Exhibit
4.4
OHIO EDISON
COMPANY
with
THE BANK OF NEW
YORK,
Eleventh
Supplemental Indenture
Providing among
other things for
Mortgage
Bonds
Guarantee Series A
of 2005 due 2029
Guarantee Series B
of 2005 due 2029
Dated as of
April 1, 2005
SUPPLEMENTAL
INDENTURE , dated as of April 1,
2005, between Ohio Edison Company, a corporation organized and
existing under the laws of the State of Ohio (hereinafter called
the “Company”), and The Bank of New York, a
banking corporation organized and existing under the laws of the
State of New York, as Trustee under the Indenture hereinafter
referred to.
WHEREAS, the Company has
heretofore executed and delivered to The Bank of New York, as
Trustee (hereinafter called the “Trustee”), a certain
General Mortgage Indenture and Deed of Trust, dated as of January
1, 1998, to secure bonds of the Company, issued and to be issued in
series, from time to time, in the manner and subject to the
conditions set forth in the said Indenture, which Indenture as
heretofore and hereby supplemented is hereinafter referred to as
the “Indenture”; and
WHEREAS, the Company has
entered into an Air Quality Facilities Loan Agreement, dated as of
April 1, 2005 (the “Air Loan Agreement”), with the Ohio
Air Quality Development Authority (the “Air Authority”)
in connection with which the Air Authority will issue $100,000,000
aggregate principal amount of State of Ohio Pollution Control
Revenue Refunding Bonds, Series 2005-A (Ohio Edison Company
Project) (the “Air Bonds”) under a Trust Indenture,
dated as of April 1, 2005 (the “Air Bond Indenture”),
between the Air Authority and J.P. Morgan Trust Company, National
Association, as trustee (the “Air Bond Trustee”), in
order to provide funds to loan to the Company for the purpose of
refunding certain bonds previously issued by the Air Authority to
assist the Company in the financing of the cost of certain air
quality facilities;
WHEREAS, the Company, by
appropriate corporate action in conformity with the terms of the
Indenture, has duly determined to create a new series of bonds
under the Indenture to be delivered to the Air Bond Trustee for the
benefit of the Air Bonds, consisting of $100,000,000 in aggregate
principal amount to be designated as “Mortgage Bonds,
Guarantee Series A of 2005 due 2029” (hereinafter referred to
as the “bonds of Guarantee Series A”), which shall bear
interest at the rate per annum set forth in, shall be subject to
certain redemption rights and obligations set forth in, and will
otherwise be in the form and have the terms and provisions provided
for in this Supplemental Indenture and set forth in the form of
such bond below;
WHEREAS, the Company has
entered into a Waste Water Facilities Loan Agreement, dated as of
April 1, 2005 (the “Water Loan Agreement”, together
with the Air Loan Agreement, the “Loan Agreements”),
with the Ohio Water Development Authority (the “Water
Authority”) in connection with which the Water Authority will
issue $6,450,000 aggregate principal amount of State of Ohio
Pollution Control Revenue Refunding Bonds Series 2005-A (Ohio
Edison Company Project) (the “Water Bonds”, together
with the Air Bonds, the “Revenue Bonds”) under a Trust
Indenture, dated as of April 1, 2005 (the “Water Bond
Indenture”, together with the Air Bond Indenture, the
“Revenue Bond Indentures”), between the Water Authority
and J.P. Morgan Trust Company, National Association, as trustee
(the “Water Bond Trustee”), in order to provide funds
to loan to the Company for the purpose of refunding certain bonds
previously issued by the Water Authority to assist the Company in
the financing of the cost of certain waste water
facilities;
WHEREAS, the Company, by
appropriate corporate action in conformity with the terms of the
Indenture, has duly determined to create a new series of bonds
under the Indenture to be delivered to the Water Bond Trustee for
the benefit of the Water Bonds, consisting of $6,450,000 in
aggregate principal amount to be designated as “Mortgage
Bonds, Guarantee Series B of 2005 due 2029” (hereinafter
referred to as the “bonds of Guarantee Series B”,
together with the bonds of Guarantee Series A, the “bonds of
the 2005 Guarantee Series”), which shall bear interest at the
rate per annum set forth in, shall be subject to certain redemption
rights and obligations set forth in, and will otherwise be in the
form and have the terms and provisions provided for in this
Supplemental Indenture and set forth in the form of such bond
below:
[Form of Bond of
Guarantee Series A]
This bond is not transferable
except (i) to a successor trustee under the Trust Indenture dated
as of April 1, 2005 between the Ohio Air Quality Development
Authority and J.P. Morgan Trust Company, National Association, as
successor trustee, (ii) in connection with the exercise of the
rights and remedies of the holder hereof consequent upon an
“Event of Default” as defined in the Indenture referred
to herein or (iii) in compliance with a final order of a court of
competent jurisdiction or in connection with any bankruptcy or
reorganization proceeding of the Company.
OHIO
EDISON COMPANY
Mortgage Bond,
Guarantee Series A of 2005 due 2029
Due April
1, 2029
$_________________
No. ____
Ohio Edison Company, a
corporation of the State of Ohio (hereinafter called the Company),
for value received, hereby promises to pay to
, or registered assigns, _____________ dollars at an office or
agency of the Company in the Borough of Manhattan, The City of New
York, New York or the City of Akron, Ohio, on ____________ in
any coin or currency of the United States of America which at the
time of payment is legal tender for public and private debts, and
to pay at said office or agency to the registered owner hereof, in
like coin or currency, interest thereon from the Initial Interest
Accrual Date (hereinafter defined) at the Revenue Bond Interest
Rate (hereinafter defined) per annum payable semi-annually on
April 1 and October 1 in each year commencing on the
April 1 or October 1 immediately succeeding the Initial
Interest Accrual Date (each such date herein referred to as an
“interest payment date”) on and until maturity, or, in
the case of any bonds of this series duly called for redemption, on
and until the redemption date, or in the case of any default by the
Company in the payment of the principal due on any bonds of this
series, until the Company’s obligation with respect to the
payment of the principal shall be discharged as provided in the
Indenture referred to on the reverse hereof.
The provisions of this bond
are continued on the reverse-hereof and such continued provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This bond shall not become
valid or obligatory until The Bank of New York, the Trustee under
the Indenture referred to on the reverse hereof, or its successor
thereunder, shall have authenticated the form of certificate
endorsed hereon.
IN WITNESS WHEREOF, Ohio
Edison Company has caused this bond to be signed in its name by its
President or a Vice President, by his or her signature or a
facsimile thereof, and its corporate seal to be affixed hereto or
reproduced hereon, attested by its Corporate Secretary or an
Assistant Corporate Secretary, by his or her signature or a
facsimile thereof.
Dated:
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OHIO EDISON
COMPANY
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By:
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Title:
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[Form of
Trustee’s Authentication Certificate]
Trustee’s
Authentication Certificate
This is one of the bonds of
the series designated therein referred to in the within-mentioned
Indenture.
[Reverse of Form
of Bond of Guarantee Series A]
OHIO
EDISON COMPANY
Mortgage Bond,
Guarantee Series A of 2005 due 2029
This bond is one of an issue
of bonds of the Company, issuable in series, and is one of a series
known as its Mortgage Bonds of the series designated in its title,
all issued and to be issued under and equally secured (except as to
any money, obligations or other instruments, or earnings thereon,
deposited with the Trustee in accordance with the provisions of the
Indenture hereinafter mentioned for the bonds of any particular
series) by a General Mortgage Indenture and Deed of Trust, dated as
of January 1, 1998, executed by the Company to The Bank of New
York, as Trustee, as amended and supplemented by indentures
supplemental thereto to which Indenture as so amended and
supplemented (herein referred to as the “Indenture”)
reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the
holders of the bonds in respect thereof and the terms and
conditions upon which the bonds are secured.
The bonds of this series
shall be redeemed in whole, by payment of the principal amount
thereof plus accrued interest thereon, if any, to the date fixed
for redemption, upon receipt by the Trustee of a written advice
from the trustee under the Trust Indenture (the “Revenue Bond
Indenture”) dated as of April 1, 2005, between the Ohio
Air Quality Development Authority and J.P. Morgan Trust Company,
National Association, as successor trustee (such trustee and any
successor trustee being hereinafter referred to as the
“Revenue Bond Trustee”), securing $100,000,000 of State
of Ohio Pollution Control Revenue Refunding Bonds, Series 2005-A
(Ohio Edison Company Project) issued on behalf of the Company (the
“Revenue Bonds”), stating that the principal amount of
all the Revenue Bonds then outstanding under the Revenue Bond
Indenture has been declared due and payable pursuant to the
provisions of Section 11.02 of the Revenue Bond Indenture,
specifying the date of the accelerated maturity of such Revenue
Bonds and the date from which interest on the Revenue Bonds issued
under the Revenue Bond Indenture has then accrued and is unpaid
(specifying the rate or rates of such accrual and the principal
amount of the particular Revenue Bonds to which such rates apply),
stating such declaration of maturity has not been annulled and
demanding payment of the principal amount hereof plus accrued
interest hereon to the date fixed for such redemption. The date
fixed for such redemption shall not be earlier than the date
specified in the aforesaid written advice as the date of the
accelerated maturity of the Revenue Bonds then outstanding under
the Revenue Bond Indenture and not later than the 45 th
day after receipt by the Trustee of such advice, unless such 45
th day is earlier than such date of accelerated
maturity. The date fixed for such redemption shall be specified by
the Revenue Bond Trustee in a notice of redemption to be given by
the Trustee not less than 30 days prior to the date so fixed for
such redemption. Upon mailing of such notice of redemption, the
date from which unpaid interest on the Revenue Bonds has then
accrued (as specified by the Revenue Bond Trustee) shall become the
initial interest accrual date (the “Initial Interest Accrual
Date”) with respect to the bonds of this series; provided,
however, on any demand for payment of the principal amount hereof
at maturity as a result of the principal of the Revenue Bonds
becoming due and payable on the maturity date of the bonds of this
series, the earliest date from which unpaid interest on the Revenue
Bonds has then accrued shall become the Initial Interest Accrual
Date with respect to the bonds of this series, such date, together
with each other different date from which unpaid interest on the
Revenue Bonds has then accrued, as to be stated in a written notice
from the Revenue Bond Trustee to the Trustee, which notice shall
also specify the rate or rates of such accrual and the principal
amount of the particular Revenue Bonds to which such rate or rates
apply. The aforementioned notice of redemption shall become null
and void for all purposes under the Indenture, (including the
fixing of the Initial Interest Accrual Date with respect to the
bonds of this series) upon receipt by the Trustee of written notice
from the Revenue Bond Trustee of the annulment of the acceleration
of the maturity of the Revenue Bonds then outstanding under the
Revenue Bond Indenture and the rescission of the aforesaid written
advice prior to the redemption date specified in such notice of
redemption, and thereupon no redemption of the bonds of this series
and no payment in respect thereof as specified in such notice of
redemption shall be effected or required. But no such rescission
shall extend to any subsequent written advice from the Revenue Bond
Trustee or impair any right consequent on such subsequent written
advice.
Bonds of this series are not
otherwise redeemable prior to their maturity.
The “Revenue Bond
Interest Rate” shall be the same rate of interest per annum
as is borne by the Revenue Bonds; provided, however, that if there
are different rates of interest borne by the Revenue Bonds, or if
interest is required to be paid on the Revenue Bonds more
frequently than on each April 1 or October 1, the Revenue
Bond Interest Rate shall be the rate that results in the total
amount of interest payable on an interest payment date, a
redemption date or at maturity, as the case may be, or at any other
time interest on this bond is due and payable, to be equal to the
total amount of unpaid interest that has accrued on all then
outstanding Revenue Bonds.
The principal hereof may be
declared or may become due on the conditions, in the manner and at
the time set forth in the Indenture upon the occurrence and
continuance of an Event of Default (as defined in the Indenture) as
in the Indenture provided.
Bonds of this series shall be
deemed to be paid and no longer outstanding under the Indenture to
the extent the aggregate principal amount of bonds of this series
exceeds the aggregate principal amount of the Revenue Bonds
outstanding from time to time. The Trustee may rely on an
Officer’s Certificate (as defined in the Indenture) to this
effect.
Unless and until the Trustee
shall have received from the Revenue Bond Trustee any such
aforesaid written advice stating that the principal amount of all
Revenue Bonds then outstanding under the Revenue Bond Indenture has
been declared due and payable or any demand for payment of the
principal amount hereof at maturity as a result of the principal of
the Revenue Bonds becoming due and payable on the maturity date of
the bonds of this series, the Trustee may conclusively presume that
the obligation of the Company to pay the principal of, and
interest, if any, on the bonds of this series shall have been fully
satisfied and discharged.
From and after the Release
Date (as defined in the Revenue Bond Indenture), the bonds of this
series shall be deemed fully paid, satisfied and discharged and the
obligation of the Company thereunder shall be terminated. On the
Release Date or promptly following, the bonds of this series shall
be surrendered to and canceled by the Trustee.
No recourse shall be had for
the payment of the principal of or premium, or interest if any, on
this bond, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement under the
Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any
predecessor or successor corporation, either directly or through
the Company or a predecessor or successor corporation, whether by
virtue of any Constitutional provision, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all
such liability of incorporators, stockholders, officers and
directors being released by the registered owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Indenture.
The bonds of this series are
issuable only as a single registered bond without coupons in a
denomination equal to the agg
