemption date; provided, however, that the registered owner or
owners of all Bonds of 2025-C Series may consent in writing to a shorter notice
period, and such consent, if filed with the Trustee, shall be binding upon the
Company and such registered owner
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or owners and their transferees. In the event of a partial redemption, the
Trustee shall select the Bonds of 2025-C Series to be redeemed in such manner as
the Trustee shall deem appropriate and fair.
SECTION 10. In the event any Air Bonds shall be purchased by the Company
and surrendered by the Company to the OAQDA Trustee for cancellation or shall be
otherwise surrendered to the OAQDA Trustee or other person for cancellation
pursuant to the OAQDA Trust Indenture (except upon exchange for other Air
Bonds), Bonds of 2025-C Series equivalent in principal amount to the Air Bonds
so surrendered shall be deemed to have been paid, but only when and to the
extent that (a) such payment of the principal amount of such Bonds of 2025-C
Series shall be noted by an agency of the Company on the schedule of payments on
such Bonds of 2025-C Series and (if such agency is not the Trustee) written
notice by such agency of such notation shall have been received by the Trustee
or (b) such Bonds of 2025-C Series shall have been surrendered to and cancelled
by the Trustee as provided in Section 12 of this Article III.
SECTION 11. In the event and to the extent the principal of (or premium, if
any) or interest on any Air Bonds shall be paid out of funds held by the OAQDA
Trustee or out of any other funds or shall otherwise be deemed to be paid, an
equal amount of principal (or premium, if any) or interest, as the case may be,
payable with respect to an aggregate principal amount of Bonds of 2025-C Series
equal to the aggregate principal amount of such Air Bonds shall be deemed to
have been paid, but, in the case of such payment of principal of such Bonds of
2025-C Series, only when and to the extent that (a) such payment of the
principal amount thereof shall be noted by an agency of the Company on the
schedule of payments on such Bonds of 2025-C Series and (if such agency is not
the Trustee) written notice by such agency of such notation shall have been
received by the Trustee or (b) such Bonds of 2025-C Series shall have been
surrendered to and cancelled by the Trustee as provided in Section 12 of this
Article III. If the Air Bonds are issued in an aggregate principal amount of
less than $2,900,000, an aggregate principal amount of the Bonds of 2025-C
Series equal to the difference between $2,900,000 and the aggregate principal
amount of the Air Bonds issued (and all related premium and interest, if any)
shall be deemed to have been paid.
SECTION 12. When payment of any principal amount of a Bond of 2025-C Series
is made as provided in Section 10 or 11 of this Article III, the registered
owner thereof shall surrender such Bond to an agency of the Company for notation
and notification or to the Trustee for cancellation as provided in such Section.
All Bonds of 2025-C Series deemed to have been paid in full as provided in
Section 10 or 11 of this Article III shall be surrendered to the Trustee for
cancellation and the
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25
Trustee shall forthwith cancel the same. In the event that part of a Bond of
2025-C Series shall be deemed to have been paid as provided in said Section 10
or 11, the registered owner may at its option surrender such Bond to the Trustee
for cancellation, in which event the Trustee shall cancel such Bond and the
Company shall execute and the Trustee shall authenticate and deliver, without
charge to the registered owner, Bonds of 2025-C Series in such authorized
denominations as shall be specified by the registered owner in an aggregate
principal amount equal to the unpaid balance of the principal amount of such
surrendered Bond.
SECTION 13. The form of the fully registered Bonds of 2025-C Series, and of
the Trustee's certificate of authentication thereon, shall be substantially as
follows:
[FORM OF FULLY REGISTERED BOND]
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
Incorporated under the laws of the State of Ohio
FIRST MORTGAGE BOND, 7.70% SERIES DUE 2025-C
Due August 1, 2025
No. $
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a corporation 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 or the
aggregate unpaid principal amount hereof (as shown on the Schedule of Payments
hereon), whichever is less, on August 1, 2025, 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, and to pay interest on the unpaid principal
amount hereof in like coin or currency from the time hereinafter provided at
such rate per annum on each interest payment date (hereinafter defined) as shall
cause the amount of interest payable on such interest payment date on the Bonds
of 2025-C Series (hereinafter defined) to equal the amount of interest payable
on such interest payment date on the Air Bonds (hereinafter defined) and payable
semiannually on the same dates as interest is payable on said Air Bonds (each
such date herein called an "interest payment date") until the maturity of this
Bond, or, if this Bond shall be duly called for redemption, until the redemption
date, or, if the Company shall default in the payment of the principal amount of
this Bond, until the Company's obligation with respect to the payment of such
principal shall be discharged as provided in said Indenture.
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26
Except as hereinafter provided, this Bond shall bear interest (a) from the
interest payment date next preceding the date of this Bond to which interest has
been paid, or (b) if the date of this Bond is an interest payment date to which
interest has been paid, then from such date, or (c) if no interest has been paid
on this Bond, then from August 1, 1995. Notwithstanding the foregoing, if the
date of this Bond is after the Record Date (as defined in Section 2 of Article
III of the Supplemental Indenture hereinafter defined) which next precedes an
interest payment date and before such interest payment date, then it shall bear
interest from such interest payment date; provided, however, that (i) if the
Company shall default in the payment of the interest due on such interest
payment date, then this Bond shall bear interest from the interest payment date
next preceding the date of this Bond to which interest has been paid, or (ii) if
no interest has been paid on this Bond, then it shall bear interest from August
1, 1995. Subject to certain exceptions provided in said Indenture, the interest
payable on any interest payment date shall be paid to the person in whose name
this Bond shall be registered at the close of business on the Record Date or, in
the case of defaulted interest, on a day preceding the date of payment thereof
established by notice to the registered owner of this Bond in the manner
provided in said Supplemental Indenture. Principal of (and premium, if any) and
interest on this Bond are payable at the agency of the Company in the City of
Cleveland, State of Ohio, or, at the option of the Company, at the agency of the
Company in The City of New York.
This Bond is one of a duly authorized issue of Bonds of the Company (herein
called the "Bonds"), all issued and to be issued under and 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 The Chase Manhattan
Bank (National Association) 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 one of a series designated as the First Mortgage Bonds, 7.70% Series due
2025-C (herein called the "Bonds of 2025-C Series") limited, except as
otherwise provided in the Indenture, in aggregate principal amount to
$2,900,000, issued under and secured by the Indenture and described in the
Seventy-Third Supplemental Indenture
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27
dated August 1, 1995, between the Company and the Trustee (herein called the
"Supplemental Indenture").
The Bonds of 2025-C Series have been issued by the Company to the Ohio Air
Quality Development Authority (herein called the "OAQDA") to evidence and secure
the obligation of the Company to repay the loan (herein called the "OAQDA Loan")
made by the OAQDA to the Company pursuant to a certain loan agreement, dated as
of August 1, 1995, between the OAQDA and the Company (hereinafter called the
"OAQDA Loan Agreement") to assist the Company in refunding certain bonds which
had been previously issued by the OAQDA, the proceeds of which were loaned to
the Company to assist in the financing of a portion of the costs of the
acquisition, construction and installation of certain facilities comprising air
quality facilities under Chapter 3706, Ohio Revised Code, as amended, at the
Perry Nuclear Power Plant Unit No. 1 in Lake County, Ohio. To provide funds for
the OAQDA Loan, the OAQDA will issue one or more series of State of Ohio
Collateralized Pollution Control Revenue Refunding Bonds, Series 1995 (The
Cleveland Electric Illuminating Company Project) in an aggregate principal
amount of not more than $2,900,000 (herein called the "Air Bonds") under a
certain trust indenture, dated as of August 1, 1995 (herein called the "OAQDA
Trust Indenture"), between the OAQDA and Society National Bank, as trustee
(herein called the "OAQDA Trustee"). The Bonds of 2025-C Series have been
assigned by, and delivered on behalf of, the OAQDA to the OAQDA Trustee as
security for the payment of the principal of and premium, if any, and interest
on the Air Bonds.
In the event any Air Bonds shall be surrendered to the OAQDA Trustee or
other person for cancellation pursuant to the OAQDA Trust Indenture (except upon
exchange for other Air Bonds), Bonds of 2025-C Series equivalent in principal
amount to such Air Bonds shall be deemed to have been paid, but only when and to
the extent (a) so noted on the Schedule of Payments hereon by one of the
agencies of the Company hereinabove specified and (if such agency is not the
Trustee) written notice by such agency of such notation has been received by the
Trustee or (b) such Bond is surrendered to and cancelled by the Trustee as
provided in the next paragraph; and in the event and to the extent the principal
of (or premium, if any) or interest on any Air Bonds shall be paid or deemed to
be paid, an equal amount of principal (or premium, if any) or interest, as the
case may be, payable with respect to an aggregate principal amount of Bonds of
2025-C Series equal to the aggregate principal amount of such Air Bonds shall be
deemed to have been paid, but, in the case of such payment of principal, only
when and to the extent (i) so noted on the Schedule of Payments hereon by one of
the agencies of the Company hereinabove specified and (if such agency is not the
Trustee) written notice by such
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28
agency of such notation has been received by the Trustee or (ii) such Xxxx is
surrendered to and cancelled by the Trustee as provided in the next paragraph.
When any such payment of principal of this Bond is made, such Bond shall be
surrendered by the registered owner hereof to an agency of the Company for such
notation and notification or to the Trustee for cancellation. If the Air Bonds
are issued in an aggregate principal amount of less than $2,900,000, an
aggregate principal amount of the Bonds of 2025-C Series equal to the difference
between $2,900,000 and the aggregate principal amount of the Air Bonds issued
(and all related premium and interest, if any) shall be deemed to have been
paid.
In the event that this Bond shall be deemed to have been paid in full, this
Bond shall be surrendered to the Trustee for cancellation. In the event that
this Bond shall be deemed to have been paid in part, this Bond may, at the
option of the registered owner, be surrendered to the Trustee for cancellation,
in which event the Trustee shall cancel this Bond and the Company shall execute
and the Trustee shall authenticate and deliver Bonds of 2025-C Series in
authorized denominations in aggregate principal amount equal to the unpaid
balance of the principal amount of this Bond.
The Bonds of 2025-C Series are subject to redemption by the Company prior
to maturity in whole at any time or in part from time to time as provided in
Section 5 of Article III of the Supplemental Indenture at a redemption price of
100% of the principal amount to be redeemed, plus accrued and unpaid interest to
the redemption date.
The Bonds of 2025-C Series shall be redeemed by the Company prior to
maturity in whole at any time or in part from time to time as provided in
Section 6 of Article III of the Supplemental Indenture at a redemption price of
100% of the principal amount to be redeemed, plus accrued and unpaid interest to
the redemption date, at the earliest practicable date selected by the OAQDA
Trustee after consultation with the Company, but in no event later than 180 days
following the OAQDA Trustee's notification of the Determination of Taxability
(as defined in the OAQDA Trust Indenture).
The Bonds of 2025-C Series are subject to redemption by the Company prior
to maturity, in whole at any time or in part from time to time, but in no
instance before August 1, 2005, as provided in Section 7 of Article III of the
Supplemental Indenture at a redemption
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29
price, plus accrued and unpaid interest, if any, to the redemption date as
follows:
REDEMPTION PRICE
(EXPRESSED AS A
PERCENTAGE OF THE
REDEMPTION PERIODS PRINCIPAL AMOUNT
(DATES INCLUSIVE) BEING REDEEMED)
--------------------------------------------- --------------------
August 1, 2005 through July 31, 2006......... 102%
August 1, 2006 through July 31, 2007......... 101
August 1, 2007 and thereafter................ 100
The Bonds of 2025-C Series shall be redeemed by the Company prior to
maturity in whole at any time as provided in Section 8 of Article III of the
Supplemental Indenture at a redemption price of 100% of the principal amount to
be redeemed, plus accrued and unpaid interest to the redemption date.
Any redemption of the Bonds of 2025-C Series shall be made after written
notice to the registered owner or owners of such Bonds, sent by the Trustee by
first class mail, postage prepaid, at least 30 days and not earlier than 60 days
before the redemption date (except in the event of redemption pursuant to the
next preceding paragraph in which case such notice shall be mailed not more than
45 days before the redemption date), unless a shorter notice period is consented
to in writing by the registered owner or owners of all Bonds of 2025-C Series
and such consent is filed with the Trustee, and such redemption and notice shall
be made in the manner provided in Article III of the Supplemental Indenture,
subject to the provisions of the Indenture. In the event of a partial
redemption, the Trustee shall select the Bonds of 2025-C Series to be redeemed
in such manner as the Trustee shall deem appropriate and fair.
In the Forty-Third Supplemental Indenture dated April 15, 1985 between the
Company and the Trustee, the Company has modified, in certain respects, the
redemption provisions in the Indenture effective only with respect to the Bonds
of all series established or created in said Forty-Third Supplemental Indenture
and all supplemental indentures dated after May 28, 1985.
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 80% 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
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30
of not less than 80% in principal amount of the Bonds of any series entitled to
vote then outstanding and affected by such modification or alteration; provided,
however, that no such modification or alteration shall be made which will affect
the terms of payment of the principal of (or premium, if any) or interest on
this Bond. In the Nineteenth Supplemental Indenture dated November 23, 1976
between the Company and the Trustee, the Company has modified the Indenture
effective from and after the time when none of the Bonds of any series
established prior to the execution of the Nineteenth Supplemental Indenture
shall remain outstanding so as to change "80%" in the foregoing sentence to
"60%" and to make certain other modifications of the Indenture and has reserved
the right to make certain other modifications of the Indenture without any vote,
consent or other action by the holders of Bonds of any series established in the
Nineteenth Supplemental Indenture or in any subsequent supplemental indenture.
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.
Subject to the limitations provided in the Indenture, this Bond is
transferable by the registered owner hereof, in person or by duly authorized
attorney, on the books of the Company to be kept for that purpose at the agency
of the Company in The City of New York upon surrender and cancellation of this
Bond, and upon presentation of a duly executed written instrument of transfer,
and thereupon a new fully registered Bond or Bonds of 2025-C Series of the same
aggregate principal amount and in authorized denominations will be issued to the
transferee or transferees in exchange herefor; and this Bond, with or without
others of like series, may in like manner be exchanged for one or more new fully
registered Bonds of 2025-C Series of other authorized denominations but of the
same aggregate principal amount; all without charge except for any tax or taxes
or other governmental charges incidental to such transfer or exchange and all
subject to the terms and conditions set forth in the Indenture. In the event
less than all of the Bonds of 2025-C Series at the time outstanding are called
for redemption, the Company shall not be required (a) to register any transfer
or make any exchange of any such Bond for a period of 15 days before the mailing
of the notice of redemption of any such Bonds, (b) to register any transfer or
make any exchange of any such Bond called for redemption in its entirety, or (c)
to register any transfer or make any exchange of any portion of any such Bond
called
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for redemption. Except as otherwise provided herein with respect to the payment
of interest, the Company, the agencies of the Company and the Trustee may deem
and treat the person in whose name this Bond is registered as the absolute owner
hereof for the purpose of receiving any payment and for all other purposes.
No recourse shall be had for the payment of the principal of or the
interest or premium, if any, 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, 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 supplemental 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 caused
this Bond to be signed in its name by its President or a Vice President (whose
signature may be manual or a facsimile thereof), and its corporate seal (or a
facsimile thereof) to be hereto affixed and attested by its Secretary or an
Assistant Secretary (whose signature may be manual or a facsimile thereof).
Dated:
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By ....................................................
VICE PRESIDENT
Attest:
.............................
Secretary
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds of the series designated and described in the
within-mentioned Indenture and Supplemental Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
TRUSTEE
By ...........................................
AUTHORIZED OFFICER
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[FORM OF SCHEDULE OF PAYMENTS]
SCHEDULE OF PAYMENTS
AGENCY
OF THE
UNPAID COMPANY
PRINCIPAL PRINCIPAL PREMIUM INTEREST MAKING AUTHORIZED
DATE PAYMENT AMOUNT PAYMENT PAYMENT NOTATION OFFICER TITLE
--------- ------- ------- ------- ------- ------- ------- -------
[END OF FORM OF FULLY REGISTERED BOND]
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ARTICLE IV
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 IV.
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.
SECTION 3. For purposes of this Supplemental Indenture: (a) the Trustee may
conclusively rely and shall be protected in acting upon the written demand from,
or certificate of, the OWDA Trustee, the OAQDA Trustee or any officers'
certificate or opinion of counsel, as to the truth of the statements and the
correctness of the opinions expressed therein, without independent investigation
or verification thereof, subject to Article XIII of the Indenture; and (b) a
written demand from, or certificate of, the OWDA or OAQDA Trustee shall mean a
written demand or certificate executed by the president, any vice president or
any trust officer of the respective OWDA or OAQDA Trustee.
SECTION 4. The Company shall cause any agency of the Company, other than
the Trustee, which it may appoint from time to time to act as such agency in
respect of the Bonds of 2025-B Series or the Bonds of 2025-C Series, to execute
and deliver to the Trustee an instrument in which such agency shall:
(a) Agree to keep and maintain, and furnish to the Trustee from time
to time as reasonably requested by the Trustee, appropriate records of all
transactions carried out by it as such agency and to furnish the Trustee
such other information and reports as the Trustee may reasonably require;
(b) Certify that it is eligible for appointment as such agency and
agree to notify the Trustee promptly if it shall cease to be so eligible;
and
(c) Agree to indemnify the Trustee, in a manner satisfactory to the
Trustee, against any loss, liability or expense incurred by, and defend any
claim asserted against, the Trustee by reason of any acts or failures to
act as such agency, except for any liability
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35
resulting from any action taken by it at the specific direction of the
Trustee;
provided, however, that the Company, in lieu of causing any such agency to
furnish such an instrument, may make such other arrangements with the Trustee in
respect of any such agency as shall be satisfactory to the Trustee.
SECTION 5. The Trustee shall advise the Company in writing of the receipt
of any notification provided for in or any cancellation made pursuant to Section
10, 11 or 12 of either Article II or Article III of this Supplemental Indenture.
ARTICLE V
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 Secretary or an
Assistant Secretary, and said The Chase Manhattan Bank (National Association),
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 Corporate 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 Secretaries or Corporate Trust Officers, all as of the day
and year first above written.
41
S-1
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By XXXXXXXX X. XXXXXXX
----------------------------------
Vice President
Attest:
X. X. XXXXXX
-------------------------------
Secretary
Signed, sealed and acknowledged by
The Cleveland Electric Illuminating Company
in the presence of:
XXXXXXXX XXXXXX
------------------------------------------
Xxxxxxxx Xxxxxx
XXXXXX XXXXXX
------------------------------------------
Xxxxxx Xxxxxx
As witnesses
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
AS TRUSTEE
By XXXXXXX XXXXXX
-------------------------------------
Vice President
Attest:
XXXXXXXX XXXXX
-------------------------------
Corporate Trust Officer
Signed, sealed and acknowledged on
behalf of The Chase Manhattan Bank
(National Association)
in the presence of:
XXXXX XXXXXXX
------------------------------------------
Xxxxx Xxxxxxx
XXXXX X. XXXXXXXX
------------------------------------------
Xxxxx X. Xxxxxxxx
As witnesses
42
S-2
STATE OF OHIO SS:
COUNTY OF CUYAHOGA SS:
On this 4th day of August, 1995, before me personally appeared XXXXXXXX X.
XXXXXXX and X. X. XXXXXX to me personally known, who being by me severally duly
sworn, did say that they are a Vice President and the Secretary, respectively,
of The 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.
XXX X. XXXXXX
---------------------------------------------
Notary Public
Xxx X. XxXxxx
Notary Public, State of Ohio
Recorded in Cuyahoga County
My Commission expires October 23, 1999
STATE OF NEW YORK SS:
COUNTY OF NEW YORK SS:
On this 7th day of August, 1995, before me personally appeared XXXXXXX
XXXXXX and XXXXXXXX XXXXX to me personally known, who being by me severally duly
sworn, did say that they are a Vice President and a Corporate Trust Officer,
respectively, of The Chase Manhattan Bank (National Association), 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.
XXXXX XXXXX
---------------------------------------------
Notary Public
Xxxxx Xxxxx
Notary Public, State of New York
No. 01KE5032197
Qualified in Kings County
Commission Expires August 22, 1996
This instrument prepared by Xxxxx X. Xxxxxxxxx, attorney at law.
43
R-1
This page contains information as to recording and filing which was not set
forth in this Supplemental Indenture at the time of execution. This page is not
a part of this Supplemental Indenture.
RECORDING AND FILING DATA
This Supplemental Indenture was filed for record and recorded in the record
of mortgages in the offices of the Recorders of the following Counties:
COUNTY VOLUME PAGE FILED FOR RECORD
------------------------------- --------------- -------------------------
Ohio
Ashtabula 83 723 )
Cuyahoga 95-06732 19 )
Erie 234 768 )
Geauga 1,024 658 )
Lake 1,147 518 )
Lorain 172 994 )
Ottawa 460 177 ) August 16, 1995
Portage 46 119 )
Xxxxx Instrument No. 95037770 )
Summit 1,989 243 )
Trumbull 952 725 )
Pennsylvania )
Xxxxxx 621 177 )
Beaver 1,381 857 ) August 15, 1995
An amendment to a previously filed financing statement and a counterpart of
this Supplemental Indenture were filed in the office of the Secretary of the
Commonwealth of Pennsylvania on August 15, 1995 under original file number
13451763, microfilm number 24581786, to comply with the filing requirements of
the Pennsylvania enactment of the Uniform Commercial Code.
