Exhibit
4.1
OHIO
EDISON COMPANY
with
THE BANK
OF NEW YORK,
As Trustee
Seventy-ninth Supplemental
Indenture
Providing
among other things for
First
Mortgage Bonds
Pledge
Series A of 2005 due 2029
Pledge
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”), party of the first
part, 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, party of the second
part.
WHEREAS, the Company has
executed and delivered to Bankers Trust Company (hereinafter called
the “Old Trustee”), as trustee, a certain Indenture,
dated as of August 1, 1930, to secure an issue of 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; and the said Indenture has been supplemented by
seventy-eight supplemental indentures, which Indenture as so
supplemented and to be hereby supplemented is hereinafter referred
to as the “Indenture”;
WHEREAS, The Bank of New York
has succeeded the Old Trustee as trustee under the Indenture
(hereinafter called the “Trustee”) pursuant to Article
XVI thereof;
WHEREAS, the Indenture
provides for the issuance of bonds thereunder in one or more
series, the form of each series of bonds and of the coupons to be
attached to the coupon bonds, if any, to be substantially in the
forms set forth therein with such insertions, omissions and
variations as the Board of Directors of the Company may
determine;
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, in conjunction with
the issuance and sale of the Air Bonds, the Company has agreed to
issue to The Bank of New York, as Trustee under the Company’s
General Mortgage Indenture and Deed of Trust, dated as of January
1, 1998, as heretofore supplemented and as to be supplemented by a
Supplemental Indenture to be dated as of April 1, 2005 (as so
supplemented, the “General Mortgage”), a series of
bonds under the Indenture, to secure the issue of bonds (the
“Air Mortgage Bonds”) issued under the General Mortgage
to the Air Bond Trustee pursuant to the Air Bond Indenture, which
Air Mortgage Bonds are to be delivered to the Air Bond Trustee for
the benefit of the Air Bonds;
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, as the basis for the issuance of the Air
Mortgage Bonds, such new series of bonds consisting of $100,000,000
in aggregate principal amount to be designated as “First
Mortgage Bonds, Pledge Series A of 2005 due 2029”
(hereinafter referred to as the “bonds of Pledge Series A of
2005”), 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, in conjunction with
the issuance and sale of the Water Bonds, the Company has agreed to
issue to The Bank of New York, as Trustee under the General
Mortgage, a series of bonds under the Indenture, to secure the
issue of bonds (the “Water Mortgage Bonds” and together
with the Air Mortgage Bonds, the “Mortgage Bonds”)
issued under the General Mortgage to the Water Bond Trustee
pursuant to the Water Bond Indenture, which Water Mortgage Bonds
are to be delivered to the Water Bond Trustee for the benefit of
the Water Bonds;
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, as the basis for the issuance of the Water
Mortgage Bonds, such new series of bonds consisting of $6,450,000
in aggregate principal amount to be designated as “First
Mortgage Bonds, Pledge Series B of 2005 due 2029”
(hereinafter referred to as the “bonds of Pledge Series B of
2005”, together with the bonds of Pledge Series A of 2005,
the “bonds of 2005 Pledge Series”), which shall bear
interest upon the terms 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
Pledge Series A of 2005]
This Bond is not transferable
except to a successor trustee under the General Mortgage Indenture
and Deed of Trust, dated as of January 1, 1998, between the Company
and The Bank of New York, as Trustee, or in connection with the
exercise of the rights and remedies of the holder hereof consequent
upon a “default” as defined in the Indenture referred
to herein.
OHIO
EDISON COMPANY
First Mortgage
Bonds, Pledge 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 in the City of Akron,
Ohio, on April 1, 2029 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 offices or agencies to the
registered owner hereof, in like coin or currency, interest thereon
from the Initial Interest Accrual Date (hereinbelow defined) at the
rate per annum from time to time borne by the Mortgage Bonds,
Guarantee Series A of 2005 due 2029 (the “Mortgage
Bonds”) issued by the Company under the General Mortgage
Indenture and Deed of Trust, dated as of January 1, 1998, as
heretofore supplemented (the “General Mortgage”), by
the Company to The Bank of New York, as trustee, on each
April 1 and October 1 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. Payments of principal of and interest on
this bond shall be made at an office or agency of the Company in
the Borough of Manhattan, The City of New York, New York or in the
City of Akron, Ohio.
Payment of principal of, or
premium or interest on, the Mortgage Bonds shall, to the extent
thereof, be deemed to satisfy and discharge the obligation of the
Company, if any, to make a payment of principal, premium or
interest, as the case may be, in respect of this bond which is then
due.
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
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 signature or a facsimile
thereof, and its corporate seal to be printed hereon, attested by
its Corporate Secretary or an Assistant Corporate Secretary, by his
signature or a facsimile thereof.
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Dated:
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OHIO EDISON
COMPANY
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By:
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Title:
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Attest:
_________________________
Title:
[Form of
Trustee’s Authentication Certificate]
Trustee’s
Authentication Certificate
This bond is one of the bonds
of the series designated therein, described in the within-mentioned
Indenture.
[Reverse of Form
of Bond of Pledge Series A of 2005]
OHIO
EDISON COMPANY
First Mortgage
Bonds, Pledge 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 First Mortgage Bonds of the series designated in its
title, all issued and to be issued under and equally secured
(except as to any sinking fund established in accordance with the
provisions of the Indenture hereinafter mentioned for the bonds of
any particular series) by an Indenture, dated as of August 1, 1930,
executed by the Company to The Bank of New York, as Trustee (the
“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 Initial Interest Accrual
Date for the bonds of this series shall be the date that interest
begins to accrue on the Mortgage Bonds.
The Bonds of this series are
subject to mandatory redemption, in whole or in part, as the case
may be, on each date that the Mortgage Bonds are to be redeemed.
The principal amount of the Bonds of this series to be redeemed on
any such date shall be equal to the principal amount of Mortgage
Bonds called for redemption on that date. All redemption of Bonds
of this series shall be at 100 percent of the principal amount
thereof, plus accrued interest to the redemption date. The Bonds of
this series are not otherwise redeemable prior to their
maturity.
Notwithstanding the
foregoing, Bonds of this series shall be deemed to be paid and no
longer outstanding under the Indenture to the extent that Mortgage
Bonds are paid or deemed to be paid and are no longer
outstanding.
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 as the same shall
become due and payable (whether at stated maturity or by
declaration of acceleration, call for redemption or otherwise)
shall have been fully satisfied and discharged unless and until it
shall have received a written notice from the trustee under the
General Mortgage, signed by an authorized officer thereof, stating
that any such principal of or interest on the Mortgage Bonds has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
As more fully described in
the supplemental indenture establishing the terms and provisions of
the bonds of this series, the Company reserves the right, without
any consent or other action by holders of the bonds of this series,
to amend the Indenture to provide that (i) additional bonds may be
issued against 70% of the value of the property which forms the
basis for such issuance and (ii) the charge against property
subject to a prior lien which is used to effectuate the release of
property under the Indenture be similarly based.
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 of a
completed default as in the Indenture provided.
No recourse shall be had for
the payment of the principal of or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, either directly or
through the Company or a predecessor or successor corporation,
under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, 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 registered bonds without coupons in denominations
of $1,000 and, if higher, in multiples of $1.00. The Company and
the Trustee may deem and treat the person in whose name this bond
is registered as the absolute owner for the purpose of receiving
payment of or on account of the principal and interest due hereon
and for all other purposes. Registered bonds of this series shall
be exchangeable at said offices or agencies of the Company for
registered bonds of other authorized denominations having the same
aggregate principal amount, in the manner and upon the conditions
prescribed in the Indenture. Notwithstanding any provision of the
Indenture, (a) neither the Company nor the Trustee shall be
required to make transfers or exchanges of bonds of this series
during the period between any interest payment date for such series
and the record date next preceding such interest payment date, and
(b) no charge shall be made upon any transfer or exchange of bonds
of this series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
[end of form of
bond of Pledge Series A of 2005]
[Form of Bond of
Pledge Series B of 2005]
This Bond is not transferable
except to a successor trustee under the General Mortgage Indenture
and Deed of Trust, dated as of January 1, 1998, between the Company
and The Bank of New York, as Trustee, or in connection with the
exercise of the rights and remedies of the holder hereof consequent
upon a “default” as defined in the Indenture referred
to herein.
OHIO
EDISON COMPANY
First Mortgage
Bonds, Pledge Series B 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
