EXHIBIT 4.1.85
THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY
TO
JPMORGAN CHASE BANK
(formerly known as THE CHASE MANHATTAN BANK),
(successor to Morgan Guaranty Trust Company of New York,
formerly Guaranty Trust Company of New York)
as Trustee under
The Cleveland Electric Illuminating Company’s Mortgage
and Deed of Trust, Dated July 1, 1940
Eighty-fifth Supplemental Indenture
Dated as of September 1, 2004
First Mortgage Bonds, Pledge Series A of
2004 due 2033
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Eighty-fifth
Supplemental Indenture, dated as of September 1, 2004, made by
and between THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, a
corporation organized and existing under the laws of the State of
Ohio (the “Company”), and JPMORGAN CHASE BANK (formerly
known as THE CHASE MANHATTAN BANK), successor by merger to The
Chase Manhattan Bank (National Association), which in turn was
successor to Morgan Guaranty Trust Company of New York, formerly
Guaranty Trust Company of New York), a corporation organized and
existing under the laws of the State of New York (the
“Trustee”), as Trustee under the Mortgage and Deed of
Trust dated July 1, 1940, hereinafter mentioned:
RECITALS
In
order to secure First Mortgage Bonds of the Company
(“Bonds”), the Company has heretofore executed and
delivered to the Trustee the Mortgage and Deed of Trust dated
July 1, 1940 (the “1940 Mortgage”) and eighty-four
Supplemental Indentures thereto; and
The
1940 Mortgage, as supplemented and modified by said Supplemental
Indentures and by this Eighty-fifth Supplemental Indenture, will be
hereinafter collectively referred to as the “Indenture”
and this Eighty-fifth Supplemental Indenture will be hereinafter
referred to as “this Supplemental Indenture”;
and
The
Indenture provides among other things that the Company, from time
to time, in addition to the Bonds authorized to be executed,
authenticated and delivered pursuant to other provisions therein,
may execute and deliver additional Bonds to the Trustee and the
Trustee shall thereupon authenticate and deliver such Bonds to or
upon the order of the Company; and
The
Company has determined to create pursuant to the provisions of the
Indenture a new series of first mortgage bonds (the “Pledge
Bonds”) to be pledged as security for the payment of certain
obligations undertaken by the Company in connection with the
issuance by the Ohio Water Development Authority (the
“Authority”) of $46,100,000 aggregate principal amount
of State of Ohio Pollution Control Revenue Refunding Bonds,
Series 2004-A (The Cleveland Electric Illuminating Company
Project) (the “Revenue Bonds”), with such first
mortgage bonds to have the denominations, rates of interest, date
of maturity, redemption provisions and other provisions and
agreements in respect thereof as in this Supplemental Indenture set
forth; and
The
Pledge Bonds are to be limited in aggregate principal amount to
$46,100,000 and are to be delivered to J.P. Morgan Trust Company,
National Association, as trustee (hereinafter called the
“Revenue Bond Trustee”) under the Trust Indenture (the
“Revenue Bond Indenture”) dated as of September 1,
2004 between the Authority and the Revenue Bond 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 its 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, July 15, 1995,
August 1, 1995, June 15, 1997, August 1, 1997,
October 15, 1997, June 1, 1998 and October 1, 1998,
October 1, 1998, April 1, 1999, June 30, 1999,
January 15, 2000, May 15, 2002 and October 1, 2002,
respectively, are hereby in all respects confirmed.
ARTICLE II
CREATION, PROVISIONS, REDEMPTION,
PRINCIPAL AMOUNT AND FORM OF PLEDGE BONDS
Section 2.01
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, Pledge Series A of 2004 due 2033” of the
Company and hereinabove and hereinafter called the “Pledge
Bonds.” The Pledge Bonds 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 2.02
The Pledge Bonds shall be issued as fully registered Bonds only,
without coupons, in the denominations of $1,000 and any integral
multiple thereof.
Section 2.03
The Pledge Bonds shall be dated the date of authentication, shall
mature on September 1, 2033, and shall bear interest 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 Pledge Bonds to equal the amount of
interest payable on the Revenue Bonds, such interest to be payable
on September 1 and March 1 in each year commencing on the September
1 or March 1 next succeeding the Initial Interest Accrual Date (as
defined in the form of Pledge Bond hereinafter set forth) (each
such date hereinafter called an “interest payment
date”) on and until maturity, or, in the case of any such
Pledge Bonds duly called for redemption, on and until the
redemption date, or in the case of any default by the Company in
the payment of the principal due on any such Pledge Bonds, until
the Company’s obligation with respect to the payment of the
principal shall be discharged as provided in the
Indenture.
The
Pledge Bonds shall be payable as to principal and interest at the
agency of the Company in the Borough of Manhattan, The City of New
York or the City of Akron, State of Ohio, 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.
Except as
hereinafter provided, each Pledge Bond shall bear interest from the
Initial Interest Accrual Date (as defined in the form of Pledge
Bond hereinafter set forth) until the principal of such Pledge Bond
is paid or duly provided for.
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The
interest payable on any interest payment date shall be paid to the
respective persons in whose names the Pledge Bonds shall be
registered at the close of business on the record date therefore,
which shall be the 15 th day 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
(other than an interest payment date that is a redemption date or
maturity date), such defaulted interest shall be paid to the
respective persons in whose names such outstanding Pledge Bonds 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 Pledge Bonds not less
than 10 days next preceding such Subsequent Record Date. If
any interest payment date should fall on a day that is not a
business day, then such interest payment date shall be the next
succeeding business day.
The
interest rate on the Pledge Bonds shall be the same rate of
interest per annum as is borne by the Revenue Bonds; provided,
however, that if there are different rates of interest borne by the
Revenue Bonds, or if interest is required to be paid on the Revenue
Bonds more frequently than on each September 1 or March 1, the
interest rate on the Pledge Bonds shall be the rate that results in
the total amount of interest payable on an interest payment date, a
redemption date or at maturity, as the case may be, or at any other
time interest on the Pledge Bonds is due and payable, to be equal
to the total amount of unpaid interest that has accrued on all then
outstanding Revenue Bonds.
Section 2.04
In the manner and subject to the limitations provided in the
Indenture, Pledge Bonds may be exchanged for a like aggregate
principal amount of Pledge Bonds 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
office or agency of the Company in the Borough of Manhattan, The
City of New York or the City of Akron, State of Ohio.
Except as
otherwise provided in Section 2.03 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 Pledge Bond is registered as the absolute owner
thereof for the purpose of receiving any payment and for all other
purposes.
Section 2.05
The Pledge Bonds shall be redeemable only to the extent provided in
this Article II, subject to the provisions contained in
Article VI of the Indenture and the form of Pledge Bond
hereinafter set forth.
Section 2.06
Subject to the applicable provisions of the Indenture, written
notice of redemption of Pledge Bonds pursuant to this Supplemental
Indenture shall be given by the Trustee by mailing to each
registered owner of such Pledge 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 Pledge Bonds. Any notice of
redemption shall be mailed at least thirty (30) days, but no
more than sixty (60) days, prior to the redemption
date.
Section 2.07
If and when the principal of any Revenue Bonds shall be paid (other
than by the application of the proceeds of any payment by the Bond
Insurer (as defined in the Revenue Bond Indenture) under the Policy
(as defined in the Revenue Bond Indenture)), then there shall be
deemed to have been paid a principal amount of the Pledge Bonds
then outstanding which bears the same ratio to the aggregate
principal amount of Pledge Bonds then outstanding as the principal
amount of the Revenue Bonds so paid bears to the aggregate
principal amount of the Revenue Bonds outstanding immediately
before such payment; provided, however, that such payment of Pledge
Bonds shall be deemed to have been made only when and to the extent
that notice of such payment of the principal amount of such Revenue
Bonds shall have been given by the Company to the Trustee. The
Trustee may rely upon any such notification by the Company that
such payment of Revenue Bonds has been so made.
Section 2.08
The Pledge Bonds 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
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the redemption date, as stated in
the form of the Pledge Bond hereinafter set forth. The Pledge Bonds
shall not otherwise be subject to redemption by the Company prior
to maturity.
Section 2.09
From and after the Release Date (as defined in the Revenue Bond
Indenture), all Pledge Bonds shall be deemed fully paid, satisfied
and discharged and all obligations of the Company thereunder shall
be terminated. Upon notification of the occurrence of the Release
Date from the Company or the Trustee, each holder of Pledge Bonds
shall surrender such Pledge Bonds to the Trustee for cancellation,
whereupon the Trustee shall cancel the same.
Section 2.10
Pledge Bonds shall not be transferable except (i) to a
successor to the Revenue Bond Trustee under the Revenue Bond
Indenture, (ii) in connection with the exercise of the rights
and remedies of the holder thereof consequent upon an event of
default as defined in the Indenture, or (iii) as may be
necessary to comply with a final order of a court of competent
jurisdiction in connection with any bankruptcy or reorganization
proceeding of the Company.
Section 2.11
The aggregate principal amount of Pledge Bonds which may be
authenticated and delivered hereunder shall not exceed $46,100,000,
except as otherwise provided in the Indenture.
Section 2.12
The form of the fully registered Pledge Bonds, and of the
Trustee’s certificate of aut
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